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Declarations of CovenantsDECLARATION OF COVENANTS CONDITIONS AND RESTRICTIONS SOUTHFIELD PARK (Retail/Commercial/Office) THIS DECLARATION, made this , day of kiv� , 1998, by Richard Dasen, hereinafter referred to as "DECLARANT," WITNES SETH; That WHEREAS, Richard Dasen is the owner of real property situated in Flathead County, Montana, described herein on Exhibit "A", (Note: herein just the legal description of the Retail/Commercial./Office of Southfield Park) a copy of which is attached hereto and by this reference made a part hereof. This property is that portion of the Southfield Park designated Retail/Commercial/Office. That WHEREAS, Declarant is desirous of subjecting all of said property hereinabove described on Exhibit "A" to the Conditions, Covenants and Restrictions hereinafter set forth, each and all of which is and are for the benefit of said property and for each owner thereof and shall inure to the benefit and pass with said property, and each and every parcel thereof, and shall apply to and bind the successors in interest, and any owner thereof; NOW, THEREFORE, the Declarant, being the owner of all of the real property above - described, hereby declares that the said real property is, and shall be, held, transferred, sold and conveyed, subject to the conditions, restrictions, covenants and reservations hereinafter set forth; and All persons or corporations who now or shall hereafter acquire any interest in and to the above - described property shall be held to agree and covenant with the owner of any of the property hereinabove described, or any parcel thereof, and with their heirs and successors and assigns, to conform to and observe the following covenants, restrictions, and conditions as to the use thereof, and as to the construction improvements thereon. ARTICLE I. DEFINITIONS Section 1: "Declarant" herein mentioned is Richard Dasen. Section 2: "Association" shall mean Southfield Park Property Owners Association. Section 3: "Owner" shall mean and refer to the person or persons owning a parcel of land in fee simple, absolute, individually or as an owner in any real estate tenancy relationship recognized under the laws of the State of Montana, including a unit ownership pursuant to a recorded unit ownership declaration. Section 4: "Common Area" shall mean all real property owned or maintained by the Association for the common use, including but not limited to roadways and easements. Access and -i- parking for recreational facilities (Lion's Park) is part of the common area for common use and enjoyment of others. Section 5: "Lot" shall mean any plot of land shown upon any recorded subdivision plat or map of the property. Section 6: "Vote" or "voter", shall mean one vote per lot. ARTICLE H. ARCHITECTURAL REVIEW COMMITTEE Section 1. Members/Terms: The Architectural Review Committee shall consist of Richard Dasen and Mr. Dasen's two other appointed members. The members of the Architectural Review Committee may be appointed and removed at the sole discretion of Mr. Dasen or his assigns. Section 2. Function of the Architectural Review Committee: All owners intending to construct any structure whatever upon any lot, shall first submit their plans and specifications, in writing, to the Architectural Review Committee. All plans for the construction of any building, private road or driveway, fence, wail or other structure to be erected upon any lot and the proposed location thereof upon any lot and any change, after approval thereof, any remodeling, reconstruction, alteration or addition to any building, road, driveway, or other structure upon any lot in said premises, shall require written approval of said Architectural Review Committee. Before beginning the construction of any building, road or driveway, parking lot, fence, wall or other structure whatsoever, or remodeling, reconstruction or altering such road, driveway or structure upon any lot, the person or persons desiring to effect, construct or modify the same shall submit to the Architectural Review Committee, an adequate set of plans and specifications thereof including front, side, and rear elevations, floor plans for each floor, exterior color schemes, a block or plot plan indicating and fixing the exact location of such structure or such altered structure on the grading plan, if requested. A reasonable fee shall be paid to the Architectural Review Committee with such plans, said fee to be set by said Committee. (Preliminary sketch of plan may be submitted prior to the execution of detailed drawings.) In the event the proposed improvement shall be one for repainting or redecorating the exterior of such structure without remodeling or changing it, or making additions thereto, it shall only be necessary to file one color scheme of such proposed work and have the same approved prior to the commencement of such work. Section 3. Approval by Architectural Review Committee: Approval by the Architectural Review Committee of all exterior plans and specifications must be submitted for approval in writing, and shall not be deemed to be a waiver by the Architectural Review Committee of the right to object to any of the features or elements embodied in such plans or specifications if and when the same features or elements are embodied in any subsequent plans or specifications submitted for approval for use on other building sites. In the event the Architectural Review Committee fails to act within thirty (30) days after the proposed plans and specifications of any structure have been submitted, in writing, or in any event, if no suit to enjoin the construction has been commenced prior to the completion of an entire dwelling, no specific approval shall be required for such structure and the pertinent provisions to the Declaration shall be deemed to have been fully complied with. The Architectural Review Committee may, at any time, inspect any building or property located in said subdivision for the -2- purpose of determining whether the exterior of said building conforms to these covenants. Approval of such plans and specifications shall be evidenced by written endorsement on such plans or specifications, a copy of which shall be delivered to the owner or owners of the lot upon which the prospective building, road, driveway or other structure is contemplated, prior to the beginning of such construction. No changes or deviations in or from such plans and specifications as approved, shall be made without the prior written consent of the Architectural Review Committee, and construction shall be completed within one (1) year from date of approval of said plans and specifications. A maximum of one (2) year extension shall be granted where conditions justify an extension. Structural engineering shall be the responsibility of the owner. The Architectural Review Committee may waive such provisions contained in these covenants as they deem appropriate. In passing upon any plans and specifications submitted to it, the Architectural Review Committee shall consider: a) Suitability of the improvement and materials of which it is to be constructed to the site upon which it is to be located; b) The nature of the adjacent neighboring improvements; c) The quality of the materials to be utilized in any proposed improvements; and d) The effect of any proposed improvements on the adjacent or neighboring property. In passing on any plans and specifications, it shall be an objective of the Architectural Review Committee to make certain that no improvement will be so similar or so dissimilar to others in the vicinity that values, monetary or aesthetic, will be impaired, and to maintain for the benefit of the Architectural Review Committee and all subsequent individual lot owners, the nature character of the land and to require that all man-made structures blend into the natural background rather than stand out against it. The Architectural Review Committee may consult the Southfield Park Property Owners Association for the purpose of determining whether a particular request has any impact on property and structures within the Southfield Park development other than the property, the subject of these covenants. ARTICLE III. MISCELLANEOUS RESTRICTIONS Section 1. Lot Size: Minimum lot size shall be 7,000 square feet with a minimum lot frontage of 70 feet. Section 2. Building Size: Each building or other structure shall be constructed, erected and maintained in accordance with the approved plans and specifications. All other uses specifically listed above have no specific size limitation other than what is necessary to achieve the setback, parking and approved building height limitations. Section 3. Setbacks: All setbacks shall be in accordance to City of Kalispell requirements. -3- Section 4. Utilities: All utilities including but not limited to power, electric, and telephone shall be underground. Section 5. Continuity of Construction: All structures shall have the exterior completed within twelve (12) months of commencement of construction unless an extension is granted in writing by the Architectural Review Committee. Section 6. Temporary Structures: No trailer, basement, tent, shack, garage, barn or other outbuilding erected or placed on any lot shall at any time be used as a permanent residence. Any of the aforementioned structures shall be erected at any time without the written approval of the Architectural Review Committee. Section 7. Garbage: No lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste, shall be kept in covered, reasonable airtight containers. Such containers must be kept in an enclosed area. Section 8. Signs: No signs, billboards or other advertising structure of any kind shall be erected, constructed or maintained on any parcel for any purpose whatsoever, except such signs as have been approved by the Architectural Review Committee and the City of Kalispell. A kiosk -type structure shall provide a common entrance and identification sign for all of the business tenants located in the area described in Exhibit "A". Section 9. Parking: All lot owners shall be responsible for providing on -site parking in accordance with the Kalispell Zoning Ordinance for the intended uses. Section 10. Nuisance: No noxious or offensive activity shall be carried on nor shall anything be done or permitted which shall constitute a public nuisance therein. Plan. Section 11. Li tin : Lot lighting shall be consistent throughout in type as noted on the Site Section 12. Landscapes: Submit to Architectural Review Committee for approval. Section 13. Parking: Cross Easements: All properties shall have cross easements parking with each other lot except specifically assigned individual spaces on each lot by name. ARTICLE W. ENFORCEMENT Section 1. Interested Parties: Any owner shall have the option and right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations and charges now or hereafter imposed by the provisions of this Declaration. The method of enforcement may include proceedings to enjoin the violation, to recover damages, or both. Failure by any owner to enforce any such provision shall in no event be deemed a waiver of the right to do so thereafter. The City of Kalispell is an interested party and shall like an owner, at its sole election, also has the authority to enforce these Covenants. -4- Section 2. Severability: Invalidation of any one of these covenants or restrictions by judgment or court order, shall in no wise affect any other provision which shall remain in full force and effect. TICLE V. TERM The provisions of these protective covenants are to run with the land and shall be binding upon all parties and all persons claiming under them, for a period of twenty (20) years from the date they are recorded, after which time said protective covenants shall be automatically extended for successive periods of ten (10) years unless an instrument executed by the owners of seventy-five percent (75%) of the land described in Exhibit "A", has been recorded agreeing to terminate said protective covenants or change them in whole or in part. Each parcel of land, regardless of size or of any deeded ownership interest in a condominium unit shall be entitled to one vote under this Article. ARTICLE VI. AMENDMENT This Declaration may be amended by an instrument signed by the owners of Seventy-five Percent (75%) of the land described in Exhibit "A", which instrument has been recorded, agreeing to such amendment. Each parcel of land, regardless of size or of any deeded ownership interest in a condominium unit shall be entitled to one vote under this Article provided that in any event an amendment shall not be valid unless approved in writing by the City of Kalispell. IN WITNESS WFIFREOF, the Declarant has executed this instrument the da and st above written. RICHARD DA EN STATE OF MONTANA ss. County of Flathead 1 On this &y of ( , 1998, before me, the undersigned, a Notary Public for the State of Montana, personally appeared RICHARD DASEN, known to me to be the person whose name is sub-cribed to the within instrument and acknowledged to me that he executed the same. IN WITNESS WB 1.REOF, I have hereunto set my hand and affixed my Notarial Seal the day and year in this certificate rst above written. \ �;;�f��,,, Notary Public r the State of Montana (seal) `' 'fV Residing atMontana My commission expires NOTARY � Silas.. � -5- (HAVEN F1 7-IU Neier expp aed Resolution 4411 concerns application of Richard A. Dasen Lo subdivide what has been known as Haven Field. Neier said Dasen intends to subdivide the property into five parcels, which may be sold and developed by parties not included in the Development Agreement. Neier said this resolution would authorize approval of the subdivision subject to the conditions included. Scarff moved Resolution 4411, a resolution approving the Preliminary Plat of Southfield Park (Haven Field) commercial subdivision, Flathead County, Montana. The motion was seconded by Graves. There was discussion and Narda Wilson answered questions. Haarr asked what the repercussions would be if changes were made to conditions one (1) , two (2), six (6) and seven (7) as Thor Jackola had requested. Wilson answered the conditions contained in the resolution are fairly standard and should be included. she said the covenants can be changed, but Staff felt they should be included to insure the project would be developed in an integrated manner. Jackola said Dasen would like to keep the conditions as flexible as possible. He said the buildings will be high quality with nothing the City would be ashamed of. Neier said the intentions of the parties are "well taken,' however Staff hasn't seen any of the development documents. He added in his opinion, it wouldn't be appropriate to change the conditions without Staff being able to study the development design. Donahue noted the Development Agreement with Dasen included a provision requiring Dasen to pay $124,000.00 to the City annually, the amount estimated that the property would generate in taxes. He inquired as to how that payment is to be made if Dasen subdivides the property. Neier answered the $124,000.00 is a personal obligation Of Dasen's, and if the construction doesn't generate that amount in taxes, then Dasen is liable for the difference. Atkinson expressed concern that at the time of the Development Agreement, the intention was for the property to be developed by one party. Neier said the agreement specifically provided that Dasen could break the property into parcels. Boharski asked Wilson if the Council can approve the final plat for the entire property when Dasen may not know what will be built on all five lots. He said he thinks that is Dasen's concern with the covenants described in condition number seven. — Wilson answered the covenants only address architectural design, not the building's purpose. Haarr stated he feels an amendment should be made to strike condition number seven from the resolution. He said he sees it as a limitation on the potential look and design of the whole development. Wilson said the idea behind the covenants is architectural consistency so the area is developed as a single project. The motion carried upon roll call vote with Donahue, Graves, Haarr, Larson, Scarff, Van Natta and Boharski voting in favor, and Atkinson voting against.