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Staff Report & Docs - Autumn Creek Preliminary Plat and ZoningDevelopment Services Department 201 1st Avenue East Kalispell, MT 59901 Phone: (406) 758-7940 Fax: (406) 758-7739 www.kalispell.com/planning REPORT TO: Doug Russell, City Manager FROM: PJ Sorensen, Senior Planner SUBJECT: KZC-20-02 — Autumn Creek Zone Change and KPP-20-04— Autumn Creek Preliminary Plat MEETING DATE: January 4, 2021 BACKGROUND: JAG Capital Investments, LLC, has submitted requests for a zone change from R-2 (Residential) to R-4 (Residential) and for major preliminary plat approval for Autumn Creek subdivision which has a total of 28 residential lots/sublots on approximately 8.41 acres of land, including 1.14 acres of parkland and 1.89 acres of open space. The property is located on Hathaway Lane north of Highway 2 West, and can be described as Assessor's Lots 6AAK, 6DI and 6AB in the Southwest Quarter of Section 12, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana. The Kalispell Planning Board held a duly noticed public hearing on December 15, 2020, to consider the zone change and preliminary plat requests. Staff presented staff report KZC-20-02 and KPP-20- 04 providing details of the proposal and evaluation. Staff recommended that the Planning Board adopt the staff report as findings of fact, and recommend to the Council that (1) the zone change request be granted; and (2) that the preliminary plat, including a variance request, be granted subject to 34 listed conditions. Two public comments were received, including from the applicant's representative, at the hearing in addition to written comments submitted to the Planning Board prior to the meeting. The public hearing was closed, and a motion was presented to adopt staff report KZC-20-02 as findings of fact and recommend to the Kalispell City Council that the zone change request be granted. Board discussion concluded that the request was appropriate, and the motion was approved on a unanimous vote. Following that motion, a second motion was presented to adopt staff report KPP-20-04 as findings of fact and recommend to the Kalispell City Council that the preliminary plat be approved, including the variance request, subject to the 34 conditions. A motion to amend was made and seconded to change condition 12 to read "A driveway access off of Summer Place shall be provided for the property to the north, which would be available for them to use if they so choose." The motion to amend was passed unanimously. Board discussion concluded that the request was appropriate, and the main motion as amended was approved on a unanimous vote. RECOMMENDATION: It is recommended that the Kalispell City Council approve the first reading of Ordinance 1852, an Ordinance to amend Section 27.02.010, official zoning map, City of Kalispell Zoning Ordinance 1677, by rezoning certain real property described as Assessor's Lots 6AAK, 6DI and 6AB in the Southwest Quarter of Section 12, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana, to City R-4 (Residential) in accordance with the Kalispell Growth Policy Plan — It 2035, and to provide an effective date. It is also recommended that the Kalispell City Council approve Resolution 6010, a resolution approving a request from JAG Capital Investments, LLC, for preliminary plat approval for Autumn Creek subdivision, a major subdivision preliminary plat consisting of approximately 8.41 acres of land with 34 conditions of approval, including a variance request, located on Hathaway Lane north of Highway 2 West, and can be described as Assessor's Lots 6AAK, 6DI and 6AB in the Southwest Quarter of Section 12, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana FISCAL EFFECTS: There are no anticipated fiscal impacts at this time. ALTERNATIVES: Deny the request. ATTACHMENTS: Ordinance 1852 Resolution 6010 December 15, 2020, Kalispell Planning Board Minutes Staff Report (Amended) Application Materials & Maps Public Comment Aimee Brunckhorst, Kalispell City Clerk KALISPELL CITY PLANNING BOARD & ZONING COMMISSION MINUTES OF REGULAR MEETING December 15, 2020 CALL TO ORDER AND ROLL The regular meeting of the Kalispell City Planning Board and Zoning CALL Commission was called to order at 6:00 p.m. Board members present were Chad Graham, Doug Kauffman, Kurt Vomfell, Rory Young, George Giavasis, Joshua Borgardt and Ronalee Skees via Zoom. PJ Sorensen and Jarod Nygren represented the Kalispell Planning Department. APPROVAL OF MINUTES Vomfell moved and Kauffman seconded a motion to approve the minutes of the October 13, 2020 meeting of the Kalispell City Planning Board and Zoning Commission. VOTE BY ACCLAMATION The motion passed unanimously on a vote of acclamation. HEAR THE PUBLIC None. BOARD MEMBER SEATED Young recused himself from KCU-20-06, KZC-20-02 and KPP-20-04, he is a representative for the applicants. KZC-20-06 — NORTHWEST A request from Northwestern Energy for a conditional use permit to ENERGY CUP allow the expansion of an existing non -conforming use at 890 North Meridian Road. The property is in a B-1 (Neighborhood Business) zone, and utility storage yards with associated offices are not currently an allowed use within that zone. Expansions of up to a cumulative increase of 50% are allowed with a conditional use permit. The proposal would add approximately 5305 square feet to the existing 13,975 square foot building. STAFF REPORT PJ Sorensen representing the Kalispell Planning Department reviewed Staff Report #KCU-20-06. Staff recommends that the Kalispell City Planning Board and Zoning Commission adopt Staff Report # KCU-20-06 as findings of fact and recommend to the Kalispell City Council that the conditional use permit be approved subject to the conditions listed in the staff report. BOARD DISCUSSION Vomfell asked what the existing non -conforming use is. Sorensen advised a utility storage yard. PUBLIC HEARING None. MOTION Vomfell moved and Kauffman seconded a motion that the Kalispell City Planning Board and Zoning Commission adopt Staff Report #KCU-20-06 as findings of fact and recommend to the Kalispell City Council that the conditional use permit be approved subject to the conditions listed in the staff report. BOARD DISCUSSION None. ROLL CALL Motion passed unanimously on a roll call vote. Kalispell City Planning Board Minutes of the meeting of December 15, 2020 Pagel BOARD MEMBER SEATED Kauffman recused himself from KZC-20-02 & KPP-20-04, he is a representative for the applicant. KZC-20-02 AUTUMN CREEK A request from JAG Capital Investments, LLC for a zone change from ZONE CHANGE R-2 (Residential) to R-4 (Residential) and major preliminary plat KPP-20-04 — AUTUMN CREEK approval for Autumn Creek subdivision, with a total of 28 residential PRELIMINARY PLAT lots/sublots on approximately 8.41 acres of land, including 1.14 acres of parkland and 1.89 acres of open space. STAFF REPORT PJ Sorensen representing the Kalispell Planning Department reviewed Staff Report # KZC-20-02 & #KPP-20-04. Staff recommends that the Kalispell City Planning Board and Zoning Commission adopt Staff Report #KZC-20-02 as findings of fact and recommend to the Kalispell City Council that the subject property currently zoned R-2 (Residential) be rezoned to R-4 (Residential). Staff recommends that the Kalispell City Planning Board and Zoning Commission adopt staff report #KPP-20-04 as findings of fact and recommend to the Kalispell City Council that the preliminary plat for Autumn Creek, including the variance request, be approved subject to the conditions listed in the staff report. BOARD DISCUSSION Board discussed condition 412 regarding the driveway that is not a part of the subject property and whether public comment has been received from the owner of the property. Sorensen advised they had not. Giavasis inquired about future road stub outs as opposed to cul-de-sacs. Staff advised there is no logical place for future roads off the subdivision. Skees asked staff to clarify condition 910 regarding the required upgrade with sidewalks, trees, etc. in front of the subject property in response to several public comments received via email. PUBLIC HEARING Doug Peppmeier with TDH Engineering, representative for the owner, offered to answer any questions the board had. Graham asked if they had talked to the property owner of the driveway mentioned in condition #12. Peppmeier advised they had not but will as soon as they have an approved subdivision. MOTION (KZC-20-02) Giavasis moved and Vomfell seconded a motion that the Kalispell City Planning Board and Zoning Commission adopt Staff Report #KZC-20- 02 as findings of fact and recommend to the Kalispell City Council that the subject property currently zoned R-2 (Residential) be rezoned to R-4 (Residential). BOARD DISCUSSION None. ROLL CALL Motion passed unanimously on a roll call vote. MOTION (KPP-20-04) Vomfell moved and Borgardt seconded a motion that the Kalispell City Planning Board and Zoning Commission adopt staff report #KPP-20-04 as findings of fact and recommend to the Kalispell City Council that the preliminary plat for Autumn Creek, including the variance request, be Kalispell City Planning Board Minutes of the meeting of December 15, 2020 Page 12 approved subject to the conditions listed in the staff report. BOARD DISCUSSION Board discussed condition 912, they are concerned that the existing verbiage will prevent the developer from proceeding with the project if the property owner of the driveway does not want anything changed. MOTION (AMEND CONDITION Vomfell moved and Skees seconded a motion to amend condition #12 to #12 OF KPP-20-04) state: A driveway access off Summer Place shall be provided for the property to the north, which would be available for them to use if they so choose. BOARD DISCUSSION None. ROLL CALL (CONDITION #12) Motion passed unanimously on a roll call vote. ROLL CALL (KPP-20-04 — Motion passed unanimously on a roll call vote. ORIGINAL) KZTA-20-02 — ADU'S A request from the City of Kalispell for a zoning text amendment addressing accessory dwelling units ("ADUs"), which are second dwelling units on a property. The proposed amendment would allow a separate ADU as a permitted use on a lot in zones that allow duplexes (R-4, R-5, RA-1, RA-2, and H-1) in addition to those zones which already allow them. STAFF REPORT PJ Sorensen representing the Kalispell Planning Department reviewed Staff Report #KZTA-20-02. Staff recommends that the Kalispell City Planning Board adopt the findings in staff report KZTA-20-02 and recommend to the Kalispell City Council that the proposed amendment be adopted as provided herein. BOARD DISCUSSION Giavasis asked staff for clarification about the requirement of separate services on detached structures vs sharing on an attached structure. Staff advised it is a DEQ requirement and that we follow the state laws. PUBLIC HEARING None. MOTION Vomfell moved and Giavasis seconded a motion that the Kalispell City Planning Board and Zoning Commission adopt Staff Report #KZTA-20- 02 as findings of fact and recommend to the Kalispell City Council that the proposed amendment be adopted as provided herein. BOARD DISCUSSION Board discussed their approval of the amendment. Graham, however, feels it is another vehicle to add density in a negative way and will change the fabric in a lot of the neighborhoods. ROLL CALL Motion passed on a 6-1 roll call vote. Chad Graham is opposed to the text amendment. OLD BUSINESS Nygren updated the board on the Pedestrian/Bike plan and Transportation Plan. Kalispell City Planning Board Minutes of the meeting of December 15, 2020 Page13 NEW BUSINESS Nygren updated the board on the January 12' agenda and the status of the Historic Design Standards. ADJOURNMENT The meeting adjourned at approximately 7:24pm. Chad Graham President APPROVED as submitted/amended: Kari Barnhart Recording Secretary Kalispell City Planning Board Minutes of the meeting of December 15, 2020 Page 14 AUTUMN CREEK- AMENDED REPORT AND CONDITIONS REQUEST FOR ZONE CHANGE FROM R-2 TO R-4 AND PRELIMINARY PLAT FOR MAJOR SUBDIVISION STAFF REPORTS #KZC-20-02 AND #KPP-20-04 KALISPELL PLANNING DEPARTMENT DECEMBER 2, 2020 A report to the Kalispell City Planning Board and the Kalispell City Council regarding a request from JAG Capital Investments, LLC for a zone change from R-2 (Residential) to R-4 (Residential) and for major preliminary plat approval of Autumn Creek on a total of 8.41 acres. A public hearing has been scheduled before the Planning Board for December 15, 2020, beginning at 6:00 PM in the Kalispell City Council Chambers. The Planning Board will forward a recommendation to the Kalispell City Council for final action. BACKGROUND INFORMATION A request from JAG Capital Investments, LLC for a zone change from R-2 (Residential) to R-4 (Residential) and major preliminary plat approval for Autumn Creek subdivision, with a total of 28 residential lots/sublots on approximately 8.41 acres of land, including 1.14 acres of parkland and 1.89 acres of open space. The property was annexed in 2006 with a preliminary plat approval for 20 lots. However, the subdivision was not developed and the plat expired. A: Applicant: JAG Capital Investments, LLC 175 Hutton Ranch Road, Ste 103 Kalispell, MT 59901 Technical Assistance: TD&H Engineering 450 Corporate Dr, Ste 101 Kalispell, MT 59901 B: Location: The property is located on Hathaway Lane north of Highway 2 West, and can be described as Assessor's Lots 6AAK, 6DI and 6AB in the SW 1/4 of Section 12, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana. C: Existing Land Use and Zoning: The zoning of the subject property is R-2 (Residential) and it is currently vacant. The R-2 zone is "intended to provide adequate lot areas for lower density residential development; should have good thoroughfare access, and be in proximity to community and neighborhood facilities, i.e. schools, parks, shopping areas, etc. This development will normally require all public utilities. This zoning district would typically be found in areas designated as suburban residential on the Kalispell Growth Policy Future Land Use Map." D: Proposed Zoning: The proposed zoning for the property is R-4 (Residential), which is a district "comprised of primarily single-family and duplex dwellings. Development within the district will require all public utilities, and all community facilities. This district would typically be found in areas designated as urban residential on the Kalispell Growth Policy Future Land Use Map." A Kalisperl Zoning Exhibit - November 12th, 2020 NORTH Autumn Creek 6AB 6AAK & 61311 O SLID PmPQ'rti Zoning negroanom eur�ne� LwX a Heavy n NEMI - HeaM care ¢ off Re9tlentLa4Prc9eSclarral amue R-4 Tka Farnly Reeltlenllal x mumtamiry Re6l7ErMal � 3eatlerHLal.ipartnen4U1Ikr e w � -Ib 0 I COLD RA-1 Subject `'F� Illll Property B-2 l s Co Da1E: NDV. 12rh, 2020 Kalispell Planning Dept. RePath: JU020',Autum KALISPEL a `-cc ren E. Size: The subj ect property approximately 8.41 acres. F: Adjacent Zoning: North: County R-1 East: City RA-1 South: County R-1 West: County R-1 G: Adjacent Land Uses: North: Single-family and vacant East: Hwy 93 Bypass South: Single-family West: Single-family is 2 H: General Land Use Character: The property borders the Highway 93 Bypass, which lies to the east. Most of the immediate area consists of single-family residential homes on larger size county tracts. There is some commercial property to the south along the highway. Across the bypass are urban scale residential developments and offices. L• Availability of Public Services and Extension of Services: The property is currently located within the City of Kalispell and all services are available to the property. The subdivision will require extensions of water and sewer services. It is anticipated that water will extend underneath the bypass from the Greenbriar subdivision and that sewer will connect from the south along Highway 2. Sewer: City of Kalispell Water: City of Kalispell Refuse: City of Kalispell Electricity: Flathead Electric Cooperative Gas: NorthWestern Energy Telephone: CenturyTel Schools: School District 95 Peterson Elementary/Glacier High School Fire: City of Kalispell Police: City of Kalispell J. Public Comment: One written comment was received, which is included with materials attached to this report. 3 ZONE CHANGE EVALUATION BASED ON STATUTORY CRITERIA This report evaluates the zoning map amendment request in accordance with state and local regulations. The statutory basis for reviewing a change in zoning is set forth by Section 27.29.020 of the Kalispell Zoning Ordinance and 76-2-303 M.C.A. Findings of Fact for the zone change request are discussed relative to the itemized criteria described by 76-2-304, M.C.A. The subject property is currently zoned city R-2. The applicant is requesting city R-4. A Kalispell Growth Policy Exhibit - November 12th, 2020 Hamm Autumn Creek 6AB, 6AAK & 6DI ® Subject Property — tt - Gommerdal � a Neighborhhod Commercial i - Industrial w - urban Mixed use _ - High Density Residential Urban Residential Urba esidential Suburban Residential — Gity Aiport-Gw. PubliNUO i Public, Openspace Public - FIDod—y Commercial } a Urban Mixed Use Commercial f J pate: Nov 12Hr 2U2D FilePat, JQ029A=mn Kalispell Planning Dept. KALISPELL I. Does the requested zone comply with the growth policy? The proposal is consistent with the goals and policies of the growth policy (Plan -It 2035). The Kalispell Growth Policy Future Land Use Map designates the subject property as Urban Residential. As mentioned above, the R-4 Zoning District would typically be found in areas designated as Urban Residential on the Kalispell Growth Policy Future Land Use Map. A portion of the property is designated as Urban Mixed Use, which would allow for zoning more intensive than the R-4, such as the RA-2, B-1, or B-2 zones. As a less intensive zone, the proposed R-4 zone is appropriate throughout the subject property and provides a more cohesive project. Additionally, the current R-2 zoning would not be supported by the current growth policy designations, and would normally require a Suburban Residential designation. The proposed zone brings the property into compliance in that regard. 2. Will the requested zone have an effect on motorized and non -motorized transportation systems? The requested zoning of R-4 will have minimal effect on the motorized and non - motorized transportation system. The zone is residential, primarily allowing single-family 4 (including townhomes) and duplex uses, and is consistent with the general use of the area. Specific impacts resulting from the use of the property would be reviewed as part of the proposed subdivision. 3. Will the requested zone secure safety from fire, panic, and other dangers? Adequate access and public facilities are available to the property in the case of an emergency. There are no features related to the property which would compromise the safety of the public. Fire access is reviewed as part of the proposed subdivision. All municipal services including police/fire protection, water and sewer service are available to the property, although the applicant will need to extend water and sewer mains to the site. 4. Will the requested zone promote the public health, safe . and general welfare? As with safety from fire and other dangers, the general health, safety, and welfare of the public will be promoted through general city regulations designed to regulate allowable uses when the property is developed. In this case, the requested zoning classification of R-4 will promote the health and general welfare by restricting land uses to those that would be compatible with the adjoining properties and those in the vicinity. 5. Will the requested zone provide reasonable provisions for adequate light and air? Setback, height, and lot coverage standards for new development in the area of the zone change are established in the Kalispell Zoning Ordinance to ensure adequate light and air is provided. The requested R-4 Zone allows for smaller lot sizes with somewhat reduced setbacks from the existing R-2 Zone, going from 10,000 square feet with 70 foot minimum lot widths to 6,000 square feet and 50 foot widths. Setbacks go from 20 feet in the front, 10 feet on the side, and 20 feet in the rear to 15 feet, 5 feet, and 10 feet. Maximum building height would remain the same. The reductions allow for density on the site to be shifted away from the floodplain/wetland area on the western portion of the property. 6. Will the requested zone facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements? The property is already within city limits and all public services and facilities are currently available to the property. The requested zone will not alter any of the public requirements, as there are city standards in place to address all the public requirements individually depending on how the site develops in the future. 7. Will the requested zone promote compatible urban growth? The character of the neighborhood is primarily residential with some commercial to the south along Highway 2. Across the bypass, similar city residential development is well established. Development of this property would extend water across the bypass. Along 5 with the new Westside Interceptor sanitary sewer main to the west, the requested zone would help promote compatible urban growth in the area. 8. Does the requested zone give consideration to the character of the district and its particular suitability of the property for particular uses? The proposed R-4 zone is a residential zone which fits the likely development of the property as residential given that it does not have immediate access to a main road. The R-4 designation allows for shifting some density on -site to help protect the floodplain/wetland area on the property and is particularly suited to that aspect of the property. 9. Will the proposed zone conserve the value of buildings? Future development in the area will be reviewed for compliance with the dimensional standards and design review criteria, to ensure its appropriateness for the area and compatibility with the surrounding neighborhoods. The conservation of values of the existing buildings in the vicinity depends largely on the design and construction quality of the potential development in the area of the zone change, as opposed to the change of the zoning or potential use of the property. 10. Will the requested zone encourage the most appropriate use of the land throughout the municipality? The most appropriate land uses throughout the jurisdiction are promoted by encouraging complementary and compatible uses which promote the general well-being of all citizens of the community. Developing residential uses in appropriate areas helps provide housing, which is a need in the community as a whole. 6 REVIEW AND FINDINGS OF FACT FOR THE MAJOR PRELIMINARY PLAT .vmx w. .nw. rzn iwec PRELIMINARY PLAT OF AUTUMN CREED SUBDIVISI0N Autumn PORTION OF SOUTH HALF, SOUTHWEST QUARTER OF SECTION 12. TOWNSHIP 2a NORTH, RANGE 22 WEST, P M-M., FLATHEAD COUNTY, MONTANA- LOT LAYOUT & UTILITIES s IfTILffIES uc, ,. ec,-ri, w-r_, lr��•-_ ....,..-x;-.ua�n ai••.,t,.,.si„ _ k -------------- r �r DEVELOPMENT NOTES ES HOME 543 � I 9L5 ¢a,c �'1 e. n u .e no,m n-me once I , I i rv'r .vw onn.: ::..n el•-�'.�-max a.u,m.. j, �Rp �mo... e.. ❑ETA I L - 5OU NG M ITI GB,TIO `J 'eOALL ,, - 9FEET2OF4 A. Effects on Health and Safety: Fire: The property is considered to be at low risk of fire. Buildings within the subdivision would be constructed in accordance with the International Fire Code and have general access which meets city standards. The area to be built upon does not have steep slopes or woody fuels. Hydrants will be required to be placed in compliance with the requirements of the Uniform Fire Code and approved by the Fire Chief. The Fire Chief reviewed the fire access to the development. Based on the current ICC Fire Code adopted by the City of Kalispell, he found that the development as designed will meet the intent of the fire code. The proposal for 28 total living units is below the secondary access requirement that applies when there are more than 30 units. The length of the access is not addressed under the current code, but there are width and weight carrying capability standards (i.e. a paved surface). The roadway is 22 feet wide and it does not appear any improvements are necessary to meet fire code, although a condition of approval should include any such improvements that may become apparent during the course of the engineering review. 7 Flooding: Based on the Flood Insurance Rate Map (panel number 30029C 1805J, effective date of November 4, 2015), the subject property includes a significant amount of area shown to be within an undelineated A flood zone related to a tributary to Ashley Creek, although all of the lots created would be located entirely outside of the 100-year floodplain. An undelineated A zone means that the area has been determined to contain floodplain, but no base flood elevation has been established. Typically, subdivisions in the city with that type of zone include a flood study prior to final plat in order to establish the base flood elevation and prevent any inadvertent encroachments into flood prone areas. There was a previous Letter of Map Revision from 2005 which predates the current Flood Insurance Rate Map, but which could provide sufficient information to establish a base flood elevation. Land within the 100-year floodplain cannot be subdivided for building or residential purposes, and need to be contained within common area. The proposed plat accomplishes that pending confirmation through the flood study. Any improvements within the floodplain, such as the street crossing, may require a floodplain development permit and/or other permitting which the developer will need to obtain prior to beginning construction. Access: The primary access from outside the subdivision would be via Hathaway Lane, which intersects with Highway 2 West approximately 950 feet to the south. Access is discussed in more detail later in this report. Existing Building: There is an existing storage building on the property that will need to be removed prior to final plat. Highway Sound Mitigation: When there is a proposed residential subdivision abutting an existing major arterial (e.g. the Highway 93 bypass) capable of generating noise in excess of 60dBA, noise mitigation shall be utilized. The regulations allow a variety of noise mitigation techniques, and the application shows a sound mitigation wall with trees as the preliminary plan. A sound study should be submitted prior to construction showing the specific design and that it reduces the noise impacts to no more than 60 dBA at any lot line within the subdivision. The design of the noise mitigation measures should be reviewed and approved by the City of Kalispell Architectural Review Committee prior to construction. B. Effects on Wildlife and Wildlife Habitat: There is a tributary to Ashley Creek and associated wetlands area that runs through the western portion of the property which would provide some aquatic or riparian habitat, although the Resources and Analysis Section of the Kalispell Growth Policy includes information from the Montana Department of Fish, Wildlife and Parks that does not show the property as including important riparian wildlife habitat. The subdivision regulations require a 50-foot setback from the stream and a 100-foot setback from the wetlands, which helps protect that habitat. The proposed plat includes the required setbacks. There does not appear to be any significant wildlife impacts. The Resources and Analysis Section also includes information relating to deer, elk and moose habitat. As with the majority of the Kalispell area outside of the core downtown, the maps show a whitetail deer density of 5 to 30 per square mile, but no significant elk or moose habitat. The environmental assessment submitted by the applicant indicates that there may be some smaller mammals and birds associated with the property. C. Effects on the Natural Environment: Topography, Geology and Soils: The overall site is generally flat without significant topography or slopes. A geotechnical investigation was prepared for the site in August of 2007 that was associated with the previously approved preliminary plat. The report included recommendation for design and construction of the site and buildings (including, but not limited to, foundations, basements, and floor slabs), but no significant issues impacting development. The recommendations should be followed as the site and buildings are developed. Surface and Groundwater: The subdivision will be served by public water and sewer thereby minimizing any potential impacts to groundwater. As noted in relation to flooding potential and wildlife impacts on the property, the development includes a tributary to Ashley Creek and an associated wetlands area. The floodplain and wetlands would be contained within common area and not subject to development, and in addition have additional setbacks that will include an open homeowners' park area. The geotech report found groundwater at depths of 6.8 to 10.4 feet. The report included recommendations relating to site development and building construction that should be followed. Drainage: Curbs and gutters will be installed, and a storm management plan will have to be developed to address the runoff from the site. There is no city storm drain system in the immediate area, so the storm water will need to be managed onsite using detention methods. The drainage plan will have to comply with the City of Kalispell standards and standards and designed by a professional engineer. Also, a waiver of right to protest the creation of a Special Improvement District ("SID") for stormwater maintenance shall be included on the final plat. The SID would only be implemented in the event that stormwater facilities are not maintained in a manner consistent with the approved drainage plan. D. Effects on Local Services: Water: Water to the subdivision will be provided by the City of Kalispell. The water system for the subdivision will be reviewed and approved by the Kalispell Public Works Department. A connection to the city system is planned to be made by boring underneath the bypass, and the applicant has initiated discussions with Public Works and MDOT on the extension. The water line should be extended into Hathaway Lane and to the south end of the property frontage. There is adequate capacity within the city's water system to accommodate this subdivision. Water rights for any subdivision exceeding five acres are addressed at the time of preliminary plat and are typically transferred to the City. Sewer: Sanitary sewer to the subdivision will be provided by the City of Kalispell. The sewer system for the subdivision will be reviewed and approved by the Kalispell Public Works Department. There is adequate capacity within the city's sewer system to accommodate this subdivision. The sewer main extension will be made to the south down Hathaway Lane to the new Westside Interceptor sanitary sewer main that is located in Highway 2 West. There is a domestic well on the adjoining property at the north property line of the subdivision. Such wells have a 50 foot protection zone, and the plans currently show the main running through the protection zone. The developer will need to redesign the plans or otherwise address the well location. Access and Roads: The primary access from outside the subdivision would be via Summer Place, which intersects with Hathaway Lane, which is a county road. Hathaway Lane connects with Highway 2 West approximately 950 feet to the south. Hathaway Lane will need to be improved to city standards for the length of the property's frontage and would include any dedications necessary for the upgrade. As a local street, the width of the street would be 28 feet curb -to -curb and a widening of the roadway would be necessary in this stretch. The developer would be responsible for improvements to the western edge of the asphalt. In addition, any improvements required for the width and weight capacity requirements under the fire code will need to be installed from the property to Highway 2 West, although it does not appear that any improvements would be necessary under the fire code. A Traffic Impact Study ("TIS") is not required for the project because fewer than 300 vehicle trips per day are estimated per the Institute of Traffic Engineers Trip Generation Manuel. Approximately 268 trips per day are estimated based on the manuel. Under subdivision access standards, a second access into the subdivision is required if the primary access road is longer than 1000 feet. While the applicant included a variance request to this standard in the application, a variance is not necessary. The appropriate measurement should be from the subdivision access onto Hathaway, which is less than 1000 feet, thus only requiring one access. The Fire Chief has reviewed the proposed layout and concluded that a secondary access is not necessary to serve the subdivision under the fire code. In regard to the internal road system, the primary road, Summer Place, ends in a cul-de- sac approximately 663 feet from the centerline of Hathaway Lane to the center of the cul- de-sac. Subdivision regulations limit the length of a cul-de-sac to 600 feet. This standard is also the subject of a variance request analyzed separately in this report. Staff recommends that the variance be granted. While a cul-de-sac is a natural component of the street design, it does result in narrow street frontages. Minimum lot width is not an issue as irregular shaped lots, such as the pie shaped lots on a cul-de-sac, are measured at the face of the building. The driveways do, however, come together and can impact the street frontage. To minimize that impact, lots 5-9 should have shared driveway approaches, which will increase the available 10 boulevard area, providing more green area, space for utility boxes and snow storage capacity. There is also an issue related to the existing driveway at the north end of the property. The proximity of the driveway to intersection of the new road causes a traffic safety hazard. The driveway should be relocated, preferably with its access off of the new city street, Summer Place. Schools: The property is within the boundaries of School District 95 (Peterson Elementary and Glacier High School). On average, it would be anticipated that there would be about 14 students at full build -out. Section 76-3-608(1) of the Montana Code Annotated states that the governing body may not deny approval of a proposed subdivision based solely on the subdivision's impacts on educational services. Police: Police services will be provided by the Kalispell Police Department. The department can adequately provide service to this subdivision. Fire Protection: Fire protection services will be provided by the Kalispell Fire Department. The department can adequately provide service to this development provided that the road width and weight carrying capacity improvements for Hathaway are in place, as they appear to be. Additionally, the general road network to the subdivision provides adequate access for fire protection. As part of subdivision review, fire protection, including access, fire flow and hydrant location, will be reviewed. Fire station 61 is located approximately 1.75 miles away providing good response time. Parks and Recreation: The subdivision is required to have parkland equal to 0.03 acres per dwelling unit, which equates to 0.84 acres. The proposed plat shows a 1.14 acre -park space with a recreational trail and a picnic pavilion. The park is located outside of the floodplain and wetland area. Park development within the setback from the watercourse/wetland is an appropriate use provided that other standards are met. Solid Waste: Solid waste will be handled by the City of Kalispell. There is sufficient capacity within the landfill to accommodate this additional solid waste generated from this subdivision. Medical Services: Ambulance service is available from the fire department and ALERT helicopter service. Kalispell Regional Medical Center is approximately 1.6 miles from the site. E. Effects on Agriculture and agricultural water user facilities: The site at one point in time was used as farmland and for grazing. It is not currently being used for agricultural purposes and has not been for some time. The Resources and Analysis Section of the Kalispell Growth Policy includes information from the NRCS Soil Survey indicating it would be prime farmland if irrigated. The environmental 11 assessment submitted by the developer states that the majority of the land produced wheat. A current policy in the Kalispell Growth Policy Plan -It 2035, Chapter 5, Land Use: Natural Environment, states the following: Policy Encourage urban growth only on agriculture lands entirely within the city's annexation policy boundary. By providing a growth area boundary for urban development, the extension of water and sewer services enables more of the growth to come into the City of Kalispell and connect to city water and sewer. In this case, the property was already annexed 14 years ago. By allowing higher density development within the city, it would reasonably be expected that more farmland could be conserved due to the availability of residential and commercial lots within the Kalispell Growth Policy boundary, limiting sprawl/leapfrog development. F: Relation to the Growth Policy: The Kalispell Growth Policy Future Land Use Map designates the subject property as Urban Residential. The growth policy designations provides the basis for the requested R-4 zone. The City of Kalispell Growth Policy Plan -It 2035, Chapter 4A on Housing, encourages a variety of residential development that provides housing for all sectors and income levels within the community. City services including sewer, water and streets are in the vicinity and available to the subject property. G. Compliance with Zoning: The request complies with the R-4 zoning regulations. H. Compliance with the Kalispell Subdivision Regulations: This request complies with provisions of the Kalispell Subdivision Regulations, subject to the variance discussed below. REVIEW AND FINDINGS OF FACT FOR PRELIMINARY PLAT VARIANCE REQUEST The City Council may grant variances from Chapter 28.3 and 28.4 of the Kalispell Subdivision regulations when, because of particular physical surroundings, shape, or topographical conditions of a specific property, strict compliance would result in undue hardship and when it would not be essential to the public welfare. Such variances must not have the effect of nullifying the intent and purpose of these regulations. In this case the applicant is seeking a variance from Section 28.3.14(C) of the Kalispell Subdivision Regulations, which requires that cul-de-sacs cannot exceed 600 feet. The applicant is proposing a length of 663 feet measured from the center of the intersection with Hathaway Lane to the center of the cul-de-sac. The governing body shall not approve variances unless it makes findings based upon evidence in each specific case that: 12 Variance request from Section 28.3.14(C) 1. The granting of the variance (s) will not be detrimental to the public health, safety or general welfare or injurious to other adjoining properties. The 600 foot maximum requirement is intended to prevent long, dead end roads when there are alternatives available. As a general rule, interconnectivity between and within a subdivision should be promoted when possible, both for emergency response and for the traveling public. In this case, the Fire Chief has reviewed the proposed design and has accepted the cul-de-sac length and design as proposed, with no finding of anything materially detrimental to providing emergency services. Impacts on general traffic are minimal given the development surrounding the subject property, particularly with the bypass to the east, that significantly limit any alternatives. Granting the variance would not be detrimental to the public health, safety or general welfare, or injurious to adjoining properties. 2. The conditions on which the request for this variance is based are unique to the property on which the variance is sought and are not applicable generally to other property. The conditions of the property which form the basis for the variance request are not generally applicable to other properties, and are unique to the property. The property's west side contains a creek and wetlands area, and there is existing development along the south and a portion of the north side. The east side abuts the Highway 93 bypass. The property's overall dimensions also limit options. It is 850 feet deep with a width that varies from 300 feet to 576 feet. The dimensions and site characteristics do not allow for a looped road system within the subdivision. 3. Because of the particular physical surroundings, shape, or topographical conditions of the specific property involved, an undue hardship to the owner would result, as distinguished by a mere inconvenience, if the strict letter of these Regulations is enforced. If the strict letter of the regulations were to be enforced, other options would include (1) adding an additional stream crossing, which would cause both a substantial increased cost plus a degradation of the wetlands area; or (2) ending the cul-de-sac at 600 feet, which would likely result in the loss of four dwelling units and creating a substantial unused area between the bypass and the homes at the east end of the street, as well as added pressure on the wetlands area as development would become more compressed to the west. The relatively minor variance would lead to better design and a more efficient use of the land while minimizing impacts on the wetlands area. 4. This variance will not cause a substantial increase in public costs. This variance will not cause a substantial increase in public costs for taxpayers as the property will be developed in a manner consistent will all other city regulations. 13 5. This variance will not, in any manner, vary the provisions of any adopted zoning regulations, or Growth Policy. This variance will not vary from any adopted zoning regulations or the Growth Policy. Based on the information provided above, staff recommends approval of the variance request from Section 28.3.14(C), which is provided for in condition number 34 below. RECOMMENDATION Staff recommends that the Kalispell City Planning Board and Zoning Commission adopt Staff Report #KZC-20-02 as findings of fact and recommend to the Kalispell City Council that the subject property currently zoned R-2 (Residential) be rezoned to R-4 (Residential). Staff recommends that the Kalispell City Planning Board and Zoning Commission adopt staff report #KPP-20-04 as findings of fact and recommend to the Kalispell City Council that the preliminary plat for Autumn Creek, including the variance request, be approved subject to the conditions listed below: CONDITIONS OF APPROVAL 1. The development of the site shall be in substantial compliance with the application submitted, the site plan, materials, and other specifications as well as any additional conditions associated with the preliminary plat as approved by the city council. 2. The preliminary plat approval shall be valid for a period of three years from the date of approval. 3. The developer shall submit to the Kalispell Public Works Department for review and approval a storm water report and an engineered drainage plan that meets the requirements of the current city standards for design and construction. Prior to final plat, a certification shall be submitted to the public works department stating that the drainage plan for the subdivision has been installed as designed and approved. 4. The developer shall submit to the Kalispell Public Works Department prior to construction an erosion/sediment control plan for review and approval and a copy of all documents submitted to Montana Department of Environmental Quality for the General Permit for Storm Water Discharge Associated with Construction Activities. 5. The developer shall submit water and sanitary sewer plans, applicable specifications, and design reports to the Kalispell Public Works Department and the Montana Department of Environmental Quality for concurrent review, with approval of both required prior to construction. 6. Water and sewer main extensions shall be designed and constructed in accordance with the City of Kalispell's Standards for Design and Construction and in compliance with the 14 city's facilities update and extensions of services plans. The water and sewer main extension plans shall be reviewed and approved by the Kalispell Public Works Department. Prior to final plat, a certification shall be submitted to the Public Works Department stating that the water and sewer mains have been built and tested as designed and approved. 7. The design of the sewer main in Summer Place is required to account for the wellhead protection zone around the domestic well on the adjacent property. 8. The water main shall extend through the subdivision to Hathaway Lane and then within Hathaway Lane to both the northern and the southern end of the property frontage. Additional extensions shall be made, if necessary, to meet fire flow or other standards. The sewer main shall extend to the northern end of the property frontage in addition to extending to connect with the Westside Interceptor along Highway 2. 9. New infrastructure required to serve the subdivision shall be designed and constructed in accordance with the City of Kalispell's Standards for Design and Construction. All design work shall be reviewed and approved in writing by the Kalispell Public Works Department prior to construction. This infrastructure shall include, but not necessarily be limited to, streets, street lighting, street signage, curb, gutter, boulevard and sidewalks. 10. Hathaway Lane shall be upgraded to city standards along the full length of the frontage of the property. Upgrades would include, but not necessarily be limited to streets, street lighting, street signage, curb, gutter, boulevard and sidewalks. The developer shall provide any dedications of right-of-way to the City necessary to install the improvements. 11. Any required upgrades to Hathaway Lane from Highway 2 to the north property line of the subdivision shall be constructed in order to meet fire code requirements. These upgrades, if necessary, would relate to width and weight carrying capability. 12. A driveway access off of Summer Place shall be provided for the property to the north, which would be available for them to use if they so choose. 13. The developer shall coordinate with the Flathead County Public Works Department to restore any disturbance of Hathaway Lane to an acceptable standard reflecting the pre - construction condition of the road. 14. Prior to final plat, a letter from the Kalispell Public Works Department shall be submitted stating that all new public infrastructure has been accepted by the City of Kalispell, any private infrastructure has been constructed per city standards, and a proper bond has been accepted for any unfinished work. 15. All easements and/or rights -of -way shall be indicated on the face of the final plat. Utility easements for City water and sewer shall be provided to allow for the logical extension of utilities from this subdivision to adjoining properties. A letter from the Kalispell Public 15 Works Department shall be obtained stating that the required easements are being shown on the final plat. 16. The following statement shall appear on the final plat: "The undersigned hereby grants unto each and every person, firm or corporation, whether public or private, providing or offering to provide telephone, telegraph, electric power, gas, cable television, water or sewer service to the public, the right to the joint use of an easement for the construction, maintenance, repair, and removal of their lines and other facilities, in, over, under, and across each area designated on this plat as "Utility Easement" to have and to hold forever." Developer's Signature 17. Prior to filing the final plat, a letter from the US Postal Service shall be included stating the Service has reviewed and approved of the design and location of the mail delivery site. The mail delivery site shall be installed or bonded for prior to final plat. In addition, the mail delivery site and improvements shall also be included in the preliminary and final engineering plans to be reviewed by the Public Works Department. The mail delivery site shall not impact a sidewalk or proposed boulevard area. 18. A letter from the Kalispell Fire Department approving the access, placement of the fire hydrants and fire flows within the subdivision shall be submitted prior to final plat. 19. A letter shall be obtained from the Parks and Recreation Director approving a landscape plan for the placement of trees and landscaping materials within the landscape boulevards of the streets serving the subdivision. The letter shall also approve compliance with the approved park plan for the homeowners' park. 20. A note shall be placed on the final plat indicating a waiver of the right to protest creation of a park maintenance district. This district shall only be activated in the event that the property owners' association defaults on their park and open space amenity conditions. The taxes levied within the maintenance district shall be determined by the Parks and Recreation Department with approvals by the Kalispell City Council. 21. A note shall be placed on the final plat indicating a waiver of the right to protest creation of a stormwater maintenance district. This district shall only be activated in the event that the property owner(s) default on the maintenance of the approved stormwater facilities. The taxes levied within the maintenance district shall be determined by the Public Works Department with approvals by the Kalispell City Council. 22. A minimum of two-thirds of the necessary infrastructure for the subdivision shall be completed prior to final plat submittal. 23. All utilities shall be placed underground and in locations that are approved by the Kalispell Public Works Department in accordance with the Kalispell Standards for Design and Construction. 16 24. All areas disturbed during development shall be re -vegetated with a weed -free mix immediately after development. 25. Any water rights associated with the property shall be transferred to the City of Kalispell prior to final plat. 26. A homeowner's association (HOA) shall be formed and established for the common areas prior to final plat. 27. The existing building on the property shall be completely removed prior to final plat. 28. Prior to final plat, the developer shall submit a flood study in order to establish the base flood elevation. Any land within the 100-year floodplain shall be contained within common area. Any improvements within the floodplain, such as the street crossing, may require a floodplain development permit and/or other permitting which the developer shall obtain prior to beginning construction. 29. A sound study shall be submitted prior to construction showing the specific design for highway sound mitigation for the subdivision and that the design reduces the noise impacts to no more than 60 dBA at any lot line within the subdivision. The design of the noise mitigation measures shall be reviewed and approved by the City of Kalispell Architectural Review Committee prior to construction. 30. The recommendations from the August 2007 geotechnical investigation should be followed as the site and buildings are developed, and the developer shall implement measures to ensure the recommendations are implemented. 31. Lots 5-9 on the preliminary plat shall have shared driveway approaches serving each parent lot. 32. The minimum 100 foot required setback from the wetland area to any lot boundaries shall be maintained. 33. The minimum 50 foot setback from the ordinary high water mark of the creek shall be maintained. Any area within that setback may be utilized as provided for in Section 28.3.07 of the Kalispell Subdivision Regulation subject to any other regulations which may apply. 34. A variance to Section 28.3.14(C) of the Kalispell Subdivision Regulations shall be granted allowing an increase in length of the cul-de-sac beyond the 600 foot maximum as shown on the preliminary plat. 17 CITY 40V KALISPELL Planning Department 201 1st Avenue East Kalispell, MT 59901 Phone: (406) 758-7940 Fax: (406) 758-7739 www.kalispell.com/planning MAJOR SUBDIVISION PRELIMINARY PLAT APPLICATION FEE SCHEDULE: FEE ATTACHED $4,500 Major Subdivision (6 or more lots) $1,000 + $125/lot Major Subdivision Resubmittal $ 1,000 For each original lot unchanged add $10/lot For each lot redesigned/added add $125/lot Mobile Home Parks 8v Campgrounds (6 or more spaces) $1,000 + $250/space (5 or fewer spaces) $400 + $125/space Amended Preliminary Plat Amendment to Conditions Only $400 base fee Re -configured Proposed Lots Base fee + $40/lot Add Additional Lots or Sublots Base fee + $125/lot Subdivision Variance $100 (per variance) Commercial and Industrial Subdivision $1,000 + $125/lot SUBDIVISION NAME: Autumn Creek OWNER(S) OF RECORD: Name JAG Capital Investments, LLC Phone (406) 381-9672 Mailing Address 175 Hutton Ranch Road, Suite 103; P.O. Box 283 City Kalispell State Montana zip 59901 TECHNICAL/PROFESSIONAL PARTICIPANTS (Surveyor/Designer/Engineer, etc): Name 8v Address TD&H Engineering; 450 Corporate Drive, Suite 101; Kalispell Name 8s Address Name 8s Address LEGAL DESCRIPTION OF PROPERTY: Property Address On east side of Hathawa-y Lane, North of Highway 2 West Assessor's Tract No(s) 0174851 Lot No(s) 6AAK, 6D1, 6AB 1 /4 Sec SW Section 12 Township 28 N Range 22 W GENERAL DESCRIPTION OF SUBDIVISION: Number of Lots or Rental Spaces 28 Total Acreage in Subdivision 8.41 Total Acreage in Lots 3.84 Minimum Size of Lots or Spaces 0.19 Total Acreage in Streets or Roads 1.54 Maximum Size of Lots or Spaces 0.33 3.03 Total Acreage in Parks, Open Spaces and/or Common Areas PROPOSED USE(S) AND NUMBER OF ASSOCIATED LOTS/SPACES: Single Family 2 Duplex Commercial Condominium Townhouse 26 Apartment Industrial Multi -Family Mobile Home Park Recreational Vehicle Park Planned Unit Development Other APPLICABLE ZONING DESIGNATION & DISTRICT City of Kalispell R-4 (reference Zoning Amend- ment Application) ESTIMATE OF MARKET VALUE BEFORE IMPROVEMENTS S96.560 IMPROVEMENTS TO BE PROVIDED: Roads: Gravel Paved X Curb X Gutter X Sidewalks X Alleys Other Water System: Individual Multiple User Neighborhood Public X Other Sewer System: Individual Multiple User Neighborhood Public X Other Other Utilities: Cable TV X Telephone X Electric X Gas X Other Solid Waste: Home Pick Up X Central Storage Contract Hauler Owner Haul Mail Delivery: Central X Individual School District: Fire Protection: Hydrants X Tanker Recharge Fire District: Drainage System: surface drainage to curb inlets with poing to onsite treatment structures prior to outfall PROPOSED EROSION/SEDIMENTATION CONTROL: "best management practices" silt fence. wattles. etc. VARIANCES: ARE ANY VARIANCES REQUESTED? Yes (yes/no) If yes, please complete the information below: SECTION OF REGULATIONS CREATING HARDSHIP: 28.3.13.E & 28.3.14.0 EXPLAIN THE HARDSHIP THAT WOULD BE CREATED WITH STRICT COMPLIANCE WITH REGULATIONS Due to the irregular geometry of the property and the undisturbed wetlands located along the westerly boundary of the lot, a looped road is not feasible. Furthermore, a 600 foot long cul-de-sac measured from the center line of Hathaway Lane to the center of the cul-de-sac would create a remainder between the easterly lots and US HWY 93 bypass. This area would not be accessible. Strict adherence to the regula- tion would encourage poor land use planning and the loss of two to three lots. PROPOSED ALTERNATIVES) TO STRICT COMPLIANCES WITH ABOVE REGULATIONS: A single access to the subdivision is proposed. The primary road is an approximately 663 foot long cul-de-sac (Summer Place). Winter Court provides frontage to the park space and remaining lots and is approximately 583 feet from the cen- ter of the cul-de-sac to the center of Hathaway Lane. Per section 28.3.13.E the single ac- cess can be deemed acceptable if the primary access road is less than 1,000 feet and the subdivision contains less than 50 units. Both of these conditions are met. Further- more, correspondence with the City Fire Chief confirmed that the proposed improve- ments meet fire regulations (refer to Attachment D, email correspondence with Dave Dedman). X PLEASE ANSWER THE FOLLOWING QUESTIONS IN THE SPACES PROVIDED BELOW: Will the granting of the variance be detrimental to the public health, safety or general welfare or injurious to other adjoining properties? The length of the cul-de-sac exceeds 600 feet maximum by 63 feet, however, it is under the 1,000 feet mentioned in section 28.3.13.E.1.a. The added distance of travel for an emergency vehicle will not be detrimental or injurious to residents of Autumn Creek. Adjoining properties are not impacted by the requested variance. 2. Will the variance cause a substantial increase in public costs? There will be no observable increase in public costs. 3. Will the variance affect, in any manner, the provisions of any adopted zoning regulations, Master Plan or Growth Policy? The regulations governing the cul-de-sac length and the single access are part of the Subdivision Regulations and Kalispell Design Standards. None of the above are affected by the requested variance. 4. Are there special circumstances related to the physical characteristics of the site (topography, shape, etc.) that create the hardship? The tract's geometry creates the need for the variance. The lot length is 850 feet and the width varies between 300 feet and 576 feet irregularly. The width is too narrow for a looped road system and the length is too long for a cul-de-sac that is 600 feet or less in length. Improvements leave the existing wetlands undisturbed. 5. What other conditions are unique to this property that create the need for a variance? The westerly boundary contains a creek with undisturbed wetlands and a delin- eated flood plain parallels the creek. The westerly portion of the site could be served with a looped road crossing the wetlands and flood plain. The proposed sin- gle access causes no disturbance of the wetlands or flood plain. Limiting the distur- bance preserves this valuable resource and the function of the wetlands. Granting the variance encourages conservation and preservation of the wetlands. 3 APPLICATION CONTENTS: The subdivider shall submit a complete application addressing items below to the Kalispell Planning Department at least thirty five (35) days prior to the date of the Planning Board meeting at which it will be heard. Completed preliminary plat application. 2. 4 copies of the preliminary plat. 3. One reproducible set of supplemental information. (See Appendix A of Subdivision Regulations for the city where the subdivision is proposed.) 4. One reduced copy of the preliminary plat not to exceed 11" x 17" in size. 5. Electronic copy of the application materials, including the preliminary plat, either copied onto a disk or emailed to planning(a?kalispell.com (Please note the maximum file size to email is 20mg) 6. A bona fide legal description of the subject property and a map showing the location and boundaries of the property. * Note verify with the Flathead County Clerk and Recorder that the legal description submitted is accurate and recordable. The Flathead County Clerk and Recorder can be reached at (406) 758-5526. 7. Application fee based on the schedule on page 1 of this application and made payable to the City of Kalispell. l hereby certify under penalty of perjury and the laws of the State of Montana that the information submitted herein, on all other submitted forms, documents, plans or any other information submitted as a part of this application, to be true, complete, and accurate to the best of my knowledge. Should any information or representation submitted in connection with this application be untrue, I understand that any approval based thereon may be rescinded, and other appropriate action, taken. The signing of this application signifies approval for the Kalispell Planning staff to be present on the property for routine ,monitoring and inspection during the approval and development prgcess. 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Outlaw_ 201 1 st Ave E Kalispell, MT 59901 t 1. Head north on 1st Ave E toward 2nd St E r, 2. Turn left onto E Center St & 3. Turn right onto S Meridian Rd 'l 4. Turn left onto Appleway Dr h 5. Sharp left onto US-2 W/U.S. Hwy 2 W r► 6. Turn right onto Hathaway Ln Destination will be on the right Kalispell Montana 59901 0.2 mi 0.9 mi 367 ft 0.4 mi 0.5 mi 1VA lW11 Map data ©2020 1000 ft, These directions are for planning purposes only. You may find that construction projects, traffic, weather, or other events may cause conditions to differ from the map results, and you should plan https://vmw. g oog I e.com/maps/di r/201 + 1st+Avenue+ East,+ Kal i spel I ,+ M T/48.1992276,-114.3460332/@48.1970874,-114.3379707,15z/am=t/data= ! 3ml ! 4b1 ! 4m8! 4... 1 /2 Flathead Premier Title Company, LLC 205 Junes Way, Suite 3 Whitefish, MT 59937 Phone: 406-862-7000 Fax: 406-233-6701 Transmittal Information Date: 08/03/2020 File No: 1487FPT Property Address NHN Hathaway Ln, Kalispell, MT 59901 Buyer\Borrower JAG Capital Investments LLC Seller Linda Hershberger For changes and updates please contact your Escrow Officer: Mary Nicholls Flathead Premier Title Company, LLC 205 Junes Way, Suite 3 Whitefish, MT 59937 Phone:406-862-7000 Fax:406-233-6701 E-Mail: Mary@flatheadpremiertitle.com Escrow or Title officer(s): Title Officer: Tracy Martin Flathead Premier Title Company, LLC 205 June's Way, Suite 3 Whitefish, MT 59937 Phone:406-862-7000 Fax:406-233-6701 Email: Tracy@flatheadpremiertitle.com Changes: TITLE COMMITMENT 1: Change to the vested owner TITLE COMMITMENT 2: Chnage to proposed insured Thank you for using Flathead Premier Title Company, LLC WESTCORE�A ALTA Commitment For Title Insurance (Adopted 06-17-06) (Revised 08-01-2016) (WITH MONTANA MODIFICATIONS) CON INHTMENT FOR TITLE INSURANCE ISSUED BY WESTCOR LAND TITLE INSURANCE COMPANY NOTICE IMPORTANT —READ CAREFULLY: THIS COMMITMENT IS AN OFFER TO ISSUE ONE OR MORE I INSURANCE POLICIES. ALL CLAIMS OR REMEDIES SOUGHT AGAINST THE COMPANY INVOLVING CONTENT OF THIS COMMITMENT OR THE POLICY MUST BE BASED SOLELY IN CONTRACT. THIS COMMITMENT IS NOT AN ABSTRACT OF TITLE, REPORT OF THE CONDITION OF TITLE, LEG OPINION, OPINION OF TITLE, OR OTHER REPRESENTATION OF THE STATUS OF TITLE. THE PROCEDUR USED BY THE COMPANY TO DETERMINE INSURABILITY OF THE TITLE, INCLUDING ANY SEARCH Al EXAMINATION, ARE PROPRIETARY TO THE COMPANY, WERE PERFORMED SOLELY FOR THE BENEFIT THE COMPANY, AND CREATE NO EXTRACONTRACTUAL LIABILITY TO ANY PERSON, INCLUDING PROPOSED INSURED. THE COMPANY'S OBLIGATION UNDER THIS COMMITMENT IS TO ISSUE A POLICY TO A PROP INSURED IDENTIFIED IN SCHEDULE A IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF COMMITMENT. THE COMPANY HAS NO LIABILITY OR OBLIGATION INVOLVING THE CONTENT OF COMMITMENT TO ANY OTHER PERSON. COMMITMENT TO ISSUE POLICY Subject to the Notice; Schedule B, Part I —Requirements; Schedule B, Part II —Exceptions; and the Commitment Condid WESTCOR LAND TITLE INSURANCE COMPANY, a South Carolina Corporation (the "Company"), commits to issue Policy according to the terms and provisions of this Commitment. This Commitment is effective as of the Commitment I shown in Schedule A for each Policy described in Schedule A, only when the Company has entered in Schedule A both specified dollar amount as the Proposed Policy Amount and the name of the Proposed Insured. If all of the Schedule B, Part I —Requirements have not been met within six (6) months after the Commitment Date, this Commitment terminates and the Company's liability and obligation end. IN WITNESS WHEREOF, WESTCOR LAND TITLE INSURANCE COMPANY has caused its corporate name and si to be hereunto affixed and by these presents to be signed in facsimile under authority of its by-laws, effective as of the date Commitment shown in Schedule A. C Premier Title - Whitefish Branch Junes Way, Suite 3 tefish, MT 59937 ie: 406-862-7000 CM-21 WESTCOR LAND TITLE INSURANCE COMPANY eside t ,,,,�� Attest:IJ - r*"``�� MT ALTA 08-01-16Commitment w-MT Mod (WLTIC Edition AM ERICAN Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALT licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Lan Title Association. COMMITMENT CONDITIONS 1. DEFINITIONS (a) "Knowledge" or "Known': Actual or imputed knowledge, but not constructive notice imparted by the Public Records. (b) "Land': The land described in Schedule A and affixed improvements that by law constitute real property. The term "Land' does not include any property beyond the lines of the area described in Schedule A, nor any right, title, interest, estate, or easement in abutting streets, roads, avenues, alleys, lanes, ways, or waterways, but this does not modify or limit the extent that a right of access to and from the Land is to be insured by the Policy. (c) "Mortgage": A mortgage, deed of trust, or other security instrument, including one evidenced by electronic means authorized by law. (d) "Policy": Each contract of title insurance, in a form adopted by the American Land Title Association, issued or to be issued by the Company pursuant to this Commitment. (e) "Proposed Insured": Each person identified in Schedule A as the Proposed Insured of each Policy to be issued pursuant to this Commitment. (f) "Proposed Policy Amounf': Each dollar amount specified in Schedule A as the Proposed Policy Amount of each Policy to be issued pursuant to this Commitment. (g) "Public Records": Records established under state statutes at the Commitment Date for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without Knowledge. (h) "Title": The estate or interest described in Schedule A. 2. If all of the Schedule B, Part I —Requirements have not been met within the time period specified in the Commitment to Issue Policy, this Commitment terminates and the Company liability and obligation end. 3. The Company's liability and obligation is limited by and this Commitment is not valid without: (a) the Notice; (b) the Commitment to Issue Policy; (c) the Commitment Conditions; (d) Schedule A; (e) Schedule B, Part I —Requirements; and (f) Schedule B, Part II —Exceptions; and (g) signed by the Company or its issuing agent that may be in electronic form. 4. COMPANY'S RIGHT TO AMEND The Company may amend this Commitment at any time. If the Company amends this Commitment to add a defect, lien, encumbrance, adverse claim, or other matter recorded in the Public Records prior to the Commitment Date, any liability of the Company is limited by Commitment Condition 5. The Company shall not be liable for any other amendment to this Commitment. 5. LIMITATIONS OF LIABILITY (a) The Company's liability under Commitment Condition 4 is limited to the Proposed Insured's actual expense incurred in the interval between the Company's delivery to the Proposed Insured of the Commitment and the delivery of the amended Commitment, resulting from the Proposed Insured's good faith reliance to: (i) comply with the Schedule B, Part I —Requirements; (ii) eliminate, with the Company's written consent, any Schedule B, Part II —Exceptions; or (iii) acquire the Title or create the Mortgage covered by this Commitment. (b) The Company shall not be liable under Commitment Condition 5(a) if the Proposed Insured requested the amendment or had Knowledge of the matter and did not notify the Company about it in writing. (c) The Company will only have liability under Commitment Condition 4 if the Proposed Insured would not have incurred the expense had the Commitment included the added matter when the Commitment was first delivered to the Proposed Insured. (d) The Company's liability shall not exceed the lesser of the Proposed Insured's actual expense incurred in good faith and described in Commitment Conditions 5(a)(i) through 5(a)(iii) or the Proposed Policy Amount. (e) The Company shall not be liable for the content of the Transaction Identification Data, if any. This page is only apart of a 2016 ALTA Commitment for Title Insurance. This Commitment is not valid without the Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions; and signed by the Company or its issuing agent that may be in electronic form. CM-21 MT ALTA 08-01-16Commitment w-MT Mod (WLTIC Edition 02/02/18) :AN LAND TILAND TLF Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. (f) In no event shall the Company be obligated to issue the Policy referred to in this Commitment unless all of the Schedule B, Part I —Requirements have been met to the satisfaction of the Company. (g) In any event, the Company's liability is limited by the terms and provisions of the Policy. 6. LIABILITY OF THE COMPANY MUST BE BASED ON THIS COMMITMENT (a) Only a Proposed Insured identified in Schedule A, and no other person, may make a claim under this Commitment. (b) Any claim must be based in contract and must be restricted solely to the terms and provisions of this Commitment. (c) Until the Policy is issued, this Commitment, as last revised, is the exclusive and entire agreement between the parties with respect to the subject matter of this Commitment and supersedes all prior commitment negotiations, representations, and proposals of any kind, whether written or oral, express or implied, relating to the subject matter of this Commitment. (d) The deletion or modification of any Schedule B, Part II —Exception does not constitute an agreement or obligation to provide coverage beyond the terms and provisions of this Commitment or the Policy. (e) Any amendment or endorsement to this Commitment must be in writing. (f) When the Policy is issued, all liability and obligation under this Commitment will end and the Company's only liability will be under the Policy. 7. IF THIS COMMITMENT HAS BEEN ISSUED BY AN ISSUING AGENT The issuing agent is the Company's agent only for the limited purpose of issuing title insurance commitments and policies. The issuing agent is not the Company's agent for the purpose of providing closing or settlement services. 8. PRO -FORMA POLICY The Company may provide, at the request of a Proposed Insured, a pro -forma policy illustrating the coverage that the Company may provide. A pro -forma policy neither reflects the status of Title at the time that the pro -forma policy is delivered to a Proposed Insured, nor is it a commitment to insure. 9. INTENTIONALLY OMITTED This page is only a part of a 2016 ALTA Commitment for Title Insurance. This Commitment is not valid without the Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions; and signed by the Company or its issuing agent that may be in electronic form. CM-21 MT ALTA 08-01-16Commitment w-MT Mod (WLTIC Edition 02/02/18) AMIKICIN LAM Tirie oN Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. COMMITMENT FOR TITLE INSURANCE File No: 1487FPT Version No: 2 Issued by WestcorLand Title Insurance Company SCHEDULE A Commitment Date: June 17, 2020, at 07:30 am 2. Policy to be issued: (a) 2006 ALTA® Standard Coverage Policy Proposed Insured: JAG Capital Investments LLC Proposed Policy Amount: $224,900.00 Premium: $873.00 The estate or interest in the land described or referred to in this Commitment is Fee Simple. 4. The Title is, at the Commitment Date, vested in: Linda Hershberger The land referred to in this Commitment is described as follows: SEE ATTACHED EXHIBIT "A" For Informational Purposes Only: NHN Hathaway Ln, Kalispell, MT 59901 Countersigned Flathead Premier Title Company, LLC By: Tracy Martin This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy, the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. AMIKKnw The use of this Form (or any derivative thereof) is restricted to ALTA licensees and L, h TOLL: ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 1 Schedule A EXHIBIT "A" All that portion of the Southwest Quarter, Section 12, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana, more particularly described as follows: Commencing at a point on the North line of Old U.S. Highway No. 2, crossing the Southerly portion of said subdivision, said point being North 89°45'08" East, along the South section line, a distance of 1145.06 feet and North 00°13'35" West, a distance of 28.00 feet from the Southwest corner of the above said Section 12, Township 28 North, Range 22 West, said point being the Southwest corner of that certain tract of land described in deed to Samuel S. Davis and Leona J. Davis recorded June 7,1965 in Book 473, Page 563, as Document No. 4779, records of Flathead County, Montana.; thence North 00°13'35" West along the West boundary of said Davis Tract, 630.84 feet to the Northwest corner thereof, said point being the Point of Beginning of the parcel being described; thence along the North boundary of said Davis Tract, North 89°46'25" East 115.36 feet to the Northeast corner thereof; thence along the East boundary of said tract, South 00°13'35" East 234.80 feet to the Northwest corner of that parcel described in Book 305, Page 311, records of Flathead County, Montana; thence along the North line of said parcel and continuing along the North line of that parcel described in Book 300, Page 84, records of Flathead County, Montana, North 89°45'08" East 234.85 feet to the West line of that parcel described in Book 484, Page 207, records of Flathead County, Montana; thence along the West line of said parcel, North 00°14'52" West 114.41 feet to the Northwest corner thereof; thence along the North line of said tract, and continuing along the North line of that parcel described in Book 387, Page 232, records of Flathead County, Montana, North 89°45'08" East 170.96 feet; thence North 00°07'00" West 215.61 feet; thence North 89°38'45" East 327.85 feet to the East line of the West Half of the Southeast Quarter of the Southwest Quarter of the above said Section 12; thence along said East line of said aliquot part, North 00'01'52" West 360.00 feet; thence South 89°45'08" West 500.66 feet to a point which is on the Northerly extension of the West line of that parcel described in Book 484, Page 207, records of Flathead County, Montana; thence South 00°14'52" East 152.14 feet to the North line of that parcel described in Document No. 200428114320, records of Flathead County, Montana; thence along the North line of said parcel South 89°54'41" West 350.01 feet to the Easterly boundary of Hathaway Drive, a 60 foot wide deeded county road, described in Book 445, Page 341, records of Flathead County, Montana; thence along said Easterly boundary of said Hathaway Drive, South 00°13'35" East 304.62 feet to the Point of Beginning. Shown as Parcel 1 of Certificate No. 16564. EXCEPTING THEREFROM That portion conveyed to the Montana Department of This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy,- the Commitment Conditions; Schedule A; Schedule 8, Part I -Requirements; and Schedule 8, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. !' Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 2 Schedule A Transportation in Bargain and Sale Deed recorded September 28, 2019 as Document No. 201000022215, records of Flathead County, Montana. File No: 1487FPT COMMITMENT FOR TITLE INSURANCE Issued by Westcor Land Title Insurance Company SCHEDULE B, PART I Requirements The following are the requirements to be complied with prior to the issuance of said policy or policies. Any other instrument recorded subsequent to the effective date hereof may appear as an exception under Schedule B of the policy to be issued. Unless otherwise noted, all documents must be recorded in the office of the clerk and recorded of the county in which said property is located. All of the following Requirements must be met: The Proposed Insured must notify the Company in writing of the name of any party not referred to in this Commitment who will obtain an interest in the Land or who will make a loan on the Land. The Company may then make additional Requirements or Exceptions. 2. Pay the agreed amount for the estate or interest to be insured. Pay the premiums, fees, and charges for the Policy to the Company. 4. Documents satisfactory to the Company that convey the Title or create the Mortgage to be insured, or both, must be properly authorized, executed, delivered, and recorded in the Public Records. 5. When the proposed insured seeks ALTA extended coverage, we will require borrowers and/or sellers to execute an Indemnity and Affidavit as to debts, liens, and possession. 6. Satisfaction or release filed of record to release all Judgments, Liens, Mortgages, and Trust Indentures, if any, unless the proposed insured desires to assume or subordinate to said obligations. 7. If ALTA extended coverage is requested and/or if Westcor Land Title Insurance Company at its discretion feels a physical inspection of the property is necessary then an inspection will be performed. Any matters found by our inspection requiring disclosure to the parties involved in this transaction, will be shown in a supplemental report. Westcor Land Title Insurance Company has the right to add to the supplemental report additional exceptions to coverage, as it deems necessary. 8. Company requires Seller and Buyer to fully comply with the provisions of the Realty Transfer Act (M.C.A. 15-7-301 et. at.), which includes the requirement that Seller and Buyer fully complete a Realty Transfer Certificate which will be presented at closing. If either party fails to fully comply with the Realty Transfer Act, Company will add the following exception in the final title policy: Any state or county, taxing, assessing, or recording authority's failure to acknowledge the transfer to the Insured of the land described in Schedule A, pursuant to the Realty Transfer Act, as set forth in M.C.A.15-7-301 et. at. This page is only a part of a 2016 ALTA@ Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy, the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and L"D Tip« ALTA members in good standing as of the date of use. All other uses are prohibited. L wj.rl " Reprinted under license from the American Land Title Association. IkL Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 4 Schedule B - Part 1 File No: 1487FPT 9. The Company requires for its review satisfactory copy of the "Articles of Organization," the Operating Agreement and the regulations of the limited liability company, any amendment thereof, a certificate of good standing, and satisfactory evidence of authority of the officers, managers, or members to execute the documents. This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy,- the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 5 Schedule B - Part 1 File No: 1487FPT SCHEDULE B, PART II Exceptions THIS COMMITMENT DOES NOT REPUBLISH ANY COVENANT, CONDITION, RESTRICTION, OR LIMITATION CONTAINED IN ANY DOCUMENT REFERRED TO IN THIS COMMITMENT TO THE EXTENT THAT THE SPECIFIC COVENANT, CONDITION, RESTRICTION, OR LIMITATION VIOLATES STATE OR FEDERAL LAW BASED ON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, GENDER IDENTITY, HANDICAP, FAMILIAL STATUS, OR NATIONAL ORIGIN. The Policy or Policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company: Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the Effective Date but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this Commitment. 2. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records. Proceedings by a public agency, which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by Public Record. No liability is assumed for errors, omissions or changes of assessed valuations or amount of taxes assessed by any state, county, city or federal taxing or assessing authority. Any facts, rights, interest or claims which are not shown by the Public Records but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof 4. Easements, liens or encumbrances, or claims thereof, which are not shown by the Public Records Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof, (c) water rights, claims or title to water; ditch rights; (d) minerals of whatsoever kind, subsurface and surface substances, including but not limited to coal, lignite, oil, gas, uranium, clay, rock, sand and gravel and other hydrocarbons in, on, under and that may be produced from the Land, together with all rights, privileges, and immunities related thereto, whether or not the matters excepted under (a), (b), (c) or (d) are shown by the Public Records. The Company makes no representation as to the present ownership of any such interests. There may be leases, grants, exceptions or reservations of interests that are not listed Any lien or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records. Any service, installation or connection charge for any and all utilities, including, but not limited to sewer, gas, water or electricity. This page is only a part of a 2016 ALTA@ Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy, the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. ALII MAN The use of this Form (or any derivative thereof) is restricted to ALTA licensees and L"D Tip« ALTA members in good standing as of the date of use. All other uses are prohibited. L wj.rl " Reprinted under license from the American Land Title Association. IkL Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 6 Schedule B - Part 11 File No: 1487FPT County road rights -of -way, not recorded and indexed as a conveyance of record in the office of the Clerk and Recorder pursuant to Title 70, Chapter 21, M.C.A., including, but not limited to any right of the Public and the County of Flathead to use and occupy those certain roads and trails. 10. Real estate taxes or special assessments for the year 2020, that are not yet due or payable. 11. For informational purposes only, do not rely upon for a tax payment. Flathead County records indicate the taxes for the year 2019 are: FIRST HALF: $1,905.25 PAID SECOND HALF: $1,905.23 PAID TOTAL: $3,810.48 Assessor No.: 75-0174851 Tax Roll No.: 50268 12. Reservation of easement contained in instrument recorded November 21, 1973 in Book 560, Page 757 as Document No. 13412, records of Flathead County, Montana. 13. All matters, covenants, conditions, restrictions, easements and any rights, interest or claims which may exist by reason thereof, disclosed by Certificate of Survey No. Retracement Certificate of Survey No. 16564, but deleting any covenant, conditions or restriction indicating a preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status, or national origin to the extent such covenants, conditions or restrictions violate 42 USC 3604{c{. 14. Any claims arising from question of gaps, overlaps and encroachments between the legal description of the herein described property and those of surrounding parcels as shown on Certificate of Survey No. 16564. 15. Resolution No. 5152 by the City of Kalispell recorded October 18, 2006 as Document No. 200629110040, records of Flathead County, Montana. 16. Grant of Conditional Use by and between the City of Kalispell and Lee Hershberger and Linda Hershberger, recorded October 18, 2006 as Document No. 200629110050, records of Flathead County, Montana. 17. Petition of Annex and Notice of Withdrawal rom Rural First District recorded October 18, 2006 as Document No. 200629110060, records of Flathead County, Montana. 18. Amended Resolution Designation of Controlled Access Highway and Facility recorded February 11, 2010 as Document No. 201000003450, records of Flathead County, Montana. 19. Terms and provisions in Bargain and Sale Deed by Lee Hershberger and Linda Hershberger to the Montana Department of Transportation recorded September 28, 2010 as Document No. 201000022215, records of Flathead County, Montana. 20. Ordinance No. 1704 by the City of Kalispell recorded November 22, 2011 as Document No. 201100024347 and re -recorded January 31, 2012 as Document No. 201200002284, records of Flathead County, Montana. This page is only a part of a 2016 ALTA@ Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy, the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. ALII MAN The use of this Form (or any derivative thereof) is restricted to ALTA licensees and L"D Tip« ALTA members in good standing as of the date of use. All other uses are prohibited. L wj.rl " Reprinted under license from the American Land Title Association. IkL Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 7 Schedule B - Part 11 WESTCOR LAND TITLE INSURANCE COMPANY Notice of Privacy Policy of Westcor Land Title Insurance Company Westcor Land Title Insurance Company ("WLTIC") values its customers and is committed to protecting the privacy of personal information. In keeping with that philosophy, we have developed a Privacy Policy, set out below, that will ensure the continued protection of your nonpublic personal information and inform you about the measures WLTIC takes to safeguard that information. Who is Covered We provide our Privacy Policy to each customer when they purchase an WLTIC title insurance policy. Generally, this means that the Privacy Policy is provided to the customer at the closing of the real estate transaction. Information Collected In the normal course of business and to provide the necessary services to our customers, we may obtain nonpublic personal information directly from the customer, from customer -related transactions, or from third parties such as our title insurance agents, lenders, appraisers, surveyors or other similar entities. Access to Information Access to all nonpublic personal information is limited to those employees who have a need to know in order to perform their jobs. These employees include, but are not limited to, those in departments such as legal, underwriting, claims administration and accounting. Information Sharing Generally, WLTIC does not share nonpublic personal information that it collects with anyone other than its policy issuing agents as needed to complete the real estate settlement services and issue its title insurance policy as requested by the consumer. WLTIC may share nonpublic personal information as permitted by law with entities with whom WLTIC has a joint marketing agreement. Entities with whom WLTIC has a joint marketing agreement have agreed to protect the privacy of our customer's nonpublic personal information by utilizing similar precautions and security measures as WLTIC uses to protect this information and to use the information for lawful purposes. WLTIC, however, may share information as required by law in response to a subpoena, to a government regulatory agency or to prevent fraud. Information Security WLTIC, at all times, strives to maintain the confidentiality and integrity of the personal information in its possession and has instituted measures to guard against its unauthorized access. We maintain physical, electronic and procedural safeguards in compliance with federal standards to protect that information. The WLTICPrivacy Policy can also be found on WLTIC's website at www.wltic.com. DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR AUTUMN CREEK SUBDIVISION ARTICLE I. DECLARATION AND PURPOSE Section 1.1: Declarant: The undersigned is the declarant, JAG Capital Investments, LLC, original owner of all property encompassed in Autumn Creek. The Declarant hereby declares for itself, its successors, and assigns, that all property in Autumn Creek shall at all times be owned, held, used, and occupied subject to the provisions contained in this Declaration of Covenants, Conditions, and Restrictions. The Declarant is to hold all rights and responsibilities of the future Homeowners Association as detailed in this declaration in order to care for and manage Autumn Creek during the Period of Declarant Control. Section 1.2: Property: Shall mean all residential lots and common areas in Autumn Creek according to the final plat on record in the office of the Clerk on Recorder of Flathead County, Montana. Additional property to be added to Autumn Creek shall also be subject to and comply with this declaration. Declarant has the right to modify property and easements during the Period of Declarant Control. Section 1.3: Purpose: The purpose of these Covenants, Conditions, and Restrictions is to establish and maintain guidelines for developing, building, maintaining, living, and governing in Autumn Creek in order to ensure and preserve attractiveness, safety, livability, and values for the benefit of homeowners and residents in the subdivision. This declaration is meant to ensure all properties maintain a minimum standard of care and quality and to guard against improper use of homes or property. Section IA: Term: These Covenants, Conditions, and Restrictions shall be binding to all property within Autumn Creek and shall transfer to all future owners. Section 1.5: Amendments: Shall there be a need to modify these Covenants, Conditions, and Restrictions, an amendment(s) signed by three directors of the homeowners' association for this subdivision and stating that a majority of property owners vote in favor of any changes and stating the changes must be recorded. Amendments shall be binding upon recording ARTICLE II. DEFINITIONS Section 2.1: Architectural Review Committee or ARC means the committee formed to review project proposals for architecture, design, construction, landscaping, fencing, and exterior improvements to ensure compliance with this declaration and attractiveness and harmony throughout Autumn Creek. Section 2.2: Articles of Incorporation shall mean Articles of Incorporation of Autumn Creek Homeowners Association, as the same may be amended from time to time. Section 2.3: Assessments means the annual, special, and default assessments levied to meet the estimated financial requirements of the Autumn Creek Homeowners Association. Section 2.4: Board of Directors means board of directors of the Homeowners Association. Autumn Creek CCRs Section 2.5: Bylaws shall mean the bylaws of Autumn Creek Homeowners Association which establish methods and procedures of its operation, as the same may be amended from time to time. A copy of the current bylaws has been recorded with this document and any amendments to the bylaws shall also be recorded with the Clerk and Recorder of Flathead County, Montana. Section 2.6: Common Area shall mean all property in Autumn Creek subject to this declaration but excluding individual lots within the property. Common areas are for common use and benefit to all homeowners. Common area maintenance is the responsibility of the Homeowners Association. Section 2.7: Common Expenses means expenses to maintain Autumn Creek as defined by Autumn Creek Homeowners Association. Common Expenses include road and common area maintenance, servicing, conserving, management, administration, duties to comply with this declaration, and any other expenses deemed necessary by the Homeowners Association for care of Autumn Creek. Section 2.8: Declarant means the JAG Capital Investments,LLC, its successors, or assigns acting as the original owner(s) of the property. Section 2.9: Declaration means this Declaration of Covenants, Conditions, and Restrictions for Autumn Creek. Section 2.10: Design Guidelines are guidelines specified in this declaration meant to provide design standards for the exteriors of any lot or common area. Section 2.11: Autumn Creek shall mean Autumn Creek subdivision as defined on recorded plat. Section 2.12: Homeowners Association or HOA means Homeowners Association of Autumn Creek subdivision Section 2.13: Improvements means all buildings, parking areas, fences, walls, landscaping, lighting, driveways, roads, trails, gates, signs, changes in any exterior color or shape, excavation and all other site work, including, without limitations, grading, road construction, utility improvements, removal or maintenance of trees or plants, and any new exterior construction or exterior improvement which may not be included in the foregoing. Improvements does not include turf repair or negligible improvements which will not affect colors or exterior appearance. Improvements means all current and future improvements. Section 2.14: Lot means parcel of land designated as a lot on the recorded plat. Section 2.15: Member means any person or entity holding membership in the Autumn Creek Homeowners Association. Section 2.16: Owner means the person or persons, entity or entities, who own of record, according the real property records of Flathead County, Montana, fee simple title to a Lot, except that a person purchasing a Lot under contract for deed which is recorded in the records of Flathead County, Montana. Section 2.17: Period of Declarant Control means the period beginning on the date this declaration is first recorded in the office of the Clerk and Recorder of Flathead County, Montana, and ending on the earlier of. (a) the date which is 20 years later, or (b) the date on which the declarant has sold all of the Lots on all of the plats. Autumn Creek CCRs Section 2.18: Plat means recorded survey of all or part of the property Section 2.19: Utilities: For the purpose of this declaration, utilities shall mean water, sewer, electricity, and natural gas. ARTICLE III. HOMEOWNERS ASSOCIATION Section 3.1: Homeowners Association: The Autumn Creek Homeowners Association, or HOA, shall act as a homeowner's association for Autumn Creek. The Homeowners Association shall be established by the declarant. Section 3.2: Membership: All owners of lots within Autumn Creek shall be members of the Homeowners Association. The owners of any lot shall automatically become members of the HOA until ownership of the lot(s) ceases for any reason. The Declarant shall be a member to the extent of the lot ownership of the same. (a) Contact Information: Upon acquiring ownership of a lot, owner shall immediately inform HOA of names and contact information. Owners shall be responsible for informing HOA of any change in contact information. Section 3.3: Board of Directors: At establishment of the Homeowners Association, there shall be inaugurated a manager of the HOA who will sit on the board of directors. The HOA may establish other directors as necessary. The Board of Directors is responsible for organizing and managing all duties of the HOA. The Board of Directors shall schedule HOA meetings from time to time as needed and shall manage expenses and assessments. Except for management and execution of obligations of the HOA, the Board of Directors shall have no other powers except those granted to all members. The HOA shall establish terms for members of the board of directors as they see fit. Section 3.4: Voting: There shall be one vote for each lot after the Period of Declarant control. Prior to that time all voting rights shall be vested in the Declarant. Declarant may agree with a majority of the lot owners to assign certain specific voting rights to the lot owners. Such assignment will be done as an amendment to this document. Section 3.5: Powers and Duties: Subject to the rights and obligations of this declaration, the HOA will be responsible for the administration and operation of Autumn Creek. (a) Common Areas: The HOA is responsible for maintaining common areas for safe use by all and visual appeal. The HOA may grant easements, rights -of -way, leases, licenses and concessions through or over the common area for the purpose of accommodating minor encroachments by utilities, adjacent property owners, or other purposes that do not unreasonably interfere with the use of the Common Area by owners. The HOA shall have the primary purpose of maintaining all common areas of the subdivision including but not limited to the storm pond, riparian area, park and trail along Three Mile Drive. (b) Utilities: HOA is responsible for coordinating maintenance and repair of underground utilities in common areas as needed. Owners are responsible for repair of utilities serving individual lots and at connections to main utility lines in the street. Owners are responsible for repair of utilities serving an individual lot, even if the location of repair is in a Common Area. HOA is not responsible for utility repairs at connections or to individual lots. Autumn Creek CCRs (c) Common Expenses: The HOA is responsible for managing common expenses shared by all owners. Common expenses shall include road maintenance, snow removal in common areas, common area maintenance, servicing, conserving, management, administration, duties to comply with this declaration, and any other expenses deemed necessary by the Homeowners Association for care of Autumn Creek. (d) Weed Control: Weed Control in Common Areas is the responsibility of the HOA. The HOA shall guard against noxious weeds as defined by Flathead County, Montana. The HOA shall control weeds and landscaping in common areas in order to maintain visual appeal throughout the subdivision. The HOA is not responsible for weed control on individual lots or on easements which are on individual lots. If an owner of a lot is not exercising weed control deemed necessary by the HOA, the HOA may take action on account of non-compliance with this declaration. (e) Easements: The HOA has the right to easements on individual lots for the purpose of inspections and maintenance of utilities or access to common areas. Except for underground utility maintenance, upkeep of easements on individual lots is the responsibility of the corresponding owner(s) of the lot. (f) Books and Records: The HOA is responsible for keeping updated books, records, documents, and financial statements and will make them available for inspection by Owners upon request. (g) Budget and assessments: The HOA is responsible for keeping a budget and estimating yearly expenses for Autumn Creek. The HOA is responsible for setting and collecting annual assessments and managing money and expenses throughout the year. (h) Committees: The HOA may delegate duties and responsibilities to any committee or other entity that the HOA may choose to form. The HOA shall support and maintain an active Architectural Review Committee to review ongoing improvements in the subdivision. (i) Remedies for non-compliance to Declaration of Covenants, Conditions, and Restrictions: The HOA may establish and charge fines for violations of this declaration. The HOA has the right to take action for violations to this declaration to the extent allowed by law. 6) Meetings: The HOA is responsible for scheduling and holding meetings from time to time. All owners shall be notified of all HOA meetings not less than 30 days in advance of any meeting. Section 3.6: The Declarant hereby waives on behalf of all the properties within the subdivision the right to object to any Special Improvement District Assessment imposed by the City of Kalispell for the purpose of completing the obligations stated in section 3.5 a through d, in the event the Homeowners Association is dissolved or ceases to perform such functions and the City Council for the City of Kalispell adopts such special improvement district. ARTICLE IV. ASSESSMENTS Section 4.1: Assessments: Each owner of any lot, by acceptance of the deed to a lot, is deemed to covenant and agree to pay to the HOA assessments for common expenses. All types of assessments shall be payable to the HOA in installments and on dates determined by the HOA. The HOA shall notify owners of assessments, installments, and due dates no less than thirty (30) days prior to due dates. Autumn Creek CCRs 4 Section 4.2: Annual Assessments: The HOA shall figure and collect annual assessments from each owner in an amount equal for each lot based on estimated common expenses for the year. Annual Assessments shall be prorated for lots which transfer ownership during a year. Section 4.3: Special Assessments: Special Assessments may be collected for capital improvements or other purposes agreed upon within the HOA and not included in annual assessments. Special Assessments shall be equal for each lot. Section 4.4: Default Assessments: Default assessments may be assessed against a lot pursuant to this declaration for the Owner's failure to perform an obligation under this declaration or because the HOA has incurred an expense on behalf of or caused by the owner. Section 4.5: Remedies for Nonpayment of Assessment: Any installment of an Assessment which is not paid within thirty (30) days after its due date shall bear interest from the due date at the rate of ten percent (10%) per annum. The HOA or manager may bring an action at law against the owner personally and/or place and foreclose a lien against the property. No owner may waive or otherwise escape liability for the assessments or charges provided for herein by non-use of the common area or abandonment of their unit. If there is a default in payment of an installment, assessment, or charge, the HOA may accelerate the remaining balance of the annual or special assessment due by giving ten days written notice to the defaulting owner. Section 4.6: No refunds: No owner shall be entitled to any rebate, return, or refund of any amount of assessments paid to the HOA which are held as cash on hand or in any reserve account. Section 4.7: No Assessments for Declarant: Notwithstanding the ownership of any empty lot, the Declarant shall not be obligated to pay any assessments. ARTICLE V. PROPERTY USE RESTRICTIONS Section 5.1: Easements: The property will be subject to all easements shown on any recorded Plat. Section 5.2: Land Use: Each lot may be used for a single family or town home residence based on the Plat. There shall be no commercial use on the property. Home businesses are not permitted. Rentals or home office or related uses which do not result in increased vehicular traffic shall not be considered commercial use. Garage sales shall be permitted, as long as no more than two such sales are conducted per year on any lot. Section 5.3: No subdivision of Lots: No Lot shall be further subdivided in any manner. Section 5.4: Structures: There shall be no more than one town home or single family home on any lot as outlined in the Plat. Structures, including fences, must conform to setbacks and height restrictions set by Kalispell, Montana. Accessory structures for storage and recreation may be allowed per the City of Kalispell's Zoning regulations and upon approval of the Architectural Review Committee. Fencing must be in accordance with the design guidelines and must be approved by the Architectural Review Committee. Section 5.5: Dwelling size: Each home shall have a minimum of 1,000 square feet of total living space, not including garages or outdoor spaces. Two story dwellings shall have at least 600 square feet of living space at ground level. Autumn Creek CCRs Section 5.6: Garage: Each home shall have an attached garage for at least one car. Section 5.7: Driveways: Each home shall have a driveway paved in asphalt or concrete. Driveways shall be constructed so as to not interfere with drainage and shall include culverts where necessary. Section 5.8: Dwelling Construction: All dwellings shall be constructed on the lot with new materials. There shall be no trailer homes, mobile homes, modular homes, or prefabricated homes placed on any lot. Used materials in good condition, such as brick, stone, or timber beams may be utilized provided advance approval has been obtained from the Architectural Review Committee. All construction must conform to Local Building Codes and Fire Codes. All construction shall be completed within 12 months after the start of construction. Section 5.9: Drainage Control: Reasonable precaution shall be taken during construction and thereafter to prevent erosion and drainage problems. All disturbed soil areas shall be revegetated within a reasonable time in such a fashion to minimize erosion. Section 5.10: Utilities: All utilities shall be placed underground. The subdivision shall be connected to City of Kalispell water and sewer systems. No private water or sewer systems may be constructed. Section 5.11: Antennas, Poles, and other structures: No antennas, poles, cellular telephone towers, communication towers, or other structures shall be erected unless approved by the Architectural Review Committee prior to installation. Any satellite dish receiver must be 24 inches or less in diameter and shall not be visible from any road. Section 5.12: House numbers: Owners shall maintain house numbers which are clearly visible from the street. Section 5.13: Vehicles: All vehicles shall be parked in the garages or driveways, and no vehicle shall be parked on the common area except on a temporary basis. The parking or storage of campers, camping trailers, recreational vehicles, boats, snowmobiles, trailers, or unlicensed vehicles is only allowed if in an enclosed garage or screened from view. Section 5.14: Animals: Dogs (no more than 2) or cats (no more than 2) or other small household pets may be kept, providing that they are not kept, bred, or maintained for any commercial purpose. No livestock shall be raised, bred, or kept on any lot. Household pets must be contained upon owner's lot. In common areas, pets must be kept on leashes and cleaned up after. All pet enclosures shall be kept in the rear yard of a lot. No dog which barks and can be heard on any frequent or continuing basis shall be kept on any lot. Pets constituting a nuisance may be ordered by the HOA to be kept within the residence of the owner or ordered expelled from Autumn Creek. Section 5.15: Signs: No signs, billboards, banners, or advertising devices of any nature except as may be authorized be the Architectural Review Committee shall be erected on any lot except for temporary For Sale signs. Section 5.16: Outdoor Lighting: Lighting shall serve only the lot on which it is located. A reasonable effort should be exercised to limit light pollution and lights shining onto neighboring properties. Autumn Creek CCRs 6 Section 5.17: Landscaping: Landscaping of an entire lot must occur within 1 year of excavation or other ground disturbance following approval of landscaping plans by the Architectural Review Committee. Section 5.18: No Noxious weeds: No Noxious weeds, as defined by Flathead County, may be allowed on any lot or in any common area. Section 5.19: No hunting: No hunting of any kind shall be permitted in Autumn Creek. Section 5.20: No fuel tanks: No fuel tanks, whether above or below ground, shall be permitted in Autumn Creek. Section 5.21: No oil drilling: No oil drilling, oil development operations, oil refining, quarrying, or mining operation of any kind shall be permitted upon or in any lot, nor shall oil wells, tanks, tunnels, mineral excavations or shafts be permitted upon or in any lot. No derrick or other structures designed for use in boring for natural gas shall be erected, maintained, or permitted upon any lot. ARTICLE VI. OWNERS RIGHTS AND RESPONSIBILITIES Section 6.1: Abide by Declaration: Agreed upon at acceptance of a deed to any lot, all owners and residents in Autumn Creek must confonn and abide to all portions of this declaration. Section 6.2: Homeowners Association: All owners are automatically equal members of the Homeowners Association as of its initiation. All owners have equal voting rights, however all votes must be collected at times given and through methods established by the HOA in order to be counted. (a) Contact Information: Owner is responsible for providing to the HOA current contact information and notifying the same of any updates to contact information immediately. Section 6.3: Assessments: All owners must pay assessments as levied by the HOA. Nonpayment of assessments is subject to action as allowed by this declaration and by law. Any assessment not paid within two months of the due date is deemed to be consent of the lot owner(s) to the filing of a lien for the assessments which lien shall include interest at the legal rate and attorney fees. Section 6.4: Maintenance: Owners are responsible for maintaining all structures, land, driveways, sidewalks, and any other features on the lot in working order and in appealing condition to promote safety, health, visual attractiveness, and value in the neighborhood. All expenses incurred as a result of maintenance shall be the responsibility of the owner. If reasonable maintenance is not being exercised in the opinion of the HOA, the HOA may take action for non-conformance to this declaration. (a) Sidewalks and Boulevards: Maintenance of any sidewalk median strip or boulevard shall be the responsibility of the Lot Owner whose Lot directly abuts the median strip. Where a median strip abuts on a common area, the maintenance responsibility shall be the obligation of the HOA. Section 6.5: Improvements: Improvements are encouraged to maintain quality and increase value. Improvements that change the exterior of the home or the lot must be submitted to and approved by the Architectural Review Committee prior to initiation of any project. Autumn Creek CCRs 7 Section 6.6: Weeds: Owners are responsible for guarding against and treating weeds on any part of the lot. Section 6.7: Easement Access: Access must be granted to easements by the HOA or utility companies for inspections and maintenance. Section 6.8: Easement Maintenance: Easements on any individual lot shall be maintained by the owner of the lot. Section 6.9: Trash: Trash removal for each lot is the responsibility of the owners. No trash or debris shall be collected, piled, or burned on any part of any lot. Section 6.10: Snow Removal: Snow removal on any driveway or private sidewalk is the responsibility of the owner. Driveways and sidewalks shall be cleared as needed to maintain safety for residents and visitors. Snow removal on sidewalks abutting a lot shall be the responsibility of the Lot owner per city ordinances. Section 6.11: Landscaping: Landscaping shall be maintained regularly to promote health, safety, value, and guard against weeds. Landscaping on any lot is the responsibility of the owner. Landscaping shall be established and maintained on each entire lot to provide erosion control and visual appeal. Lawns and landscaping features shall be irrigated and mowed/trimmed as needed. Any improvements to landscaping which change the look or character of the lot shall be submitted and approved by the Architectural Review Committee prior to commencement of any project. Landscaping on sidewalk boulevards is the responsibility of the adjacent lot owner. Section 6.12: No noxious activity: No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. ARTICLE VII. DESIGN GUIDELINES Section 7.1: Purpose: The purpose of design guidelines is to provide guidelines and expectations for the exterior appearance and quality of all structures in Autumn Creek to owners, builders, or any other entities involved in establishing, maintaining, or improving all areas in Autumn Creek except the interiors of residences. The Design Guidelines are meant to ensure all structures in Autumn Creek meet a high standard of quality and appearance in order to maintain pride and value throughout the subdivision. Section 7.2: Applicable Features: All exterior structures, landscaping, hardscapes, fencing, and all other exterior features, whether permanent or temporary, shall be subject to these design guidelines. Any exterior improvement that changes the appearance or quality of the lot or structures on the lot must comply with the design guidelines. Section 7.3: Enforcement: All new structures or improvements to exteriors must be submitted and approved by the Architectural Review Committee prior to commencement of any project as described in Article VIIL If any feature is created which has not been approved by the Architectural Review Committee, the HOA may take action for non-compliance with this declaration including but not limited to demanding removal of the unapproved feature, charging a fine for a violation, or taking action as allowed by law. Autumn Creek CCRs 8 Section 7.4: Architecture: Homes and secondary structures shall be of complementary architecture to other structures in the neighborhood. Section 7.5: Exterior Finishes: Exterior colors shall be pleasant and complementary to surrounding exterior finishes in the neighborhood. Colors in the subdivision shall be complementary, but not matching in order to achieve pleasing variation. The primary home structure on each lot must have at least two colors. Neighboring homes must have reasonable variation in color. Only Class A or B roofing materials, as rated by the National Fire Protection Association, shall be allowed on all structures. Section 7.6: Secondary structures: sheds, canopies, or other yard structures must complement the primary structure in architecture and exterior finishes and must be approved by the Architectural Review Committee prior to construction or installation. Section 7.7: Landscaping: Each lot shall be landscaped completely to provide erosion control and visual appeal. A mixture of grass lawn, trees, hardscape areas, and garden areas is encouraged. Plant species natural to the area are encouraged. Section 7.8: Fencing: Fencing must comply with Flathead County zoning restrictions. No fencing is allowed forward of the front of the primary residential structure. Allowable fencing options include but are not limited to wood, chain link, and vinyl. Other fencing materials may be permitted at the discretion of the Architectural Review Committee. ARTICLE VIII. ARCHITECTURAL REVIEW COMMITTEE Section 8.1: Committee and Purpose: An Architectural Review Committee (ARC) shall exist to review and ensure compliance with the design guidelines and property use regulations in order to ensure standards of quality and visual appeal throughout Autumn Creek. During the Period of Declarant Control, the ARC shall consist of at least two members appointed by the declarant. (a) Members and Management: The HOA shall manage the ARC and establish membership practices and terms. Members of the ARC may be HOA members, or the HOA may choose to hire external consultants as members for the ARC. The ARC must be comprised of at least two committee members at all times. One member of the ARC shall be the main contact person and shall receive submittals and communicate on behalf of the ARC. Section 8.2: Scope: The Architectural Review Committee must review and approve of the appearance and materials of all structures on the exterior of the home on any lot. The ARC is NOT responsible for reviewing construction methods or practices for safety or compliance with building codes. The ARC shall not have control of or influence over anything on the interior of any structure. Items that must be submitted and approved by the ARC include but are not limited to: new homes, new accessory structures, fencing, landscaping, tree removal, and improvements, including new paint colors, to any of the same. ARC review for the foregoing is necessary for work on all lots and in all common areas. ARC approval is not necessary for planting small gardens, bushes, or trees. The ARC must review submittals based on this declaration and the design guidelines. The ARC may use its judgement and interpretation of this declaration while reviewing submittals. Wherein a submittal, or portion of a submittal, is not addressed in this declaration, the ARC may use discretion based on the appearance and values of the subdivision. Previous or existing construction or installation of exterior features or elements in the subdivision does not justify future approvals of similar elements, and each submittal will be reviewed individually and considered on a case by case basis. Autumn Creek CCRs Section 8.3: Required Submittals: The ARC shall keep a list of approved builders and designs. An owner using an approved builder need to seek the approval of ARC, but simply must advise ARC that they are using an approved builder and the builder will notify ARC of the approved design. ARC will only have to approve changes in the design and the color of the structure. The provisions below are waived. Section 8.4: Required Submittals If Not An Approved Builder: An owner, builder, or other representative must provide detailed plans for new construction or improvements for ARC review. Plans shall show location and the exterior appearance of the structure. Plans must include colors and types of materials. Plans and other necessary documents may be emailed to the designated ARC contact person. The HOA shall keep current contact information for the ARC contact person and shall share the information upon request. The ARC may request additional information or materials such as color or material samples if they feel it is necessary to review any given project. Section 8.5: Fees: The HOA may decide to charge a fee for Architectural Review to compensate for review time, meeting and submittal management, or outside hires if applicable. The fee and any details regarding the fee must be disclosed to all owners prior to being levied for any project. Section 8.6: Review Process: The ARC may choose to have regular meeting or scheduled meetings, but a meeting may not be required in all cases. The ARC members may choose to communicate in person or in any other manner about submittals. The designated ARC contact shall collect submittal documents and disperse them to the committee using a method agreed upon by the committee. The ARC contact person shall respond to the submittal in writing with the conclusion of the review agreed upon by all members of the ARC. The conclusion may be approval, disapproval, or conditional approval. Commencement of any project shall not occur until final approval has been granted by the ARC and any applicable fees have been paid. Section 8.7: Timeline: The ARC shall have thirty (30) days from the date of submittal to complete the review process and issue a response. The ARC shall issue a written response within 30 days. Construction or installation of approved projects may begin when approval is issued provided any appropriate fees have been paid. Where disapprovals exist, future submittals for the same project shall be treated as new submittals and are subject to an additional 30-day review timeline. Where conditional approvals exist, work may commence after the required conditions are agreed upon in writing, providing any applicable fees have been paid. In an event in which no response is issued by the ARC within the 30- day review timeline, the project shall be deemed approved, however it is the responsibility of the owner to ensure it meets standards in this declaration. Section 8.8: Revisions to Processes: The ARC and the HOA jointly shall have the power to change, add, or modify ARC processes, applications, and practices as necessary. Any change must be written and recorded prior to initiation of new or changed processes. ARTICLE IX. MISCELLANEOUS Section 9.1: Limited Liability: Neither the declarant, the HOA, the ARC, nor their respective members shall be liable to any party for any action or for any failure to act with respect to any matter if the action taken or failure to act was in good faith and without malice. Section 9.2: Severability: Invalidity or unenforceability of any provision contained in this declaration in whole or in part shall not affect the validity or enforceability of any other provision of the declaration. Autumn Creek CCRs 10 Section 9.3: No Waiver: Failure to enforce any provision contained in this declaration shall not operate as a waiver of any such provision or of any other provision of this declaration. Section 9.4: Entirety: This declaration shall be binding in its entirety and any article or section of this document cannot stand alone. Signature of Declarant Date: Jason Catron, Managing Partner JAG Capital Investments, LLC STATE OF MONTANA, COUNTY OF FLATHEAD On this day of 20 , before me, the undersigned, a Notary public for the State of Montana, personally appeared Jason Catron, Managing Partner, JAG Capital Investments, LLC, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that such person executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. Autumn Creek CCRs 11 From: Gwen Hein To: ddedman@kalispell.com CC: Doug Peppmeier Date: 10/14/2020 5:03 PM Subject: RE: [EXTERNAL] RE: [EXTERNAL] Autumn Creek Subdivision - Single Access Inquiry (K20-042) Dave, Thank you! This answers our question Gwen Hein, PE I Engineer TD&H Engineering 1720 9th Avenue STE B I Helena, MT 59601 p: 406.603.4201 www.tdhenaineerina.com >>> Dave Dedman <ddedman@kalispell.com> 10/14/2020 3:57 PM >>> Gwen I am currently working from home with limited access to my essentials however I think I can address these questions. The homes on Hathaway would not count towards the residence count for your subdivision. The Cul-de-sacs are not deemed fire department access road as they are a part of the actual roadway. Cul-de-sacs such as seen in the proposal are required for apparatus turn around areas. The requirements for these are found in appendix D of the ICC fire code. From a preliminary look at what has been presented I think everything should meet the fire code requirements. I can dig deeper and follow up with any additional questions once I am back in the office. Sentfrom Mail for Windows 10 From: Gwen Hein Sent: Wednesday, October 14, 20201:24 PM To: Dave Dedman Cc: Doug Peppmeier Subject: [EXTERNAL] RE: [EXTERNAL] Autumn Creek Subdivision - Single Access Inquiry (K20-042) Hi Dave, I'm following up a voice mail I left this afternoon regarding the proposed single access subdivision off of Hathaway Lane. I wanted to clarify: the maximum number of units we can have based on density requirements is 28. Is it correct that the culdesac counts as the "fire apparatus access road" since it meets City of Kalispell design standards? Or will existing homes on Hathaway count against the 30 residence threshold? Thank you, Dave! Gwen Hein, PE I Engineer TD&H Engineering 1720 9th Avenue STE B I Helena, MT 59601 p: 406.603.4201 www.tdhennineering.com >>> Gwen Hein 10/12/2020 7:00 AM >>> Dave, Thank you for the quick response! This is just what we needed to know. The proposed development will have 28 residences (mostly townhomes and a few single family lots). I do want to clarify: is it correct that the culdesac counts as the "fire apparatus access road" in this case? Or would it be Hathaway Lane? If it is Hathaway do the existing homes count against the 30 residence threshold? Thank you, Gwen Hein, PE I Engineer TD&H Engineering 1720 9th Avenue STE B I Helena, MT 59601 p: 406.603.4201 www.tdhenaineerina.com >>> Dave Dedman <ddedman@kalispell.com> 10/8/2020 2:23 PM >>> Hello Gwen, Thank you for reaching out in regards to this development. I was not involved with the acceptance and planning of this in 2005 so the drawing was useful. The currentfire code has changed since this was initially approved and is more stringent. Currently on 30 residences are allowed with a single access. Length isn't really a consideration however. I'm not sure if this will impact the development are not, not Knowing how many of those lots are single families or duplexes. There is exceptions to this number if the homes are sprinkled. Attached is the current language as adopted. SECTION D107 ONE- ORTWO-FAMILY RESIDENTIAL DEVELOPMENTS D107.10ne- ortwo-family dwelling residential developments. Developments of one- or two-family dwellings where the number of dwelling units exceeds 30 shall be provided with two separate and approved fire apparatus access roads, and shall meet the requirements of Section D104.3. Exceptions: 1. Where there are more than 30 dwelling units on a single public or private fire apparatus access road and all dwelling units are equipped throughout with an approved automatic sprinkler system in accordance with Section 903.3.1.1, 903.3.1.2 or 903.3.1.3 of the International Fire Code, access from two directions shall not be required. 2. The number of dwelling units on a single fire apparatus access road shall not be increased unless fire apparatus access roads will connect with future development, as determined by the fire code official. Highway 2 may be an option with the current fire codes as length is not really relevant. Let me Know if there is additional information that you may need or if there are other options that you want to look at Dave Dedman City of Kalispell Fire Chief Fire 19k 406-758-7763 Work 406-751-1616Mobile ddedman@kalispell.com 3121stAve. E. Kalispell, MT 59W1 From: Gwen Hein <Gwen.Hein@tdhengineering.com> Sent: Wednesday, October 7, 2020 5:30 PM To: Dave Dedman <ddedman@I<alispell.com> Cc: Doug Peppmeier<Doug.Peppmeier@tdhengi nee ring.com> Subject: [EXTERNAL] Autumn Creek Subdivision - Single Access Inquiry (K20-042) Hello Dave, I'm working with Doug Peppmeier on the Autumn Creek Subdivision off of Hathaway Lane near Highway 2. This project was originally conceptualized back in 2005 and recently got picked up again. Due to the existing wetlands there is a single access proposed. The 2005 preliminary plat had conditional approval. We are bringing the original work up to current standards and will begin the preliminary plat process again. One thing that we need to reconfirm to satisfy the City Subdivision Regulations is that Hathaway Lane can still be considered the primary access road. In 2005, it was deemed acceptable because Hathaway Lane ends in a hammer head that fire trucks can maneuver. Using Highway 2 as the primary access road means that the distance requirements cannot be met. Hathaway Lane to the end of Summer Place is -680' while Hathaway Lane from Highway 2 to Summer Place is - 963'. Before we get too far in the preliminary plat process, we want to confirm with you that using Hathaway Lane as the primary access road is acceptable. I've attached a draft lot layout for reference. The culdesac bulbs meet current City of Kalispell standards. I'll follow up with a call tomorrow. Thank you in advance for your help! Gwen Hein, PE I Engineer TD&H Engineering 1720 9th Avenue STE B I Helena, MT 59601 p: 406.603.4201 www.tdhenciineerinci.com Messages and attachments sent to or from this e-mail account pertaining to City of Kalispell business may be considered public or private records depending on the message content. The City is required by law to protect private, confidential information. Emails that contain confidential information such as information related to individual privacy may therefore be protected from disclosure under law. However, these communications are also subject to the Right to Know provisions of Montana's Constitution (Art. II, Sect. 9) and may be considered a "public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City's record retention policies. Any unauthorized review, use, disclosure or distribution of this e-mail or its attachment(s) is prohibited. If you are not the intended recipient, immediately contact the sender by reply e-mail and destroy all copies of the original message. Messages and attachments sent to or from this e-mail account pertaining to City of Kalispell business may be considered public or private records depending on the message content. The City is required by law to protect private, confidential information. Emails that contain confidential information such as information related to individual privacy may therefore be protected from disclosure under law. However, these communications are also subject to the Right to Know provisions of Montana's Constitution (Art. II, Sect. 9) and may be considered a "public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City's record retention policies. Any unauthorized review, use, disclosure or distribution of this e-mail or its attachment(s) is prohibited. If you are not the intended recipient, immediately contact the sender by reply e-mail and destroy all copies of the original message. I I I II I I II I I� I I I { I I l I I I I I I I I I I I I I I I I I I I I I M1 I I I I r I k I I I I� \ I I � I I SUBJECT TRACT LE AST I I I I I } I x ff k I { x �1° PLZW AY— I I I I I �U0 I ry { I I I � I I I I . f I I r � t � I k 1 2nd k I I I I k k St k k 5 p 5 ti Flathead ou t , Esri, 'ERE, Garmin, (c) ©;pe S etMap contributors, and he t GIS user comm-1 ity n Flathead County CITY LIMITS MAP GIS Department AUTUMN CREEK 0 0.045 0361 W E .09 o.�s o.27 o. s _—_--_ �[��N The areas depicted on these maps are for llustrative purposes only SUBDIVISION V and do not necessarily meet mapping, surveying, or engineering 800 South Main Street standards. Deriving conclusions from this map is done at the user's assumed risk. Kalispell, Montana 59901 ' R- RAI OF I x I { I I R-"I I I R A I I I I I I I I I I I ' RA-1 D I I )ritt i I I ' M1 I I I I i I k I I I t _ RA-1 I I I � SUBJECT TRACT I r � ,ELT r' R-2 03 I I I ' I }5 I x ff f r—--— I I I I I xl �r Y B 4 - 1134 1 2nd k I� I I _ k k k \ R3!RUD ti Flathead ou t , Es,ri, E E, GarmIn, (°cj ©pe etMap con4r�ibutors, nd he { GIS user comm N Flathead County ZONING MAP GIS Department AUTUMN CREEK 0 0.045 0.09 0.18 0.27 0.361 w e s _—_--_ �[��N The areas depicted on these maps are for llustrative purposes only SUBDIVISION V and do not necessarily meet mapping, surveying, or englneering 800 South Main Street standards. Deriving conclusions from this map is done at the user's assumed risk. Kalispell, Montana 59901 Flathead County n�--7GIS Department 800 South Main Street Kalispell, Montana 59901 N FLOOD PLAIN MAP AUTUMN CREEK 0 0.045 0.09 0.18 0.27 0.36i " E s The areas depicted on these maps are for llustrative purposes only SUBDIVISION and do not necessarily meet mapping, surveying, or englneering standards. Deriving conclusions from this map is done at the user's assumed risk. 01111 CVrY77F APP11111V KALISPELL Planning Department 201 1st Avenue East Kalispell, MT 59901 Phone: (406) 758-7940 Fax: (406) 758-7739 www.kalispell.com/planning PETITION FOR ZONING MAP AMENDMENT NAME OF APPLICANT: JAG Capital Investments, LLC MAIL ADDRESS: 175 Hutton Ranch Road, Suite 103, P.O. Box 283 CITY/STATE/ZIP: Kalispell, Montana 59901 PHONE: (406) 381-9672 INTEREST IN PROPERTY: Owner/Developer PLEASE COMPLETE THE FOLLOWING: A. Address of the property: east side of Hathaway Lane, North of Highway 2 West B. Legal Description: (Subdivision Name, Lot 8s Block and/or Tract Number (Section, Township, Range) Lots 6AAK, 6D1, 6AB, tract 0174851 SW 114 Section 12 Township 28 N Range 22 W P.M.M (Attach sheet for metes and bounds) C. Land in zone change (ac) 8.41 Acres D. The present zoning of the above property is: R-2 Residential E. The proposed zoning of the above property is: R-4 Residential F. State the changed or changing conditions that make the proposed amendment necessary: The subdivision regulations require a 100-foot setback around the wetland boundary. Under the present zoning, only 15 units or single family resi- dences could be constructed. R-4 zoning would allow for an increased den- sity to construct 26 town homes and 2 single family residences. HOW WILL THE PROPOSED CHANGE ACCOMPLISH THE INTENT AND PURPOSE OF: A. Promoting the Growth Policy The Growth Policy supports R-4 zoning in this area. The proposed density does not exceed 4 dwelling units per developable acre, but allocates units to smaller lots while providing proportionally large areas of open space and park space. B. Lessening congestion in the streets and providing safe access US HWY 2 has been improved along the corridor adjacent to the Hathaway Lane intersection. There is a center turn lane along with 9' wide paved shoulders. This widened section will support the additional traffic resulting from the proposed subdi- vision and zone change, providing safe ingress and egress. C. Promoting safety from fire, panic and other dangers Proposed infrastructure includes extension of City water to service the subdivision. Fire hydrants will be provided at locations approved by the fire chief. The cul-de-sacs meet City of Kalispell design standards providing area for fire trucks to maneuver and turn around. A variance request for the length of the cul-de-sac is included on the preliminary plat application, however the added distance will not be detrimental or injurious to resi- dents of Autumn Creek. The City fire department is less than 2 miles from the site. D. Promoting the public interest, health, comfort, convenience, safety and general welfare The proposed development will adhere to city regulations which inherently promote the public interest, health, and general welfare of the public. The requested R-4 zon- ing is compatible with the adjoining properties and provides new housing opportuni- ties within the city. For the lots adjacent to US HWY 93, a sound mitigation wall will be installed. Trees will be planted on the subdivision side of the wall to help detract from the highway. E. Preventing the overcrowding of land The goal of the zoning amendment is not to gain much density, but to allocate units to smaller lots. The subdivision is also comprised of open space and park space that accounts for approximately 36% of the parcel being subdivided. The density is within 4 dwelling units per developable acre (developable Area = 6.92 Acres). F. Avoiding undue concentration of population The Growth Policy supports R-4 zoning in this area. Furthermore, the goal of the zoning amendment is not to gain much density, but to allocate units to smaller lots. The subdivision is also comprised of open space and park space that accounts for approximately 36% of the parcel being subdivided. G. Facilitating the adequate provision of transportation, water, sewage, schools, parks and other public facilities The proposed subdivision is already within city limits and the requested zone change associated with it will include extension of City water from Green Briar Sub- division via a 12-inch water main, extending City water to the west side of the US 93 Bypass. City sewer has recently been extended from Triple Creek Drive to the commercial park south east of Autumn Creek Subdivision. As a result, the develop- ment can connect to City sewer via an extension to the Hathaway Lane US HWY 2 intersection. The subdivision consists of 3.03 acres of open space and park land and is already a part of the Kalispell public school district (District 5) and is zoned for Edgerton Elementary. The proposed development has the potential to add 10 to 12 school children. 2 H. Giving reasonable consideration to the character of the district The proposed subdivision maintains the character of the proposed zoning district. The requested zone amendment allows for a small increase in density by allocating town home units to smaller lots. In general, the proposed lots will provide ample yards for housing unit developments of this style while providing generous open space and park space. The density does not exceed 4 dwelling units per developable acre on an overall site basis. Giving consideration to the peculiar suitability of the property for particular uses The westerly boundary of the parcel contains a creek with undisturbed wetlands and a delineated flood plain parallels the creek. The proposed subdivision main- tains the character of this natural resource by designating the area as open space and placing park space adjacent to it. The remainder of the parcel is comprised of smaller town home lots. J. Protecting and conserving the value of buildings The proposed development will adhere to Design Standards and Zoning Regula- tions for the requested amendment district. The subdivision covenants will provide a mechanism to ensure that property owners maintain a minimum level of upkeep to their property. K. Encouraging the most appropriate use of land by assuring orderly growth This development is consistent with the Growth Policy and with surrounding devel- opment. The signing of this application signifies approval for Kalispell Planning staff to be present on the property for routine monitoring and inspection during approval process. AJor la ag/ac6zo (Applicant Signature) (Date) 3 APPLICATION PROCESS APPLICABLE TO ALL ZONING APPLICATIONS: A. Pre -Application Meeting: A discussion with the planning director or designated member of staff must precede filing of this application. Among topics to be discussed are: Growth Policy compatibility with the application, compatibility of the proposed zone change with surrounding zoning classifications, and the application procedure. B. Application Contents: Completed application form. 2. Petition for zone change signed by the real property owners representing at least 65% of the land area for which the change in zoning classification is sought. 3. A map showing the location and boundaries of the property. 4. A title report of the subject property. 5. Electronic copy of the application materials submitted. Either copied onto a disk or emailed to planning2kalispell.com (Please note the maximum file size to email is 20mg) 6. Application fee per schedule below, made payable to the City of Kalispell. Zone Change: Base fee $550.00 For first 80 acres of area of the request add $20/acre For next 81 + acres add $10 / acre C. The application must be accepted as complete by the Kalispell Planning staff thirty five (351 days prior to the date of the planning board meeting at which it will be heard in order that requirements of state statutes and the zoning regulations may be fulfilled. rd Z w O z J 6 o " cn ED ryry 0O _ 0 xg3 a O LU �� xil'ILZx .ZS,1040 N Q �� l/d LL tzi iryry b � FJ' 1`la z a ` 3H � a� �W x� z 8� x rw m Ig � oG � w� =m o ' Cis G_ zo z5 / a Q: _- 5�-prc o°pW CpaN= eg ,- w o. pg _ It- =_ LU o F- Gw m 5g o F- L) +I Hz Of F- F- K U ry Q O cG Q ,L-2 i/....A. 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Outlaw_ 201 1 st Ave E Kalispell, MT 59901 t 1. Head north on 1st Ave E toward 2nd St E r, 2. Turn left onto E Center St & 3. Turn right onto S Meridian Rd 'l 4. Turn left onto Appleway Dr h 5. Sharp left onto US-2 W/U.S. Hwy 2 W r► 6. Turn right onto Hathaway Ln Destination will be on the right Kalispell Montana 59901 0.2 mi 0.9 mi 367 ft 0.4 mi 0.5 mi 1VA lW11 Map data ©2020 1000 ft, These directions are for planning purposes only. You may find that construction projects, traffic, weather, or other events may cause conditions to differ from the map results, and you should plan https://vmw. g oog I e.com/maps/di r/201 + 1st+Avenue+ East,+ Kal i spel I ,+ M T/48.1992276,-114.3460332/@48.1970874,-114.3379707,15z/am=t/data= ! 3ml ! 4b1 ! 4m8! 4... 1 /2 Flathead Premier Title Company, LLC 205 Junes Way, Suite 3 Whitefish, MT 59937 Phone: 406-862-7000 Fax: 406-233-6701 Transmittal Information Date: 08/03/2020 File No: 1487FPT Property Address NHN Hathaway Ln, Kalispell, MT 59901 Buyer\Borrower JAG Capital Investments LLC Seller Linda Hershberger For changes and updates please contact your Escrow Officer: Mary Nicholls Flathead Premier Title Company, LLC 205 Junes Way, Suite 3 Whitefish, MT 59937 Phone:406-862-7000 Fax:406-233-6701 E-Mail: Mary@flatheadpremiertitle.com Escrow or Title officer(s): Title Officer: Tracy Martin Flathead Premier Title Company, LLC 205 June's Way, Suite 3 Whitefish, MT 59937 Phone:406-862-7000 Fax:406-233-6701 Email: Tracy@flatheadpremiertitle.com Changes: TITLE COMMITMENT 1: Change to the vested owner TITLE COMMITMENT 2: Chnage to proposed insured Thank you for using Flathead Premier Title Company, LLC WESTCORE�A ALTA Commitment For Title Insurance (Adopted 06-17-06) (Revised 08-01-2016) (WITH MONTANA MODIFICATIONS) CON INHTMENT FOR TITLE INSURANCE ISSUED BY WESTCOR LAND TITLE INSURANCE COMPANY NOTICE IMPORTANT —READ CAREFULLY: THIS COMMITMENT IS AN OFFER TO ISSUE ONE OR MORE I INSURANCE POLICIES. ALL CLAIMS OR REMEDIES SOUGHT AGAINST THE COMPANY INVOLVING CONTENT OF THIS COMMITMENT OR THE POLICY MUST BE BASED SOLELY IN CONTRACT. THIS COMMITMENT IS NOT AN ABSTRACT OF TITLE, REPORT OF THE CONDITION OF TITLE, LEG OPINION, OPINION OF TITLE, OR OTHER REPRESENTATION OF THE STATUS OF TITLE. THE PROCEDUR USED BY THE COMPANY TO DETERMINE INSURABILITY OF THE TITLE, INCLUDING ANY SEARCH Al EXAMINATION, ARE PROPRIETARY TO THE COMPANY, WERE PERFORMED SOLELY FOR THE BENEFIT THE COMPANY, AND CREATE NO EXTRACONTRACTUAL LIABILITY TO ANY PERSON, INCLUDING PROPOSED INSURED. THE COMPANY'S OBLIGATION UNDER THIS COMMITMENT IS TO ISSUE A POLICY TO A PROP INSURED IDENTIFIED IN SCHEDULE A IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF COMMITMENT. THE COMPANY HAS NO LIABILITY OR OBLIGATION INVOLVING THE CONTENT OF COMMITMENT TO ANY OTHER PERSON. COMMITMENT TO ISSUE POLICY Subject to the Notice; Schedule B, Part I —Requirements; Schedule B, Part II —Exceptions; and the Commitment Condid WESTCOR LAND TITLE INSURANCE COMPANY, a South Carolina Corporation (the "Company"), commits to issue Policy according to the terms and provisions of this Commitment. This Commitment is effective as of the Commitment I shown in Schedule A for each Policy described in Schedule A, only when the Company has entered in Schedule A both specified dollar amount as the Proposed Policy Amount and the name of the Proposed Insured. If all of the Schedule B, Part I —Requirements have not been met within six (6) months after the Commitment Date, this Commitment terminates and the Company's liability and obligation end. IN WITNESS WHEREOF, WESTCOR LAND TITLE INSURANCE COMPANY has caused its corporate name and si to be hereunto affixed and by these presents to be signed in facsimile under authority of its by-laws, effective as of the date Commitment shown in Schedule A. C Premier Title - Whitefish Branch Junes Way, Suite 3 tefish, MT 59937 ie: 406-862-7000 CM-21 WESTCOR LAND TITLE INSURANCE COMPANY eside t ,,,,�� Attest:IJ - r*"``�� MT ALTA 08-01-16Commitment w-MT Mod (WLTIC Edition AM ERICAN Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALT licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Lan Title Association. COMMITMENT CONDITIONS 1. DEFINITIONS (a) "Knowledge" or "Known': Actual or imputed knowledge, but not constructive notice imparted by the Public Records. (b) "Land': The land described in Schedule A and affixed improvements that by law constitute real property. The term "Land' does not include any property beyond the lines of the area described in Schedule A, nor any right, title, interest, estate, or easement in abutting streets, roads, avenues, alleys, lanes, ways, or waterways, but this does not modify or limit the extent that a right of access to and from the Land is to be insured by the Policy. (c) "Mortgage": A mortgage, deed of trust, or other security instrument, including one evidenced by electronic means authorized by law. (d) "Policy": Each contract of title insurance, in a form adopted by the American Land Title Association, issued or to be issued by the Company pursuant to this Commitment. (e) "Proposed Insured": Each person identified in Schedule A as the Proposed Insured of each Policy to be issued pursuant to this Commitment. (f) "Proposed Policy Amounf': Each dollar amount specified in Schedule A as the Proposed Policy Amount of each Policy to be issued pursuant to this Commitment. (g) "Public Records": Records established under state statutes at the Commitment Date for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without Knowledge. (h) "Title": The estate or interest described in Schedule A. 2. If all of the Schedule B, Part I —Requirements have not been met within the time period specified in the Commitment to Issue Policy, this Commitment terminates and the Company liability and obligation end. 3. The Company's liability and obligation is limited by and this Commitment is not valid without: (a) the Notice; (b) the Commitment to Issue Policy; (c) the Commitment Conditions; (d) Schedule A; (e) Schedule B, Part I —Requirements; and (f) Schedule B, Part II —Exceptions; and (g) signed by the Company or its issuing agent that may be in electronic form. 4. COMPANY'S RIGHT TO AMEND The Company may amend this Commitment at any time. If the Company amends this Commitment to add a defect, lien, encumbrance, adverse claim, or other matter recorded in the Public Records prior to the Commitment Date, any liability of the Company is limited by Commitment Condition 5. The Company shall not be liable for any other amendment to this Commitment. 5. LIMITATIONS OF LIABILITY (a) The Company's liability under Commitment Condition 4 is limited to the Proposed Insured's actual expense incurred in the interval between the Company's delivery to the Proposed Insured of the Commitment and the delivery of the amended Commitment, resulting from the Proposed Insured's good faith reliance to: (i) comply with the Schedule B, Part I —Requirements; (ii) eliminate, with the Company's written consent, any Schedule B, Part II —Exceptions; or (iii) acquire the Title or create the Mortgage covered by this Commitment. (b) The Company shall not be liable under Commitment Condition 5(a) if the Proposed Insured requested the amendment or had Knowledge of the matter and did not notify the Company about it in writing. (c) The Company will only have liability under Commitment Condition 4 if the Proposed Insured would not have incurred the expense had the Commitment included the added matter when the Commitment was first delivered to the Proposed Insured. (d) The Company's liability shall not exceed the lesser of the Proposed Insured's actual expense incurred in good faith and described in Commitment Conditions 5(a)(i) through 5(a)(iii) or the Proposed Policy Amount. (e) The Company shall not be liable for the content of the Transaction Identification Data, if any. This page is only apart of a 2016 ALTA Commitment for Title Insurance. This Commitment is not valid without the Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions; and signed by the Company or its issuing agent that may be in electronic form. CM-21 MT ALTA 08-01-16Commitment w-MT Mod (WLTIC Edition 02/02/18) :AN LAND TILAND TLF Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. (f) In no event shall the Company be obligated to issue the Policy referred to in this Commitment unless all of the Schedule B, Part I —Requirements have been met to the satisfaction of the Company. (g) In any event, the Company's liability is limited by the terms and provisions of the Policy. 6. LIABILITY OF THE COMPANY MUST BE BASED ON THIS COMMITMENT (a) Only a Proposed Insured identified in Schedule A, and no other person, may make a claim under this Commitment. (b) Any claim must be based in contract and must be restricted solely to the terms and provisions of this Commitment. (c) Until the Policy is issued, this Commitment, as last revised, is the exclusive and entire agreement between the parties with respect to the subject matter of this Commitment and supersedes all prior commitment negotiations, representations, and proposals of any kind, whether written or oral, express or implied, relating to the subject matter of this Commitment. (d) The deletion or modification of any Schedule B, Part II —Exception does not constitute an agreement or obligation to provide coverage beyond the terms and provisions of this Commitment or the Policy. (e) Any amendment or endorsement to this Commitment must be in writing. (f) When the Policy is issued, all liability and obligation under this Commitment will end and the Company's only liability will be under the Policy. 7. IF THIS COMMITMENT HAS BEEN ISSUED BY AN ISSUING AGENT The issuing agent is the Company's agent only for the limited purpose of issuing title insurance commitments and policies. The issuing agent is not the Company's agent for the purpose of providing closing or settlement services. 8. PRO -FORMA POLICY The Company may provide, at the request of a Proposed Insured, a pro -forma policy illustrating the coverage that the Company may provide. A pro -forma policy neither reflects the status of Title at the time that the pro -forma policy is delivered to a Proposed Insured, nor is it a commitment to insure. 9. INTENTIONALLY OMITTED This page is only a part of a 2016 ALTA Commitment for Title Insurance. This Commitment is not valid without the Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions; and signed by the Company or its issuing agent that may be in electronic form. CM-21 MT ALTA 08-01-16Commitment w-MT Mod (WLTIC Edition 02/02/18) AMIKICIN LAM Tirie oN Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. COMMITMENT FOR TITLE INSURANCE File No: 1487FPT Version No: 2 Issued by WestcorLand Title Insurance Company SCHEDULE A Commitment Date: June 17, 2020, at 07:30 am 2. Policy to be issued: (a) 2006 ALTA® Standard Coverage Policy Proposed Insured: JAG Capital Investments LLC Proposed Policy Amount: $224,900.00 Premium: $873.00 The estate or interest in the land described or referred to in this Commitment is Fee Simple. 4. The Title is, at the Commitment Date, vested in: Linda Hershberger The land referred to in this Commitment is described as follows: SEE ATTACHED EXHIBIT "A" For Informational Purposes Only: NHN Hathaway Ln, Kalispell, MT 59901 Countersigned Flathead Premier Title Company, LLC By: Tracy Martin This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy, the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. AMIKKnw The use of this Form (or any derivative thereof) is restricted to ALTA licensees and L, h TOLL: ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 1 Schedule A EXHIBIT "A" All that portion of the Southwest Quarter, Section 12, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana, more particularly described as follows: Commencing at a point on the North line of Old U.S. Highway No. 2, crossing the Southerly portion of said subdivision, said point being North 89°45'08" East, along the South section line, a distance of 1145.06 feet and North 00°13'35" West, a distance of 28.00 feet from the Southwest corner of the above said Section 12, Township 28 North, Range 22 West, said point being the Southwest corner of that certain tract of land described in deed to Samuel S. Davis and Leona J. Davis recorded June 7,1965 in Book 473, Page 563, as Document No. 4779, records of Flathead County, Montana.; thence North 00°13'35" West along the West boundary of said Davis Tract, 630.84 feet to the Northwest corner thereof, said point being the Point of Beginning of the parcel being described; thence along the North boundary of said Davis Tract, North 89°46'25" East 115.36 feet to the Northeast corner thereof; thence along the East boundary of said tract, South 00°13'35" East 234.80 feet to the Northwest corner of that parcel described in Book 305, Page 311, records of Flathead County, Montana; thence along the North line of said parcel and continuing along the North line of that parcel described in Book 300, Page 84, records of Flathead County, Montana, North 89°45'08" East 234.85 feet to the West line of that parcel described in Book 484, Page 207, records of Flathead County, Montana; thence along the West line of said parcel, North 00°14'52" West 114.41 feet to the Northwest corner thereof; thence along the North line of said tract, and continuing along the North line of that parcel described in Book 387, Page 232, records of Flathead County, Montana, North 89°45'08" East 170.96 feet; thence North 00°07'00" West 215.61 feet; thence North 89°38'45" East 327.85 feet to the East line of the West Half of the Southeast Quarter of the Southwest Quarter of the above said Section 12; thence along said East line of said aliquot part, North 00'01'52" West 360.00 feet; thence South 89°45'08" West 500.66 feet to a point which is on the Northerly extension of the West line of that parcel described in Book 484, Page 207, records of Flathead County, Montana; thence South 00°14'52" East 152.14 feet to the North line of that parcel described in Document No. 200428114320, records of Flathead County, Montana; thence along the North line of said parcel South 89°54'41" West 350.01 feet to the Easterly boundary of Hathaway Drive, a 60 foot wide deeded county road, described in Book 445, Page 341, records of Flathead County, Montana; thence along said Easterly boundary of said Hathaway Drive, South 00°13'35" East 304.62 feet to the Point of Beginning. Shown as Parcel 1 of Certificate No. 16564. EXCEPTING THEREFROM That portion conveyed to the Montana Department of This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy,- the Commitment Conditions; Schedule A; Schedule 8, Part I -Requirements; and Schedule 8, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. !' Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 2 Schedule A Transportation in Bargain and Sale Deed recorded September 28, 2019 as Document No. 201000022215, records of Flathead County, Montana. File No: 1487FPT COMMITMENT FOR TITLE INSURANCE Issued by Westcor Land Title Insurance Company SCHEDULE B, PART I Requirements The following are the requirements to be complied with prior to the issuance of said policy or policies. Any other instrument recorded subsequent to the effective date hereof may appear as an exception under Schedule B of the policy to be issued. Unless otherwise noted, all documents must be recorded in the office of the clerk and recorded of the county in which said property is located. All of the following Requirements must be met: The Proposed Insured must notify the Company in writing of the name of any party not referred to in this Commitment who will obtain an interest in the Land or who will make a loan on the Land. The Company may then make additional Requirements or Exceptions. 2. Pay the agreed amount for the estate or interest to be insured. Pay the premiums, fees, and charges for the Policy to the Company. 4. Documents satisfactory to the Company that convey the Title or create the Mortgage to be insured, or both, must be properly authorized, executed, delivered, and recorded in the Public Records. 5. When the proposed insured seeks ALTA extended coverage, we will require borrowers and/or sellers to execute an Indemnity and Affidavit as to debts, liens, and possession. 6. Satisfaction or release filed of record to release all Judgments, Liens, Mortgages, and Trust Indentures, if any, unless the proposed insured desires to assume or subordinate to said obligations. 7. If ALTA extended coverage is requested and/or if Westcor Land Title Insurance Company at its discretion feels a physical inspection of the property is necessary then an inspection will be performed. Any matters found by our inspection requiring disclosure to the parties involved in this transaction, will be shown in a supplemental report. Westcor Land Title Insurance Company has the right to add to the supplemental report additional exceptions to coverage, as it deems necessary. 8. Company requires Seller and Buyer to fully comply with the provisions of the Realty Transfer Act (M.C.A. 15-7-301 et. at.), which includes the requirement that Seller and Buyer fully complete a Realty Transfer Certificate which will be presented at closing. If either party fails to fully comply with the Realty Transfer Act, Company will add the following exception in the final title policy: Any state or county, taxing, assessing, or recording authority's failure to acknowledge the transfer to the Insured of the land described in Schedule A, pursuant to the Realty Transfer Act, as set forth in M.C.A.15-7-301 et. at. This page is only a part of a 2016 ALTA@ Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy, the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and L"D Tip« ALTA members in good standing as of the date of use. All other uses are prohibited. L wj.rl " Reprinted under license from the American Land Title Association. IkL Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 4 Schedule B - Part 1 File No: 1487FPT 9. The Company requires for its review satisfactory copy of the "Articles of Organization," the Operating Agreement and the regulations of the limited liability company, any amendment thereof, a certificate of good standing, and satisfactory evidence of authority of the officers, managers, or members to execute the documents. This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy,- the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 5 Schedule B - Part 1 File No: 1487FPT SCHEDULE B, PART II Exceptions THIS COMMITMENT DOES NOT REPUBLISH ANY COVENANT, CONDITION, RESTRICTION, OR LIMITATION CONTAINED IN ANY DOCUMENT REFERRED TO IN THIS COMMITMENT TO THE EXTENT THAT THE SPECIFIC COVENANT, CONDITION, RESTRICTION, OR LIMITATION VIOLATES STATE OR FEDERAL LAW BASED ON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, GENDER IDENTITY, HANDICAP, FAMILIAL STATUS, OR NATIONAL ORIGIN. The Policy or Policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company: Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the Effective Date but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this Commitment. 2. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records. Proceedings by a public agency, which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by Public Record. No liability is assumed for errors, omissions or changes of assessed valuations or amount of taxes assessed by any state, county, city or federal taxing or assessing authority. Any facts, rights, interest or claims which are not shown by the Public Records but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof 4. Easements, liens or encumbrances, or claims thereof, which are not shown by the Public Records Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof, (c) water rights, claims or title to water; ditch rights; (d) minerals of whatsoever kind, subsurface and surface substances, including but not limited to coal, lignite, oil, gas, uranium, clay, rock, sand and gravel and other hydrocarbons in, on, under and that may be produced from the Land, together with all rights, privileges, and immunities related thereto, whether or not the matters excepted under (a), (b), (c) or (d) are shown by the Public Records. The Company makes no representation as to the present ownership of any such interests. There may be leases, grants, exceptions or reservations of interests that are not listed Any lien or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records. Any service, installation or connection charge for any and all utilities, including, but not limited to sewer, gas, water or electricity. This page is only a part of a 2016 ALTA@ Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy, the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. ALII MAN The use of this Form (or any derivative thereof) is restricted to ALTA licensees and L"D Tip« ALTA members in good standing as of the date of use. All other uses are prohibited. L wj.rl " Reprinted under license from the American Land Title Association. IkL Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 6 Schedule B - Part 11 File No: 1487FPT County road rights -of -way, not recorded and indexed as a conveyance of record in the office of the Clerk and Recorder pursuant to Title 70, Chapter 21, M.C.A., including, but not limited to any right of the Public and the County of Flathead to use and occupy those certain roads and trails. 10. Real estate taxes or special assessments for the year 2020, that are not yet due or payable. 11. For informational purposes only, do not rely upon for a tax payment. Flathead County records indicate the taxes for the year 2019 are: FIRST HALF: $1,905.25 PAID SECOND HALF: $1,905.23 PAID TOTAL: $3,810.48 Assessor No.: 75-0174851 Tax Roll No.: 50268 12. Reservation of easement contained in instrument recorded November 21, 1973 in Book 560, Page 757 as Document No. 13412, records of Flathead County, Montana. 13. All matters, covenants, conditions, restrictions, easements and any rights, interest or claims which may exist by reason thereof, disclosed by Certificate of Survey No. Retracement Certificate of Survey No. 16564, but deleting any covenant, conditions or restriction indicating a preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status, or national origin to the extent such covenants, conditions or restrictions violate 42 USC 3604{c{. 14. Any claims arising from question of gaps, overlaps and encroachments between the legal description of the herein described property and those of surrounding parcels as shown on Certificate of Survey No. 16564. 15. Resolution No. 5152 by the City of Kalispell recorded October 18, 2006 as Document No. 200629110040, records of Flathead County, Montana. 16. Grant of Conditional Use by and between the City of Kalispell and Lee Hershberger and Linda Hershberger, recorded October 18, 2006 as Document No. 200629110050, records of Flathead County, Montana. 17. Petition of Annex and Notice of Withdrawal rom Rural First District recorded October 18, 2006 as Document No. 200629110060, records of Flathead County, Montana. 18. Amended Resolution Designation of Controlled Access Highway and Facility recorded February 11, 2010 as Document No. 201000003450, records of Flathead County, Montana. 19. Terms and provisions in Bargain and Sale Deed by Lee Hershberger and Linda Hershberger to the Montana Department of Transportation recorded September 28, 2010 as Document No. 201000022215, records of Flathead County, Montana. 20. Ordinance No. 1704 by the City of Kalispell recorded November 22, 2011 as Document No. 201100024347 and re -recorded January 31, 2012 as Document No. 201200002284, records of Flathead County, Montana. This page is only a part of a 2016 ALTA@ Commitment for Title Insurance issued by Westcor Land Title Insurance Company. This Commitment is not valid without the Notice; the Commitment to Issue Policy, the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; and Schedule B, Part II -Exceptions. Copyright 2006-2016 American Land Title Association. All rights reserved. ALII MAN The use of this Form (or any derivative thereof) is restricted to ALTA licensees and L"D Tip« ALTA members in good standing as of the date of use. All other uses are prohibited. L wj.rl " Reprinted under license from the American Land Title Association. IkL Commitment for Title Insurance (8-1-2016) Technical Correction 4-2-2018 Page 7 Schedule B - Part 11 WESTCOR LAND TITLE INSURANCE COMPANY Notice of Privacy Policy of Westcor Land Title Insurance Company Westcor Land Title Insurance Company ("WLTIC") values its customers and is committed to protecting the privacy of personal information. In keeping with that philosophy, we have developed a Privacy Policy, set out below, that will ensure the continued protection of your nonpublic personal information and inform you about the measures WLTIC takes to safeguard that information. Who is Covered We provide our Privacy Policy to each customer when they purchase an WLTIC title insurance policy. Generally, this means that the Privacy Policy is provided to the customer at the closing of the real estate transaction. Information Collected In the normal course of business and to provide the necessary services to our customers, we may obtain nonpublic personal information directly from the customer, from customer -related transactions, or from third parties such as our title insurance agents, lenders, appraisers, surveyors or other similar entities. Access to Information Access to all nonpublic personal information is limited to those employees who have a need to know in order to perform their jobs. These employees include, but are not limited to, those in departments such as legal, underwriting, claims administration and accounting. Information Sharing Generally, WLTIC does not share nonpublic personal information that it collects with anyone other than its policy issuing agents as needed to complete the real estate settlement services and issue its title insurance policy as requested by the consumer. WLTIC may share nonpublic personal information as permitted by law with entities with whom WLTIC has a joint marketing agreement. Entities with whom WLTIC has a joint marketing agreement have agreed to protect the privacy of our customer's nonpublic personal information by utilizing similar precautions and security measures as WLTIC uses to protect this information and to use the information for lawful purposes. WLTIC, however, may share information as required by law in response to a subpoena, to a government regulatory agency or to prevent fraud. Information Security WLTIC, at all times, strives to maintain the confidentiality and integrity of the personal information in its possession and has instituted measures to guard against its unauthorized access. We maintain physical, electronic and procedural safeguards in compliance with federal standards to protect that information. The WLTICPrivacy Policy can also be found on WLTIC's website at www.wltic.com. DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR AUTUMN CREEK SUBDIVISION ARTICLE I. DECLARATION AND PURPOSE Section 1.1: Declarant: The undersigned is the declarant, JAG Capital Investments, LLC, original owner of all property encompassed in Autumn Creek. The Declarant hereby declares for itself, its successors, and assigns, that all property in Autumn Creek shall at all times be owned, held, used, and occupied subject to the provisions contained in this Declaration of Covenants, Conditions, and Restrictions. The Declarant is to hold all rights and responsibilities of the future Homeowners Association as detailed in this declaration in order to care for and manage Autumn Creek during the Period of Declarant Control. Section 1.2: Property: Shall mean all residential lots and common areas in Autumn Creek according to the final plat on record in the office of the Clerk on Recorder of Flathead County, Montana. Additional property to be added to Autumn Creek shall also be subject to and comply with this declaration. Declarant has the right to modify property and easements during the Period of Declarant Control. Section 1.3: Purpose: The purpose of these Covenants, Conditions, and Restrictions is to establish and maintain guidelines for developing, building, maintaining, living, and governing in Autumn Creek in order to ensure and preserve attractiveness, safety, livability, and values for the benefit of homeowners and residents in the subdivision. This declaration is meant to ensure all properties maintain a minimum standard of care and quality and to guard against improper use of homes or property. Section IA: Term: These Covenants, Conditions, and Restrictions shall be binding to all property within Autumn Creek and shall transfer to all future owners. Section 1.5: Amendments: Shall there be a need to modify these Covenants, Conditions, and Restrictions, an amendment(s) signed by three directors of the homeowners' association for this subdivision and stating that a majority of property owners vote in favor of any changes and stating the changes must be recorded. Amendments shall be binding upon recording ARTICLE II. DEFINITIONS Section 2.1: Architectural Review Committee or ARC means the committee formed to review project proposals for architecture, design, construction, landscaping, fencing, and exterior improvements to ensure compliance with this declaration and attractiveness and harmony throughout Autumn Creek. Section 2.2: Articles of Incorporation shall mean Articles of Incorporation of Autumn Creek Homeowners Association, as the same may be amended from time to time. Section 2.3: Assessments means the annual, special, and default assessments levied to meet the estimated financial requirements of the Autumn Creek Homeowners Association. Section 2.4: Board of Directors means board of directors of the Homeowners Association. Autumn Creek CCRs Section 2.5: Bylaws shall mean the bylaws of Autumn Creek Homeowners Association which establish methods and procedures of its operation, as the same may be amended from time to time. A copy of the current bylaws has been recorded with this document and any amendments to the bylaws shall also be recorded with the Clerk and Recorder of Flathead County, Montana. Section 2.6: Common Area shall mean all property in Autumn Creek subject to this declaration but excluding individual lots within the property. Common areas are for common use and benefit to all homeowners. Common area maintenance is the responsibility of the Homeowners Association. Section 2.7: Common Expenses means expenses to maintain Autumn Creek as defined by Autumn Creek Homeowners Association. Common Expenses include road and common area maintenance, servicing, conserving, management, administration, duties to comply with this declaration, and any other expenses deemed necessary by the Homeowners Association for care of Autumn Creek. Section 2.8: Declarant means the JAG Capital Investments,LLC, its successors, or assigns acting as the original owner(s) of the property. Section 2.9: Declaration means this Declaration of Covenants, Conditions, and Restrictions for Autumn Creek. Section 2.10: Design Guidelines are guidelines specified in this declaration meant to provide design standards for the exteriors of any lot or common area. Section 2.11: Autumn Creek shall mean Autumn Creek subdivision as defined on recorded plat. Section 2.12: Homeowners Association or HOA means Homeowners Association of Autumn Creek subdivision Section 2.13: Improvements means all buildings, parking areas, fences, walls, landscaping, lighting, driveways, roads, trails, gates, signs, changes in any exterior color or shape, excavation and all other site work, including, without limitations, grading, road construction, utility improvements, removal or maintenance of trees or plants, and any new exterior construction or exterior improvement which may not be included in the foregoing. Improvements does not include turf repair or negligible improvements which will not affect colors or exterior appearance. Improvements means all current and future improvements. Section 2.14: Lot means parcel of land designated as a lot on the recorded plat. Section 2.15: Member means any person or entity holding membership in the Autumn Creek Homeowners Association. Section 2.16: Owner means the person or persons, entity or entities, who own of record, according the real property records of Flathead County, Montana, fee simple title to a Lot, except that a person purchasing a Lot under contract for deed which is recorded in the records of Flathead County, Montana. Section 2.17: Period of Declarant Control means the period beginning on the date this declaration is first recorded in the office of the Clerk and Recorder of Flathead County, Montana, and ending on the earlier of. (a) the date which is 20 years later, or (b) the date on which the declarant has sold all of the Lots on all of the plats. Autumn Creek CCRs Section 2.18: Plat means recorded survey of all or part of the property Section 2.19: Utilities: For the purpose of this declaration, utilities shall mean water, sewer, electricity, and natural gas. ARTICLE III. HOMEOWNERS ASSOCIATION Section 3.1: Homeowners Association: The Autumn Creek Homeowners Association, or HOA, shall act as a homeowner's association for Autumn Creek. The Homeowners Association shall be established by the declarant. Section 3.2: Membership: All owners of lots within Autumn Creek shall be members of the Homeowners Association. The owners of any lot shall automatically become members of the HOA until ownership of the lot(s) ceases for any reason. The Declarant shall be a member to the extent of the lot ownership of the same. (a) Contact Information: Upon acquiring ownership of a lot, owner shall immediately inform HOA of names and contact information. Owners shall be responsible for informing HOA of any change in contact information. Section 3.3: Board of Directors: At establishment of the Homeowners Association, there shall be inaugurated a manager of the HOA who will sit on the board of directors. The HOA may establish other directors as necessary. The Board of Directors is responsible for organizing and managing all duties of the HOA. The Board of Directors shall schedule HOA meetings from time to time as needed and shall manage expenses and assessments. Except for management and execution of obligations of the HOA, the Board of Directors shall have no other powers except those granted to all members. The HOA shall establish terms for members of the board of directors as they see fit. Section 3.4: Voting: There shall be one vote for each lot after the Period of Declarant control. Prior to that time all voting rights shall be vested in the Declarant. Declarant may agree with a majority of the lot owners to assign certain specific voting rights to the lot owners. Such assignment will be done as an amendment to this document. Section 3.5: Powers and Duties: Subject to the rights and obligations of this declaration, the HOA will be responsible for the administration and operation of Autumn Creek. (a) Common Areas: The HOA is responsible for maintaining common areas for safe use by all and visual appeal. The HOA may grant easements, rights -of -way, leases, licenses and concessions through or over the common area for the purpose of accommodating minor encroachments by utilities, adjacent property owners, or other purposes that do not unreasonably interfere with the use of the Common Area by owners. The HOA shall have the primary purpose of maintaining all common areas of the subdivision including but not limited to the storm pond, riparian area, park and trail along Three Mile Drive. (b) Utilities: HOA is responsible for coordinating maintenance and repair of underground utilities in common areas as needed. Owners are responsible for repair of utilities serving individual lots and at connections to main utility lines in the street. Owners are responsible for repair of utilities serving an individual lot, even if the location of repair is in a Common Area. HOA is not responsible for utility repairs at connections or to individual lots. Autumn Creek CCRs (c) Common Expenses: The HOA is responsible for managing common expenses shared by all owners. Common expenses shall include road maintenance, snow removal in common areas, common area maintenance, servicing, conserving, management, administration, duties to comply with this declaration, and any other expenses deemed necessary by the Homeowners Association for care of Autumn Creek. (d) Weed Control: Weed Control in Common Areas is the responsibility of the HOA. The HOA shall guard against noxious weeds as defined by Flathead County, Montana. The HOA shall control weeds and landscaping in common areas in order to maintain visual appeal throughout the subdivision. The HOA is not responsible for weed control on individual lots or on easements which are on individual lots. If an owner of a lot is not exercising weed control deemed necessary by the HOA, the HOA may take action on account of non-compliance with this declaration. (e) Easements: The HOA has the right to easements on individual lots for the purpose of inspections and maintenance of utilities or access to common areas. Except for underground utility maintenance, upkeep of easements on individual lots is the responsibility of the corresponding owner(s) of the lot. (f) Books and Records: The HOA is responsible for keeping updated books, records, documents, and financial statements and will make them available for inspection by Owners upon request. (g) Budget and assessments: The HOA is responsible for keeping a budget and estimating yearly expenses for Autumn Creek. The HOA is responsible for setting and collecting annual assessments and managing money and expenses throughout the year. (h) Committees: The HOA may delegate duties and responsibilities to any committee or other entity that the HOA may choose to form. The HOA shall support and maintain an active Architectural Review Committee to review ongoing improvements in the subdivision. (i) Remedies for non-compliance to Declaration of Covenants, Conditions, and Restrictions: The HOA may establish and charge fines for violations of this declaration. The HOA has the right to take action for violations to this declaration to the extent allowed by law. 6) Meetings: The HOA is responsible for scheduling and holding meetings from time to time. All owners shall be notified of all HOA meetings not less than 30 days in advance of any meeting. Section 3.6: The Declarant hereby waives on behalf of all the properties within the subdivision the right to object to any Special Improvement District Assessment imposed by the City of Kalispell for the purpose of completing the obligations stated in section 3.5 a through d, in the event the Homeowners Association is dissolved or ceases to perform such functions and the City Council for the City of Kalispell adopts such special improvement district. ARTICLE IV. ASSESSMENTS Section 4.1: Assessments: Each owner of any lot, by acceptance of the deed to a lot, is deemed to covenant and agree to pay to the HOA assessments for common expenses. All types of assessments shall be payable to the HOA in installments and on dates determined by the HOA. The HOA shall notify owners of assessments, installments, and due dates no less than thirty (30) days prior to due dates. Autumn Creek CCRs 4 Section 4.2: Annual Assessments: The HOA shall figure and collect annual assessments from each owner in an amount equal for each lot based on estimated common expenses for the year. Annual Assessments shall be prorated for lots which transfer ownership during a year. Section 4.3: Special Assessments: Special Assessments may be collected for capital improvements or other purposes agreed upon within the HOA and not included in annual assessments. Special Assessments shall be equal for each lot. Section 4.4: Default Assessments: Default assessments may be assessed against a lot pursuant to this declaration for the Owner's failure to perform an obligation under this declaration or because the HOA has incurred an expense on behalf of or caused by the owner. Section 4.5: Remedies for Nonpayment of Assessment: Any installment of an Assessment which is not paid within thirty (30) days after its due date shall bear interest from the due date at the rate of ten percent (10%) per annum. The HOA or manager may bring an action at law against the owner personally and/or place and foreclose a lien against the property. No owner may waive or otherwise escape liability for the assessments or charges provided for herein by non-use of the common area or abandonment of their unit. If there is a default in payment of an installment, assessment, or charge, the HOA may accelerate the remaining balance of the annual or special assessment due by giving ten days written notice to the defaulting owner. Section 4.6: No refunds: No owner shall be entitled to any rebate, return, or refund of any amount of assessments paid to the HOA which are held as cash on hand or in any reserve account. Section 4.7: No Assessments for Declarant: Notwithstanding the ownership of any empty lot, the Declarant shall not be obligated to pay any assessments. ARTICLE V. PROPERTY USE RESTRICTIONS Section 5.1: Easements: The property will be subject to all easements shown on any recorded Plat. Section 5.2: Land Use: Each lot may be used for a single family or town home residence based on the Plat. There shall be no commercial use on the property. Home businesses are not permitted. Rentals or home office or related uses which do not result in increased vehicular traffic shall not be considered commercial use. Garage sales shall be permitted, as long as no more than two such sales are conducted per year on any lot. Section 5.3: No subdivision of Lots: No Lot shall be further subdivided in any manner. Section 5.4: Structures: There shall be no more than one town home or single family home on any lot as outlined in the Plat. Structures, including fences, must conform to setbacks and height restrictions set by Kalispell, Montana. Accessory structures for storage and recreation may be allowed per the City of Kalispell's Zoning regulations and upon approval of the Architectural Review Committee. Fencing must be in accordance with the design guidelines and must be approved by the Architectural Review Committee. Section 5.5: Dwelling size: Each home shall have a minimum of 1,000 square feet of total living space, not including garages or outdoor spaces. Two story dwellings shall have at least 600 square feet of living space at ground level. Autumn Creek CCRs Section 5.6: Garage: Each home shall have an attached garage for at least one car. Section 5.7: Driveways: Each home shall have a driveway paved in asphalt or concrete. Driveways shall be constructed so as to not interfere with drainage and shall include culverts where necessary. Section 5.8: Dwelling Construction: All dwellings shall be constructed on the lot with new materials. There shall be no trailer homes, mobile homes, modular homes, or prefabricated homes placed on any lot. Used materials in good condition, such as brick, stone, or timber beams may be utilized provided advance approval has been obtained from the Architectural Review Committee. All construction must conform to Local Building Codes and Fire Codes. All construction shall be completed within 12 months after the start of construction. Section 5.9: Drainage Control: Reasonable precaution shall be taken during construction and thereafter to prevent erosion and drainage problems. All disturbed soil areas shall be revegetated within a reasonable time in such a fashion to minimize erosion. Section 5.10: Utilities: All utilities shall be placed underground. The subdivision shall be connected to City of Kalispell water and sewer systems. No private water or sewer systems may be constructed. Section 5.11: Antennas, Poles, and other structures: No antennas, poles, cellular telephone towers, communication towers, or other structures shall be erected unless approved by the Architectural Review Committee prior to installation. Any satellite dish receiver must be 24 inches or less in diameter and shall not be visible from any road. Section 5.12: House numbers: Owners shall maintain house numbers which are clearly visible from the street. Section 5.13: Vehicles: All vehicles shall be parked in the garages or driveways, and no vehicle shall be parked on the common area except on a temporary basis. The parking or storage of campers, camping trailers, recreational vehicles, boats, snowmobiles, trailers, or unlicensed vehicles is only allowed if in an enclosed garage or screened from view. Section 5.14: Animals: Dogs (no more than 2) or cats (no more than 2) or other small household pets may be kept, providing that they are not kept, bred, or maintained for any commercial purpose. No livestock shall be raised, bred, or kept on any lot. Household pets must be contained upon owner's lot. In common areas, pets must be kept on leashes and cleaned up after. All pet enclosures shall be kept in the rear yard of a lot. No dog which barks and can be heard on any frequent or continuing basis shall be kept on any lot. Pets constituting a nuisance may be ordered by the HOA to be kept within the residence of the owner or ordered expelled from Autumn Creek. Section 5.15: Signs: No signs, billboards, banners, or advertising devices of any nature except as may be authorized be the Architectural Review Committee shall be erected on any lot except for temporary For Sale signs. Section 5.16: Outdoor Lighting: Lighting shall serve only the lot on which it is located. A reasonable effort should be exercised to limit light pollution and lights shining onto neighboring properties. Autumn Creek CCRs 6 Section 5.17: Landscaping: Landscaping of an entire lot must occur within 1 year of excavation or other ground disturbance following approval of landscaping plans by the Architectural Review Committee. Section 5.18: No Noxious weeds: No Noxious weeds, as defined by Flathead County, may be allowed on any lot or in any common area. Section 5.19: No hunting: No hunting of any kind shall be permitted in Autumn Creek. Section 5.20: No fuel tanks: No fuel tanks, whether above or below ground, shall be permitted in Autumn Creek. Section 5.21: No oil drilling: No oil drilling, oil development operations, oil refining, quarrying, or mining operation of any kind shall be permitted upon or in any lot, nor shall oil wells, tanks, tunnels, mineral excavations or shafts be permitted upon or in any lot. No derrick or other structures designed for use in boring for natural gas shall be erected, maintained, or permitted upon any lot. ARTICLE VI. OWNERS RIGHTS AND RESPONSIBILITIES Section 6.1: Abide by Declaration: Agreed upon at acceptance of a deed to any lot, all owners and residents in Autumn Creek must confonn and abide to all portions of this declaration. Section 6.2: Homeowners Association: All owners are automatically equal members of the Homeowners Association as of its initiation. All owners have equal voting rights, however all votes must be collected at times given and through methods established by the HOA in order to be counted. (a) Contact Information: Owner is responsible for providing to the HOA current contact information and notifying the same of any updates to contact information immediately. Section 6.3: Assessments: All owners must pay assessments as levied by the HOA. Nonpayment of assessments is subject to action as allowed by this declaration and by law. Any assessment not paid within two months of the due date is deemed to be consent of the lot owner(s) to the filing of a lien for the assessments which lien shall include interest at the legal rate and attorney fees. Section 6.4: Maintenance: Owners are responsible for maintaining all structures, land, driveways, sidewalks, and any other features on the lot in working order and in appealing condition to promote safety, health, visual attractiveness, and value in the neighborhood. All expenses incurred as a result of maintenance shall be the responsibility of the owner. If reasonable maintenance is not being exercised in the opinion of the HOA, the HOA may take action for non-conformance to this declaration. (a) Sidewalks and Boulevards: Maintenance of any sidewalk median strip or boulevard shall be the responsibility of the Lot Owner whose Lot directly abuts the median strip. Where a median strip abuts on a common area, the maintenance responsibility shall be the obligation of the HOA. Section 6.5: Improvements: Improvements are encouraged to maintain quality and increase value. Improvements that change the exterior of the home or the lot must be submitted to and approved by the Architectural Review Committee prior to initiation of any project. Autumn Creek CCRs 7 Section 6.6: Weeds: Owners are responsible for guarding against and treating weeds on any part of the lot. Section 6.7: Easement Access: Access must be granted to easements by the HOA or utility companies for inspections and maintenance. Section 6.8: Easement Maintenance: Easements on any individual lot shall be maintained by the owner of the lot. Section 6.9: Trash: Trash removal for each lot is the responsibility of the owners. No trash or debris shall be collected, piled, or burned on any part of any lot. Section 6.10: Snow Removal: Snow removal on any driveway or private sidewalk is the responsibility of the owner. Driveways and sidewalks shall be cleared as needed to maintain safety for residents and visitors. Snow removal on sidewalks abutting a lot shall be the responsibility of the Lot owner per city ordinances. Section 6.11: Landscaping: Landscaping shall be maintained regularly to promote health, safety, value, and guard against weeds. Landscaping on any lot is the responsibility of the owner. Landscaping shall be established and maintained on each entire lot to provide erosion control and visual appeal. Lawns and landscaping features shall be irrigated and mowed/trimmed as needed. Any improvements to landscaping which change the look or character of the lot shall be submitted and approved by the Architectural Review Committee prior to commencement of any project. Landscaping on sidewalk boulevards is the responsibility of the adjacent lot owner. Section 6.12: No noxious activity: No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. ARTICLE VII. DESIGN GUIDELINES Section 7.1: Purpose: The purpose of design guidelines is to provide guidelines and expectations for the exterior appearance and quality of all structures in Autumn Creek to owners, builders, or any other entities involved in establishing, maintaining, or improving all areas in Autumn Creek except the interiors of residences. The Design Guidelines are meant to ensure all structures in Autumn Creek meet a high standard of quality and appearance in order to maintain pride and value throughout the subdivision. Section 7.2: Applicable Features: All exterior structures, landscaping, hardscapes, fencing, and all other exterior features, whether permanent or temporary, shall be subject to these design guidelines. Any exterior improvement that changes the appearance or quality of the lot or structures on the lot must comply with the design guidelines. Section 7.3: Enforcement: All new structures or improvements to exteriors must be submitted and approved by the Architectural Review Committee prior to commencement of any project as described in Article VIIL If any feature is created which has not been approved by the Architectural Review Committee, the HOA may take action for non-compliance with this declaration including but not limited to demanding removal of the unapproved feature, charging a fine for a violation, or taking action as allowed by law. Autumn Creek CCRs 8 Section 7.4: Architecture: Homes and secondary structures shall be of complementary architecture to other structures in the neighborhood. Section 7.5: Exterior Finishes: Exterior colors shall be pleasant and complementary to surrounding exterior finishes in the neighborhood. Colors in the subdivision shall be complementary, but not matching in order to achieve pleasing variation. The primary home structure on each lot must have at least two colors. Neighboring homes must have reasonable variation in color. Only Class A or B roofing materials, as rated by the National Fire Protection Association, shall be allowed on all structures. Section 7.6: Secondary structures: sheds, canopies, or other yard structures must complement the primary structure in architecture and exterior finishes and must be approved by the Architectural Review Committee prior to construction or installation. Section 7.7: Landscaping: Each lot shall be landscaped completely to provide erosion control and visual appeal. A mixture of grass lawn, trees, hardscape areas, and garden areas is encouraged. Plant species natural to the area are encouraged. Section 7.8: Fencing: Fencing must comply with Flathead County zoning restrictions. No fencing is allowed forward of the front of the primary residential structure. Allowable fencing options include but are not limited to wood, chain link, and vinyl. Other fencing materials may be permitted at the discretion of the Architectural Review Committee. ARTICLE VIII. ARCHITECTURAL REVIEW COMMITTEE Section 8.1: Committee and Purpose: An Architectural Review Committee (ARC) shall exist to review and ensure compliance with the design guidelines and property use regulations in order to ensure standards of quality and visual appeal throughout Autumn Creek. During the Period of Declarant Control, the ARC shall consist of at least two members appointed by the declarant. (a) Members and Management: The HOA shall manage the ARC and establish membership practices and terms. Members of the ARC may be HOA members, or the HOA may choose to hire external consultants as members for the ARC. The ARC must be comprised of at least two committee members at all times. One member of the ARC shall be the main contact person and shall receive submittals and communicate on behalf of the ARC. Section 8.2: Scope: The Architectural Review Committee must review and approve of the appearance and materials of all structures on the exterior of the home on any lot. The ARC is NOT responsible for reviewing construction methods or practices for safety or compliance with building codes. The ARC shall not have control of or influence over anything on the interior of any structure. Items that must be submitted and approved by the ARC include but are not limited to: new homes, new accessory structures, fencing, landscaping, tree removal, and improvements, including new paint colors, to any of the same. ARC review for the foregoing is necessary for work on all lots and in all common areas. ARC approval is not necessary for planting small gardens, bushes, or trees. The ARC must review submittals based on this declaration and the design guidelines. The ARC may use its judgement and interpretation of this declaration while reviewing submittals. Wherein a submittal, or portion of a submittal, is not addressed in this declaration, the ARC may use discretion based on the appearance and values of the subdivision. Previous or existing construction or installation of exterior features or elements in the subdivision does not justify future approvals of similar elements, and each submittal will be reviewed individually and considered on a case by case basis. Autumn Creek CCRs Section 8.3: Required Submittals: The ARC shall keep a list of approved builders and designs. An owner using an approved builder need to seek the approval of ARC, but simply must advise ARC that they are using an approved builder and the builder will notify ARC of the approved design. ARC will only have to approve changes in the design and the color of the structure. The provisions below are waived. Section 8.4: Required Submittals If Not An Approved Builder: An owner, builder, or other representative must provide detailed plans for new construction or improvements for ARC review. Plans shall show location and the exterior appearance of the structure. Plans must include colors and types of materials. Plans and other necessary documents may be emailed to the designated ARC contact person. The HOA shall keep current contact information for the ARC contact person and shall share the information upon request. The ARC may request additional information or materials such as color or material samples if they feel it is necessary to review any given project. Section 8.5: Fees: The HOA may decide to charge a fee for Architectural Review to compensate for review time, meeting and submittal management, or outside hires if applicable. The fee and any details regarding the fee must be disclosed to all owners prior to being levied for any project. Section 8.6: Review Process: The ARC may choose to have regular meeting or scheduled meetings, but a meeting may not be required in all cases. The ARC members may choose to communicate in person or in any other manner about submittals. The designated ARC contact shall collect submittal documents and disperse them to the committee using a method agreed upon by the committee. The ARC contact person shall respond to the submittal in writing with the conclusion of the review agreed upon by all members of the ARC. The conclusion may be approval, disapproval, or conditional approval. Commencement of any project shall not occur until final approval has been granted by the ARC and any applicable fees have been paid. Section 8.7: Timeline: The ARC shall have thirty (30) days from the date of submittal to complete the review process and issue a response. The ARC shall issue a written response within 30 days. Construction or installation of approved projects may begin when approval is issued provided any appropriate fees have been paid. Where disapprovals exist, future submittals for the same project shall be treated as new submittals and are subject to an additional 30-day review timeline. Where conditional approvals exist, work may commence after the required conditions are agreed upon in writing, providing any applicable fees have been paid. In an event in which no response is issued by the ARC within the 30- day review timeline, the project shall be deemed approved, however it is the responsibility of the owner to ensure it meets standards in this declaration. Section 8.8: Revisions to Processes: The ARC and the HOA jointly shall have the power to change, add, or modify ARC processes, applications, and practices as necessary. Any change must be written and recorded prior to initiation of new or changed processes. ARTICLE IX. MISCELLANEOUS Section 9.1: Limited Liability: Neither the declarant, the HOA, the ARC, nor their respective members shall be liable to any party for any action or for any failure to act with respect to any matter if the action taken or failure to act was in good faith and without malice. Section 9.2: Severability: Invalidity or unenforceability of any provision contained in this declaration in whole or in part shall not affect the validity or enforceability of any other provision of the declaration. Autumn Creek CCRs 10 Section 9.3: No Waiver: Failure to enforce any provision contained in this declaration shall not operate as a waiver of any such provision or of any other provision of this declaration. Section 9.4: Entirety: This declaration shall be binding in its entirety and any article or section of this document cannot stand alone. Signature of Declarant Date: Jason Catron, Managing Partner JAG Capital Investments, LLC STATE OF MONTANA, COUNTY OF FLATHEAD On this day of 20 , before me, the undersigned, a Notary public for the State of Montana, personally appeared Jason Catron, Managing Partner, JAG Capital Investments, LLC, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that such person executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. Autumn Creek CCRs 11 From: Gwen Hein To: ddedman@kalispell.com CC: Doug Peppmeier Date: 10/14/2020 5:03 PM Subject: RE: [EXTERNAL] RE: [EXTERNAL] Autumn Creek Subdivision - Single Access Inquiry (K20-042) Dave, Thank you! This answers our question Gwen Hein, PE I Engineer TD&H Engineering 1720 9th Avenue STE B I Helena, MT 59601 p: 406.603.4201 www.tdhenaineerina.com >>> Dave Dedman <ddedman@kalispell.com> 10/14/2020 3:57 PM >>> Gwen I am currently working from home with limited access to my essentials however I think I can address these questions. The homes on Hathaway would not count towards the residence count for your subdivision. The Cul-de-sacs are not deemed fire department access road as they are a part of the actual roadway. Cul-de-sacs such as seen in the proposal are required for apparatus turn around areas. The requirements for these are found in appendix D of the ICC fire code. From a preliminary look at what has been presented I think everything should meet the fire code requirements. I can dig deeper and follow up with any additional questions once I am back in the office. Sentfrom Mail for Windows 10 From: Gwen Hein Sent: Wednesday, October 14, 20201:24 PM To: Dave Dedman Cc: Doug Peppmeier Subject: [EXTERNAL] RE: [EXTERNAL] Autumn Creek Subdivision - Single Access Inquiry (K20-042) Hi Dave, I'm following up a voice mail I left this afternoon regarding the proposed single access subdivision off of Hathaway Lane. I wanted to clarify: the maximum number of units we can have based on density requirements is 28. Is it correct that the culdesac counts as the "fire apparatus access road" since it meets City of Kalispell design standards? Or will existing homes on Hathaway count against the 30 residence threshold? Thank you, Dave! Gwen Hein, PE I Engineer TD&H Engineering 1720 9th Avenue STE B I Helena, MT 59601 p: 406.603.4201 www.tdhennineering.com >>> Gwen Hein 10/12/2020 7:00 AM >>> Dave, Thank you for the quick response! This is just what we needed to know. The proposed development will have 28 residences (mostly townhomes and a few single family lots). I do want to clarify: is it correct that the culdesac counts as the "fire apparatus access road" in this case? Or would it be Hathaway Lane? If it is Hathaway do the existing homes count against the 30 residence threshold? Thank you, Gwen Hein, PE I Engineer TD&H Engineering 1720 9th Avenue STE B I Helena, MT 59601 p: 406.603.4201 www.tdhenaineerina.com >>> Dave Dedman <ddedman@kalispell.com> 10/8/2020 2:23 PM >>> Hello Gwen, Thank you for reaching out in regards to this development. I was not involved with the acceptance and planning of this in 2005 so the drawing was useful. The currentfire code has changed since this was initially approved and is more stringent. Currently on 30 residences are allowed with a single access. Length isn't really a consideration however. I'm not sure if this will impact the development are not, not Knowing how many of those lots are single families or duplexes. There is exceptions to this number if the homes are sprinkled. Attached is the current language as adopted. SECTION D107 ONE- ORTWO-FAMILY RESIDENTIAL DEVELOPMENTS D107.10ne- ortwo-family dwelling residential developments. Developments of one- or two-family dwellings where the number of dwelling units exceeds 30 shall be provided with two separate and approved fire apparatus access roads, and shall meet the requirements of Section D104.3. Exceptions: 1. Where there are more than 30 dwelling units on a single public or private fire apparatus access road and all dwelling units are equipped throughout with an approved automatic sprinkler system in accordance with Section 903.3.1.1, 903.3.1.2 or 903.3.1.3 of the International Fire Code, access from two directions shall not be required. 2. The number of dwelling units on a single fire apparatus access road shall not be increased unless fire apparatus access roads will connect with future development, as determined by the fire code official. Highway 2 may be an option with the current fire codes as length is not really relevant. Let me Know if there is additional information that you may need or if there are other options that you want to look at Dave Dedman City of Kalispell Fire Chief Fire 19k 406-758-7763 Work 406-751-1616Mobile ddedman@kalispell.com 3121stAve. E. Kalispell, MT 59W1 From: Gwen Hein <Gwen.Hein@tdhengineering.com> Sent: Wednesday, October 7, 2020 5:30 PM To: Dave Dedman <ddedman@I<alispell.com> Cc: Doug Peppmeier<Doug.Peppmeier@tdhengi nee ring.com> Subject: [EXTERNAL] Autumn Creek Subdivision - Single Access Inquiry (K20-042) Hello Dave, I'm working with Doug Peppmeier on the Autumn Creek Subdivision off of Hathaway Lane near Highway 2. This project was originally conceptualized back in 2005 and recently got picked up again. Due to the existing wetlands there is a single access proposed. The 2005 preliminary plat had conditional approval. We are bringing the original work up to current standards and will begin the preliminary plat process again. One thing that we need to reconfirm to satisfy the City Subdivision Regulations is that Hathaway Lane can still be considered the primary access road. In 2005, it was deemed acceptable because Hathaway Lane ends in a hammer head that fire trucks can maneuver. Using Highway 2 as the primary access road means that the distance requirements cannot be met. Hathaway Lane to the end of Summer Place is -680' while Hathaway Lane from Highway 2 to Summer Place is - 963'. Before we get too far in the preliminary plat process, we want to confirm with you that using Hathaway Lane as the primary access road is acceptable. I've attached a draft lot layout for reference. The culdesac bulbs meet current City of Kalispell standards. I'll follow up with a call tomorrow. Thank you in advance for your help! Gwen Hein, PE I Engineer TD&H Engineering 1720 9th Avenue STE B I Helena, MT 59601 p: 406.603.4201 www.tdhenciineerinci.com Messages and attachments sent to or from this e-mail account pertaining to City of Kalispell business may be considered public or private records depending on the message content. The City is required by law to protect private, confidential information. Emails that contain confidential information such as information related to individual privacy may therefore be protected from disclosure under law. However, these communications are also subject to the Right to Know provisions of Montana's Constitution (Art. II, Sect. 9) and may be considered a "public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City's record retention policies. Any unauthorized review, use, disclosure or distribution of this e-mail or its attachment(s) is prohibited. If you are not the intended recipient, immediately contact the sender by reply e-mail and destroy all copies of the original message. Messages and attachments sent to or from this e-mail account pertaining to City of Kalispell business may be considered public or private records depending on the message content. The City is required by law to protect private, confidential information. Emails that contain confidential information such as information related to individual privacy may therefore be protected from disclosure under law. However, these communications are also subject to the Right to Know provisions of Montana's Constitution (Art. II, Sect. 9) and may be considered a "public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City's record retention policies. Any unauthorized review, use, disclosure or distribution of this e-mail or its attachment(s) is prohibited. If you are not the intended recipient, immediately contact the sender by reply e-mail and destroy all copies of the original message. I I I II I I II I I� I I I { I I l I I I I I I I I I I I I I I I I I I I I I M1 I I I I r I k I I I I� \ I I � I I SUBJECT TRACT LE AST I I I I I } I x ff k I { x �1° PLZW AY— I I I I I �U0 I ry { I I I � I I I I . f I I r � t � I k 1 2nd k I I I I k k St k k 5 p 5 ti Flathead ou t , Esri, 'ERE, Garmin, (c) ©;pe S etMap contributors, and he t GIS user comm-1 ity n Flathead County CITY LIMITS MAP GIS Department AUTUMN CREEK 0 0.045 0361 W E .09 o.�s o.27 o. s _—_--_ �[��N The areas depicted on these maps are for llustrative purposes only SUBDIVISION V and do not necessarily meet mapping, surveying, or engineering 800 South Main Street standards. Deriving conclusions from this map is done at the user's assumed risk. Kalispell, Montana 59901 ' R- RAI OF I x I { I I R-"I I I R A I I I I I I I I I I I ' RA-1 D I I )ritt i I I ' M1 I I I I i I k I I I t _ RA-1 I I I � SUBJECT TRACT I r � ,ELT r' R-2 03 I I I ' I }5 I x ff f r—--— I I I I I xl �r Y B 4 - 1134 1 2nd k I� I I _ k k k \ R3!RUD ti Flathead ou t , Es,ri, E E, GarmIn, (°cj ©pe etMap con4r�ibutors, nd he { GIS user comm N Flathead County ZONING MAP GIS Department AUTUMN CREEK 0 0.045 0.09 0.18 0.27 0.361 w e s _—_--_ �[��N The areas depicted on these maps are for llustrative purposes only SUBDIVISION V and do not necessarily meet mapping, surveying, or englneering 800 South Main Street standards. Deriving conclusions from this map is done at the user's assumed risk. Kalispell, Montana 59901 Flathead County n�--7GIS Department 800 South Main Street Kalispell, Montana 59901 N FLOOD PLAIN MAP AUTUMN CREEK 0 0.045 0.09 0.18 0.27 0.36i " E s The areas depicted on these maps are for llustrative purposes only SUBDIVISION and do not necessarily meet mapping, surveying, or englneering standards. Deriving conclusions from this map is done at the user's assumed risk. [EXTERNAL] RE: Autumn Creek Development Gross, Joan <jgross@oregonstate.edu> Sat 12/5/2020 5:56 PM To: Kari Barnhart <kbarnhart@kalispell.com> Please distribute this letter pertaining to Agenda item #2 at the December 15th meeting to members of the board and include it for public inspection. Joan Gross and David McMurray 40 Hathaway Lane Kalispell, MT 59901 December 6, 2020 Dear Kalispell City Planning Board and Zoning Commission, We are owners of 40 Hathaway Lane, the property that lies directly in front of the proposed Autumn Creek subdivision and we would like to voice our opposition to this subdivision. When the subdivision was first proposed 15 years ago, Hathaway Lane residents objected on the basis of environmental and safety concerns, as well as our diminished quality of life. In my previous letter to this board, I said that I would not oppose a lower density plan that was ecologically sound and didn't create traffic safety nightmares. We can see no evidence that substantial changes were made in the plan over the past 15 years. There are still 28 units planned and Hathaway Lane is the main entrance and exit to those units. This makes us doubt the intentions of the developers to create a livable neighborhood. The request to change the zone from R-2 to R-4 makes us even more nervous. We understand the desire to change the zoning since the proposed development exceeds by two units the maximum dwelling unit density. The total area of the proposed development is 8.41 acres, but 1.89 acres of that is wetlands that is not developable. That leaves 6.52 acres that could be developed at a maximum of 4 units per acre which comes to 26 units. 26 units may be legal under the current zoning code, but it is still too many residents to depend on little dead end Hathaway Lane. During rush hours, there will be a solid stream of traffic in front of our house. Even now, we often have trouble getting onto Highway 2. No one will get to work on time and accidents will increase as people get impatient and dart out in front of traffic speeding down Hart Hill. At the very minimum, a traffic light should be installed at the end of Hathaway Lane. A pedestrian/bike crossing should be installed as well so that residents can access the bike/walking path which will be part of the new linear park through town. In addition to protecting the entrance/exit to Hathaway Lane with a traffic light and pedestrian crossing, it is imperative that a second entrance/exit be established, either onto Highway 2 or the bypass. Section D107 of the Fire Code* states that if the number of dwelling units exceeds 30, the development shall be provided with two separate and approved fire apparatus access roads. Obviously, this code was developed after a serious study. There are 12 existing homes and one business (Flathead Janitorial) on Hathaway Lane now. An additional 28 units would bring the total to 41 units, all using a single dead end road with a dangerous entrance onto an increasingly busy highway. Surely, the Kalispell Planning Board will uphold the laws and codes that have been established and will vote not to approve the request for a zone change from R-2 to R-4 and the major preliminary plat approval for the Autumn Creek Subdivision. Sincerely, Joan Gross and David McMurray *SECTION D 107 ONE- OR TWO-FAMILY RESIDENTIAL DEVELOPMENTS D107.1 One- or two-family dwelling residential developments. Developments of one- or two-family dwellings where the number of dwelling units exceeds 30 shall be provided with two separate and approved fire apparatus access roads, and shall meet the requirements of Section D 104.3. Ronald and Brenda Profitt 100 Hathaway Lane Kalispell, MT 59901 December 15, 2020 Via: Email to kbarnhartru),kalispell.com Kalispell Planning and Building Department 201 1 Si Avenue E Kalispell, MT 59901 Attn: Kari Barnhart Re: File #K7-C-20-02 and KPP-20-04 Autumn Creek Subdivision December 15, 2020 Planning meeting Kalispell City Planning Board and Zoning Commission: We are property owners to the north of the Subject property; however, we did NOT receive notice of Public Hearing to be held December 15, 2020, regarding a request by JAG Capital Investments, LLC for a zone change from R-2 to R-4. Possibly this was an oversight, as we are less than 150 feet from the subject property. We only heard about this proposal from neighbors on Hathaway Lane. We strongly object to the request for a zone change from R-2 to R-4 for a variety of important reasons following. We have lived on Hathaway Lane, a dead-end road, with only one access out, for over 15 years. Over the years, we have seen the increase in Canadian Geese, Mallard Ducks, deer, a variety of migratory birds, and other wildlife that roam our rural property. This is a true riparian waterway that is important to the wildlife. We noticed an increase in the amount of wildlife in our rural area after the Hwy 93 Bypass was built and displaced many creatures that gravitate to the riparian waterway for survival. We do not see in the application that an Environmental Assessment has been done or is required for this important habitat. A major concern is that Hathaway Lane is a 25 foot road, not a 60 foot road that can handle 28 more residences with possibly 268 additional trips per day. We do not see how Hathaway Lane can be widened to City Requirements with sidewalks, curb and gutter and street lights with the stream that is on BOTH sides of Hathaway Lane right next to the proposed access point to Autumn Creek Development entrance. Has anyone from your department physically came out to see Hathaway Lane? We doubt it. One of the most serious concerns is safety for the residents of Hathaway Lane and proposed Autumn Creek development. As we stated, Hathaway is a dead-end road. It accesses Highway 2 West right --at the bottom of a hill, where traffic is traveling 55 miles per hour (sometimes more). The traffic coming in from West of Kalispell has increased dramatically during the past few years and has become extremely dangerous to make a left turn to Kalispell. A traffic study should be required and significant improvements to the access to Hathaway Lane from Highway 2 West are already needed with just the residents that live here now. We are not opposed to development, when done responsibly. We have been involved in major developments in the past. We do not feel this development has been presented responsibly with regard to present Hathaway Residents safety, future residents safety, property values, and the impact on wildlife. The application does not meet the criteria to satisfy the burden from zone change from R-2 to R-4. We strongly object to the proposed zone change and urge the Board to recommend denial of this proposal. Sincerely, r� r Ronald E. Profitt Brenda S. Profitt Bruce A. Fredrickson* Kristin L. Omvig RC K i MOUNTAIN L A W Marcel' - LeD" urray -(Retired) PARTNER8, P.C, P.O. Box 1758 P.O. Box 648 1830 3n' Avenue East, Ste. 301 10 1st Ave, North All Lawyers Licensed in Montana Kalispell, MT 59903 Glasgow, MT 59230 Also Licensed in: Phone: (406) 314-6011 Phone: (406) 228-2272 * North Dakota Fax: (406) 314-6012 Fax: (406) 228-2286 ** California and Nevada www..toclkymoun taintawpartnlers. cam December 15, 2020 Via: Email to kharnharit*kalispell.com Kalispell Planning and Building Department 201 1st Avenue B Kalispell, MT 59901 Attn: Kari Barnhart Re: File #KZC-20-02 and KPP-20-04 Autumn Creek Subdivision December 15, 2020 Planning meeting Kalispell City Planning Board and Zoning Commission: I am in receipt of the Notice of Public Hearing to be held December 15, 2020, regarding a request by JAG Capital Investments, LLC for a zone change from R-2 to R-4. I am a property owner located to the northwest of the subject property. I am also an attorney who has significant experience in land use, zoning and planning matters/litigation. Please be advised that I strongly ❑b'ect to the request for a zone change from R-2 to R-4. The Hathaway Lane neighborhood consists primarily of single residential homes. Some, like myself, have livestock. Canadian geese, ducks, deer and other wildlife roam freely and peacefully in the neighborhood. One business with low impact use exists on Hathaway Lane directly along U.S. Highway 2 to the far south. While I certainly do not oppose development, that development should be responsible development, particularly with the recent changes to our community given the influx of new people into the AnwserrcrlCornPmY\KristinU020-12-14 92 Halhaway Lu12020-12-14 Ltr to KPlanning.dou Kalispell Planning and Zoning Commission December 15, 2020 Page 2 Valley. This is not responsible development. Rather, as demonstrated by the zone request application, this zone change is to maximize density while avoiding triggers that would require more stringent review and reporting requirements, all with the purpose of maximizing the money put in the developer's pockets. Consider the following: 1. Site Suitability: The proposed 8.41 acres (which includes 1.14 acres of parkland and 1.89 acres of open space leaving 5.38 acres for development of 28 residential lotslsublots) is not suitable for the proposed density as space is limited given the proposed design, access to the property creates hazards and dangers, and the plans impact public safety and create significant environmental concerns. It is surrounded by a water tributary along Hathaway Lane (west), the bypass to the east and privately owned property. And only a SINGLE access point exists. 2. The Staff Report Erroneously_ Concludes the Zone Change will have a "Minimal" effect on transportation systems. Hathaway Lane is a County road; however, the roadway cannot handle a significant increase in traffic. Applicant proposes using Hathaway Lane as its access point. The current paved surface of Hathaway Lane is approximately 25 feet wide. While the Staff Report suggests some vague conditions in an attempt to impose city standards on a county road, the access from Hathaway Lane on to U.S. Highway 2 has not been addressed and is hazardous even in its present state which serves only those families currently residing on Hathaway Lane. More specifically, there are many mornings, daytimes and evenings when making a lefthand turn takes minutes to accomplish even with low traffic volume. Currently, the road is in a general state of disrepair. While the Staff Report proposes certain ambiguous conditions on development of Hathaway Lane, those conditions are insufficient. In 2015 the Word of Life Church obtained a conditional use permit from the County which proposed a septic system and drain field along with 30,500 square feet of buildings including a gymnasium, family center and 125 parking spaces which was anticipated to add an additional 200 people to the area at a given time. While that CUP may have expired, that property will certainly be developed to capacity in the future. At a minimum, a traffic study is required; particularly when it includes accessing U.S. Highway 2 at a point of heavy congestion and a 55 mph speed Kalispell Planning and Zoning Commission December 15, 2020 Page 3 limit. And, significant improvement would be required. Applicant has provided no consideration for these important facts. Rather, those issues have simply been dismissed because the anticipated 268 trips a day from Autumn Creek falls under the daily 300 trip requirement to conduct a traffic study. QUESTION: Does an additional 200 trips in addition to the 268 from Autumn Creek create any safety concerns? ANSWER: Not for the developer whose goal, as demonstrated by the zone request application, is to maximize density, minimize its obligations while maximizing the money put in its pockets. But the residents will be directly impacted. 3. Relocation of SINGLE access point. Condition No. 12 creates an interesting issue. It proposes "relocating "the existing driveway to the north of the property. Interestingly, this is the only access point to the property based on the design. The access point is a point of concern as it is the SINGLE access point which is currently limited in width and connects off Hathaway Lane at a 90 degree right angle. The water tributary runs the remainder of the property's frontage along Hathaway Lane. A private driveway lies directly to the north of the SINGLE access point. And while the developer skirts having more than one access, in doing so it creates a hazard and concern for the public's safety and especially the future residents of Autumn Creek which would have a SINGLE access and are otherwise surrounded by a water tributary, bypass and some private property to which they have no right of access. If a fire started near the entrance point blocking the SINGLE access point, the whole subdivision would be placed at risk based on the existing design which consists of a single road way and two (2) cul de sacs. 4. The Zone Change has a Direct Negative Impact on Wildlife and Affects a Tributary to Ashley Lake. The Staff Report concludes no significant impacts on wildlife or the water based on a 1.5 page update to a 2006 environmental assessment containing no substantive studies regarding wildlife in 2020. Significant changes have occurred since 2006, some 14 years ago which necessitate consideration. Birds (ducks, geese, blue herons etc.) nest in the area. Deer and fox travel the area. The developer overlooks those issues. Kalispell Planning and Zoning Commission December 15, 2020 Page 4 5. Devaluation of Property Values: In addition, property values will be negatively affected and diminished by cramming 28 residences into less than 5.5 acres. In sum, the application does not meet the mandatory criteria sufficient to satisfy the burden of granting a zone change from R-2 to R4. Imposing an additional 268 trips per day along with the future development of the church property is unreasonable, violates the character of the neighborhood, creates risks for the general public and devalues property values. Again, I strongly object to the proposed zone change and respectfully urge the Board to recommend denial of the same. Thank you. ly, kristih L. m i� Homeowner siding at 92 Hathaway Lane Ka iapell,-Mnn-tana 59901