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HomeMy WebLinkAbout10.0_DRAFT CC&R'sReturn to: SS Davis, LLC 640 Taylor Street, Suite 2200 Fort Worth, Texas, 76102 THE PROTECTIVE COVENANTS OF Davis Lane Apartments OA Bozeman, MONTANA WHEREAS, these Protective are on file and of record with the Clerk and Recorder of City of Bozeman, Montana affecting the real property known as Davis Lane Apartments OA in Bozeman, Montana as more particularly described below; WHEREAS, the real property subject of these covenants in the Davis Lane Apartments OA is legally described as: S35, T01 S, R05 E, C.O.S. 3053, PARCEL 1, ACRES 8.55 as more particularly described on the plat ("Property"); and NOW, THEREFORE, these "PROTECTIVE COVENANTS OF Davis Lane Apartments OA ("Protective Covenants") are HEREBY ESTABLISHED, DEDICATED, DECLARED, PUBLISHED AND IMPOSED upon the Property herein described by SS Davis, LLC and such covenants shall run with the land, be binding upon and be for the benefit and value of the Property and the owners thereof and shall be binding upon the heirs, successors and assigns of the owners of said Property for the purpose of maintaining a uniform and stable value, character, architectural design and development of the Property. These Protective Covenants shall apply to the entire premises of and to all improvements placed or constructed on the Property in perpetuity unless otherwise terminated or amended by subsequent action or operation of law. These Protective Covenants shall apply to any new construction, reconstruction, restoration, or remodeling of a structure or improvement or any use which changes the size, use or location. ln the event any of these Amended and Restated Protective Covenants are declared invalid or unenforceable, the other covenants shall remain in full force and effect. The Protective Covenants for Davis Lane Apartments OA are as follows: 1.GENERAL PROVISIONS AND USE 1-A. LOTS, OWNER and DEVELOPER DEFINED A "lot" is a discrete tract of record, as defined under Montana law, within the exterior boundaries of the Property. An "owner'' is an owner of a lot on the Property and holds the membership interest in the Association (as defined below). The "Developer'' is the original owner of all of the subdivision that constitutes the Property including any lot. The plural of any term shall include the singular. 1-B. ZONING DISTRICT GOVERNS USE All uses of the Property and any lot therein shall be governed by the current regulations set forth for the City of Bozeman and as amended in the future. DRAFT1 PROTECTIVE COVENANTS DAVIS LANE APARTMENTS OA DAVIS LANE APARTMENTS HOA 2.OWNERS' ASSOCIATION 2-A. FORMATION -ASSESSMENTS An association of owners has been formed, which is a Montana nonprofit corporation, for the purpose of promoting, developing and operating the subdivision called Davis Lane Apartments Owners' Association, Inc. ("Owners' Association" or "Association"). The Association shall have the authority to make such charges and assessments to the members as are reasonably necessary to carry out its functions and duties. The Association shall have the power to levy assessments, which assessments shall be in two (2) classes: 1)Capital assessments for the purpose of acquiring, replacement, or the construction of new facilities ("facilities" are improvements to the Property owned by the Association that have been installed for the collective use of the owners of lots including roads, curbs, gutters, sidewalks, pedestrian equipment, parks, open spaces and common landscape) or the major repair or renovation on existing facilities; and 2)Operating assessments for the purpose of sustaining day-to-day activities of the Association, including maintenance of real property including open space, common areas and parks, maintenance of common landscaping, minor repairs, accounting for the Association, common utility expense, liability insurance and other ordinary expenses. The Board (as defined below) shall have the final authority to determine under which general heading to make various assessments. Further, the Board may make assessments in either or both categories on each owner having a membership interest. Such assessments may be levied by the Board of Directors of the Association ("Board") against the lots on the Property. Assessments shall be billed annually and notice of the same shall be mailed to each owner as shall be determined in the Bylaws. All assessments become due thirty {30) days after the date of mailing. The Association has the authority to impose reasonable charges for interest and penalties for overdue payment as determined in the Bylaws. Assessments must be made upon the pro-rata share of each lot equally regardless of lot size. If any lot is aggregated or subdivided it shall maintain its original pro-rata share for the purposes of levy of assessments. Unpaid assessments shall be enforced as set forth in these Covenants and upon notice thereof being duly filed of record, shall be a lien against the parcel of real property against which such unpaid assessment was made. Once filed, the lien shall remain on record as a claim against the property until validity is determined or foreclosure is final. The Board must obtain the approval of a majority of the membership interests before: 1)making any assessments for a capital improvement in excess of $100,000 except in emergencies; 2)mortgaging, encumbering or otherwise disposing of any property of the Association in excess of $100,000. 3)making any assessment to make up a deficiency in insurance proceeds. No owner may waive or otherwise escape liability for the assessment provided herein by non- use or abandonment of his tract. 2-B. MEMBERSHIP DRAFT2 PROTECTIVE COVENANTS DAVIS LANE APARTMENTS OA Membership in the Association shall consist of the owners of the lots in the subdivision. Membership shall transfer with the sale of a lot to the new owner. Each member shall have one (1) vote per lot as its membership Interest as set forth in this paragraph. If there is more than one owner per lot, those persons must decide who shall cast the vote for that lot. If one owner owns more than one lot, the owner shall have as many votes as the owner has lots. 2-C. MEETINGS The manner and time for holding meetings of the Board, and the general operation of the Association, shall be more particularly set forth in the Bylaws. 3. DESIGN REVIEW COMMITTEE 3-A. PURPOSE This architectural and design review and approval process is established to maintain structural, landscaping, design and construction that is compatible with the Property in the Davis Lane Apartments OA and shall apply to each lot to ensure the best use and consistent development of each. This architectural and design review and approval process Is designed to preserve, protect and enhance the property values within the Davis Lane Apartments OA and to ensure the improvements within the development are generally harmonious, aesthetlcally consistent and conform to reasonable architectural standards. 3-B. COMMITTEE For the purpose of creating and maintaining the orderly development of the Property in the Davis Lane Apartments OA, the Design Review Committee ("DRC') is established with the power to review, approve and control all improvements of lots within the Property1 as well as to make such reasonable exceptions as the DRC shall deem necessary, appropriate or proper. The DRC may charge a fee for review and approval in accordance with this Section. The number of members of the DRC shall be three and shall be appointed by the Board of the Association. 3-C. REVIEW AND APPROVAL No improvement, structure, landscaping, fence or barrier may be commenced, erected, placed, moved onto, or permitted to remain on any of the lots within the Davis Lane Apartments OA nor shall any existing improvement, structure, landscaping, fence or barrier on any lot be materially altered to change the exterior appearance, without the written approval of the DRC. For the purposes of this Section the terms improvement and structure shall also include any signs, signage, exterior lights and lighting on any lot. For approval the DRC shall require an owner of a lot to submit a site plan with a delineated building envelope consistent with these covenants and any other governmental requirements, floor plan, plans or specifications showing any proposed improvements, structures, landscaping, fence or barrier including representations of the exterior appearance with elevations and color scheme (11submittal"). All submittals shall conform to those codes and permits required by the State of Montana and any other authority having jurisdiction for design, building and construction. The DRC shall return the original submittal to the owner within thirty (30) days with comments and suggestions before a final decision on approval Is made. The owner may submit an amended submittal within thirty (30) days for a final decision on approval. In the event the DRC fails to comment on, approve or disapprove the original or amended submittal within sixty (60) days after submission, it shall be deemed approved as submitted and no further action is required. DRAFT3 PROTECTIVE COVENANTS DAVIS LANE APARTMENTS OA 3-D. MISCELlANEOUS The DRC may, at reasonable times, enter upon and inspect any lot and any improvements thereon for the purposes of ascertaining whether the improvement, construction or alteration of a lot or structures is in compliance with the provisions of this Section. The Association or any owner in the Davis Lane Apartments OA shall have the right to enforce this Section by any proceeding at law or in equity. Failure of the Association or any owner to enforce any provision of this Section shall not be deemed a waiver. Neither the Association, its Board nor the DRC, nor any employee, owner, architect, consultant or agent thereof shall be responsible or liable in any way regarding any submittal, revised or approved in accordance with the foregoing provisions, nor for any structural or other defects in any work done according to such submittal. Approval of any submittal is not a waiver of the DRC to disapprove any plans or specifications, or any features or elements subsequently submitted for use on any other lot. Approval of any submittal relating to any lot, however, shall be final as to that lot and the approval may not be revoked or rescinded provided that the submittal, as approved, has been complied with regarding the improvements, structures1 landscaping, fences1 or barriers on that lot. 3-E. Remedies If any improvement, structure, landscaping, fence, or barrier is altered, erected, placed or maintained on any lot without approval of the DRC or not in accordance with the submittal approved by the DRC, such alteration, erection, maintenance or use shall be deemed to have been undertaken in violation of this Section and without approval. Upon written notice of the violation from the DRC any such improvement, structure, landscaping, fence or barrier shall be removed or re-altered to extinguish the violation. Any work or construction performed on the lot shall stop until the violation is extinguished. If, in five days after the notice of a violation, the owner of the lot has not taken reasonable steps towards the extinguishment of the violation, the Association may take any legal or equitable action necessary to enforce this Section or enter upon the lot and take such steps as may be necessary to extinguish the violation. All fees, charges and costs incurred by the DRC and Association to enforce this Section are a binding personal obligation of the owner and act as a lien on the lot. 4. EASEMENTS 4-A. RESERVATION Easements for roads, drainage, electricity, telephone, lighting, water, sewer, cable television and all other utilities, pedestrian traffic, or any other service or utility shall be, and hereby are, reserved as shown on the plat. Such easements are appurtenant to the Property and lots and shall not interfere with and shall be subject and servient to any and all buildings subsequently erected in such areas. 4-B. UNDERGROUND UTILITIES All utilities, pipes, wires and service lines shall be buried. 4-C. ROAD EASEMENT USE All road easements or dedications as shown on the plat shall include a corresponding easement for drainage, electricity, telephone, lighting, and all other utilities. DRAFT4 PROTECTIVE COVENANTS DAVIS LANE APARTMENTS OA 4-D. EASEMENT REWORK No new utility service line or facility shall be installed or replaced without the prior approval of the DRC. All easement areas must be restored, at the expense of the utility or service entity doing such work, to as near the condition as existed previous to such work as possible. In the discretion of the DRC, a bond may be required of the utility or service entity to insure compliance with the provision. 5. CONSTRUCTION In addition to the City of Bozeman Required Covenants below the following apply to the Property. 5-A. COMPLETION TIME All construction on or in the Property shall be diligently prosecuted to completion and shall, in any event, be completed within eighteen {18) months of commencement unless specific written extension is granted by the DRC. No construction material shall, at any time, be placed or stored so as to impede, obstruct or interfere with pedestrian or vehicular traffic, and no construction materials shall be placed or stored on lots for a period of more than thirty (30) days following substantial completion of construction as shall be determined by the DRC. 5-B. TEMPORARY STRUCTURES No trailer, mobile home, tent, tepee, shack, garage, or camper shall be used at any time within the Property as a residence or a place for habitation or sleeping, temporarily or permanently. 6. ROADS In addition to the City of Bozeman Required Covenants below, the following apply to the Property. 6-A. SNOW REMOVAL Snow removal shall be the responsibility of the Association for all interior roads dedicated to the public in the Property but not driveways or on any lot. 6-B. SIGNS Road signs will be placed and designed as approved by the DRC and in conformance with governmental regulations. 7. NUISANCE No noxious or offensive use or activity shall be carried on within the subdivision nor anything done or permitted on or in the premises which shall constitute a private or public nuisance. 8. ENFORCEMENT 8-A. GENERAL PROVISIONS In the event of any violation or threatened violation of these covenants, any owner of real property or lot, Board or Association, may enforce these covenants by legal proceedings in DRAFT5 PROTECTIVE COVENANTS DAVIS LANE APARTMENTS OA a court of law or equity, including the seeking of injunctive relief and damages. In association with such legal proceedings or as a separate remedy, the Board may enter upon the property in question and remove, remedy or abate the violation or threatened violation after first having given proper notice and a reasonable opportunity for the violator to take action himself to comply with these covenants as set forth below. 8-B. NOTICE OF VIOLATION FROM ASSOCIATION If the Board chooses to enforce these covenants under this Section it must first, in writing, give the owner of a lot, notice of its violation of these covenants. At the time of the notice the owner shall cease and desist continuing the violation or extinguish the violation. If the owner of the lot has not taken reasonable steps towards the extinguishment of the violation in fifteen days after the notice of a violation the Board may take any legal or equitable action necessary to enforce this Section or enter upon the lot and take such steps as may be necessary to extinguish the violation. All fees, charges and costs incurred by the Board to enforce this Section are a binding personal obligation of the owner and act as a lien on the lot. 8-C. BOARD AND COMMITTEE LIABILITY No member of the Board or DRC shall be liable to any person or entity for taking enforcement action or the entry, self-help or abatement of a violation or threatened violation of these covenants and all owners or lessees of real property shall be deemed to have waived any and all rights or claims to or for damages for any loss or injury resulting from action taken to these covenants. Exception to the above shall exist for loss, injury or damage for intentional acts, 8-D. COSTS OF ENFORCEMENT Actual costs, expenses and reasonable attorney's fees connected with enforcing, correcting, remedying, abating, preventing or removing any violation or threatened violation of these covenants incurred either through litigation, entry or self-help shall constitute a claim by an owner or the Board initiating such action against an owner of a lot which is the subject of such violation or threatened violation. The owner or the Board making such claim may bring suit for enforcement of these covenants and file a lien against the subject property in the amount of and for the collection of the claim by filing a verified statement of the lien with the office of the Clerk and Recorder of City of Bozeman, Montana. Such lien statement must set forth the names of the claimant, and the owner of record of the property against which the lien is claimed, a description of the property, the amount of the claim, the date of the claim and a brief statement of the manner in which the costs and expenses constituting the claim were incurred. Once filed, the lien shall remain on record as a claim against the property until it is satisfied or foreclosure is final. 9. AMENDMENTS and City of Bozeman REQUIRED COVENANTS These covenants, or any portion thereof, may be amended, abandoned, terminated, modified or supplemented at any time by the written consent, duly recorded with the office of the Clerk and Recorder of city of Bozeman,, Montana, of the owners of sixty-seven percent (67%) of the lots in the Property within the boundaries of the subdivision. 9-A. CERTAIN COVENANTS MAY NOT BE AMENDED-City of Bozeman REQUIRED COVENANTS Any covenant which is included herein as a condition of the preliminary plat approval and required by the city of Bozeman Commission, who may enforce these covenants as an additional covenantee and beneficiary, may not be amended or revoked without the mutual consent of the owners in accordance with the amendment procedures in these covenants and the proper consent and approval of the City of Bozeman Commission, including: DRAFT6 PROTECTIVE COVENANTS DAVIS LANE APARTMENTS OA 1. All structures shall be constructed in compliance with current Montana State adopted codes for construction, including current seismic zone codes, and the National Fire Protection Association codes. 2. Roads. a. The Association shall be responsible for the operation and maintenance of all interior subdivision roads and parking areas. b. All lots accessed by the interior subdivision road shall be limited to one driveway access. Each access shall be at least one hundred twenty-five (125) feet from the intersection with Davis Lane. 3. Fire Protection Covenants. a. Each commercial structure that is required to provide fire detection or fire protection sprinkler systems, shall have installed a lock box to hold keys to the exterior and interior doors. The lock box make, model, and the location shall be approved by the Bozeman Fire District. The lock box shall contain current contact information for a local, responsible party or parties who will respond to fire alarms or fire sprinkler system alarms. b. A fire protection water supply shall be provided that meets or exceeds the minimum required fire flow and flow duration for buildings as described in the current edition of the fire code, as adopted by the State of Montana. c. All commercial structures that are required to provide fire detection or fire protection sprinkler systems, either by code or as part of the Fire Protection Plan (as defined in the approval of the preliminary plat), shall have the plans reviewed and approved by the Bozeman Fire District. These systems shall comply with the current edition of the fire code, as adopted by the State of Montana, for design and installation. d. Structures with fire protection sprinkler systems shall be allowed to have a minimum of one (1) approved fire hydrant delivering 1000-gallons-per-minute at 20 psi for 2 hours at a maximum travel distance of 5,000 feet to the furthest lot line on a route approved by the Central Valley Fire District. e. Fire hydrants shall be provided in accordance with the current edition of the fire code, as adopted by the State of Montana. locations and distribution shall be reviewed and approved by the Bozeman Fire District before construction. Existing fire hydrants on publicly dedicated roads are allowed to be considered as DRAFT7 PROTECTIVE COVENANTS DAVIS LANE APARTMENTS OA available. Existing fire hydrants on adjacent properties shall not be considered available unless fire apparatus access roads extend between properties and easements are established to prevent obstruction of such roads. 4. Solid waste shall be stored in an enclosed building or in animal proof containers and handled in a way that does not attract bears, rodents, flies, or other animals; generate odors perceptible beyond the property line or liquid runoff; or permit blowing of paper and other lightweight waste. Should a central, community dumpster be utilized with any commercial lot for solid waste disposal and storage shall be effectively screened from public view by enclosure in a building, location on the site, or an opaque fence or wall. 5. Pets shall be controlled by each property owner, and not allowed to roam at large. 6. Owners acknowledge that wildlife damage to landscaping and other property may occur. Owners shall accept the risk and shall not file claims against any governing body for such damages. 7. Owners of the subdivision are informed that nearby uses may be agricultural. Owners accept and are aware that standard agricultural and farming practices can result in smoke, dust, animal odors, flies and machinery noise. Standard agricultural practices feature the use of heavy equipment, burning, chemical sprays and the use of machinery early in the morning and sometimes late into the evening. 8. Construction. a. Best Management Practices shall be installed and continuously maintained for the duration of any construction on the Property shall include: b. All non-construction areas shall be clearly marked and protected during construction by fencing or other identification; c. The protection of loose piles of clay, debris, sand, silt, or other earthen material during periods of precipitation or runoff with filter fabric fence, hay bales, temporary gravel, or earthen or sand-bag dikes; d. All soil disturbance activities shall cease if adverse weather conditions exist. Adequate temporary erosion control measures shall be immediately installed during adverse weather conditions. 9. Parks and Roads. a. All parks, common open spaces and trails shall perpetually remain in that use and be preserved and maintained for passive and active recreation, wildlife habitat, and protection of scenic, and unique or important natural features. b. The Association agrees that the City of Bozeman will maintain the park land dedication c. Title to any roads, parks, green belts, or common open spaces within the subdivision shall vest in the Association and be maintained and controlled by the Board. 10. Membership in Association shall be mandatory for each lot owner. Each lot owner shall be required to pay such fees as the Board deem appropriate for real estate taxes, insurance, and the maintenance of the common open space. DRAFT8 PROTECTIVE COVENANTS DAVIS LANE APARTMENTS OA 11. The Association shall be responsible for liability insurance in an amount to be determined by the Board, which insurance shall name City of Bozeman as a loss payee. 12. A portion of the assessments levied by the Board shall become a lien on the lots within the subdivision in the event the taxes on the common open space become delinquent. The Board shall adjust the assessments as the taxes on the common open space increase. 13. Ownership shall be structured in such a manner that real property taxing authorities may satisfy tax claims against the common open space lands by proceeding against individual owners in the Association and the improvements they own. 10. SEVERABILITY Determination of invalidity of any one or more of the covenants or conditions hereof by judgment, order or decree of court shall not affect in any manner the other provisions hereof, which shall remain in full force and effect. DRAFT9