Loading...
HomeMy WebLinkAbout016 -Appendix E.1 - Bylaws & Covenants -1- Spring Creek Village Resort Covenants PROTECTIVE COVENANTS, CONDITIONS & RESTRICTIONS & BYLAWS FOR PROPERTY OWNERS ASSOCIATION FOR FERGUSON FARM 2 BOZEMAN, MONTANA WHEREAS, BOARDWALK PROPERTIES, L.L.C. and Combs Capital LC, (the "Owner"), are the owners in fee simple of those certain lands more particularly described in Exhibit "A" attached hereto and made a part hereof by reference as if set forth below in its entirety, and hereinafter referred to as the "Premises" or the "Property", or the “subdivision” or the “Development” and WHEREAS, the Owner, by and through the within Protective Covenants hereby place certain restrictions, limitations and regulations as to the use of the said Premises, which Premises have been subdivided and which plats have been duly filed or recorded in Document Number ____________ with the office of the Clerk and Recorder of Gallatin County, Montana, and the same are hereinafter referred to as the "plat". Individual lots or tracts on the plat shall be referred to herein as “Lot” or by lot number if specific. Future owner of Lots within the Development shall hereinafter be referred to as “Property Owners”. NOW, THEREFORE, the Owner does hereby establish, dedicate, declare, publish and impose upon the Premises the following protective covenants which shall run with the land and shall be binding upon and be for the benefit and value of the Owner, and all persons claiming under it, its grantees, successors and assigns and shall be for the purpose of maintaining a uniform and stable value, character, architectural design, use and development of the Premises and to all improvements placed or erected thereon, unless otherwise specifically excepted and shall be in existence and in full force perpetually, unless otherwise terminated by law or continued by amendment as herein provided. Furthermore, it is the specific intent of this declaration to prevent, on the Property, overcrowding, waste, and nuisances of any type or nature. It is further the intent to create a mixed-use development with a strong emphasis on encouraging tourism: work, play, eat and dine, shop and vacation for short term or longer term. It is the expressed intention of this declaration to ensure that the Property will provide an adequate, wholesome atmosphere within which businesses may flourish. 1. USE 1A. Commercial Lots Lots shall be used primarily for commercial uses, office, and lodging/vacation. Permanent long-term occupants or apartments are not contemplated within this subdivision. Although not expressly prohibited it is acknowledged that additional City review is required prior to allowing apartments and residential units. The uses allowed on the Premises are those uses set forth in the applicable city zoning ordinances. 1B. Common Areas The Association is responsible for the maintenance of the common areas, including: open space, plazas, parks, parking lots and shared drive aisles. The common areas and open space dedicated by Owner/Developer shall be used for open space, greenbelt, parking, access and storm water retention/detention purposes. The Owner may transfer ownership to the Property Owners Association of any or all of the open space and the Association must accept the same, together with maintenance. The Property Owners Association shall be responsible for providing insurance for the common areas and open space. 2. EASEMENTS 2A. Grant and Reservation Easements for roads, parking, drainage, electricity, telephone, lighting, water, sewer, cable television and all other utilities, pedestrian traffic, signs, or any other service or utility shall be, and hereby are, granted and reserved as shown on the plat. Such easements shall not interfere with and shall be subject and servient to any and all buildings subsequently erected in such areas, the easements herein provided for shall by-pass such buildings. -3- 2B. Underground Utilities All utilities, pipes, wires and service lines shall be buried. Satellite television discs and solar panels are permitted aboveground but the location, size and color shall be approved by the Architectural Committee. Screening may be required by the Architectural Committee. 2C. Road Easement Use All road easements as shown on the plat shall include a corresponding easement for drainage, electricity, telephone, lighting, and all other utilities along or under such roads. 2D. Easement Landscaping Easement areas may be landscaped so as to enhance their appearance so long as the landscaping does not interfere with the use of the Property as an easement. 2E. Easement Rework No utility service line or facility shall be installed or replaced without the prior approval of the Owners or the Architectural Committee. 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 Architectural Committee or Owner, a bond may be required of the utility, installer or service entity to insure compliance with this provision. 2F. Easement Setbacks All easements identified on the final plat shall constitute a minimum building setback where no setback is otherwise required within the city zoning district. 3. ARCHITECTURAL COMMITTEE 3A. Creation - Membership There is hereby created an Architectural Committee which is herein referred to as the "Committee" or the "Architectural Committee", which shall consist of three (3) persons, appointed by the Owner for the first term. Until such time as 75% of the lots have been sold or at such time as Owner determines otherwise, whichever occurs first, Owner shall be the sole member. After the first three year term expires, one or all of the members may be chosen by a majority of the Property Owners. Architectural Committee members shall serve staggered three year terms. 3B. Selection If no successor is appointed by a majority of the Property Owners on or before the expiration of an individual member's term, the Architectural Member shall be deemed to have been re-appointed for another term. On the death or resignation of an individual member, a replacement shall be selected by the remaining members of the Architectural Committee to fill out the unexpired term. 3C. Purpose The Architectural Committee may make such reasonable rules and by-laws, and adopt such procedures, as it deems necessary to carry out its functions, which rules, by-laws and procedures may not be inconsistent with the provisions of these covenants. 3D. Committee Review No parking, construction, reconstruction, alteration, remodeling, landscaping, fence, sign, wall, or other improvement shall be placed, constructed, erected, repaired, restored, reconstructed, altered, remodeled, added to or maintained on any lot until drawings, plans and specifications (which must have been prepared by a licensed architect for all construction, reconstruction, alteration or remodeling), and such other information as the Architectural Committee may reasonably require, including without being limited to, colors, building materials and models, have been submitted to, and approved by, a majority of the Architectural Committee in writing; nor may the same be commenced until the Architectural Committee shall have issued a permit allowing for such improvements. 3E. Conformity to Codes The Architectural Committee shall require but not be responsible for ensuring that all construction comply with the provisions of the following standard codes or their amendments: "Uniform Building Codes” “International Conference of Building Officials” "National Plumbing Code" "National Electrical Code" “National Fire Protective Association” 3F. Setbacks Unless otherwise specified in these covenants, the Architectural Committee shall designate setback requirements for any structures as, in its discretion, best suits the requirements of the site except those imposed by the City of Bozeman or other regulations. -5- 3G. Authority to Approve The Architectural Committee shall have the authority to reject the materials, designs and colors submitted with plans, or the plans themselves, if they are not compatible, or are inappropriate, with the rest of the subdivision. 3H. Variances The Architectural Committee shall have the authority to grant variances to the building locations, minimum square footage, and where, in its discretion, it believes the same to be appropriate and necessary and where the same will not be injurious to the rest of the subdivision. 3I. Substantial Compliance All improvements, construction, reconstruction, alterations, remodeling or any activity requiring the approval of the Architectural Committee must be completed in substantial compliance with the plans and specifications initially approved by the Architectural Committee and for which permits have been issued. 3J. Enforcement The Architectural Committee shall have the power, authority, standing and right to enforce these covenants in any court of law or equity when it reasonably believes the same have been violated and as more particularly set forth in Section 9 and shall have the authority to revoke or suspend building approval and/or order the suspension or cessation of any construction or work in the violation of these covenants or of any approval issued by the Architectural Committee. 3K. Fees The Architectural Committee may require reasonable fees to be paid with the filing of plans and specifications and the issuance of building permits to defray its expenses and the expenses of inspections and enforcement of the provisions of these covenants. Prior to the first review of plans by the Committee, the Property Owner submitting the Plans shall submit a fee in the amount of $150.00 to the Committee. Any additional review thereafter shall be a fee of $75.00. 3L. Landscape Plan Simultaneously with the filing of any initial building plans for any lot, the owner thereof must also submit to the Architectural Committee a landscape plan. Trees and shrubs shall not touch any buildings. Trees shall not overhang roofs or interfere with lighting or sidewalk use. The landscape plan must set forth in detail the landscaping to be installed, placed or planted on such lot, including paths, walks, shrubs, trees, rocks, walls or any feature to be incorporated into a landscape design or plan, and such landscape plan must be approved before any building is permitted. The landscaping provided for in the landscaping plan must be completed within six months of the completion of the construction authorized by the building permit, weather permitting. If said landscaping plan is not capable of being completed within the time frame set forth above, the Architectural Committee may require the lot owner to put forth a bond in an amount to be determined by the Architectural Committee to cover the cost of the same. 3M. Committee Guidelines The Architectural Committee shall be governed by the following guidelines in its consideration of plans and specification submitted for its approval: a. It must recognize that this subdivision is designated primarily for commercial owners and all improvements in the subdivision must harmoniously combine, and not be inconsistent with, the development of the project which will serve said purpose. b. In considering any plans and specifications, the Architectural Committee shall examine the suitability of the same to the site, including the materials of which it is to be constructed, as well as the relationship of the same to the neighborhood and the adjacent properties. c. No plans or specifications shall be approved which will be similar or dissimilar to other improvements or structure that monetary or aesthetic values will be impaired. d. All plans or specifications shall be in full compliance with all of the terms and provisions of these covenants, except for any variances, which have been granted by the Architectural Committee for such plans and specifications. e. All plans or specifications shall be in full compliance with the FERGUSON FARM 2 Planned Unit Development. 3N. Liability The Architectural Committee, or the individual members thereof, may not be held liable by any person for any damages which may result from Architectural Committee action taken pursuant to these covenants, including, but not by way of limitation, damages which may result from correction, amendment, change or rejection of plans, the issuance, suspension or -7- enforcement of building permit or any delays associated with such action on the part of the Architectural Committee. 3O. Architectural Style of Buildings The architectural style of each new structure shall conform as nearly as possible to the developed architectural style and theme of the existing buildings on the Premises. 4. CONSTRUCTION 4A. Generally All buildings erected shall be of a permanent nature and shall be constructed in strict compliance with the FERGUSON FARM 2 Planned Unit Development, Zoning, Ordinances and Building Codes applicable to the Property. 4B. Building Size There is no minimum or maximum building size required within the FERGUSON FARM 2 accept as limited by setbacks, building height and parking requirements outlined in the applicable city ordinances or regulations. 4C. Building Height No building, structure, alteration or improvement shall exceed the maximum height set by the applicable city ordinances or regulations. The said Architectural Committee may, in its discretion, deny building approval if the height of the building (both minimum and maximum heights), in the Committee’s opinion unreasonably interferes with the view, building sites, elevations and general aesthetic considerations and factors of nearby lots and the subdivision as a whole, including minium building heights. 4D. Building Sites The general area for building sites has been pre-determined in the Planned Unit Development. The Architectural Committee has the express authority by these covenants to approve an alternative building site location and size in coordination with the City's review and approval process. 4E. Exterior Materials All development within the subdivision is subject to the City's design standards. The character of the building exterior should be kept simple in order to harmonize and compliment the surrounding environment of the site. Preferred exterior materials include wood, stone, brick, or synthetic materials that maintain the aesthetic continuity of the Subdivision, including pre- finished composite wood products and synthetic siding materials. The Architectural Committee may consider materials other materials as long as the materials are complementary to the existing neighborhood. 4F. Colors of Structures The main, exterior colors of the structures shall be subdued local earth tones, masonry, natural wood colors, and metals. Bolder accent colors including white and black are acceptable when used as an accessory color to the main structure may be allowed as authorized by the Architectural Committee. Colors are to be compatible with the balance of the neighborhood. 4G. Commencement of Work The Owner or Occupant shall begin work within one (1) year of receipt of written approval and diligently proceed toward completion of all approved excavation, construction, refinishing and alterations. If work is not so commenced approval shall be deemed revoked unless the Architectural Committee, pursuant to written request made and received prior to the expiration of said one year period, extends the period of time within which work must be commenced. 4H. Completion Time All construction on or in the Premises shall be diligently prosecuted to completion and shall, in any event, be completed within twelve (12) months of commencement unless specific written extension is granted by the Architectural Committee. 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 Architectural Committee. All construction debris shall be appropriately disposed of daily. All adjacent streets shall be cleared daily of mud, gravel, and rock. 4I. Temporary Structures No trailers, mobile homes, campers or job office trailers shall be used at any time within the subdivision as a building or a place for habitation or any other purpose, temporarily or permanently, including overnight parking, except as associated with temporary construction activities, without Owner consent. 4J. Cuts, Fills & Disturbed Soils -9- All cuts, fills and disturbed soils shall be re-vegetated as soon as possible after the completion of construction with native vegetation. 4K. Business Signs and Advertising No business signs or advertising signs, of any kind or nature, will be permitted to be located on the Property or on any structure constructed on it, unless all signs so erected or placed meet the City of Bozeman Sign Codes, and meet with the approval of the Architectural Committee. Maintenance of private signs shall be the responsibility of the business owners. The maintenance of any multi-tenant signs within the sign easements along Huffine Lane, Fallon Street, Ferguson Avenue and Resort Drive shall be the responsibility of the Property Owners Association. 5. PUBLIC ROADS & RIGHT OF WAY 5A. Maintenance - Snow Removal The maintenance and snow removal of the public roads, sidewalks, trails, pathways, mail delivery and shared parking within the subdivision shall be the responsibility of the Property Owners Association. The cost of the same will be assessed on a percentage basis by the Property Owners Association, as set forth herein. Maintenance and snow removal for individual entryways to buildings shall be the responsibility of each lot owner. If additional snow removal is desired, it shall be the responsibility of each individual lot owner. 5B. Boulevard Landscaping All public street rights-of-way contiguous to and within the proposed development 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 number. For street trees, a City of Bozeman planting permit for street trees and obtaining utility locates is required before any excavation begins in the City of Bozeman right-of-way. The 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 with a mulch ring 3 to 4 feet in diameter around each newly planted boulevard tree. 5C. Sidewalks The Owner is responsible for the construction of the sidewalks and pathways that border Huffine Lane, Fallon Street, Resort Drive, Field Street, Ravalli Street, Brookfield Avenue, C- Bar-3 Avenue and Valley Commons Drive. Upon the third anniversary of the plat recordation of any phase of the subdivision, any lot owner who has not constructed said sidewalk shall, without further notice, construct within 30 days, said sidewalk for their lot(s), regardless of whether other improvements have been made upon the lot. Each lot owner shall be responsible for the installation and general maintenance of sidewalks on their lot adjacent to the parking lot as well as the entryways to their individual buildings. Sidewalks and entryways shall be constructed in compliance with applicable local, state and federal regulations. 6. GARBAGE AND HAZARDOUS MATERIALS 6A. General Requirements No trash, waste, garbage, litter, junk or refuse shall be thrown, dumped or left on any portion of the Premises and no burning of the same shall be permitted. No incinerator or other device for burning of trash or garbage shall be installed or used. All businesses and buildings located on the Property shall dispose of their garbage in designated garbage disposal areas only. Any generation, handling, storage or disposal of hazardous materials or waste shall comply with all local, state and federal laws and regulations. 6B. Garbage Receptacles A permanent enclosure for temporary storage of garbage, refuse and other waste materials shall be provided for every use to be shared by adjoining uses, lessee, and/or owners. The Planned Unit Development identifies the ideal locations for the garbage enclosures and the specifications for their construction. 6C. Construction Debris All streets, sidewalks, pathways and shared points of access shall be kept clear of mud, gravel, and debris during construction. In the event construction activity is routed through previously constructed parking facilities then the shared parking facilities shall be continually maintained clear and free of debris by the construction crew. The lot owner shall also designate a temporary refuse storage area on their site for disposal of construction debris. All concrete, asphalt, dead vegetation and temporary construction fencing shall be removed prior to occupancy of the use. -11- 7. NUISANCE 7A. Nuisance Prohibited No noxious or offensive use of activity shall be carried on within the Premises or anything done or permitted on or in the Premises which shall constitute a public nuisance. In this regard, nuisance shall be considered to be, but is not limited to, any disturbance of any type or nature including vibration, sound, electro mechanical disturbance, radiation, air or water pollution, dust, emission of noxious odors, and emission of toxic or nontoxic matter which is or may be considered detrimental in any manner or fashion to the Property in general, the neighboring Property Owners, or the public at large. Exceptions shall be made for sound from Grand Openings, Business Anniversary Parties or similar activities upon approval of the same by the Association. 7B. General Appearance All buildings on Premises shall be maintained with the expressed intent of minimizing the visual impact of the structure on the surrounding area and shall not be permitted to fall into disrepair and each building or structure shall at all times be kept in good condition and adequately painted or otherwise finished. 7C. Exterior Lighting With the exception of residential lighting, street lighting, pathway intersection lighting, and security lighting, all lighting shall be turned off between 11:00 p.m. and 6:00 a.m. The intent of lighting restrictions is to reduce the amount of light pollution and to be unobtrusive to neighboring properties. Exterior lighting shall be subdued, understated and indirect. Lighting shall be "down" type and shall not radiate out from the Property unless approved by the City of Bozeman. Excessive glare to neighboring properties or circulation shall be avoided. Lighting plans shall first be submitted to the Architectural Committee for review and approval. 7D. Noxious Weeds Noxious weeds shall be controlled as directed by the County Weed Control District and in accordance with the Montana County Noxious Weed Control Act. The Association shall be responsible for the continued control of the weeds. Noxious weeds along roadways and lots will be controlled in accordance with the County Weed Supervisor's recommendations and enforced by the Property Owners Association. Lot owners may be assessed for the costs of noxious weed control as provided herein. In order to comply with the Noxious Weed Management Plan of the District and the Montana County Noxious Weed Control Act, the District requires that the following items be addressed in the covenants of each subdivision within Gallatin County. (a) Landowners are responsible for noxious weed control on their own individual lots as stated in the Montana County Noxious Weed Control Act (7-22-2116) and according to the District’s Noxious Weed Management Plan. (b) The Property Owners Association is responsible for noxious weed control in all common areas, open spaces, and roadways within the subdivision. The Property Owners Association will also act as the contact point for any noxious weed complaints within the subdivision. The control of noxious weeds by the Property Owners Association on those areas for which the Property Owners 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 (MCA 7-22-2101 through 7-22-2153) and the rules and regulations of the Gallatin County Weed Control District. The landowner 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 a landowner does not control the noxious weeds, after 10 days notice from the Property Owners Association, the Property Owners 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 Property Owners Association is responsible for control of state and county declared noxious weeds in the subdivision’s common areas and roadways. 8. PARKING The parking within the FERGUSON FARM 2 is reserved under a perpetual easement through a shared parking and access easement for the benefit of all Lot owners. No parking space is specifically reserved for any particular use with the exception that each Lot shall be permitted up to three parking spaces directly in back of its building (not on the street) which the lot owner may designate to be used for special reserved parking (such as employee-of-the-month, pick up and delivery or owner parking). Any additional reserved parking areas may only be approved by -13- the Association for special events. The remainder of the parking areas shall be for customer parking only. No items shall be stored on the parking lot area without Owner consent. FERGUSON FARM 2 was approved by the City of Bozeman to include shared parking facilities authorized under a shared parking and access easement. The minimum parking required for the development and the parking calculations have been approved through the Planned Unit Development process. The adequacy of the parking for the development will be tracked by the Architectural Committee and the City of Bozeman. Each new use and change in use will require review and approval of the parking. 9. COMMON AREAS 9A. Common Areas The "common areas" shall include those areas more specifically designated on the final recorded subdivision Plat for FERGUSON FARM 2 as common open space, sign easement, and shared parking, drainage and access easements on said Plat being recorded as Document No.________, at the Clerk and Recorder’s Office in Gallatin County, Montana. The common areas shall be reserved in perpetuity. Every lot owner in the subdivision shall have the right to use and enjoy the common areas, including but not limited to use of common areas for events, patio seating, and the sale of merchandise with written permission from the Property Owners Association At such time as the Owner may elect to convey any part or all of the common areas to the Property Owners Association, the Property Owners Association when 50% of the lots are sold. At such time as ownership is transferred, the Association is obligated to accept the same and shall thereafter be responsible for the same, including taxes, assessments, maintenance and insurance. 9B. Maintenance The Property Owners Association shall be responsible for the maintenance of all areas held in common, including: roads, sidewalks, trails, pedestrian pathways, parking, open space and landscaped areas adjacent to the public rights of way. Open space, trail and boulevard maintenance includes noxious weed control and irrigation and vegetation management. Maintenance and repair of roads, sidewalks, trails, pedestrian pathways and parking also includes snow removal. The Property Owners Association shall assess each lot owner their proportionate share of the maintenance expenses, based upon the formula set forth herein for all other assessments. 10. ENFORCEMENT 10A. General Provisions In the event of any violation or threatened violation of these covenants, any owner of a lot in the Premises, Architectural Committee, or the Property Owners Association Board of Directors, may enforce these covenants by legal proceedings in 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 Association Board of Directors or Architectural Committee 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. 10B. Notice of Violation Notice, as required in paragraph 10A above, shall be in writing and shall be served on the person or entity concerned, and shall specify the violation or threatened violation, identify the Property, demand compliance with the terms and conditions of these covenants and shall state the action which will be taken under paragraph 10A above if the violation or threatened violation is not abated, remedied or satisfied. If such notice cannot be personally served after a reasonable effort to locate the person or entity to be served, service may be had by posting notice by certified mail, return receipt requested, to the last known address or address of record of the violator. Such notice must further provide for a period of fifteen (15) days from the date of personal service of such notice, or thirty (30) days from the date of posting and mailing of the same, within which abatement, entry or commencement of litigation, as provided in paragraph 10A above, can be commenced. 10C. Board Liability No member of the Association Board of Directors shall be liable to any person or entity for 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 intentionally wrongful acts. -15- 10D. 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 the owner, Architectural Committee or the Association Board of Directors initiating such action against the owner of the Property which is the subject of such violation or threatened violation. The owner, Architectural Committee 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 Gallatin County, 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 the validity of the claim is determined by a court of law. Once a claim has been determined valid by a court of law, any such judgement may be foreclosed upon in the manner provided for the law for foreclosures with a right of redemption. 11. ENVIRONMENT All areas not utilized as sites for improvements where disturbed by construction or any human activity shall be returned as quickly as possible to their natural condition and replaced with native plant life except where otherwise utilized for lawns. 12. BYLAWS OF AND FOR OWNER'S ASSOCIATION 12A. Formation - Assessments The Owner hereby establishes a Property Owner's Association, which shall be a Montana non-profit corporation, for the purpose of promoting, developing and operating the subdivision. The Association shall adopt these Bylaws for the administration of the Association. These Bylaws, as adopted and as properly amended, shall be binding upon all owners of Lots in the subdivision. 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: a) Capital assessments b) Operating assessments Such assessments may be levied by the Board of Directors of the Association against any parcel of real Property in the Property. Assessments shall be billed on a quarterly basis and notice of the same shall be mailed to each Property owner. All assessments become due thirty (30) days after the date of mailing. The Association has the authority to impose reasonable charges for interests and penalties for overdue payments. Assessments shall be made on a pro-rata basis with the share each owner is obligated for being calculated by using the following formula. The basis of the calculation for assessments shall be a comparison of the total allowable building area for each lot as that area relates to the total allowable building area for all lots covered by this Declaration. That is to say that if the total allowable building area for all the lots is 100 square feet and the total allowable building area for lot “X” is ten square feet, then lot “X” is responsible for a pro-rata share of ten percent (10%) of the total assessments billed. Unpaid assessments, 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. Such lien may be foreclosed upon in like manner as a mortgage on real Property with a right of redemption, which foreclosure proceeding may include the addition of court costs and attorney's fees. If there is more than one owner of an interest in a lot, each such owner shall be jointly and severally liable for any and all unpaid assessments for that lot. The Association Board of Directors must first obtain the approval of a majority of the membership interests before: a) making any assessment for a capital improvement costing in excess of $10,000.00; b) mortgaging, encumbering or otherwise disposing of any Property of the Association in excess of $2,000.000. 12B. Membership -17- Membership in the Association shall consist of the owners of the lots in the subdivision and shall be automatic and mandatory for every lot owner. Membership shall transfer with the sale of a lot to the new owner. Each lot owner shall be responsible for advising the Association of his or her acquisition of ownership, of his or her mailing address, and of any change in the same. Each member/lot owner shall have one vote, and the weight of each vote shall be determined based upon the same calculation and percentage as the lot owner’s assessment calculation and percentage (i.e. total allowable building area for each lot as compared to the total allowable building area for the all lot owners). For example, if owner of lot X had an assessment percentage of 10%, the weight of his vote would also be 10% of the total votes. If there is more than one owner per lot, the owners 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 he or she has lots. 12C. Board of Directors - Architectural Committee For the purpose of these covenants, the Property Owners Association Board of Directors shall consist of five (5) members and may be the same Property Owners as are on the Architectural Committee. All Board of Directors must be Property Owners. The first Board of Directors shall be nominated and selected by the Owner. Once the first three year term expires, one or all of the members of the Board may be chosen by a majority of the lot owners. The Association Board members shall serve staggered three (3) year terms until 75% of the lots are sold, or until such time as Owner determines otherwise, whichever is earlier. Owner shall be the sole member of the Board until 75% of lots are sold. 12D. Meetings The manner and time for holding meetings of the Board and the Property Owners Association, and the general operation of the Property Owners Association, shall be at the time, place and manner as published by the Board. 13. AMENDMENTS 13A. Allowable Amendments These covenants, or any portion thereof except as provided in 13A, 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 Gallatin County, Montana of seventy-five percent (75%) of the members of the Association, based upon voting as set forth hereinabove. 13B. Certain Covenants May Not Be Amended Any covenant which is included herein as a condition of the preliminary plat approval and required by the City of Bozeman may not be amended or revoked without the mutual consent of the owners in accordance with the amendment procedures in these covenants and the governing body of the City of Bozeman. 14. MISCELLANEOUS 14A. Special Assessments Lot owners accept that their lot may be part of an existing or future Special Improvements District or Payback District. Each Lot owner is responsible for paying all applicable assessments as they pertain to their lot. 14B. Agricultural Practices Lot owners are informed that nearby uses maybe agricultural. Lot owners accept and are aware that standard agricultural and farming practices can result in smoke, dust, animal odors, flies, and machinery noises. Standard agricultural practice features the use of heavy equipment, burning, chemical sprays, and the use of machinery early in the morning and late into the evening. All fences bordering agricultural lands shall be maintained by the Association in accordance with state law. 14C. City Enforcement Please note that if the Association fails to maintain common areas or facilities, the City may serve the organization or owners and demand the failure be cured. If the failure to maintain the common area is not cured, the City may enter such common areas or facilities to provide such maintenance for a period of one year. After one year expires a public hearing will be set to determine whether City will continue to maintain common area and facilities. The cost of the City’s maintenance shall become a lien upon the common areas and facilities and private property within the development. If City permanently maintains common area and facilities, the City may bring the same up to City standards at the expense of the Association. 14D. Dispute Resolution In an effort to resolve disputes among property owners in the Association, all such disputes shall first be submitted to mediation in Gallatin County, Montana. The parties to the -19- dispute shall mutually agree upon a mediator. If the parties can not agree upon a mediator, one shall be chosen for them by the Association. 14E. Compliance All applicable Zoning provisions, Ordinances and Uniform Building Codes, and other applicable codes or regulation, including any review or approval of site plans by local Fire District if applicable, must be met with respect to each lot. 14F. Severability Determination of invalidity of any one or more of the covenants or conditions hereof by judgement, order or decree of court shall not effect in any manner the other provisions hereof, which shall remain in full force and effect. 14G. Anti-waiver No failure to exercise and no delay in exercising any right, power or privilege under this Declaration shall be a waiver thereof. No waiver of a breach of any provision will be deemed a waiver of any preceding breach of the same or any other provision. No extension of time of performance of any obligations or other acts will be deemed to be n extension of time of performance of any other obligations or any other acts. 14H. Attorney’s Fees/Costs Except as otherwise specifically provided herein, if any suit or other proceeding for the interpretation or enforcement of this Declaration occurs, the prevailing party shall be entitled to recover its reasonable costs and expenses incurred including, without limitation, reasonable attorneys’ fees. 14I. Headings The headings used herein are inserted for convenience only and are in no way intended to describe, interpret, define or limit the scope, extend to intent of this document or any provision hereto. 14J. Binding Effect Except as provided herein, each of the covenants, conditions, restrictions, regulations and reservations set forth herein shall continue to be binding upon the Owner, and each of its assigns and successors in interest, and upon each of them and on all parties or persons claiming under it on them, perpetually, from the day and year that this declaration is accepted and filed among the records of the Clerk and Recorder of Gallatin County. BOARDWALK PROPERTIES, L.L.C. _____________________________ Michael Delaney, Member STATE OF MONTANA ) : ss. County of Gallatin ) On this ___ day of ____________, 2019, before me a Notary Public in and for the State of Montana, personally appeared________________, known to me to be the________________ of BOARDWALK PROPERTIES, L.L.C. and subscribed to the within instrument and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and year first above written. _____________________________________ _____________________________________ Notary Public for the State of Montana Residing at____________________, Montana My Commission expires __________________ (SEAL)