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HomeMy WebLinkAbout5-14 Instrument #2268048 jZ�Zu�N -ro 6�MG-i FA tltI M 6- ZNc -7c 5 O s-1&2mn" p(2 SOZF_nnAM KA r 59-1r5 DECLARATION OF COVENANTS, CONDITIONS, & RESTRICTIONS FOR MINOR SUBDIVISION NO. 404 This Declaration,made on the date hereinafter set forth by FAIRVIEW INVESTMENTS,LLC hereinafter referred to as "Declarant". WITNESSETH: WHEREAS, Declarant is the owner of certain property in the City of Bozeman, Gallatin County,State of Montana,which is more particularly described as follows: Minor Subdivision No. 4 0 4 located in the W'/z,NW I/4, NE '/a of Section 2,T.2 S.,R. 5 E.,P.M-M, Gallatin County, Montana NOW,THEREFORE,Declarant hereby declares that all of the property described above shall be held, sold, and conveyed subject to the following easements,restrictions, covenants, and conditions,which are for the purpose of protecting the value and desirability C0 ° r N of,and that shall run with the real property and be binding on all parties having any right, IN m p title,or interest in the described properties or any part thereof, their heirs,successors,and a assigns and shall inure to the benefit of each owner thereof. a r ARTICLE 1. DEFINITIONS � U N Section 1.01 Association � o " "Association" shall mean and refer to the Minor Subdivision No. 404 Property Owners'Association,it successors and assigns. r � ti E r � O r A L U 1 Section 1.02 Owner "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any lot that is part of the properties. Owner shall also include the purchaser under a Contract for Deed. Section 1.03 Property or Properties "Property" or"Properties" shall mean and refer to that certain real property hereinbefore described and such additions thereto as may, hereafter be brought within the jurisdiction of the Association. Section 1.04 Lot "I.ot" shall mean and refer to any plat of land shown upon any recorded subdivision of the Property. Section 1.05 Declarant "Declarant" shall mean and refer to Fairview Investments,LLC. Section 1.06 Directors "Directors" shall mean and refer to the Directors of the Association and shall consist of three lot owners who shall be elected at the annual meeting by a simple majority of the members of the Association. ARTICLE 2. MEMBERSHIP AND VOTING RIGHTS Section 2.01 Membership Every Owner of a Lot that is subject to assessment shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot that is subject to assessment. Section 2.02 Determination of Membership For the purpose of determining membership, at any meeting a person(s) or entity(ies) shall be deemed to be a member upon the recording of a duly executed deed to an owner, a Notice of Purchaser's Interest, or an Abstract of Contract for Deed showing a contract purchase by an owner. The legal title retained by the vendor selling under contract shall not qualify such vendor.for membership. I!IIl11 Illll IIIII II!!I III lIIIIIIIIIIIIllllll!!IlNIlII! 22,��f 11 Charlotte Mills-Gallatin Co MTMISC 77.00 2 Section 2.03 Termination of Membership Foreclosure of a mortgage, trust indenture, or the termination or foreclosure of a contract for deed wherein title is vested in the mortgage,beneficiary, or original seller on a contract or repossession for any reason of a lot or unit sold under a contract shall terminate the vendee's membership, whereupon all rights to such membership shall vest in the legal owner. Section 2.04 Term of Office of Directors The Board of Directors shall be elected for a term set by a simple majority of the membership but not less than one year. Each Director shall serve until replaced by his or her successor. Section 2.05 Vacancies Any vacancy in the Board of Directors occurring before the nest annual meeting of the members shall be filled by the remaining Directors. Section 2.06 Authority of Directors The Directors shall have the authority to act on behalf of the Association and its members as shall be reasonably necessary to carry out the purposes of the Association and enforce these Covenants. The Directors shall act by majority vote. Section 2.07 Removal of Directors The members, by a vote of at least two-thirds (2/3) of the total number of members, may remove a Director, other than Directors appointed by the Declarant. Directors appointed by the Declarant may not be removed by the members under this section of the Covenants. Directors sought to be removed shall have the right to be present at such meeting and shall be given the opportunity to speak to the members prior to a vote to remove being taken. Upon removal, the members, by majority vote, shall then elect such new Directors to replace those Directors removed. Section 2.08 Officers The Directors shall also serve as officers, which shall be designated by a simple majority of the members at the annual meeting unless and until a majority of the members vote to have officers elected separate and apart from the Directors. The officers shall follow the directions of the majority vote of the Directors. The duties of each of the offices shall be as follows: IIIIIIIIIIIIllll111111111114 �26$� p I IIIIII IIIII IIIII IIIII IIIII Charlotte Mills-Gallatin Co MTMISC 77,00 3 (a) President The President shall preside over all meetings of the Association. He or she shall call the membership together whenever necessary. The President shall be the general administrative and executive officer of the Association. He or she shall perform such duties as may be specified, and exercise such powers as may be delegated to him or her by the Association. (b) Vice President The Vice President shall exercise the powers of the President in the absence of the President. He or she shall also perform other duties as may be delegated to him or her by the Association. (c) Secretary /Treasurer (i) The Secretary shall give notice of all meetings and shall keep a record of the proceedings of the meetings of the Association. He or she shall be authorized to sign, on behalf of the Association, all records, documents, and instruments when such are authorized to be signed by the Association, and shall exercise such other duties as may be designated by the Association. (W) The Treasurer shall keep and maintain adequate and correct accounts of the properties and business of the Association, including accounts of its assets,liabilities,receipts, disbursements, gains, and losses of the Association. He or she shall prepare and render such periodic accountings as shall be required of the Association. Section 2.09 Officer Vacancies A vacancy in any office of the Association shall be filled by appointment by the Board of Directors until the next annual meeting or his or her successor is duly appointed or elected. Section 2.10 Voting in Absence of Quorum If proposed action is favored by a majority of the votes cast at a meeting,but such vote is less than the requisite sixty percent (GO%) of the members, members who were not present in person or by proxy may give their assent to any action in writing, provided the same is received by the appropriate officer of the Association not later than thirty (30) days from the date of such meeting wherein the action was voted on. 1 Iliill lull full lull lllllil llll llilll 111 lull llll Illl 2268@'48Q Charlotte Mills-Gallatin Co MTMISC 77.00 4 ARTICLE 3. PROPERTY OWNERS'ASSOCIATION Section 3.01 Power and Authority of Association The Association, acting through its Board of Directors, shall have the power and authority to take such actions as shall be necessary or reasonable to care for, protect and maintain the storm water surface channels, detention basins, and appurtenances; trails, paths, roads, streets, or other surfaces providing common access for pedestrians, bicyclists, vehicles, or other modes of transportation; or any open space, parks, or recreation areas located within the subdivision; to enforce these Covenants; to collect assessments; to set annual and/or special meetings; and to act in any other matters set forth herein or that may serve the development,including the formation of special improvement districts, either public or private, for such improvements as the Association shall approve. Section 3.02 Association Annual Meeting The Association shall hold an annual meeting each year at such date, place, and time as shall be set by the Board of Directors. At the annual meeting, the members shall review and approve a budget for the next year, shall elect co Directors to fill any expired term or vacant position, and shall conduct such 4W m other business as shall be reasonable or necessary to carry out the purpose of T the Association. The members shall have the authority to set the number of 0 U 0 Directors,which initial number shall be three. f/A N N 9 a Section 3.03 Board of Directors Annual Meeting The annual meeting of the Board of Directors shall be held immediately after the annual meeting of the members. At the annual meeting, the Directors shall elect a President, Vice President, and Secretary/Treasurer for the Association from among the Directors, except that the Secretary/'Treasurer may be a member who is not a Director. V ARTICLE 4. COVENANT FOR MAINTENANCE ASSESSMENT Section 4.01 Creation of the Lien for Personal Obligation of Assessments The Owner of any Lot by acceptance of a Contract of Sale or a deed therefore,whether or not it shall be so expressed in such deed or contract,is ° deemed to covenant and agree to pay to the Association (a) annual assessments or charges and (b) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge on the land and shall be a continuing lien upon the property against which each assessment is made. Each such assessment, together with interest, costs, and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of such property at the time the assessment fell due. 5 Section 4.02 Purpose of Assessments The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the residents in the Properties. Section 4.03 Maximum Annual Assessment Until January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment shall be $300.00 per Lot. Notwithstanding any other provision herein, no Lot owned by Declarant shall be subject to annual or other special assessments unless and until such Lot has been sold or transferred to a third party. Thereafter, annual assessments shall be determined by the Board of Directors, provided however,that from and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment may not be increased each year more than ten percent (109/6) above the maximum assessment for the previous year without the vote or written assent of sixty percent (60%) of the membership. Section 4.04 Notice of Quorum for any Action Authorized Under Section 4.03 Any action authorized under Section 4.03 shall be taken at a meeting called for that purpose,written notice of which shall be sent to all members not less than ten (10) days in advance of the meeting. Section 4.05 Uniform Rate of Assessment Both annual and special assessments must he fixed at a uniform rate for all deeded Lots. Section 4.06 Date of Commencement of Annual Assessments—Due Dates The annual assessments provided herein shall be levied on the first day of January following the closing of the sale to an individual Owner. Voting rights attributable to property interest shall not vest until assessments against such interest have been levied by the Association. The first annual assessment for each Lot shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors shall fix the amount of the annual assessment against each deeded Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specific Lot have been paid. IIIIII IIIII IIIII 11111 Eli 1111111111111111 IIII fill Pa680 6 of ge: Charlotte Mills-Gallatin Co MTMISC 77.00 6 Section 4.07 Delinquent Dues and Assessments After any dues or assessments have been delinquent for a period of two months or more, the Association may mail to the Owner a notice of delinquency. After .any dues or assessments have been delinquent for a period of four months or more, the Association shall be entitled to file a lien against the Owner's property, provided said Association has given notice of delinquency thirty (30) days in advance that shall be filed in accordance with the provisions of Title 71, Chapter 3, Montana Code Annotated (MCA). The Association shall have all rights and remedies as provided herein. Section 4.08 Waiver of Right to Protest The Declarant and each Lot Owner, by entry into an agreement to purchase a Lot and taking title to the same, waive the right to protest any special improvement district created and of public record in existence prior in time to Owner receiving title to any Lot.Additionally, Owners are advised that the right to protest the creation of special improvements districts, park maintenance districts, water and server districts, street light districts for construction and maintenance of the same, and other maintenance or infrastructure districts has been waived. In this regard, Owner,prior to taking title to a Lot, is advised to review or seek advice with respect to the .records of the Clerk and Recorder of Gallatin County,Montana. ARTICLE 5. MAINTENANCE Section 5.01 Landscaping Owners are required to establish lawn or other suitable landscaping for their Lot. They shall also mow, irrigate, control noxious weeds, and otherwise maintain their Lot so that the landscaping does not detract from the general appearance of the subdivision. To prevent the potential for groundwater contamination, the amount and type of chemical applied to yards shall be restricted to acceptable standards. Section 5.02 Common Elements The Association shall be required to repair and/or maintain storm water surface channels, detention basins, and appurtenances; trails, paths, roads, streets,or other surfaces providing common access for pedestrians,bicyclists, vehicles, or other modes of transportation; or any open space, parks, or recreation areas located within the subdivision. The cost of such maintenance is included in and is a part of the assessment to which each Lot is subject. IIIIIIIIIIIIIIIIIIIIIIIIIIIII IlllifII IIIIIIII II! � Usf111 QR Charlotte Mills-Gallatin Co MTMISC 77.00 7 Section 5.03 Noxious Weeds The control of noxious weeds by the Association on those areas for which the Association is responsible and the control of noxious weeds by individual Owners on their respective Lots shall be as set forth and specified under the Montana Noxious Weed Control Act (1vICA 7-22-2101 through 7-22-2153) and the rules and regulations of the Gallatin County Weed Control District. The Owner shall be responsible for the control of the state and county declared noxious weeds on his or her own Lot. Both unimproved and improved Lots shall be managed for noxious weeds. In the event an Owner does not control the noxious weeds, after 10 days notice from the Association, the Association may cause the noxious weeds to be controlled. The cost and expense associated with such weed management shall be assessed to the Lot and such assessment may become a lien if not paid within thirty (30) days of the mailing of such assessment. The Association is responsible for control of state and county declared noxious weeds in the subdivisions parks,open spaces,community areas,trails,and roadways. ARTICLE 6. UTILITIES Section 6.01 Refuse Disposal No part of the above describe property shall be used or maintained as a dumping ground for rubbish, trash, or garbage. All waste shall be kept in sanitary containers. All incinerators or other equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition and shall comply with all applicable laws and regulations. Section 6.02 Easements At no time will patios, barbecues, or other permanent structures be erected upon any utility easement within the exterior boundary of a Lot. Fencing of a permanent nature shall be permitted only if it is of a type that is easily and quickly removed in the form of panels, gates, or other similar units of construction. Section 6.03 Reservations of Utility Easements Each Lot in the above-described property shall be subject to an easement for the purposes of constructing, operating, maintaining, enlarging, reducing, removing, laying, or relaying lines and related facilities and equipment for utilities including but not limited to those providing heat, communication, electrical power,water,sewer,gas,and television. IIIIIIIIIIIIII!lIIIIIIIIIIlIIIIIIIlIIIIIIIIlIIIIIIIIIII �268�48 Charlotte Mills-Gallatin Co MTMISC 77.00 8 ARTICLE 7. GENERAL PROVISIONS Section 7.01 Effects of Covenants on Mortgage A breach of any of the foregoing provisions, conditions, restrictions or covenants shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value on any Lot, or portion of any Lot, and any improvements thereon, but said provisions, conditions, restrictions, and covenants shall be binding upon and effective against any Owner thereof whose title thereto was acquired by foreclosure,trustee sale,or otherwise. Section 7.02 Incorporation by Reference In any conveyance of the lands covered hereby, it shall be sufficient to insert a provision therein to the effect that the conveyance is subject to the restrictions and covenants contained in this document, without setting forth such restrictions and covenants verbatim or in substance in such conveyance. Section 7.03 Enforcement Enforcement of these covenants shall be by procedure of law or in equity against any person or persons violating or attempting to violate any covenants,and the legal proceedings may be either to restrain the violation of the covenants or to recover damages, or both. Each person who has been found by court of competent jurisdiction to have violated one or more of these covenants shall be liable for all attorney's fees and costs incurred in connection with the litigation. The failure of any Owner or Owners of any Lot to enforce any of the restrictions set forth herein shall be personally binding upon any person, persons, or corporation, only with respect to breaches committed during its, his/her, or their ownership of or title to any of said tracts and any part thereof. Section 7.04 Severability Invalidation of any of these covenants by a judgment or a court order shall in no way affect any of the other provisions, but they shall remain in full force and effect. Section 7.05 Term of Declaration The covenants and restriction of this Declaration shall run with and bind the land in perpetuity. III�I�II II I�III I 111III�I�IIII��IIII III�IIII III III 2268O48R Charlotte Mills-Gallatin Co MTMISC 77.00 9 Section 7.06 Amendment This Declaration may be amended by an instrument signed by the Owners of not less than sixty percent (60%) of the Lots, each Lot being entitled to one (1) vote. Notwithstanding the above, until seventy-five percent (750/0) of the lots are sold or five years from the date hereof, the Declarant may amend the covenants in their sole discretion. Section 7.07 No Waiver The failure of the Board or its agents to insist, in one or more instances, upon the strict performance of any of the terms, covenants, conditions, or restrictions of this Declaration, or to exercise any right or option herein contained, or to serve any notice or to institute any action, shall not be construed as a waiver or relinquishment, for the future of such term, covenant, condition or restriction; but such term, covenant, condition, or restriction shall remain in full force and effect.The receipt and acceptance by the Board or its agent of the payment of any assessment from an Owner, with knowledge of the breach of any covenant hereof, shall not be deemed a waiver of such breach, and no waiver by the Board of any provision hereof shall be deemed to have been made unless expressed in writing and duly signed by or on behalf of the Board. Section 7.08 Variances The Board of Directors may allow reasonable variances and adjustments of the foregoing covenants, conditions, and restrictions in order to overcome practical difficulties and prevent unnecessary hardships in the application of the covenants contained herein, or to grant variances for the purpose of enhancing or protecting views, utilizing a lot to better advantage, preventing the removal of trees, and enhancing the placement of improvements on the property, provided this may be done in conformity with the intent and purpose thereof, and also provided in every instance that such grants or adjustments shall not be materially detrimental or injurious to other property or improvements in the neighborhood. Notwithstanding the foregoing provision, no variance shall be allowed that has the effect of creating additional lots. jss0 48Q Charlotte Mills-Gallatin Co MTMISC 77,00 10 IN WITNESS WHEREOF, the undersigne bein the Declarant herein, has hereunto set their hand and seal the�_day o g ,20jo_� FAIRVIEW INV - ,LLC Y: g Mem STATE OF MONTANA ) :ss County of Gallatin ) On this day of ruur ,2007 ,before me,a Notary Public for the State of Montana,personally appeared KINGDON GOULD IV,known to me to be a_Member of FAIRVIEW INVESTMENTS,LLC,a Montana corporation, and acknowledged to me they executed the same pursuant to the power and authority vested in them. IN WITNESS WHEREOF, I have hereunto set my hand and affixed by Notarial Seal as of the day and year first above written. P5 EAST —� NoTARlg4 0 Notary Public for the State of Montana 0 Residing at ,%ale n le,46z SEAL My Commission Expires /0130/2009 �OF Aar 4111411 11441441111N411111I41 N441141111141111111141111 ?f;�$of 40R Charlotte Mills-Gallatin Co MTMISC 77.00 11