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Staff Report/Final PlatR45)ZO) • 140MIJ ploy in Tri-City PlanningOffice 17 Second Street East — Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 Kalispell Mayor and City Council Narda A. Wilson, Senior Planner Chris A. Kukulski, City Manager Final Plat Approval for North Pointe Professional Subdivision MEETING DATE; April 18, 2005 BACKGROUND: This a request for final plat approval of a one lot commercial subdivision in an R-5, Residential / Professional Office zoning district. The subdivision includes this lot and a remainder parcel to the west where a professional office has recently been built. The property is located at the northwest corner of Three Mile Drive and North Meridian Road and contains 1.040 acres. Currently this property is an undeveloped portion of the property proposed for subdivision. The remainder portion of the lot is 1.037 acres where an office building was recently constructed. There is an office building to the north and south of this property with some other uses in the immediate area of a commercial nature. The property is zoned R-5, Residential / Professional Office. This zoning district has a minimum lot width requirement of 70 feet and a minimum lot size requirement of 7,000 square feet. The lot exceeds the minimum lot size requirements for the district and is in compliance with the zoning. The Tri-City Planning Office waived preliminary plat review on February 23, 2005 subject to five conditions because it can meet the criteria as provided for under Section 2.06 of the Kalispell Subdivision Regulations. The Kalispell City Council will need to adopt findings of fact for approval found in the attached staff report KWP-05-1 concurrent with the final plat approval. The attached transmittal letter outlines the conditions of approval and a discussion of how they have been met. RECOMMENDATION: Approval of the resolution adopting the findings of fact and approving the final plat would be in order. FISCAL EFFECTS: Potentially minor positive effects. ALTERNATIVES: As suggested by the city council. Providing Community Planning Assistance To: • City of Kalispell • City of Whitefish • City of Columbia Falls • Final Plat for North Pointe Professional Subdivision April 13, 2005 Page 2 Respectfully` submitted Narda A. Wilson James H. Patrick Senior Planner City Manager Report compiled: April 13, 2005 c: Theresa White, Kalispell City Clerk 2 Tri-City Planningice 17 Second Street East — Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 April 13, 2005 James H. Patrick, City Manager City of Kalispell P.O. Box 1997 Kalispell, MT 59903 RE: Final Plat Approval of North Pointe Professional Subdivision Dear Jim: Our office has received an application from Thomas, Dean and Hoskins on behalf of their client for a one lot commercial subdivision lying at the northwest corner of Three Mile Drive and North Meridian Road. The lot contains approximately 1.040 acres and will be developed with an office building at some point in the future. The property is zoned R-5, a Residential / Professional Office District, that has a minimum lot size requirement of 7,000 square feet and a minimum lot width of 70 feet. This district is intended primarily for professional office uses. There is a remainder parcel to the east of this property that contains approximately 1.037 acres and has been developed with an office building recently. The property can be described as an Amended Plat of Lot 2A of the Amended Plat of Lot 2 of the Amended Plat of Three Mile Drive Corner and a portion of Lot 20, Block 1 of Northwest Tracts located in Section 1, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana. Our office waived the preliminary plat on February 23, 2005 subject to five conditions because it has been found that the subdivision can meet the criteria for preliminary plat approval waiver as outlined in Section 2.06 of the Kalispell Subdivision Regulations. Specifically, it can be found that the following conditions exist: 1. The plat contains five or fewer lots. 2. There is no public dedication of streets or public or private parkland. 3. All lots have legal and physical access conforming to the subdivision regulations. 4. Each lot has a suitable building site and there are no environmental hazards present. 5. Public sewer and water are adequate and in place. 6. The subdivision complies with the subdivision regulations and current zoning regulations. 7. No significant effects are anticipated on agriculture and agricultural water user facilities, local services, the natural environment, wildlife and wildlife habitat and the public health and safety. Providing Community Planning Assistance To: • City of Kalispell • City of Whitefish • City of Columbia Falls • Final Plat for North Pointe Professional Subdivision April 13, 2005 Page 2 The Kalispell City Council will need to adopt findings of fact for approval found in attached staff report KWP-05-1 concurrent with the final plat approval. The following is a list of the conditions of approval and a discussion of how they have been met. Condition No. 1. That the final plat is in substantial compliance with the preliminary plat that was waived. ® This condition has been met. The final plat is in compliance with the preliminary plat which was waived. Condition No. 2. That a note be placed on the face of the final plat that waives protest to the creation of a special improvement district for the future upgrade of streets in the area to City standards. ® This condition has been met. The required note has been placed on the face of the final plat. Condition No. 3. A municipal facilities exemption be obtained from the Montana Department of Environmental Quality and a letter from the Kalispell Public Works Department stating that municipal water and sewer are available and will be provided to both lots. ® This condition has been met. Letters from the State and the City have been submitted with the final plat as required. Condition No. 4. A shared access for the newly created lot be developed with access being taken from the remainder parcel to the west. ® This condition has been adequately addressed. There is a note on the plat for shared access. When the parcel is developed access will be taken from this location. Condition No. 5. This waiver of preliminary plat approval is valid for three years and will expire on February 23, 2008. ® This condition has been met. The final plat is in substantial compliance with the preliminary plat which was reviewed and approved. 2 Final Plat for North Pointe Professional Subdivision April 13, 2005 Page 3 This subdivision plat has been found to be in substantial compliance with the State and City Subdivision Regulations. This subdivision has been found to be in compliance with the Kalispell Zoning Ordinance and the R-5, Residential / Professional Office, zoning designation assigned to the property. All of the conditions of preliminary plat approval have been adequately addressed. The staff recommends that the Kalispell City Council adopt the attached staff report KWP-05-1 as findings of fact and approve the final plat for North Pointe Professional Subdivision. Please schedule this matter for the next regular city council of April 18, 2005. You may call me at (406) 751-1852 if you have any questions regarding this subdivision. Sincerely, Narda A. Wilson, AICP Senior Planner NW/ Attachments: 1 opaque mylar 1 reproducible mylar 1 paper copy Staff Report KWP-05-1 Final plat application dated 2 / 12 / 05 Letter from TCPO for pre plat waiver dated 2 / 23 / 05 MDEQ municipal facilities exclusion dated 10/ 15/04 Ltr from Public Works dated 3/ 14/05 Title Report from Citizens Title dated 2 / 1 / 056 / 2 / 04 Consent to plat from Glacier Bank dated 11 / 4 / 04 Treasurers Certification dated 12/22/04 Location Map C: Thomas Dean & Hoskins, 31 Three Mile Drive, Suite 101, Kalispell, MT 59901 Pointe Professional Bldg, 690 N. Meridian, Suite 210, Kalispell, MT 59901 Theresa White, Kalispell City Clerk REPORTS \KALISPELL\05 \KWPS-1 LTR. DOC �# it s l r t 1/ A report to the Kalispell City Council for findings of fact for a one lot commercial subdivision. Preliminary plat approval for this minor subdivision was waived on February 23, 2005 subject to five conditions. BACKGROUND: This is a one lot commercial subdivision in an R-5, Residential / Professional Office, zoning district. The subdivision includes this lot and a remainder parcel to the west where a professional office has recently been built. A. Applicant: Thomas, Dean and Hoskins 31 Three Mile Drive, Suite 101 Kalispell, MT 59901 (406)751-5246 Pointe Professional Building, LLC Three Mile Professional, LLC 690 North Meridian, Suite 210 Kalispell, MT 59901 B. Location: The property is located at the northwest corner of Three Mile Drive and North Meridian Road. The property can be described as an amended plat of Lot 2A of the amended Plat of Lot 2 of the Amended Plat of Three Mile Drive Corner and a portion of Lot 20, Block 1 of Northwest Tracts located in Section 1, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana. C. Size: Total area: 1.040 acres D. Existing and Adjacent Land Uses: Currently this property is an undeveloped portion of the property proposed for subdivision. The remainder portion of the Lot is 1.037 acres where an office building was recently constructed. There is an office building to the north and south of this property with some other uses in the immediate area of a commercial nature. E. Zoning: The property is zoned R-5, Residential / Professional Office. This zoning district has a minimum lot width requirement of 70 feet and a minimum lot size requirement of 7,000 square feet. The lot exceeds the minimum lot size requirements for the district and is in compliance with the zoning. F. Relation to Growth Policy: The property is designated as Urban Mixed Use in the Kalispell Growth Policy 2020. The existing R-5 zoning and the proposed uses for the site comply with the anticipated development for the area. G. Utilities: This subdivision will not require any utilities to serve it other than the availability of water for a hydrant in case of a fire since the lot will be developed as a parking lot. Full urban services are available to the lot as referenced below. Water and Sewer: Electricity: Telephone: Gas: School: Police: Fire Protection: City of Kalispell Flathead Electric Coop CenturyTel Northwest Energy School District #5, Kalispell City of Kalispell City of Kalispell This application is reviewed as a minor subdivision in accordance with statutory criteria and the Kalispell Subdivision Regulations. A. Effects on Health and Safety: Fire: The area is anticipated to be at low risk from wildfire due to the urban location, lack of woody fuel and good access to the site. The proposed subdivision is not expected to significantly impact the service provided by the district. A fire hydrant is located nearly across the street from this property to the north. Vegetation and topography: The property is relatively level and has mature vegetation and landscape that will likely be removed at the time the property is developed. B. Effects on Wildlife and Wildlife Habitat: The subdivision is not mapped in big game habitat winter range and does not provide habitat to significant wildlife other than some birds and small animals. C. Effects on the Natural Environment: The subdivision will not be required to be served by City of Kalispell water and sewer. There is no surface water or ground water in the area that can be anticipated to be impacted when this property is developed due to surface run off. Any impacts on the natural environment related to this subdivision will be insignificant. D. Effects on Local Services: Sewer and Water: The City of Kalispell will be providing water and sewer service to the property at the time the property is developed. City water and sewer are in close proximity to the site and would be able to serve it if needed. 2 Access and Roads: Access to the site can be obtained directly from Three Mile Drive and an access was negotiated as part of the North Meridian Road right- of-way acquisition for its future reconstruction. This intersection will also be reconstructed as part of that project and access improved as a result Schools: This property is within the boundaries of School District #5, Kalispell. This subdivision is commercial in nature and will not have impacts on the enrollment of the school district. Parks: Parkland dedication is not required for minor or commercial subdivisions. Police Protection: The property is served by the Kalispell Police Department. It is not anticipated that this subdivision will significantly impact the service provided by the police department. Fire Protection: The property is within the service district of the Kalispell Fire Department. The subdivision will not create additional impacts to fire service. Refuse Disposal: Refuse disposal will be provided by the City of Kalispell. The proposed subdivision is not expected to impact the landfill. Medical Services: Emergency medical service is provided by the Kalispell Regional Hospital; Ambulance and Life Flight services are also available. E. Effects on Agriculture: This subdivision is in the urban area of Kalispell and the area has been anticipated to be developed to an urban density. This property has not been used for agricultural purposes in the past and will have no effect on agricultural activities in the valley. F. Compliance with the Kalispell Subdivision Regulations This subdivision complies with the Kalispell Subdivision Regulations. Preliminary plat was waived because it meets the waiver criteria provided for under Section 2.06 of the regulations which include the following: (1) the plat contains five or fewer lots, (2) there is no public dedication of streets or public or private parkland, (3) all lots have legal and physical access conforming to these regulations, (4) each lot has a suitable building site and there are no environmental hazards present, (5) municipal water and sewer are adequate and in place, (6) the subdivision complies with these regulations and zoning regulations, (7) there is no significant effects anticipated on agriculture and agricultural water user facilities, local services, the natural environmental wildlife and wildlife habitat and the public health and safety. This subdivision is in substantial compliance with the Kalispell Subdivision Regulations. G. Compliance with the Kalispell Zoning Ordinance: This subdivision complies with the minimum lot size and lot width requirements of the R-5, Residential / Professional Office zoning district. At the time the lot is developed, it will be required to be developed in accordance with the Kalispell Zoning Regulations. The subdivision complies with the zoning for the property. Staff recommends that the Kalispell City Council adopt Staff Report KWP-05-1 as findings -of -fact for the proposed subdivision and approve the final plat for North Pointe Professional Subdivision. H:\FRDO\REPORTS\KALISPEL\KWP\05\KWP-05-1 north pointe Thomas, Dean & Hoskins, Inc. T D & r Engineering Consultants March 17, 2005 Tom Jentz, Director Tri-City Planning Office Ford Bldg, 17 2"d Street E., Suite 211 Kalispell, MT 59901 Re: North Pointe Professional Subdivision Dear Mr. Jentz: Attached is the final plat of the above referenced minor subdivision, along with the following supplements: ♦ Signed application form Application fee - $640.00 ♦ Tax certification ♦ Platting certificate (dated February 1, 2005) ♦ Consent to Platting by Glacier Bank ♦ Municipal Facilities Exclusion letter from DEQ ♦ Letter from Kalispell Public Works, certifying availability of water and sewer service. A waiver of protest to an SID has been placed on the face of the plat. Access to Lot 1 will be from the remainder parcel, which currently accesses Three Mile Drive. Feel free to call if you have questions. Sincerely, THOMAS, DEAN & HOSKINS, INC. Richard J. Swan, P.L.S. RJS:cr K04-019-002 Encl.: Referenced Above .. - r u ivision or .jen z. oc 690 North Meridian, Suite 101 s Kalispell, MT 59901 ® (406) 752-5246 ® FAX (406) 752-5230 GUARANTEE $ ,V A M E R I C, A, 11�- FirstAmerican Title Insurance Company i3Y Validating Signatory H358985 Form No. 1282 (Rev. 12/15/95) SCHEDULE OF EXCLUSIONS FROM COVERAGE OF THIS GUARANTEE 1. Except to the extent that specific assurances are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the folowing: (a) Defects, liens, encumbrances, adverse claims or other matters against the title, whether or not shown by the public records. (b) (1) Taxes or assessments of any taxing authority that levies taxes or assessments on real property; or, (2) Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not the matters excluded under (1) or (2) are shown by the records of the taxing authority or by the public records. (c) (1) Unpatented mining claims; (2) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (3) water rights, claims or title to water, whether or not the matters excluded under (1), (2) or (3) are shown by the public records. 2. Notwithstanding any specific assurances which are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the following: (a) Defects, liens, encumbrances, adverse claims or other matters affecting the title to any property beyond the lines of the land expressly described in the description set forth In Schedule (A), (C) or in Part 2 of this Guarantee, or title to streets, roads, avenues, lanes, ways or waterways to which such land abuts, or the right to main- tain therein vaults, tunnels, ramps or any structure or improvements; or any rights or easements therein, unless such property, rights or easements are expressly and specifically set forth in said description. (b) Defects, liens, encumbrances, adverse claims or other matters, whether or not shown by the public records; (1) which are created, suffered, assumed or agreed to by one or more of the Assureds; (2) which result in no loss to the Assured; or (3) which do not result in the invalidity or potential invalidity of any judicial or non - judicial proceeding which Is within the scope and purpose of the assurances provided. (c) The identity of any party shown or referred to in Schedule A. (d) The validity, legal effect or priority of any matter shown or referred to in this Guarantee. GUARANTEE CONDITIONS AND STIPULATIONS 1. Definition of Terms. The following terms when used in the Guarantee mean: (a) the "Assured": the party or parties named as the Assured in this Guarantee, or on a supplemental writing executed by the Company. (b) "land": the land described or referred to in Schedule (A)(C) or in Part 2, and improvements affixed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or referred to in Schedule (A)(C) or in Part 2, nor any right, title, interest, estate or easement In abutting streets, roads, avenues, alleys, lanes, ways or waterways. (c) "mortgage": mortgage, deed of trust, trust deed, or other security instrument. (d) "public records": records established under state statutes at Date of Guarantee for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. (e) "date": the effective date. 2. Notice of Claim to be Given by Assured Claimant. An Assured shall notify the Company promptly in writing in case knowledge shall come to an Assured hereunder of any claim of title or interest which is adverse to the title to the estate or interest, as stated herein, and which might cause loss or damage for which the Company may be liable by virtue of this Guarantee. If prompt notice shall not be given to the Company, then all liability of the Company shall termi- nate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any Assured under this Guarantee unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 3. No Duty to Defend or Prosecute. rN Company shalt have no duty to defend or prosecute 4. Company's Option to Defend or Prosecute Actions; Duty of Assured Claimant to Cooperate. Even though the Company has no duty to defend or prosecute as set forth in Paragraph 3 above: (a) The Company shall have the right, at its sole option and cost, to institute and prosecute any action or proceeding, interpose a defense, as limited in (b), or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest as stated herein, or to establish the lien rights of the Assured, or to prevent or reduce loss or damage to the Assured. The Company may take any appropriate action under the terms of this Guarantee, whether or not it shall be liable hereunder, and shall not thereby concede lia- bility or waive any provision of this Guarantee. If the Company shall exercise its rights under this paragraph, it shall do so diligently. (b) If the Company elects to exercise its options as stated in Paragraph 4(a) the Company shall have the right to select counsel of its choice (subject to the right of such Assured to object for reasonable cause) to rep- resent the Assured and shall not be liable for and will not pay the fees of any other counsel, nor will the Company pay any fees, costs or expenses incurred by an Assured in the defense of those causes of action which allege matters not covered by this Guarantee. (c) Whenever the Company shall have brought an action or interposed a defense as permitted by the pro- visions of this Guarantee, the Company may pursue any litigation to final determination by a court of competent jurisdiction and expressly reserves the right, in its sole discretion, to appeal from an adverse judgment or order. (d) In all cases where this Guarantee permits the Company to prosecute or provide for the defense of any action or proceeding, an Assured shall secure to the Company the right to so prosecute or provide for the defense of any action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of such Assured for this purpose. Whenever requested by the Company, an Assured, at the Corrrparry's expense, shar give fife Company al reason - may be necessary or desirable to establish the title to the estate or interest as stated herein, or to establish the lien rights of the Assured. If the Company is prejudiced by the failure of the Assured to furnish the required cooperation, the Company's obligations to the Assured under the Guarantee shall terminate. 5. Proof of Loss or Damage. In addition to and after the notices required under Section 2 of these Conditions and Stipulations have been provided to the Company, a proof of loss or dam- age signed and sworn to by the Assured shall be fur- nished to the Company within ninety (90) days after the Assured shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the matters covered by this Guarantee which constitute the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the Assured to provide the required proof of loss or damage, the Company's obligation to such Assured under the Guarantee shall terminate. In addition, the Assured may reasonably be required to submit to exam- ination under oath by any authorized representative of the Company and shall produce for examination, Inspection and copying, at such reasonable times and places as may be designated by any authorized repre- sentative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Guarantee, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the Assured shall grant its permission, in writing, for any authorized representative of the Com- pany to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information desig- nated as confidential by the Assured provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the dak& Fa re of the Assured to suIxW for exarrifation lZ) tununucul :u .eu .ar:.=v1 cnv cu u c rca�. v in the above paragraph, unless prohibited by law or governmental regulation, shall terminate any liability of the Company under this Guarantee to the Assured for that claim. 6. Options to Pay or Otherwise Settle Claims: Termination of Liability. In case of a claim under this Guarantee, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Liability or to Purchase the Indebtedness. The Company shall have the option to pay or settle or compromise for or in the name of the Assured any claim which could result in loss to the Assured within the coverage of this Guarantee, or to pay the full amount of this Guarantee or, if this Guarantee is issued for the benefit of a holder of a mortgage or a lienholder, the Company shall have the option to purchase the indebt- edness secured by said mortgage or said lien for the amount owing thereon, together with any costs, reason- able attorneys' fees and expenses incurred by the Assured claimant which were authorized by the Company up to the time of purchase. Such purchase, payment or tender of payment of the full amount of the Guarantee shall terminate all lia- bility of the Company hereunder. In the event after notice of claim has been given to the Company by the Assured the Company offers to purchase said indebted- ness, the owner of such indebtedness shall transfer and . assign said indebtedness, together with any collateral security, to the Company upon payment of the purchase price. Upon the exercise by the Company of the option provided for in Paragraph (a)•the Company's obligation to the Assured under this Guarantee for the claimed loss or damage, other than to make the payment required in that paragraph, shall terminate, including any obligation to continue the defense or prosecution of any litigation for which the Company has exercised its options under Paragraph 4, and the Guarantee shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other Than the Assured or With the Assured Claimant. To pay or otherwise settle with other parties for or in the name of an Assured claimant any claim assured against under this Guarantee, together with any costs, attorneys' fees and expenses incurred by the Assured claimant which were authorized by the Company up to the time of payment and which the Company is obligat- ed to pay. Upon the exercise by the Company of the option provided for in Paragraph (b) the Company's obligation to the Assured under this Guarantee for the claimed loss or damage, other than to make the payment required in that paragraph, shall terminate, including any obligation to continue the defense or prosecution of any litigation for which the Company has exercised its options under Paragraph 4. 7. Determination and Extent of Liability. This Guarantee is a contract of Indemnity against actual monetary loss or damage sustained or incurred by the Assured claimant who has suffered loss or dam- age by reason of reliance upon the assurances set forth in this Guarantee and only to the extent herein described, and subject to the Exclusions From Coverage of This Guarantee. The liability of the Company under this Guarantee (a) the amount of liability stated in Schedule A or in Part 2; (b) the amount of the unpaid principal indebted- ness secured by the mortgage of an Assured mortgagee, as limited or provided under Section 6 of these Conditions and Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the time the loss or damage assured against by this Guarantee occurs, together with interest theron; or (c) the difference between the value of the estate or interest covered hereby as stated herein and the value of the estate or interest subject to any defect, lien or encumbrance assured against by this Guarantee. 8. Limitation of Liability. (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures any other matter assured against by this Guarantee in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. (b) in the event of any litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title, as stated herein. (c) The Company shall not be liable for loss or damage to any Assured for liability voluntarily assumed by the Assured in settling any claim or suit without the prior written consent of the Company. 9. Reduction of Liability or Termination of Liability. All payments under this Guarantee, except pay- ments made for costs, attorneys' fees and expenses pursuant to Paragraph 4 shall reduce the amount of liability pro tanto. 10. Payment of Loss. (a) No payment shall be made without producing this Guarantee for endorsement of the payment unless the Guarantee has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within thirty (30) days thereafter. 11. Subrogation Upon Payment or Settlement. Whenever the Company shall have settled and paid a claim under this Guarantee, all right of subroga- tion shall vest in the Company unaffected by any act of the Assured claimant. The Company shall be subrogated to and be entitled to all rights and remedies which the Assured would have had against any person or property in respect to the claim had this Guarantee not been issued. If requested by the Company, the Assured shall transfer to the Company all rights and remedies against any per- son or property necessary in order to perfect this right of subrogation. The Assured shall permit the Company to sue, compromise or settle in the name of the Assured and to use the name of the Assured in any transaction or litigation involving these rights or remedies. Cote' 'z e Moss of the Assured the Camparr, �_ subrogated to all rights and remedies of the Assured after the Assured shall have recovered its principal, interest, and costs of collection. 12. Arbitration. Unless prohibited by applicable law, either the Company or the Assured may demand arbitration pur- suant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Assured arising out of or relating to this Guarantee, any service of the Company in connection with its issuance or the breach of a Guarantee provision or other obligation. All arbitra- ble matters when the Amount of Liability is $1,000,000 or less shall be arbitrated at the option of either the Company or the Assured. All arbitrable matters when the amount of liability is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the Assured. The Rules in effect at Date of Guarantee shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permits a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 13. Liability Limited to This Guarantee; Guarantee Entire Contract. (a) This Guarantee together with all endorsements, if any, attached hereto by the Company is the entire Guarantee and contract between the Assured and the Company. In interpreting any provision of this Guarantee, this Guarantee shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, or any action asserting such claim, shall be restricted to this Guarantee. (c) No amendment of or endorsement to this Guarantee can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 14. Notices, Where Sent. All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this Guarantee and shall be addressed to the Company at 114 East Fifth Street, Santa Ana, California 92701. FILE NO.: CT-82960 CT-82960 H 358985 FEE: $125.00 SUBDIVISION OR PROPOSED SUBDIVISION: North Pointe Professional Subdivision SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE LIMITS OF LIABILITY, AND OTHER PROVISIONS OF THE CONDITIONS AND STIPULATIONS HERETO ANNEXED AND MADE A PART OF THIS GUARANTEE, FIRST AMERICAN TITLE INSURANCE COMPANY, A CORPORATION, HEREIN CALLED THE COMPANY GUARANTEES: Thomas, Dean and Hoskins, Inc. FOR THE PURPOSE OF AIDING ITS COMPLIANCE WITH FLATHEAD COUNTY SUBDIVISION REGULATIONS, IN A SUM NOT EXCEEDING $5,000.00. THAT according to those public records which, under the recording laws of the State of Montana, impart constructive notice of matters affecting the title to the lands described as follows: A tract of land located in the Southeast Quarter of the Southeast Quarter of Section 1, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana, being more particularly described as follows: Commencing at the Northwest corner of Lot 2 of the Amended Plat of Three Mile Drive Corner, records of Flathead County, and the Point of Beginning; thence North 89'48'02" East along the North boundary of said Lot 233.94 feet to the Northeast corner of said lot; thence South 03*01'34" West along the East boundary of said lot, 169.65 feet; thence South 51'18'23" West along the Southeasterly boundary of said lot, 41.54 feet; thence South 89'46'12" West along the South boundary of said lot, 202.91 feet to the Southwest corner of said lot; thence North 03*02,00" East along the West boundary of said lot, 195.66 feet to the Point of Beginning. THE ABOVE DESCRIBED TRACT OF LAND IS TO BE KNOWN AND DESIGNATED AS: North Pointe Professional Subdivision Continued... FILE NO.: CT-82960 PAGE 2 H 358985 (1) Parties having record title interest in said lands whose signatures are necessary under the requirements of Flathead County Subdivision Regulations on the certificates consenting to the recordation of Plats and offering for dedication any streets, roads, avenues and other easements offered for dedication dedication by said Plat are: Pointe Professional Building, LLC as to a portion - Owner AND Three Mile Professional, LLC as to a portion - Owner Glacier Bank, Beneficiary (2) Parties holding liens or encumbrances on the title to said lands are: 1. General and special county and city taxes for the year 2005, a lien not yet payable. 2. General and special city and county taxes for the year 2004, a lien now payable. 3. Deed of Trust dated January 15, 2004, to secure an indebtedness in the principal sum of AMOUNT $181,039.00, and the total principal indebtedness that may be outstanding at any given time which is secured by this Deed of Trust is $217,246.80. RECORDED February 2, 2004, as Doc. No. 2004-033-12160, records of Flathead County, Montana. GRANTOR Pointe Professional Building, LLC TRUSTEE Citizen's Title and Escrow Co., Inc. BENEFICIARY: Glacier Bank (3) Easements, claims of easements and restriction agreement of record are: 1. Terms and conditions of Party Well Agreement by and between Doris Hulbert and Charles a. Druesdow and Shirley A. Druesdow, recorded November 30, 1959, in Book 429, Page 731, as Doc. No. 7526, records of Flathead County, Montana. Addendum to Party Well Agreement, recorded June 24, 1993, as Doc. No. 93-175-13460, records of Flathead County, Montana. 2. Resolution No. 347 executed by the City of Kalispell for annexation of a portion of Three Mile Drive, recorded June 18, 1979, in Book 669, Page 786, as Doc. No. 8883, records of Flathead County, Montanan. 3. Possible easement created by documents recorded September 24, 1945, in Book 261, Page 538 and February 24, 1953, in Book 341, Page 290, as Doc. No. 1034, records of Flathead County, Montana. 4. 20 foot utility easement as shown on the Plat of Three Mile Drive Corner. Continued... FILE NO.: CT-82960 PAGE 3 H 358985 5. Utility easement as described on the Plat of Three Mile Drive Corner. 6. Subdivision Plat Notes as described on the Plat of Three Mile Drive Corner. 7. 20 foot utility easement as shown on the Amended Plat of Lot 2 of the Amended Plat of Three Mile Drive Corner, and a portion of Lot 20, Block 1 of Northwest Tracts. 8. Utility easement as described on the Amended Plat of Lot 2 of the Amended Plat of Three Mile Drive Corner, and a portion of Lot 20, Block 1 of Northwest Tracts. 9. Resolution No. 3877 executed by the City of Kalispell for including therein, as an annexation, certain real property to be known as Northwest Tracts Addition No. 234 recorded June 9, 1989 as Doc. No. 89-160-00430, records of Flathead County, Montana, Amendment recorded September 6, 2001, as Doc. No. 2001-249-10370, records of Flathead County, Montana. 10. Resolution No. 1055A executed by Board of County Commissioners, Flathead County, Montana for an amendment to the Kalispell City -County Master Plan by adding the North Meridian Neighborhood Plan as an addendum to the Kalispell City -County Master Plan, recorded January 3, 1995, as Doc. No. 95-003-14250, records of Flathead County, Montana. 11. County road rights -of -way not recorded and indexed as a conveyance in the office of the Clerk and Recorder pursuant to title 70, chapter 21, M.C.A. 12. Terms and conditions of an easement shown on Warranty Deed recorded February 2, 2004, as Doc. No. 2004-033-12150, records of Flathead County, Montana. 13. Provisions in deed to Pointe Professional Building, LLC, recorded February 2, 2004, as Doc. No. 2004-033-12150, records of Flathead County, Montana, but deleting any covenant, condition 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. Hazardous Substances Certificate and Indemnity Agreement, executed by and between Point Professional Building, LLC and Glacier Bank, recorded February 2, 2004, as Doc. No. 2004-033-12170, records of Flathead County, Montana. Continued... FILE NO.: CT-82960 PAGE 4 H 358985 15. The effect of restrictions contained in Certificate of Subdivision Plat Approval recorded with the Amended Plat of Lot 2 of the Amended Plat of Three Mile Drive Corner and a portion of Lot 20, Block 1 of Northwest Tracts, recorded September 13, 2004, as Doc. No. 2004-257-15350, records of Flathead County, Montana. 16. Easement and right-of-way for highway purposes granted to Montana Department of Transportation, recorded June 1, 2004, as Doc. No. 2004-153-08112, records of Flathead County, Montana. 17. Unrecorded leaseholds if any; rights of parties in possession other than the vestees herein; rights of secured parties, vendors and vendees under conditional sales contracts of personal property installed on the premises herein; and rights of tenants to remove trade fixtures. 18. No liability is assumed for any tax imposed by Sections 15-30-201 through 15-30-209 MCA wherein a Warrant for Distraint or Certificate has not been filed in the Judgment Docket pursuant to Section 15-1-704 MCA. 19. Utility Easements as shown on the proposed Plat of North Pointe Professional Subdivision. NOTE: No mineral search has been done on the subject property and this policy does not insure minerals or title to minerals; however, the following instruments have been found during the course of our title examination: 50% of all minerals, oil and gas in or under herein described land, as reserved by The Federal Land Bank of Spokane, a corporation by instrument recorded September 24, 1945, in Book 261, Page 538, records of Flathead County, Montana, and all of the mineral rights by M.A. Wuebbenherst and Alvina Wuebbenherst in Warranty Deed recorded February 24, 1953, in Book 341, Page 290, as Doc. No. 1034, records of Flathead County, Montana. The above described property is located within and subject to the jurisdiction of the Kalispell Fire District. DATED: February 1, 2005 at 8:00 A.M. Subscribed and sworn to before me .PG't.......!191Ro; ='*i NOTARIAL:*= SEAL i TRACY J. MARTIN NOTARY PUBUC-MONTANA Residing at Kalispell, Mohan this Soday of Rb 2005 Nota Public for State of Montana Residing at My Cann. Expires Aug. 16, 2005 THE END oxxRm PBIxTx Px°E,®1°xu. BlRnlxn Ir4 PLAT OF TMBB Blli PxBYx9RNW BY: R� NORTH POINTE PROFESSIONAL SUBDIVISION IXC. bWI�XBu�N& eRo1 AN AMENDED PLAT OF LOT 2A OF THE AMENDED PLAT OF LOT 2 OF THE AMENDED PLAT PxR� I+Bet+es OF THREE MILE DRIVE CORNER, AND A PORTION OF LOT 20, BLOCK 1 OF NORTHWEST lusclt wox TRACTS, LOCATED N THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION L TOWNSHIP 28 NORTH, RANGE 22 WEST, P.M.M. FLATHEAD COUNTY, MONTANA. CENTROATE OF oEo1CwT1oR Rp313 OF BEARINGS: .,a dIb ,�Ex�e„t mn w�i a m«a°a mnb. r,e�br . I- ,3°.x; C.O.S. 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Ng58tl1T 1&°3 u sososu xY.ss• ssparlxw °s.n u xosaY or a.as' u xarto'b^,Y nsB• xxrax m n.co er— — ----- — ----- _____ a. w="t<t .^.•. »�wt ^trt w..« m w wmw.t xa.r w^m w a. sam a m^wy a OHxTiI1:ATE of oln wrToraaty <e� M x. ,ra, q w YxY wb«. a:waq m 5,<rbn YE-3-6rtpt. pxvMl^i m I« e.aax,r «e/a a, ^E«t arrw tl I« ar ulu.,r x,a°+. p««n CRRFICATE OF MAYOR e <d.0 v, axxx «xom •�vx�^Raw� ° r°uB L*�ime p/an SHEET 1 OF 1 Tri0 0 Planning ty 17 Second Street East - Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 tricityplanning,(rLce nturvtel. net www.tricityplanning-mt.com February 23, 2005 Michael W. Fraser, P.E. Thomas, Dean and Hoskins 690 North Meridian Rd., Suite 101 Kalispell, MT 59901 Re: Waiver of Preliminary Plat Approval - North Pointe Professional Subdivision Dear Mr. Fraser: This letter is in response to your request for waiver of preliminary plat approval for a one lot subdivision located at the northwest corner of Three Mile Drive and North Meridian Road in Kalispell. The lot will contain approximately 1.040 acres from the approximately 2.077 acre original lot leaving a remainder parcel of approximately 1.037 acres. This property is currently zoned R-5, a Two Family Residential, zoning district and can be described as Lot 2A of the Amended Plat of Lot 2 of the Amended Plat of Three Mile Drive Corner and a portion of Lot 20, Block 1 of Northwest Tracts in Section 1, Township 28 North, Range 22 West, PMM, Flathead County, Montana. Our office can find that the proposed subdivision meets the preliminary plat waiver criteria as provided for under Section 2.06 of the Kalispell Subdivision Regulations. Specifically it meets the following criteria: (1) the subdivision contains five or fewer lots, (2) there is no dedication of streets or public or private parkland, (3) that the lots have legal and physical access conforming to the subdivision regulations, (4) each lot has a suitable building site and there are no environmental hazards present; (5) municipal sewer and water are adequate and in place; (6) that the subdivision complies with the subdivision and current zoning regulations, and (7) that there will be no significant impact on agriculture, agricultural water users, local services or the natural environment. Due to the relatively minor impacts that this subdivision poses, this office grants preliminary plat approval subject to the following conditions: That the final plat is in substantial compliance with the preliminary plat that was waived. 2. That a note be place on the face of the final plat that waives protest to the creation of a special improvement district for the future upgrade of streets in the area to City standards. Providing Community Planning Assistance To: ® City of Columbia Falls ® City of Kalispell ® City of Whitefish North Pointe Professional Subdivision February 23, 2005 Page 2 3. A municipal facilities exemption be obtained from the Montana Department of Environmental Quality and a letter from the Kalispell Public Works Department stating that municipal water and sewer service are available and will be provided to both lots. 4. That a shared access for the newly created lot be developed with access being taken from the remainder parcel to the west. 5. This waiver of preliminary plat approval is valid for three years and will expire on February 23, 2007. Waiver of preliminary plat approval does not constitute approval of the subdivision. Please note that prior to final plat approval all requirements must be met per Chapters 2 and 3 of the Kalispell Subdivision Regulations. If you have any questions regarding this matter, please call Narda Wilson, Senior Planner, at this office. Sincerely, AM,4) k - M /-)J-) Thomas R. Jentz Planning Director LETTERS\WAIVEPP\05\NORTH POINTE.DOC Tri-City Planning Office 17 Second St East, Suite 211 Kalispell, MT 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 FINAL PLAT APPLICATION KALISPELL X WHITEFISH COLUMBIA FALLS Project /Subdivision Name: North Pointe Professional Subdivision Contact Person: Michael W. Fraser, P.E. Owner & Mailing Address: Name: THOMAS. DEAN 8z; HOSKINS. INC. Address: 690 North Meridian, Suite 101 Kalispell MT 59901 Phone No.: 406-752-5246 Date of Preliminary Plat Approval: Waived Pointe Professional Building, LLC Three Mile Professional LLC 690 North Meridian Suite 210 Kalispell MT 59901 Type of Subdivision: Residential Industrial Commercial _X_PUD No. of Lots Proposed 1 Parkland (acres) NA Land in Project (ac.) 1.040 ac. Cash -in -Lieu $ NA Exempt X FILLING FEE ATTACHED $640.00 Minor Subdivision with approved preliminary plat $400 + $40/lot Major Subdivision with approved preliminary plat $650 + $40/lot Subdivisions with Waiver of Preliminary Plat $600 + $40/lot Subdivision Improvements Agreement $ 50 Attached Not Applicable (MUST CHECK ONE) Other _X_ Health Department Certification (Original) _X_ Title Report (Original, not more than 90 days old) _X_ Tax Certification (Property taxes must be paid) _X_ Consent(s) to Plat (Originals and notarized) X_ Subdivision Improvements Agreement (Attach collateral) _X_ Parkland Cash -in -Lieu (Check attached) _X_ Maintenance Agreement _X_ Plats: 1 opaque OR 2 mylars 1 mylar copy 1 signed blueline 4 bluelines 4 bluelines, unsigned **The plat must be signed by all owners of record, the surveyor and the examining land surveyor. Attach a letter, which lists each condition of preliminary plat approval, and individually state how each condition has specifically been met. In cases where documentation is required, such as an engineer's certification, State Department of Health certification, etc., original letters shall be submitted. Blanket statements stating, for example, "all improvements are in place" are not acceptable. A complete final plat application must be submitted no less than 60 days prior to expiration date of the preliminary plat. When all application materials are submitted to the Tri-City Planning Office, and the staff finds the application is complete, the staff will submit a report to the governing body. The governing body must act within 30 days of receipt of the revised preliminary plat application and staff report. Incomplete submittals will not be accepted and will not be forwarded to the governing body for approval. Changes to the approved preliminary plat may necessitate reconsideration by the planning board. I certify that all information submitted is true, accurate and complete. I understand that incomplete information will not be accepted and that false information will delay the application and may invalidate any approval. The signing of this application signifies approval for Tri-City Planning staff to be present on the property for routine monitoring and inspection during the approval and development process. **NOTE: Please be advised that the County Clerk & Recorder requests that all subdivision final plq applications be accompanied with a digital copy. IWJL - h Z -/7. -o Owner(s) Signature Date **A digital copy of the final plat in a Drawing Interchange File (DXF) format or an Auto CAD file format, consisting of the following layers: 1. Exterior boundary of subdivision 2. Lot or park boundaries 3. Easements 4. Roads or rights -of -way 5. A tie to either an existing subdivision corner or a corner of the public land survey system As approved by the TCPB, Effective 3/ 15/04 Tri-Clity 17 Second Street East - Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 tric#yplanning iiicenturytel.net www.tricityplanning-mt.com May 2, 2005 Michael W. Fraser, P.E. Thomas, Dean and Hoskins 31 Three Mile Drive, Suite 101 Kalispell, M-T 59901 Re: North Pointe Professional Subdivision Dear Mike: This letter is in response to your letter dated April 27, 2005 regarding North Pointe Subdivision and the condition of approval further refined and requested by the Kalispell City Council. After a closer look at the subdivision and the Montana Subdivision and Platting Act, it would appear that the subdivision regulations do not contemplate or allow the creation of a remainder parcel within a platted subdivision. Essentially this results in the creation of an additional lot within a subdivision that has not gone through the review procedure. Our office should not have waived the preliminary plat for this subdivision because it does not comply with the "remainder doctrine." Friends of Bull Lake Inc. v. the Board of County Commissioners of Lake County was decided in 1996 and the court states "the `remainder doctrine' does not allow a subdivider to exclude a parcel of land created by subdivision from subdivision review simply by declaring that the parcel is not part of the subdivision." Furthermore, upon closer examination, since proposed Lot 1 of Three Mile Corner subdivision was processed as part of a minor subdivision within the last several years, the proposed North Pointe Professional Subdivision is the second subsequent subdivision from a tract of record as outlined in Section 76-3-609. (Review procedure for minor subdivisions, MCA.) Should you decide that you would like to proceed with the filing of a plat for this property, our office would have to process the request as a major subdivision. To address the issue which brought us to this juncture, the approaches that were issued by MDOT as part of the right-of-way acquisition for the Meridian Road upgrade project look as though they were issued to allow existing accesses to remain. They do not appear to specify or anticipate a commercial use and a change in use may require additional review from MDOT. Should you decide to move forward with this subdivision, it would likely be the recommendation of the City that the accesses for this site be consolidated. It appears as though there is one access from Meridian Road for the office building on Lot 1 of Three Mile Corner Subdivision, an access for the proposed Lot 1 of North Pointe Professional Subdivision and another access for the "remainder" parcel. Providing Community Planning Assistance To: • City of Columbia Falls • City of Kalispell • City of Whitefish • North Pointe Professional Subdivision May 2, 2005 Page 2 If you have any additional insight into this matter, it would be appreciated. Otherwise, because of the issues outlined above, the Kalispell City Council will need to rescind their approval of the final plat for North Pointe Professional. Our office will schedule this for the council consideration and action at their next regular meeting on May 16, 2005. Should you have any questions regarding this matter, please call me at (406) 758-1851. Sincerely, C Thomas R. Jentz Planning Director Cc: Theresa White, Kalispell City Clerk Charles Harball, Kalispell City Attorney James H. Patrick, Kalispell City Manager LETTERS \WAIVEPP\05 \NORTH POINTE FOLLOW-UP.DOC