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06. South Woodland Declaration of CC&RsAGENDA ITEM 6 - SOUTH WOODLAND DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BACKGROUND/CONSIDERATION: As discussed at the work session, we have compiled the new declaration of covenants, conditions and restrictions that will apply to the South Woodland project. These are enclosed within this report. RECOMMENDATION: To enable us to continue the project and to cover the City requirements in a legally binding fashion, I recommend approval of the covenants. ACTION REQUIRED: A MOTION to approve the declaration of covenants, conditions and restrictions is required. Declaration of Covenants, Conditions and Restrictions THIS DECLARATION, made on the date hereinafter set forth, by the City of Kalispell, Montana, hereinafter referred to as Declarant: WITNESSETH: WHEREAS, the Declarant is the owner of the real property situated in Flathead County, Montana, to be developed and known as Lots 1 through 24 of South Woodland Court with the Clerk and Recorder of Flathead County, Montana. WHEREAS, the Declarant is the owner of all the lots in said subdivision and is desirous of subject said real property to the conditions, covenants and restrictions hereafter set forth, each and all of which are for the benefit of said property, each property owner, future owners and themselves; and shall apply to and bind the successors in interest of any owners or contract purchaser thereof; NOW, THEREFORE, the Declarant, having established a general plan for the improvement and development of said property, does hereby establish the conditions, covenants and restrictions upon which and subject to which all the property or any portion thereof shall be improved or sold and conveyed by them as owners and hereby declares that said property is and shall be held, transferred, sold and conveyed subject to the conditions, covenants, and restrictions hereafter set forth which are to run with the land and shall be binding upon all successors in the interest of the present and future owners. Article I DEFINITIONS Unless the context expressly provides otherwise, the following definitions shall pertain throughout this Declaration and its interpretation: 1. Declarant: Means the City of Kalispell, its successors and assigns. 1 2. Home: Means any building, or portion of a building, situated upon the properties and designed and intended for the use and occupancy as a residence by a single family. 3. Lot: Means any plot of land shown upon any recorded subdivision plat of the property with the exception of the common properties or common areas. Every Lot shall be conclusively presumed for all purposes hereunder to include one home, irrespective of the actual status of the construction thereon. 4. Mortgage: Means the conveyance or assignment of any Lot or home to secure the performance of an obligation and the instrument thereof, and may include a deed of trust, trust indenture, mortgage, assignment, financing statement or any other form of security instrument or agreement as now known or hereafter devised for the purpose of creating a lien to secure an obligation or duty. 5. Mortgagee: Means a person or entity to whom a mortgage is made. 6. Mortgagor: Means a person or entity who mortgages his, her, or its property to another, i.e., the maker of a mortgage. 7. Owner: Means the person or persons owning a Home in fee simple absolute, individually or as a co-owner in any real estate tenancy relationship recognized under the laws of the State of Montana. 8. Properties: Means the real property which is part of Lots 1 through 24 of South Woodland Court and as on file with the Clerk and Recorder's Office, Flathead County, Montana. Article II USE OF STRUCTURES The structures shall be used for single-family residential purposes and the residences thereon shall be constructed on the property and shall not be mobile homes or the like. Type and Style of Home: The Homes erected on the premises shall be constructed as designed and specified by the Declarant. 2 Article III RESTRICTION ON USE 1. The structures may not be used for any purpose other than residential. No portion of a Home (other than the entire Home) may be rented, and no transient tenants may be accommodated therein. 2. Parking: a) The roads in this property are shown on the final plat of South Woodland Court. Parking is allowed on both sides of the streets. b) No large commercial vehicle, trailer, camper or recreational vehicle shall be parked in view of the public on the premises and if parked in the subdivision must be completely contained within a garage. 3. Temporary Structures: No structure of a temporary character, or camp trailer, mobile or modular home, tent, shack, garage, or barn shall be permitted on any particular Lot. No other outbuilding shall be used on any particular Lot at any time as a residence either temporary or permanently. Excluded from this provision for temporary structures are tents placed on Lots to give an outdoor camping effect for children. Also excluded are any items allowed in other provisions provided the same are not used for residential purposes. 4. Garbage, Rubbish: All waste shall be removed as often as necessary. Trash, garbage, or other waste materials shall not be kept upon any Lot except in sanitary containers approved by the City of Kalispell. Equipment for the disposal of such material shall be concealed except for pickup and must be removed from the street by sundown on the day of pickup. This provision can be changed without amendment should the City of Kalispell require a different disposal system. 5. Signs: No sign of any kind shall be displayed to the public view on any Lot except one sign of not more than four square feet advertising the property for sale.. A sign not to exceed four square feet may be used by a builder to advertise the property during the construction or sale. 3 6. Nuisance: No noxious or offensive activity or the discharging of firearms shall be carried out or permitted upon any of the Lots, nor shall anything be done thereon which may be or may become an annoyance to the neighborhood. Nor shall the premises be used in annoyance to the neighborhood. Nor shall the premises be used in any way or for any purpose which may endanger the health or safety of, or unreasonably disturb, the residents of any Lots. Outdoor barbecues are not considered nuisances under this section. Motorcycles, trail bikes, snowmobiles or like vehicles shall be considered nuisances and are prohibited. 7. Pets: Only small pets shall be allowed. Dogs or cats must be kept primarily within the homeowner's yard and the Owner remains liable for any and all damage caused to the property of others or common property by the dogs and/or cats. Further the Owner is responsible for the immediate clean-up of animal waste and must not allow the dogs and/or cats off their premises unleashed. 8. Miscellaneous: There shall be no repairing of vehicles in the cul-de-sac or streets at any time. 9. Utility Easements: Common utility services are provided to building lines and at times to separate Lot lines. All property covered hereby is subject to an easement for such utility lines and the maintenance thereof. The right and easement to maintain said easements rests primarily with the individual homeowners.. 10. Maintenance by Home Owner: An owner shall maintain and keep in repair the exterior of each home and its fixtures. Article IV SET -BACK RESTRICTIONS All structures erected on any premises covered herein shall be erected so as to comply with the plat of South Woodland Court, and any amendments or re -subdivisions thereof. ARTICLE V GENERAL CONDITIONS 1. The above restrictions affect all of the above described South Woodland Court Subdivision and the restrictions are and shall be 4 constructed as covenants running with the land in keeping with the general scheme of development binding upon the Declarant and subsequent owners of the land or any part of the lots of the land and of persons dealing with the land and inuring to the benefit of these owners and persons and to the City of Kalispell, a municipal corporation, it being the intent of the Declarant that the restrictions contained herein shall be binding upon, and restrict the land, the Declarant, its grantees, successors and assigns and their grantees, heirs, executors, successors and assigns. 2. This Declaration shall be recorded with the County Clerk and Recorder of Flathead County, Montana, concurrent with the recording of the Final Plat of the South Woodland Court Subdivision and that this instrument shall be referred to in the certificate of the Owner of any plat, and incorporated therein by reference, and that all contracts and deeds of conveyance relating to the land or any part of the land shall likewise contain reference to the plat and to these covenants, conditions and restrictions. 3. All persons dealing with the land and entitled by law to enforce and compel compliance with this declaration, including the Declarant, shall have a full remedy both in law and in equity to benefit and take advantage of this Declaration and in any legal proceeding to have and recover from any then Owner all costs and expenses of the proceedings, including reasonable attorney's fee; provided, however, that the violation or attempted violation of any restriction in this Declaration, shall not be deemed to operate or work a reverter or forfeiture. 4. This Declaration in full does not amend or modify any Declarant's statements, engineer's statements, representations of the like, or any requirement of the respective ordinances of the City of Kalispell dealing with the subdividing and platting of land or the design and construction of all improvements, but is intended as additional covenants and agreements for the purpose set forth here. 5. The Declarant does by this Declaration, specifically estop itself and all of its successors and all persons presently or subsequently owing or dealing with the land from contending in any manner that the above covenants are not full and adequate covenants running with the land and.binding on the land for all times after the making of this declaration until expressly modified or amended, if at all, with the consent of the Declarant. 5 6. Invalidation of any one of these covenants by judgement or court order shall in no case affect any of the other covenants which shall remain in full effect. DATED this 8th day of October, 1996 CITY OF KALISPELL Lim Clarence Krepps Its: City Manager ATTEST Debbie Gifford, CMC STATE OF MONTANA ) ss County of Flathead ) On this day October, 1996, before me, a Notary Public in and for the State of Montana, personally appeared Clarence Krepps and Debbie Gifford, known to me to be the City Manager and Clerk of Council of the City of Kalispell, a municipality, that executed the within instrument, and acknowledged that such City Manager and Clerk of Council respectively subscribed, sealed and delivered said instrument as the free and voluntary act of said municipality, for the uses and purposes therein set forth, and that they were duly authorized to execute the same on behalf of said municipality. 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 in Kalispell, Montana My Commission Expires: G