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CC&R'sDECLARATION OF COVENANTS, CONDITIONS AND RES IRI CTI ONS of ASPEN CREEK ESTATES TMS DECLARATION F COVENANTS., CONDITIONS AND RIESTRITI1 S is made this 30tl day or August, 2006, y Kalispell Bowser Creek Associates, .PLC, a N4ontana listed liability company, (hereafter referred to as the "Declarant"), AREAS, Declarant is the owner of the real propeity known as Aspen Creek Subdivision (the ""Subdivision"), legally described on Exhibit "'A"s attached hereto and as depicted on the Plat Map as defined below (hereafter referred to as the "'Property"), and hereby subjects the Property to the Covenants, Conditions and Restrictions (hereafter referred to as the "Declaration") set forth in this document, each and all of which is intended for the benefit of the Property are.id for each. Owner in the Property. This Declaration shall inure to the benefit of and pass with the Property and each Lot thereof, and shall apply to all Owners and their successors in title; NOW THEREFORE, Declarant having established a general plan four the improvement and development of the Property, does hereby establish this Declaration upon which and subject to which all Lots and portions of Lots within said Property s ail be improved or sold, and does hereby declare that the Property is 'and shall be held, transferred, sold and eon eyed subject to the covenants hereinafter set ford, all of which shall run with the lard and will be binding upon all successors in title f Declarants . Article f Definitions Section 1. "Association" shall raean and refer to Aspen Creek Estates Homeowners Association, which shall be created to administer the Property subject to dnis Declaration and the Bylaws of the Association, and shall continue to administer said Property. Section 2. "Bylaws"" shall mean the Bylaws of the Association; a_s such Bylaws may be amended from time to time. Section 3. "Common Area" and "Common Areas"} shall mean and. refer all real property owned by'the Association for the common use and enjoyment or the owners. The Common . ►Areas of the Subdivision shall mean Homeowners 'ark No. 1, Homeowners Park No. 2 and the Recreational Area, all as shown on the Flat Map(hereinafter defined). Unless the cent clearly indicates a contrary intent, any reference herein to the ,Common Areas" shall also include ary Common Facilities located thereon. Section 4. "Common Facilities" shall mean the trees, hedges, phantings, -lawns, shrubs, landscaping, fences, utilities, berms, pipes, lines, lighting fixtures, ildi s, structures and other facilities constructed or installed, or to be construct d or installed, or c rr fly located within the Coon Area and owned by the Association. DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS ASPEN CREEK ESTATES Page Section 5. "Dwelling Ui "" shall mean and refer to any building or portion thereof providing complete independent and permanent living facilities for one family. Section 6. "lea it "' shall mean and refer to a natural person and his or her spouse, children, grandchildren, brothers., sisters, parents, or sig-mi i a t other. Section. 7. "Lot"' shall mean and refer to any parcel of real property designated by a number or number/letter combination on the Plat Map, excluding the Co=on Area. When appropriate within the context of this Declaration, laration, the term "Lot" shall also include the structure and other improvtments constructed on a Lot. Section S. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of any Lot which is a part of the Property, including buyers under a . contract for deed, but excluding hose having such interest merely as security for the performance of an obligation. In the event an owner is a corporation or other entity other than a natural person, the Owner shall designate one 1 natural person in each calendar year, who, together with his or her an ly, shall be the sole occupant of the Lot and any Dwelling Unit eonstruted on the Lot during that calendar year. Section 9. "Plat �I shall man and refer to that certain Plat of Aspen Creek Subdivision — Phase L recorded August 9, 2006 under Reception No. 20062 10, records of Flathead County, Montana. Section 10. "Pro ert " shall mean and refer to that certain property described above and on Exhibit "'A"", as .may be amended y annexation of future phases of the Subdivision. Section . "Townhouse Lot"" shall mean and refer to those certain Lots identified with are "A" and ` B" following the Lot number on the Plat Map. Section 12. "Townhouse - access and Utilily Easements" shall mean and refer to those certain easement areas as defined on Sheet 2 of the Flat Map. Antic * Homeowner's association Section 1. Membership. The Association shall e formed to provide for the maintenance, repair and construction o ailites eorrror to all Lot Owners including, but not limed to private roads, storm drainage facilities and the Common .seas. Every person or entity who is a record Owner of any Lot, including buyers under a contract for deed, shall he a member of the Association. The foregoing is not intended to include persons or entities that hold an interest merely as security for the perfonnance of an obligation. Membership shall be appurtenant to and may not be separated from ownership of the Lot. Ownership of such Lot shall he the sole qualification for membership. DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS OF ASPEN CREEK ESTATES 'age Section 2., Property Rights in Common Area. (a) Fee 'title in Assn. Declarant shall convey fee simple title to the Common Areas of the Subdivision to the Association, free of ail encumbrances and liens, with the exception of current real property taxes (which shall be prorated as of the date of such conveyance) and any casements, conditions and reservations then of record, including those set forth in this Declaration. Such conveyance shall be made prior to, or concurrently with, the first transfer or conveyance by the Declarant of a Lot in the Subdivision to are owner. (b) .l hts of Owners in Common .Areas. The interest of each Lot owner in and to the use and benefit of the Common Area and the Common Facilities of the Subdivision shall be appurtenant to the Lot owned by the owner and shall not be sold, conveyed or otherwise transferred by the Owner separately from the ownership interest in the Lot. Any sale, transfer or conveyance of such Lot shall transfer the appurtenant right to se and enjoy the Common Area and Common Facilities subject to the terms of this Declaration. (c) Access & Utility Easements. The Access & Utility Easements as shown on the Plat Map are private roadways for the use and benefit or the a acent Townhouse Lots. The easement rights granted herein shall be appurtenant to the Lot owned by the Owner ared shall not be sold, conveyed or otherwise transferred by the Owner separately from the ownership interest In the Lot.Any' sale, transfer or conveyance of such Lot shall transfer the appurtenant n-ght to use and enjoy the Access Utility Easements subject to the terms of this Declaration. The owner or each Lot burdened by a portion of the Access & Utility Easements, hereby grants to the various Lot Owners immediately adjacent and along said easement area the right or ingress and egress over the .Access & Utility Easement. Maintenance or the Access & Utility Easement shall be the . responsibility of the Association as further described in Article IV, Section 2. Use and restrictions of the Access & Utility Easement shall be as Sher described in Article V, Section 21, Section 3. Period of Declarant Cool. The Association shall be controlled by Declarant until such time as Declarant has sold all Lots in the Property. Altematl clys Declarant may turn control of the Association over to the Members at any time e Ardor to selling all Lots if Declarant so desires. During the Period of Declarant Control, Declarant may r. amake and record any additions or charges to this Declaration as Declarant deers desirable, including but not limited to, an-nexation of additional phases to the Subdivision. Article HI; Voting All members shad be entitled to one (1) vote foz each Lot in which they hold the interest required for membership. When more than one person holds such interest in any Lot, the vote for such Lot shall be exercised as such persons among themselves determine, but in no evert shall more than one (1) vote be cast with respect to any Lot, DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS of ASPEN CREEK ESTATES Pad Article IV: ,assessments Section. 1. Creation of Personaland Lien obligations. The Owner of any Lot or tract by acceptance of a deed or contract for purchase of any Lot p hi the Pro erty,, whether or not it shall e so expressed i said deed r contract, *s deemed to covenant and agree to be a member of and subject to the assessments and duly enactedBy-Laws and other rules of the Association. All assessments, together with interest at a rate not to exceed the highest rate allowed by Montana law) as computed from the date the delinquency first occurs, late charges, costs, and reasonable att ome y" s fees, shall be a charge on the land and shall be .a continuing lien upon the Lot against which each assessment is made, and the ,association may file and/or record a lien against any Lot(s) for which there is a delinquency for amounts owed for asse sme t s against any Lot(s) or owed by the Owner(s) of any ots. Each such assessment, together with interest, late charges, costs, and reasonable attomey's fees, shall also be the personal obligation of the person who was the Owner of such Lot at the time the assessment arose, and his or her successors In interest shall he jointly and severally liable for such portion thereof as may be due and payable at the time o conveyance. Section 2. Purpose of AssessmeDts. The assessments levied by the association shall he used exclusively for the benefit of the Association, for purposes including but not limited to the following: a. Road maintenance and improvement of private later al roadways shown as the Townhouse Access & Utility Easements on the Plat Map, including snowplowing, erosion control, grading, graveling, maintenance of storn drainage and culverts, and general repair and upkeep. b. Underground utilities maintenance as required; except that individual Lot Owners shall be responsible for maintenance of underground utilities installed by them. c. Incidental expenses incurred by the Association such as legal fees, stationary., stamps, mailing costs, etc. d. Upkeep, maintenance and conservation of Common Areas including the eradication and control of noxious weeds. Section 3. Uniform Rate of assessments. Both annual and special assessments for all Lots shall be assessed on are annual basis. Both annual and special assessments must he a fixed uniform rate for each Lot regardless of size or use. Each Lot shall be assessed an equal, pro -rasa share of any special assessment. Section 4. Assessments. DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS of ASPEN CREEK ESTATES Page Assessments shall be annual or special. Both the arm ai and the special (if any) assessments shall be fixed periodically by the Board of Directors -s of the Association. Payment of all assessments shall be in periodic installments at such intervals as established by the Directors of the Association i keeping with the Bylaws thereof. Section 5* Commencement of Assessments. The initial assessment shall be $150/year per Lot, and may be increased or decreased by Declarant during the Period of Declarant Control as defined below). After the Period or Declarant Control, the Board .of Directors shall fix the amount nt or each "annual"" or'special"' assessment t against each Lot. Written notice of the assessments shall be sent to every Owner subject thereto. The, due dates shall be established ed y the Board of Directors. The Association may issue certificates setting forth whether the assessments on a specified Lot have been paid. A reasonable le charge may be made y the Board for the issuance of these certificates. Such certificates shall be conclusive evidence o payment of any assessment therein stated to have been paid. There shall be no assessments owed for any Lot owned by Declarant until Declarant sells such Lot. Upon sale by Declarant, the purchaser s .all o ve a pro rasa share of the annual dues that have been assessed for the year in which the purchase takes place. Section 6. Nonpayment of Assessment, Any assessments or installment payments on assessments, which are not paid when due shall be delinquent# If not paid within tarty days after the due date, the amount shall bear interest from the date of delinquency at the rate of TVVELVE 1 % percent, per annum. The Association may bfing an action at law to recover delinquent assessments, accrued interest, costs and expenses in connection with bringing a legal suit, including reasonable attorney fees, and may g e ita le actions to foreclose assessment ent liens against Lots. Article v: Protective Covenants The following Protective Covenants are desiped to provide a . r i orr plan for the development or the herein above described property and to ensure the best use and the most appropriate development and improvement of said property; to protect the Owners or the property against such improper use or the property as will depreciate its value; to preserve, so far as is practical, the, natural beauty of said property; to guard against the erection thereon or structures built or improper or unsuitable material; to insure the highest and best development of said property; to encouracyc and smure the erection of attractive homes thereon; to secure and maintain property setbacks from rows and adequate free space between structures, and, in general to encourage the development or said property for country residential living and thereby to enhance the value of parcels of land and improvements made thereon by purchasers of said lard. All construction. and development t must comply with all terms and conditions contained or the final plat. Section 1. Architectural Review Committee. DECLARATION of COVENAN7S, CONDITIONS AND E T IMo of ASPEN CREEK ESTATES Page The "Architectural Review Committee" (the "ARC"') shall consist of the Board of Directors o the Association, or a special "Architectural ReviewCommittee" of at least three or more persons appointed by the Board, at least one of who must he a member of the Association. Section 2.Architectural Control. All Owners intending to construct any type of structure whatsoever upon any Ut shall first s hot their plans and specifications, in writing, to the ARC, No structure, including but not hr zted to a fence or gate, shall be erected, placed, or altered on any Lot undl the construction plans and specifications along with the proposed site thereof have been approved in writing by the ARC as to the quality of workmanship and materials, harmony of external design with existing str etures, and location of the structure with respect to topography and finish grade elevation. The complete Desim Review Guidelines (the "Guidelines"') are attached hereto as Exhibit "B31 and are incorporated herein as additional Protective Covenants by this reference. As provided within the Guidelines, approval or disapproval by the ARC rust be in W'n'tirig, In the event the ARC fails to act within thirty 3 days after the proposed plans and specifications of a y structure have been submitted, in writing, the pertinent provisions of this Declaration shall be deemed to have been fully compiled with, Section I Land Use. A. Lot shall only be used for a single family or townhouse dwelling, and no business, trace, or rn.anu acture shall be conducted thereon, except for home occupations of a professional nature that do not increase traffic,, c, noise or create a public nuisance. No motohzed watercraft may be- launcb ed or landed in any streams.. Lots 39 and 40, however, are Commercial Lots and -are exempt faroin the provisions of this Declaration. except for Section. 25, below, which specifically addresses the Commercial Lots. Section 4. Subdivision of Property. No Lot within Asper, Creek Estates may he further divided or subdivided., or any fractional portion thereof sold or conveyed so as to be held in divided ownership. However, this shall not prohibit property line adjustments between adjacent Lots, subject to approval by the Association. Notwithstanding these conditions, after completion of construction on both .dots, the A. Townhouse Lots may be conveyed individually. Section 5. ec ar is Reservations. Declarant Thereby reserves the r ght to use the roadways within the Property for ingress and egress for future access to adjoining properties to the west and east as adjacent subdivisions are developed. For example, the area at the end of Kara Drive that may be initially shown as a'cul-de-sac will ultimately become a through street to the adjacent subdivision to the east if so required by the City of Kalispell). Declarant also reserves the right to add additional land to the Property, and bring additional Lots into the Association, at any time. DECLARATION OV NAND' , COINDMONS AND RESTRICTIONS of ASPEN CREEK ESTATES Face 6 Section. 6. Leasing of Dwelling Units and Lots. (a) Definition. "Uasing"' or "'Renting" for purposes of this Declaration, is defined as regular, exclusive occupancy of a Dwelling Unit or Lot by any person or persons other than the owner for which the Owner -receives any value, consideration or benefit, including but not limited to a fee, service, gratuity, emolument, ment, or consideration of any kind, (b) Dwelling Units and Lots may e rented only in their entirety and to one family only; no fraction or portion thereof may be rented. All leases shall be in write .. No Dwelling Unit or Lot may e leased for less than one month. Section 7. Building Type. (a) No residential building shall he erected, altered, placed or permitted to remain on any Lot other than serge family dwellings on single family lots and townhouses on the Townhouse Lots. (b) All stiuct res shall he constructed of new materials in place on the Lot. However, suitable used materials such as used brick or beams may he utilized provided that advance approval has been obtained from the ARC as herein provided; No structures may be moved onto or relocated o the property. The ARC may, in its sole discretion and on a case by case basis, allow the use of portions o structures that have been newly constructed off site. (c) All primary structures shall have permanent foundations. (d) No house trailer, modular home, mobile borne or tent, or any other prefabricated structure designed to be hauled or moved ed on wheels, shall be maintained on any Lot. (e) No structure shad.l have an exterior surface of tarpaper, vinyl siding, metal or cinder block, except that asphalt shingmetal and colored may be used as roofing materials. (f) Chimney design and eonstzuction for each dwelling shall be such that it provides for and contains a spark arresiin� device. (g) The exterior of a construction must be completed within twelve (12) months after commencement thereof. The exterior of a dwelling must be completed before occupancy will be pe=tted. (h) All house numbers will be visible from the road either at the driveway entrance or on the souse. (i) No renovations, remodeling,'or alterations in the exterior, roofing, or configuration of a existing structure shall be commenced until plans for such changes have been a r ed in writing y the ARC. Section 8. Building Size of Dwellings. DF,CLARAMN of covENANTS, CONDMONS AND RESTRICTIONS of ASPEN CREEK ESTATES Page The ground floor of finished living area of the main structure, exclusive of open porches, abasements and garages,, shall be not less than 1,000 square feet for single family homes and Boo square feet for each side of a townhouse. The total square footage for all above ground floor levels must be at least 1 , 5 00 square feet for single family homes and 1,200 square feet for each side of a townhouse. The strictures erected on Lot 1 through Lot 6, inclusive, shall be of one 1 story with a daylight basement facing westerly. Section 9. Setback Lines. Setbacks for structures shall be measured from the eaves of the buildings, and shall be as follows(with the exception of the zero lot line required to achieve the townhouse configuration):' Single FamiLy Lots Front Yard.: 20 Feet Side yard: 10 Feet Rear Yard: 10 Feet Side Corner: 20 Feet Townhouse Lots Front Yard: 20 Feet Side Yard: 5 Feet Rear Yard: 20 Feet Setbacks for townhouses accessed via an -interior street shall e measured from the edge of the roadway. In addition, structures must be set back a minimum of 20 feet from the established vegetation lire of any creek. Adjacent to the asphalt street and part of the City of Kalispell public right of way are a five (5) foot landscape boulevard, the sidewalk, then a six (6) foot landscape boulevard along each Lot boundary line. Each Owner shall be responsible for maintenance of both the five foot and six foot landscape boulevards adjacent to their respective Lot. Section 10. Fences* Fences (including gates) will be permitted to provide privacy or safety for a play area, patio, or pool. No fence shall exceed 6 feet in height, and must comply with all rules and regulations of the City of Kalispell. No fence or gate of any kind, whether for privacy, safety or boundary poses, shall be constructed on a Lot until after the height, type, design and approximate location thereof shall first have been approved by the ARC in writing. All fences and gates are to be of natural material and no chain link, metal or harbwire materials will he Permitted, except for omamental metal gates that have been approved by the .SRC in writing. However, security gates and fencing can he utilized only during a period of construction of a residence and may be excepted duhng the per of construction for a period not to exceed 1 year, if first approved by the ARC. Section 11. Trees. DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS of ASPEN CREEK ESTATES 'age The ARC must approve the cutting down of trees greater than four inches in diameter, with the exception or clea ng for a building site or driveway, improving timber growth, enhancing building site vieNVs, and to control fire danger. Section 12. Sewage, No individual sewage disposal system shall be petted on any Lot. Section 13. Garbage. All garbage cans used in connection with any dwelling erected upon the above -described Premises shall either placed In an enclosure completely screened from view, or if the dwelling has a garage rater than a carport, the garbage may be kept iD the garage. No garbage cans shall be maintained ned which are not or a suitable type and which do not have a cover sufficient to preve t the escape of any noxious odors from such cans. Proper prevention must be taken to keep bears, dogs and other animals from feeding from garbage cans. Section 14, Refuse. No part of the property shall be used or maintained as dumping ground for rubbish, trash, garbage, unused automobiles or other wastes of an unsightly nature. No a and .s waste of any kind shall e dumped or stored on any Lot. Section 15. Vehicles. No mobile homes, tracks exceeding 2 1 2 tons in capacity, trailers, or unsightly vehicles shall at any time be parked or allowed to remain on any or said Lots or along roadways. Carper trailers, RTS, pickup treks carrying campers, campers for pickup trucks not In use, boats and boat tra:. ers and motor homes will be petted only if stored in a garage or stored so as not to be an eyesore. Section 16. Wildlife. t is the intention of the Declarant to protect and encourage the abundant wildlife that exists ill the area and to encourage co -existence or man and animals, so to that end no hunting or trapping will e allowed on any of the property. Section 17. Nuisances. No noxious or offensive activity shall be coed on or petted upon any or the Property, nor shall anything e dome thereon which may be or may become are annoyance or nuisance to the neighborhood; nor shall the premises be used In any way or for any pose which may endanger the health or safety of or unreasonably disturb the residents of any Lot. Outdoor barbecues are not considered nuisances under this section. Section 18. Pets, Animals, and. Livestock. DECLARATION of COVENANTS, CONDMONS AND RESTRICTIONS of ASPEN CREEK FSTATES Page Dogs, cats or other household pets are permitted, provided that they are not kept, bred or maintained for any commercial purpose. All dogs must be leashed or fenced in, and not allowed to create a disturbance or threat. No horses, e tock or other animals may be kept on any Lot. Section 19. Utilities* Underground utilities are provided along roadways. The owner of each Lot shall pay all utility connecting costs froin their structure to the main utility IlDes. Section 20. water Systems,, Each Lot owner shall pay all costs of connecting to the municipal water mains that are installed along the roadways, and shall pay the costs of connecting grater lines from their structure to the rnain water line. Section 21. Private Roads; The ,association shall be responsible for maintenance of 0 private roadways within the Property (Townhouse Access & Utility Easements) including snowplowing, erosion control, grading, graveling, mw*ntenance of storm drainage and culverts, and general repair and upkeep. Individual Lot Owners shall be responsible for maintaining their driveways. 'here shall be no paring or structures allowed within the Townhouse .access & utility Easements area. These roadways must he kept open for emergency access to all Townhouse Lots. Inasmuch as utility lines run through these areas, each owner of a Townhouse Lot should take this Into consideration with their design plans. .any and all construction r repair activity within the Townhouse access & Utihty Easement areas shall require prior wtter consent of the Association and/or ARC as applicable. Section 2# Homeowner's Parks. The coon areas are for the use and enjoyment or all Owners, and all owners have the right to the concurrent peaceful and quiet enjoyment thereof. No Owner or their guests .shall make such noise or commotion within hose areas to create a nuisance. There shall be no storage allowed by any individual owner within those areas, nor may any garbage or refuse left there. Section 23. Commercial Lots. Lots 39 and 40 are Commercial Lots and are exempt from the provisions of this Declaration except for this Section. The Commercial component of the subdivision shall not be developed until a mnimum of 50% of the subdivision has been occupied by the residents. The architecture of the Commercial structures shall be of a generally residential character with particular attention given to internal access, low level lighting, adequate landscaping, unobtrusive signage and limited hors o evening operation. Any proposed Commercial structures shall be reviewed by the City of Kalispell Site Developmcmt Review Conuifttee. DECLARATIONof COVENANTS, CONDMONS AND RESTRICTIONS of ASPEN CREEK ESTATES 'acre o Article VL Enforcement Section 1. Interested Parties. The Association or any owner shall have the option and right to enforce, by any proceeding at law or in equity, all re9trictions, conditions, covenants, reservations and charges now or hereafter imposed by the provisions of the Declaration. The method .od of enforcement may l el de proceedings to foreclose assessr .e t liens, proceedings to enjoin violations, proceedings to recover damages, or any combination of proceedings. Failure by the Association or by any owner to enforce any such provision shall in no event be deemed a waiver of the right to do so thereafter. The prevailing party shall e entitled to recover its costs and expenses in connection therewith, including reasonable attorneys fees. Section 2, Seveiy# Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provision, which shall remain in full force and effect. Article VI; Term The provisions of this Declaration shall be binding for a term of twenty 2 years frorn t date of this Declaration, after which time the Declaration shall be - automatically extended for successive rods of tern years unless amernded pursuant to Article VIII herein. ,article V11: Amendment and Annexation After the Period of Declarant Control, this Declaration may be amended by a two-thirds(2/3) vote of the membership nd by recording an instrument ent signed by the President of the Association certifying that the owners of at least two-thirds 2 f the Lots have voted in favor of such arnend e' nt, and with the approval of the Board of County Commissioners. Such amendments may include the annexation of additional property into the Association.. Article X X# Construction and 1hading Effect This Declaration shall be construed pursuant to the laws of the State of Montana and shall be handing upon the heirs, successors and assigns of Declarant and all Owners. Time is of the essence in complying with this Declaration. This Declaration should be broadly construed to accomplish their intended purpose to promote a high quality develo r. e t In har ony with its surroundings and the natural environment. IN NVITNESS NVBEREOF, Declarant has executed this Declaration the day and year first above written. DECLARATION OF COVENANTS.CONDITIONS AND EST I Ti IONS OF ASPEN CREEK ESTATES Page I I Kalispell Bowser Creek Ass i . , LLC, Montana limited liability company y: VPI,, Inc., a Cafiform*a corporation, its m eager y: Name: . - Its: Wa� r2l } sT TE OF CALLFORNIA COSY OF SAN FRANC SC On gj�j).b_� , before me, a Notary Public in and for said County and Mate,personally appeared 6.!� ..e personally known to zee or proved to nee on the basis of satisfactory evidence) to be the person(s) woos narx e s is/areis/are subscribed to the within mns ument and acknowledged to one that e sheAh y executed the sane in his/her/their authorized cap aclty ies , and that by his/her/their sipat re s n the instrument the person or the entity upon behalf of which the person acted., executed the instrument. WITNESS my band and official lal seal. Signae Lre q No DONA GOWZ Z Notary Pub4- is ftn-Oa San Rancisco County {}� #y Comm. Expbvs Feb 8, 2006 (For notary seal or a p DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF ASPEN CREEK ESTATES Pane 12 EXHIBIT A" L Description 'base A tract of land located in the Northeast quarter of the Northeast quarter of Section. 11, Township 2 North, Range 22 West, Principal Meridian, Montana, Hathead County, Montana,, being more particularly descr'ed as follows: Commencing at the Northeast corner of the Northeast quarter of the Northeast quarter of Section 11, Township nshi 28 Norte, Range 22 West, Principal Meridian, Montana; thence S04054'29"W along the East lire of said quarter; quarter section., 5.4 feet to the Northeast comer of Tract 2 of Certificate of Survey No. 15888, records of Flathead county, and the POINT- F-EGINTNING; thence S04152'27"W along the Fast boundary of said tract, 1127.29 feet to the Southeast corder of said tract; thence S °30'5 "W along the South boundary of said tract, 474.7 feet; thence N 5° 3t34" 4 .44 feet; thence N3 4' 1'4 "E 6 9.5 2 feet; thence N55°02' 5 "W 10 8.46feet; thence N 4 575 "E 22.5 feet; thence N15'2 '07"W 51.93 feet; thence N55'02' 5 "W 78.92 feet; thence northerly along a on- ta gemt cue, concave to the West, having a radius of 180.00 feet, a central angle o °02' 3", a chord beating of No 0 ' "W and a chord distance of 28.37 feet, an arc length of 2 .40 feet; thence No 002'20 W 272.97 feet; thence S77'50'25 "W 60.36 feet; thence Northwesterly along a nor -tangent curve, concave to the Southwest, having a radius of 100.00 feet, a central angle of 5 °1 '05", a chord bearing of N33"00'20"W and a chord distance of 88.02feet, an arc length of 91.14 feet; thence N5 " 52 "W 43. 10 feet; thence northwesterly along a tangent curve, concave to the Northeast, having a radius of 70. o feet and a,centratangfle o ' '3 ", an arc length of 90-48. feet; thence N 7 02 ' 3 2 "W 177,89 feet to a point on the westerly boundary of said Tract ; thence N 5 '42' 1 "E along said boundary,, 64-06 feet; thence NO2'47'58"E along said boundary, 375.21 feet to the Northwest comer of said tract; thence N °54'57" along the Now boundary o said tract, 475.22 feet; thence S05°5O'17"E along said boundary, .2.0Feet; thence S '5 83 9 "E aloe g said boundary, 521.62 feet to the POD-o - EGDTNING, containing 19.227 acres. DF,CLARATION of COVENANTS, CONDMONS AND REMICTIONSof ASPEN CREEK ESTATES EXHI ' T " DESIGN REVIEW GUIDEL S ASPEN CREEK ESTATES SECTION A `"" DESIGN REVIEW The Architectural Review Committee ARC has been established to ensure that development in ASPEN CREEK ESTATES co forns to these Design Review Guidelines (the "G i ehnes"). The ARC's objective is to encourage good stewardship of the land and sensitive architectural expression. that reflects high quality and attention to detail. The ARC is responsible for reviewing and approving all development within ASPEN CREEK ESTATES, from concept to completion. This includes, but is not limited to: a All new ildin & site development. Any proposed revisions to previously approved plans, prior to or dunng construction. ■ Any renovation, expan'sion or refinishing of the exterior of a new structure. ■ Any proposed revisions to Building Envelopes. The ARC process has been desired to encourage dialogue with owners and their design team early in the evolution of their plans. The process is intended to be constructive, not a versaiial. or unnecessarily restrictive. As Owner, you shall ensure that your development team con p es with the following general requirements ents and desip review process to assure ASPEN CREEK ESTATES of your commitment to respecting the community vitWn which you are building. The ARC reserves the right to amend. these Guidelines, or to grant exceptions or vaiia ices to any of these Guidelines if a special case can be demonstrated.. Your design documentation should be prepared by a qualified architect or residential designer, with engineen'n input eotechnical., structural, mechanical, civil... as required.. SECTION B — SITE DEVELOPMENT GIAEINES t is the intent of these Guidelines to reinforce the City of Kaiispell's Design and. Construction Standards and Kalispell Subdivision Regulations. Each project must incorporate Kalispell's standards into its desire.. . I THE BIDING ENVELOPE The Building Envelope is the portion of each lot within which all improvernents must be built and confined therein except for driveway locations approved by the ARC. A. Building Envelope DECLARATION of COVENANTS, CONDITIONS AND RESTRIMONS of ASPEN CREEK ESTATES Exhibit "B71 Page I has been identified for each lot based on the setbacks as noted in the Covenants, Conditions and Restrictions. .2 GRADING AND SSG Residences should be designed to fit the existing topography or the property without excessive manipulation ation. of the site by out or fill. Changes in the natural grade by cuffing or filling for structures, walks and driveways must be kept to a minimum to preserve the existing landform. General siting and grading phnelples are as follows: 1. The finish grade around the residence and any site wails should remain as close as possible to the oh9inal natural grade. . Grading may e done outside the allowable site coverage area for driveway access and site drainage. , Screen wails, walls not supporting a building structure or retaining earth, may not exceed six feet in height measured from finish grade along the exterior side o the enclosure. .3 LANDSCAPE AND MUGIoN t is the intent of ASPEN CREEK ESTATES Design Guidelines to integrate, compliment and blend in the landscape of each individual Building Envelope with the landscape of the community. The community landscape maintains a proportional relationship of grass and turf areas to sib areas of the least :1. Each Property owner's landscaping shall maintain a r r oral relationship of grass and turd` areas to sib areas of at least :.. Esse.Titially, this means that, at a rru'nim'um, approximately of the landscape is allocated to sib areas. Drainage of individual properties must work with the existing topography and be directed toward the natural open space. or drainage swale systems, developed in conjunction with the roadways. All landscaping plans must be approved in advance by the ARC. BA RIGHT OF WAY LANDSCAPING Adjacent to the asphalt street and part of the City of Kalispell public right of way are a five (5) foot landscape boulevard, the sidewalk, then a six (6) foot landscape boulevard along each Lot boundary line. Each Owner shall be responsible for maintenance of both the dive foot and six foot landscape boulevards adjacent to their respective Ut. All landscaping plans or changes to landscaping in these n-ght of way areas must be approved in advance by the ARC. FENCES The side and rear yard fence shall be no more than six feet in height and extend from the rear property corner to within 5 feet of the race of the residence or garage. All fencing must be approved in advance by the AC� DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS of ASPEN CREE.K ESTATES Exhibit 132' 'age B.6 DRAINAGE Where co.nstruction and development will obstruct natural drainage pattems, surface runoff should be carefully .redirected to existing storm drains. 13,7 SVaMMING POOLS/SPAS Owners can construct swimming pools or spas within the property's BuildingEnvelope. 13.8 PETS Dog runs and animal peas must be enclosed, To protect birds and wildlife, dogs must be aeeompar ed and on a leash at all times when outside the lot, except when accompanied by a lot owner in the park area, subject to any rules and regulations that may be adopted by the Homeowners Association. B.9 TRASH CONTAINERS All outdoor trash containers rust be approved covered containers, and must be stored within the Building Envelope. B. 10 EXTERIOR. JGHTR�G Site lighting is defined as lighting mounted on the building, around trees or on site walls for the pose bf providing security, decorative accent or functional lighting to outdoor spaces. Building mounted nted lighting is defined as lighting built into or attached to buildings on walls, ceilings, eaves, soffits, fascias. Street lighting is provided and should be considered in your exterior lighting plan. The following guidelines for residential site lighting have been established. Site lighting must be directed downward onto vegetation or prominent site features, and may not be used to light wall or building elements. .ts. p hghting more than 45 degrees above the horizontal is prohibited and lighting aimed between zero and 45 degrees above horizontal must be directed toward the interior of the lot upon which it is located. 2. Building mounted lighting must be directed downward away froin adjacent lots, streets and open spaces, and may not be used to light galls or building elements for decorative purposes. Ground lighting rust be directed toward the interior of building foot print and not onto other lots or open areas. All exterior lighting must provide for s g i kart shielding to ensure that 11,ght sores and lamps are not visible from other properties, from roads or from off - site; no bare lamps will be permitted. Recessed lights in exterior soffits, eaves, or ceilings shall have the lamp recessed a minimum of " into the ceiling. DECLARATION10F COVENANTS, CONDITIONS AND RESTRICTIONS of ASPEN CREEK ESTATES Exhibit "B" 'age . Only incandescent lamps with a maximum imam at age of 75 watts will be allowed for exterior lighting unless specific approval is received from the ARC. Low voltage lighting is recommended since these fixtures are typically small and can be easily concealed within the native vegetation.. Colored lights will not be allowed for exterior lighting. . No lighting will be petted in setback areas or outside the areas enclosed by -patio or building walls. Site lighting must be corded to areas enclosed by walls or be in the immediate vicinity of the rain entrance or outdoor living spaces o the residence. . Lights on notion detectors for the purpose of security ill r nation are prohibited but may be allowed subject to specific approval or the ARC if the lights so activated do not illuminate adjacent properties. If allowed by the ARC, these lights will only be allowed to operate on a motion detector and stay lit for a maximum of 5 continuous minutes. Security lights o any type or location rust � still meet e requirements o shielding the light sources, and the light sources may not be visible from neighboring property. If problems with these lights occur, the ARC reserves the fight to demand that the fixtures be disconnected. Care roust be taken to avoid setting off the motion detector by the motion o -vegetation. Generally the motion detector's range should be limited to the Building Envelope area.These lights will not be allowed to operate for the purpose of general illumination. B -I l ENTRANCE DRIVEWAYS Driveways shall be a maximum width of eighteen (18) feet and shall intersect the street preferably at a right angle, but at a minimum ankle of 70 degrees. The five foot area between the asphalt street and sidewalk shall be of concrete only to provide uniformity along the street access. The driveway finish (beginning beyond the sidewalk) shall be subject to ARC review and approval for any material other than concrete. the ARC may, at its sole discretion, approve up to, but not exceeding two (2) driveway entrances. .. Per the City of Kalispell Construction Standards a. Where the driveway crosses the five foot landscape boulevard and sidewalk, these areas will be removed ed and replaced with " thick concrete on " gravel base. . The sidewalk replaced shall meet the ADA standard, i.e. the cross -slope shall not exceed 2%, . The front of the sidewalk at either edge of the new driveway shall be placed a minimum of five feet from the back of curb, except in areas where the sidewalk exists against the back of curb, 2. The Owner or their representative is required to contact the City of Kalispell Public Worts Department for inspection of the sidewalk replacement and driveway after the fonns are placed and or to in stalling concrete. DECLARATION of COVENANTS, CONDMONS AND RESTRICTIONS of ASPEN CREEK ESTATES Exhibit #g ,'J 'age .12 ADDRESS II)ENrr-FIC ToN Individual address identification devices for each approved residence must be install d according to the City of Kalispell standards. No monument signs are allowed. SECTION C — BUILDING DESIGN GUIDELINES The, building design guidelines are to assist you in realizing are architectural solution that belongs in Aspen Creek Estates. There will bc,, a focus on strong roof fora, wall, base and all elevation images. 'these design principles will apply to all structures. Good design is also being a good neighbor in the planr ng and architecture of your development. The building fora-. and mass is to respond and conform to the existing grade and site conditions. C. 1 DESIGN CHARACTER These guidelines do not intend to dictate architectural style of design although all designs rust e of a character appropriate to the guideline. The design character should create a residence that blends with its environment instead o standing out against it. The design character of a residence should be considered u i orTffly from all sides, not just the front or rear elevations, and all elevations should maihtairi the sane visual integrity, cohesiveness and design detail. 'articular attention should be given to the transition from one residence to another. Transition refers to aesthetic aspects as well as to the relationship of the elevation of the respective floor levels and the comparative overall massing of the strictures. In order to create an intimate residential scale and not dominate the natural landscape, long, unbroken walls and roofs should be avoided, and vertical and horizontalhoiizontal offsets need to be included. To finer reinforce this concern for scale, architectural forms shall be softened by the inclusion of chimneys, balconies, bay windows, appropriate entrance treatments and other such devices. Contractors and lot owners can build the same plan on other lots provided they are at least three hots apart. The exterior color scheme shall be different on each residence. ,2 BIDING SIZE Building Size: The ground floor of finished living area of the main structure, exclusive of open porches, basements and garages, shall be not less than 1,000 square feet for single fly hones and Boo square feet for each side of a townhouse. The total square footage for all above ground floor levels must be at least 1,500 square feet for Single- family homes and 1,200 square feet for each side of a townhouse. The structures erected on Lot 1 through Lot 6, inclusive, shall be o one 1 story with a daylight basement facing westerly. .C.3 EXTERIOR DESIGN DECLARATION of COVENANTS, CONDMONS AND S'r I 'r o S of ASPEN CREEK ESTATES Exhibit " " 'age Roof shape are.d character is important to avoid vertical monotony. Slopes o 12 or greater are to be considered for dominant roof elements and gable ends,, Gentler roof pitches can be integrated for background and less conspicuous connections. Alter ative configurations may also be considered to balcony roofs and dormers of all sizes as these contribute to the human scale. This is encouraged to provide a texture and an apparent reduction of the built mass. All overhangs and p�rojecti ns shall be a minimum of ". Mansard and flat roofs are prohibited. No trim -less metal wliadows are allowed. The ARC strongly recommends that sloping roofs be designed as sheltering and shading elements, nonna ly with broad overhangs and strong shadow lutes. Thin edges or thin fascias should be avoided. Sloped roof materials should be textural with very dark or deep color tones. Roof surfaces rust be non -reflective and, in the opinion of the ARC, not visually objectionable from neighboring properties and roads. the composition of rood` forms should be carefully considered. The placement of the various pipes and vents that penetrate the roof should be considered. Combine .e them in the attic space and project through roof in a coon enclosed, stack when possible. where it is practical, place stacks on the roof away from the side of greatest visibility. All roof vents are to be colored to match the dominant roofing materials. C.5 COLORS . Non -reflective materials are to be used, including non -reflective glazing 2. Color selections shall be reviewed by the ARC but preference will be given. _to earth tones, a range of off-white, light gray, light brown, g-reen or related each tones. other tones may be allowed on a case -by -case basis. . Materials for roofs may be sculpted architectural asphalt, flat concrete or fiber -cement tale, slate or other cut store. Metal or wood shake roofs are not petted, unless specifically approved by the ARC. . Mateal for walls .may be stained wood or wood, paintd fiber -cement lap siding and store. Cultured store is petted in out of reach areas on upper floors or for example for chi=ey cladding. Colored stucco may be incorporated for very small areas as an accent only. C.6 MATERIALS —.EXTERJOR SURFACES In order to impart a sense of solid, substantial constructioz and to avoid a tacked -on, thin veneer look, mateal changes should terminate at a logical inside corer, plan shape change or at a major wall opening. Changes at outside comers should be avoided. Exterior stone material should be continued down to the finish grade, thereby eliminating nfjr�s ed foundation walls. C.7 BIDING PROJECTIONS All projections from a building including, but not limed to, chimney caps, vents, gutters, scuppers, downspouts, utility boxes., porches, railings and exteTior stairways shall match the DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS of ASPEN CREEK ESTATIES Exhibit " "' Page 6 color o , the surface from which they project or be an appropriate accent color, unless otherwise approved by the A.C. All building projections must be contained within the Building Envelope, C.8 ANTENNA/SATELLITE DISHES Antennas are restricted to interior attic applications only. Satellite dishes may be used i discretely located on the u' ding, and a maximum 24" diameter. Large ground mounted satellite ,dishes are prohibited. C.9 SERVICE YARD All above -ground garbage and trash containers, clotheslines, mechanical equipment,, and other outdoor maintenarice and service facilities rust be,, completely screened from adjacent lots, streets, or conimon spaces by walls, fences, and gates, at least one foot higher than the equipment. Gates, or a "maze" entry that provides complete screening, shall be required around all mechanical and pool equipment enclosures. C. o GUEST HOUSES. GUEST SAS AND ARC SSORY BEINGS Any accessory building shall be addressed on the site plan as submitted to the ARC for approval. Accessory buildings are only allowed in the Building Envelope. Such structures must be designed as an integrated visual element with the residence, and should be visually related to it' by wails, courtyards, or major landscape eiernents. All accessory Mldigs rust be approved in advance by the ARC and must in compliance with applicable City of Kalispell building guidelines. C. 11 STORAGE TANKS No fuel tanks, water tanks or similar storage facilities shall be allowed. C.12 TRAELER AND BOAT STORAGE All trailer and boat storage shall be within the side property setback and the garage, Fencing and/or heaver landscaping are encouraged to soften this impact. Motor hones and trailers larger than 19" shall not be allowed to park on the lot or right-o va . SECTION D — REVIEW AND APPROVAL PROCESS The conditions of approval unposed by the City o , Kalispell for Aspen Creek Estates Subdivision require a letter of approval to be submitted to the City of Kalispell Site Development Review Conunittee from the ARC prior to the issuance of a building permit. The process for obtaining ning said approval letter is outlined herein. D. I CONCEPTUAL AN REVIEW DECLARATION of COVENANTS, CONDMONS AND RESTRICTIONS of ASPEN CREEK ESTATES Exhibit ge }� Page A. conceptual plan review is required to confirm the design incorporates all site requirements relative to the lot location/Building Envelope plan. It will assist to clarify the intent and application of the Design Guidelines, review/approval process, development procedures and schedules. In order to initiate conceptual plan review, the Owner or Owner's representative shall submit a site plan, floor plan and two elevation views to the ARC. In addition, the owner or wrier's representative will meet with the ARC. The ARC will provide its written determination eonceming the conceptual plan within fourteen 1 days of submittal and the conceptual meeting. The determination may include comments from the conceptual meeting for the designer's use in preparing the final submittal. D*2 DETAILED FINAL PLAN REVIEW In order to initiate fhial plan review, the Owner shall submit all information that needs to be provided to the City of Kalispell in an effort to obtain building err s, Additional information may be required (such as samples of paint, siding, roofing, exterior lighting plan, etc.) at the discretion of the ARC. The ARC will provide its written deternu'nation eonceming the final plans within thirty days or subrnittl. Incomplete submittals will be returned and this review period will begin again. No construction or site preparation may begin until fmal written approval has been obtained. The City of Kalispell wi not Tissue building Permits without an approval letter from. the ARC. D.3 CNTN Completion in these guidelines means the completion of interior build out as approved for occupancy (by the Czry of Kalispell) and the complete exterior of the development including all hard and soft landscaped areas. There will be a final inspection held at the request of the builder with the ARC after acceptance by the City of Kalispell. The Owner shall submit a copy of the City of Kalis ell's Certificate of Occupancy to the Homeowners Association. [End o, f ,Design Review Guidelines DECLARATION of COVENAXTS, CONDITIONS AND RESTRICTIONS of ASPEN CREEK ESTATES ambit « " Wage