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HomeMy WebLinkAbout24 - Appendix S - Covenants, Conditions, and Restrictions1 After recording return to: South University POA 22 Turtle Rock Court Tiburon, CA 94920 SOUTH UNIVERSITY DISTRICT PHASE 3 MAJOR SUBDIVISION-BLOCK 1 DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS RTR Holdings, II, LLC a Montana limited liability company with address of 22 Turtle Rock Court, Tiburon, California 94920 ("Declarant"), is the owner of the real property described as Lot 1, Block 1 of South University District Phase 3 Major Subdivision, located in the NW1/4 of Section 24, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County Montana [Plat reference: J- 605] also referred to herein as Block 1. Block 1, described above, is subject to these covenants and the covenants of the governing South University District Property Owners Association recorded at Doc. No. 2478012, as amended and corrected, and Doc. No. 2478013 in the office of Gallatin Montana County Clerk and Reorder, by the Declarant through the recording of this Declaration of Protective Covenants, Conditions and Restrictions ("Covenants") and any amendment hereto of either Association. PURPOSE The purpose of these Covenants is to protect and maintain property values, establish the Association and require compliance with the terms, conditions and restrictions stated herein and any other covenants and easements which encumber Block 1. Block 1 may be considered a sub-association as the same is recognized in the covenants of the governing South University District recorded at Doc. No. 2478012, as amended and corrected. Block 1 shall comply with the terms set forth herein specifically and the same shall not be applied to other sub-associations. 2 STREET FRONTAGE REQUIREMENTS The requirements of this Street frontage requirements section of the covenants are imposed as a condition of City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. All street right of ways contiguous to or within the proposed development site not used for street pavement, curbs, gutters, sidewalks or driveways (i.e., street boulevards) shall be landscaped, as defined in the Bozeman Municipal code, and shall include one (1) large canopy tree for each 50 feet of total street frontage rounded to the nearest whole numbers. 2. For street trees, a city of Bozeman planting permit for street trees as well as utility locates shall be obtained prior to beginning any excavation in the City of Bozeman right of way. 3. The street tree planting hole shall be at least twice the diameter of the root ball, the root flare of the newly planted tree must be visible and above ground, and there shall be a mulch ring 3’-4’ in diameter around each newly planted boulevard tree. PHYSICAL MAINTENANCE REQUIREMENTS The requirements of this Physical Maintenance Requirements section of the covenants are imposed as a condition on Block 1 by City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. The Association shall maintain the parking areas, private drive aisles, landscaped areas, public plazas and sidewalks. 2. The Association is responsible for ensuring the care, maintenance and replacement of the landscaping as required by the City of Bozeman in the same condition, qualities, species, and varieties in the locations as presented on the landscaping plan. 3 3. The South University District Property Owner’s Association shall maintain the storm water infrastructure within Block 1 until development of Block 1, at which time the responsibility shall transferred, after development of the storm water infrastructure, to the owner(s) of Block 1, in accordance with the Storm water Maintenance Plan, appended hereto and incorporated herein as Exhibit A. 4. All outdoor lighting shall be maintained to maximize illumination measured in foot-candles at the property not to exceed 0.3 onto the adjacent residential properties and 1.0 on the adjacent commercial properties and public rights- of-way. 5. The Association shall maintain the snow removal storage areas in a manner and with a method that such storage shall not cause unsafe ingress/egress to the parking areas and shall not be deposited in the public right-of-way. Further, snow storage shall not reduce the required parking spaces and shall not inhibit the parking area access. Additionally, snow storage shall not damage the landscaping. 6. No Owner, occupant, guest, licensee or invitee shall maintain a nuisance upon Block 1. In determining the existence of a nuisance, due consideration shall be given to the character of the development on Block 1 and the South University District as a whole as well as these Covenants, adopted plans and guidelines, design guidelines and other documents of a regulatory nature. ASSOCIATION and MEMBERSHIP An association is hereby established and known as the SUD Phase 3- Block 1 Property Owners Association ("Association"), which is subject to the covenants of the governing South University District overall Property Owners Association, and must elect a representative from its Board of Directors to represent the interests of the Phase 3, Block 1 tenants and businesses. Association may be incorporated under a different name as may be approved by the Montana Secretary of State. The purpose of the Association is to enforce the covenants and meet the operations, obligations and needs for Phase 3 Block 1. The Association shall be operated by a Board of Directors, which shall act by majority vote. The officers, terms, authority and election procedures are set forth in the Bylaws of the Association. Dues, assessments, fees, fines and charges shall be established by the Board of Directors 4 and shall be presented to the Association members for approval at the annual meeting. The Association shall have the authority to lien a lot, parcel or unit for non-payment of dues, assessments, fees, fines and charges. All owners of property within Block 1, as well as occupants, guests, licensees and invitees are bound and subject to the terms, conditions and restrictions of Covenants. The owner(s) shall be members of the SUD Phase 3- Block 1 Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 1 or owners of units within Block 1 created by further subdivision or recording of a condominium regime under the Montana Unit Ownership Act in Block 1. Each lot, parcel or unit is entitled to one vote in the Association. In the event there are multiple owners of a lot or unit, the lot or unit retains one vote within the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. AMENDMENTS Amendments to the portions of these Covenants not required by the City of Bozeman may be adopted by a vote of 2/3rds of the Board of Directors after having presented the same to the Association at a notice meeting. The Association shall be given the right to discuss and comment on any amendment. However, the right to amend the Covenants is exclusively within the authority of the Board of Directors. These covenants and association, which is a sub-association of South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and correct. Upon a vote of one hundred percent (100%) of the owners of Block 1, these covenants and the association may be consolidated into the South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and corrected and the Bylaws thereof. Amendments which are requirements of the City of Bozeman final site plan approval must be approved by a majority of the Board of Directors and a majority of the governing body of the City of Bozeman. All amendments must be recorded in the office of Gallatin County Montana Clerk 5 and Recorder. DURATION These Covenants shall run with the land and are binding upon the land, its occupants and shall been forceable by the Association and members. The Covenants are effective as of the date of recording and shall continue for a period of 25 years, after which time these Covenants shall automatically renew and extend for successive ten (10) year periods unless amended by the Board of Directors with the consent of the governing body of the City of Bozeman. Dated this______day of_____________________________________20___. Declarant:________________________________ RTR Holding, LLC BY: Three Rivers Capital, LLC, STATE OF ) :ss. County of _ ) On this ___day of_____________, 20_____, the undersigned, a Notary Public of the State of ________, personally appeared before me being the Member of Three Rivers Capital, LLC, Manager of RTR Holdings, LLC, known to me to be the person that executed the within instrument and acknowledged to me he executed the same on behalf of the LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written. (seal) NOTARY PUBLIC for the State of___________ Printed Name:__________________________ 6 EXHIBIT A- Storm Water Maintenance Plan. (a) General Information. The South University District Phase 3 utilizes conventional stormwater collection to mitigate storm water impacts. The storm water facilities consist of curb and gutter, drainage swales, onsite and offsite conveyance piping, below grade retention chambers, and an existing offsite detention basin located in the city park. The system is designed to accommodate all storm water from the Property. A document entitled Storm Water Management Plan and Record Drawings are on file at the City of Bozeman, Engineering Department. The storm water conveyance facilities located on the property are privately owned and maintained. It is the property owner association's responsibility to maintain the storm water facilities located on the property. The storm water facilities are designed to operate without excessive maintenance. However, like all infrastructure, periodic maintenance will prevent costly repair and replacement. The maintenance plan set forth in this Section has been prepared in accordance with City of Bozeman guidelines. Over time, recommended maintenance guidelines may evolve. Please contact the City of Bozeman Storm Water Division if any questions arise. (b) Storm Water Facilities Maintenance Schedule. (i) Site Housekeeping. Site housekeeping is to be conducted continuously as needed. The main cause of storm water facility damage is poor site housekeeping. Sediment tracked onto pavement can be washed into storm water inlets/ conveyance piping and damage these facilities. Trash can clog pipes and inlet structures causing property damage. Site housekeeping consists of the following: • Keep sidewalk and pavement areas clean • Pick up trash • Restore damaged landscaping in order to prevent sediment runoff (ii) System Monitoring. System monitoring is to be conducted quarterly, except in winter. The storm water facilities shall be inspected quarterly to quickly identify small issues before expensive damage can occur. In addition to regular · monitoring, the best time to inspect the 7 performance of storm water facilities is during runoff events. System monitoring consists of the following: • Observe system during runoff. Look for ponding outside of stormwater inlets. This can indicate a clogged inlet or pipe. • Inspect inlets, manholes and pipes (iii) Inlet, Manhole, and Piping Quarterly Maintenance. Inlet, manhole, and piping maintenance is to be conducted quarterly. All storm water inlets and manholes have a sump to capture sediment. If this sediment is not periodically removed it can wash downstream and clog infiltration facilities. The sump is typically visible from the surface through the inlet grate. Inlet, manhole, and piping maintenance consists of the following: • Remove visible sediment from sump. • Inspect pipe inlets and outlets for sediment in pipe, and remove if present. (iv) Inlet, Manhole, and Piping Long-term Maintenance. This maintenance is to be conducted long-term if and when necessary. If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the storm water conveyance piping, and pipes may become clogged. Long-term inlet, manhole, and piping maintenance consist of the following: • Hire a contractor to clean pipes and remove all sediment encountered from manhole sumps, inlet sumps and/or piping. (v) Below-grade Retention Chambers Long-term Maintenance. This maintenance is to be conducted on an annual basis at a minimum. If regular housekeeping and maintenance is not performed adequately, sediment and debris will accumulate in the underground stormwater retention basins, and could negatively affect the stormwater percolation rate. Retention pond maintenance consist of the following: • Remove underground chamber’s inspection ports • Record the depth from the rim of the inspection port to the 8 chamber’s floor. If the measurement changes by 0.1’ between any reading, or sediment accumulates to a depth of 0.1’ above the bottom of the chamber, • Hire a contractor to flush and clean out the stormwater storage chambers. 9 BYLAWS OF SOUTH UNIVERSITY DISTRICT – PHASE 3 - BLOCK 1 PROPERTY OWNERS ASSOCIATION ARTICLE I NAME South University District - Phase 3 - Block I Property Owners Association ("Association") is the organization which is to be governed by and which is empowered to act in accordance with these Bylaws. The Association may be incorporated and maintain its incorporation status. ARTICLE II ADDRESS The address of the initial principal office of the Association shall be: 950 Trailcrest Drive Bozeman, MT 59718 ARTICLE III POWERS The Association shall have all the powers and authority to operate and meet the needs of Block 1, including enforcement of the South University District - Phase 3- Block 1 Declaration of Protective Covenants, Conditions and Restrictions as well as those of a nonprofit corporation enumerated and set forth in Title 35, Chapter 2, M.C.A. ARTICLE IV MEMBERSHIP INTEREST and OFFICERS The owner(s) shall be members of the SUD Phase 3- Block I Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 1 or owners of units within Block 1 created by further subdivision or recording of a condominium regime pursuant to the Montana Unit Ownership Act of Block 1. Each lot, parcel or unit is entitled to one vote in the Association. Multiple owners of a single parcel of real property would have collectively one such membership or voting interest. If more than one condominium unit, lot, 10 parcel, or tract is owned, the owner or owners thereof would have one membership or voting interest for each separate lot, parcel or unit. In the event there are multiple owners of a lot or unit, the lot or unit retains one vote within the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. Membership interest shall run with the land so that said interest is an incident to ownership beginning when ownership rights are acquired and terminating when such rights are divested. Accordingly, no member shall be expelled, nor shall he be permitted to withdraw or resign while possessing a membership interest. The Board of Directors shall consist of not less than three (3) members and not more than five (5) members. The duties of each of the offices of the Board of Directors shall be as follows: 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, and shall perform such duties as may be specified, and exercise such powers as may be delegated to the office of President by the Board of Directors. The President shall also represent the SUD Phase 3 Block 1 Property Owners Association on the overall, governing SUD Property Owners Association. B. Vice-President. The Vice-President shall exercise the powers of the President in the absence of the President. C. Secretary-Treasurer. The Secretary shall give notice of all meetings of the Association, and shall keep a record of the proceedings of the meetings of the Association. The Secretary 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. 11 The Treasurer shall keep and maintain adequate and correct accounts of the accounts, properties, and business of the Association, including accounts of its assets, liabilities, receipts, disbursements, gains and losses of the Association. The Treasurer shall prepare and report such periodic accountings as shall be required by the Association. Section 9. A vacancy in any office of the Association shall be filled by appointment by the Board of Directors until the next annual meeting or the successor is duly appointed or elected. ARTICLE V MEETINGS There shall be an annual meeting of the membership. The meeting shall be held on the 1st Tuesday of February, and the hour and place of such meeting shall be contained in the notice of meetings as hereinafter described. The annual meeting shall be the time for the conduct of any and all legitimate business of the Association, including review of the budget for the next year, election of directors and presentation of reports. Voting at all meetings shall be in the manner prescribed in these Bylaws. Special meetings may be called at any time upon the initiative of the President, or in the absence of the President, by the Vice-President. In addition, a special meeting shall be held upon the call by fifty percent (50%) of the members of the Association. Special meetings shall require seven (7) days notice, in writing. Notice of annual and special meetings shall be mailed to address for each member pursuant to the records of the Association. The presence of members, in person or by written proxy, representing 60% of the total votes of the membership shall constitute a quorum. All meetings both annual and special shall be presided over by the President of the Board of Directors or her/his appointed representative. Any meeting may be adjourned by the Board of Directors at their discretion, but any meeting adjourned before all its business is disposed of shall be reconvened within thirty (30) days of such adjournment upon due notice given. Resolutions as hereinafter described may be introduced by any member at any 12 annual meeting provided such resolution in written form is presented to the Secretary of the Board no later than ten (10) days prior to the date of such meeting. Written notice of all meetings, annual and special, shall be mailed to every member of record as of the date of mailing no later than ten (10) days and not more than fifty (50) days before the date of the meeting. It shall be the duty of each member to advise the Association of her/his current address. In the absence of such notice, the member's address shall be the address of record with the Gallatin County Assessor's office. All meetings may provide for telephonic and electronic participation, if the media is reasonably available for use. ARTICLE VI VOTING Each membership interest as defined in Article IV of these Bylaws shall have one (1) vote on all matters to come before the Association meeting. Voting of such interest shall be in the manner provided by the Board of Directors and in these Bylaws. Voting may be in person or by written proxy. ARTICLE VII RESOLUTIONS All matters that are the business and concern of the Association may be presented to the Association and meetings of the Association in the form of resolutions directed to the Board of Directors. Except for resolutions that contravene these bylaws, the Association Articles of Incorporation, if any, Covenants, if such resolutions are passed by over fifty percent (50%) of the said membership interest of record and eligible to vote shall be binding on the Board of Directors. Such binding resolution shall have the effect of compelling the Board of Directors to take positive action in response to the general inclination of the resolution. However, the scope, extent and specific character of all such 13 action shall be within the final discretion of the Board of Directors. ARTICLE VIII POWERS AND DUTIES OF BOARD The Board of Directors shall have the following powers and duties: A. To enter into contracts and agreements as are necessary to effect the business of the Association. B. To provide for the construction, installation, acquisition, replacement, operation, maintenance and repair by the Association of buildings, equipment, common open space, facilities and services for recreation, roads and alleys, fire protection and other services and functions of the Association. Contracts for such work with third parties which provide for a term or duration in excess of one year must be approved by a majority of the members, which approval may be ratified at the annual or any special meeting of the Association. C. To make and establish rules and regulations for the governance of facilities and the performing of such functions, the taking of such action and operating in such areas as are within the jurisdictions of the Association. D. To set a fine schedule and make dues, charges and assessments as described in these Bylaws and Covenants on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. E. To take necessary and appropriate action to collect assessments from members, including the filing of liens and prosecuting foreclosures as provided in these Bylaws. F. To call meetings of the Association, both annual and special, and to preside over such meetings and to give appropriate notice of such meetings as required by these Bylaws. G. To formulate and introduce resolutions at the meetings of the Association. H. To hold meetings of the Board of Directors as are necessary to conduct Association affairs. I. To exercise ultimate decisional power in and on all matters affecting the Association. J. To pay the expenses of the Association, including all taxes or assessments and to contract and pay for such insurance as may be necessary in the best interests of the Association, and to provide for the 14 use and disposition of the insurance proceeds in the event of loss or damage. K. To fill vacancies on the Board by agreement of the remaining member(s), should the vacancy not, however, be filed by the Board, it may be filled by an election at an annual or special meeting wherein each membership interest shall have one (1) vote. L. To maintain lists of members. M. To keep records in a good and businesslike manner of all assessments made, all expenditures, and the status of each member's payments of assessment; and to make such records accessible at reasonable times to all members. N. To provide municipal type facilities for the safety, comfort, health, well-being and pleasure of the residents and guests of residents. 0. To promote, conserve and preserve the premises. P. To do any and all things necessary to carry into effect these Bylaws and to implement the purposes as may be stated in the Articles of Incorporation and to do any and all things necessary to require compliance with and enforce Covenants which by reference therein are made a part of these Bylaws. Q. To deal with agencies, officers, boards, commissions, departments and bureaus or other governmental bodies in a federal, state, county and local basis to carry out the above powers, duties and responsibilities. R. To establish accounts for operating and/or development funds as set out in the Covenants. ARTICLE IX ASSESSMENTS, DUES, FEES, FINES and CHARGES The Association, acting through the Board of Directors, shall have the power to levy assessments, dues, fees, fines and charges on its members. The assessments levied shall be used exclusively to promote operations, maintenance, recreation, health, safety and welfare of the residents of the property and for the improvement and the maintenance of the common open spaces, storm water retention systems, parking areas, private streets, landscape maintenance, liability insurance, Association employees' wages, mailing costs and other related expenses incurred on behalf of the Association as further described hereafter. The assessments shall be levied consistent with Covenants. 15 ARTICLE X BUDGETS On or before June 30th of each year, the Board shall prepare and mail to each member a budget for expenses for the forthcoming calendar year. The Board shall cause a copy of an operating statement to simultaneously be prepared showing income and disbursements for the preceding fiscal year. ARTICLE XI QUORUM Meetings of the Association shall be convened at the time and place contained in the notice of such meeting only if a quorum of the membership interest is present either in person or by proxy. A quorum shall consist of not less than thirty percent (30%) of the total represented membership interest of the Association qualified and eligible to vote at the time. Any membership interest may be represented by the owner thereof or by his agent who has written authority to so act, including written proxy. ARTICLE XII VOTING INTEREST Whenever any lot, parcel or unit is owned or leased by two or more persons or by an entity, such person or persons or entity must, prior to a meeting where voting may be allowed, among and between themselves determine who is entitled to vote the membership interest and in what manner it shall be voted. If, in the judgment of the Board, a bona fide and irreconcilable dispute arises as to the voting or right to vote a membership interest, such interest may be declared to be a dispute and for the time such interest is in dispute, the member(s) holding such shall have no voting rights. ARTICLE XIII SECRETARY The Secretary of the Board of Directors shall maintain a record of all membership interests in the Association. In order to make a determination of membership interest for any purpose stated in these Bylaws or the laws of the State of Montana, the Board may order the record closed for a stated period of time. Notice of assessments and liability for assessments shall be in the name of the registered owner on the membership list at the time assessments are declared by the Board. 16 ARTICLE XIV BOARD MEMBERS The Board of Directors shall be established consistent with the South University District Protective Agreements Binding All Property Owners (Covenants, Conditions and Restrictions). Members of the Board of Directors shall be authorized pursuant to the Covenants and these Bylaws. Members of the Board and their officers, assistant officers, agents and employees acting in good faith on behalf of the Association: (1) shall not be liable to the members or their respective owners or members as a result of their activities as such for any mistake of judgment, negligence or otherwise, except for their own willful misconduct or bad faith; (2) shall have no personal liability in contract to a member or any other person or entity under any agreement, instrument or transaction entered into by them on behalf of the Association in their capacity as such; (3) shall have no personal liability in tort to any member or any person or entity, except for their own willful misconduct or bad faith; (4) shall have no personal liability arising out of the use, misuse or condition of the Property which might in any way be assessed against or imputed to them as a result of or by virtue of their capacity as such. ARTICLE XV TERMS AND REPLACEMENT The terms of office for members of the Board shall be three (3) year terms after the initial staggering of terms in which Board member 1 shall serve a one year term; Board members 2 and 3 shall serve a two year term and Board members 4 and 5 shall serve a three year term. The Declarant shall appoint the initial members to the Board of Directors. In the event of a vacancy during a term, the Board shall replace the board member. At the end of each term, the vacancy shall be filled by a vote of the members of the Association. ARTICLE XVI COMMITTEES Pursuant to the Title 35, Chapter 2, M.C.A. and subject to the restrictions stated therein the Board may appoint committees to act for the Board and to exercise the authority of the Board on matters referred to them by the Board. Such 17 committees may be dissolved at any time by the Board of Directors. ARTICLE XVII INSURANCE The Board may purchase insurance policies to protect the property of the Association against casualty loss and to protect the Association and the Board members, when acting in their official capacity, from liability. The extent and specific nature of coverage shall be determined by the Board. ARTICLE XVIII COVENANTS No acts by the Association or by the Board of Directors shall be contrary to the Covenants on file with the Clerk and Recorder of Gallatin County, Montana, and amendments thereto. On its own initiative, the Board may take such action as it deems necessary, including the taking of legal action and initiating suit to enforce the Covenants. ARTICLE XX COMPENSATI ON Board members shall be reimbursed for any out-of-pocket expenses incurred while acting in their official capacity, but only to the extent approved by the other Board members. ARTICLE XXI SEVERABILITY A determination of invalidity of any one or more of the provisions or conditions hereof by judgment, order, or decree of a court shall not affect in any manner the other provisions hereof, which shall remain in full force and effect. ARTICLE XXII INTERPRETATION AND AMENDMENT The Board shall have the power to interpret all the provisions of these Bylaws and such interpretation shall be binding on all persons. These Bylaws may be amended from time to time whenever at least thirty percent (30%) of the 18 membership interests shall have voted in favor of such amendment. THESE BYLAWS were adopted by the Board of Directors for SOUTH UNIVERSITY DISTRICT- PHASE 3 - BLOCK 1 PROPERTY OWNERS ASSOCIATION on the ________ day of _______________ 20_____