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Neighborhood District Draft CC&RsGlacier Town Center Neighborhood Residential Parcels Article I. Introduction A. Section 1. These Codes, Covenants, & Restrictions are applicable to the single-family and town home residential properties of the Glacier Town Center Neighborhood District. The intent of this community, adjacent to the Glacier Lifestyle Center Commercial District, is to provide housing for people of diverse backgrounds, incomes, and interests. A primary goal is to also encourage those who work at the Glacier Lifestyle Center Commercial District to live in this neighborhood. This neighborhood includes dwellings, a central park, and a community center dedicated to the interests of the Glacier Town Center Neighborhood District. Sidewalks, trails, and alleys also enhance the experience and ease of living here. B. Section 2. This neighborhood is located in the beautiful Flathead Valley of Montana which garners respect and care for the natural features that have drawn you to live here. The purpose of this document is to assist lot Owners in Glacier Town Center Neighborhood District by providing a framework for design, construction, maintenance, and usage of their home and/or property within the subdivision. This will allow each project to contribute to the long-term goal of creating a development that complements and enhances the surrounding natural environment. This document also explains the rules and restrictions that are intended to protect the landscape, wildlife, and use of property for the protection and enjoyment of all Owners of Glacier Town Center Neighborhood District. This document also outlines appropriate architectural elements that reflect the specific context and environment of The Glacier Town Center Neighborhood District. Variances may be granted if the plan is of excellent architectural design and meets the overall philosophy of the Design Guidelines of the Glacier Town Center Neighborhood District. The developments' specific objectives are as follows: • To protect and enhance natural environment, wildlife, and property values. • To respect environmental conditions and neighbors. • To establish architectural criteria for buildings which allow for individual expression within clearly defined restraints. • To address all aspects of community usage and design, including: buildings, landscaping, maintenance, water usage, fences, and signs. Glacier Town Center. Neighborhood District Kalispell, Montana Page 1 Codes, Covenants, & Restrictions Article II of this document contains protective covenants, conditions, and restrictions to preserve and maintain the natural and agrarian character and value of the Property for the benefit of all Owners of the property or any part thereon. II. Article II. Definitions A. Section 1. The terms "Association" and "P.O.A." shall mean The Property Owners' Association. The Association may be incorporated as a Montana nonprofit corporation, with its members as the lot Owners. The one Glacier Town Center Neighborhood District P.O.A. will include representatives from each of the property owner types identified below: 1. Single -Family Residential 2. Town Home Residential B. Section 2. The term "contract purchaser" shall mean a person buying a lot pursuant to a contract for deed, Montana Trust Indenture or mortgage. C. Section 3. The term "Covenants" shall refer to the Codes, Covenants, and Restrictions (this document). D. Section 4. The term "Declarant" shall mean and refer to Wolford Development Montana LLC, and its successors and assigns. E. Section 5. The term "Directors" shall mean the Board of Directors of the Association, and shall consist of President, Vice President, Secretary, Treasurer, and two (2) Residential Representatives who shall be elected at the annual meeting by a simple majority of the members of the Association. The Board of Directors shall be elected for a term set by a simple majority of the membership, but not less than one year. Any vacancy in the Board of Directors occurring before the next annual meeting of the members shall be filled by the remaining Directors. The Directors shall have the authority to act on behalf of the Association and its members as shall be reasonably necessary to carry out the purposes of the Association and enforce these Covenants. The Directors shall act by simple majority vote. The officers of the Association shall follow the directions of the majority vote of the Directors. Until 75% of the lots in The Glacier Town Center Neighborhood District have been sold or seven (7) years after the final plat approval of Phase IV, whichever occurs later, the Declarant shall have the right to appoint the Board of Directors, who shall not be required to be lot Owners or members of the Association. F. Section 6. The term "Financial Hardship" shall refer to the negative effects of required construction or design procedures that force termination of a project unnecessarily. Glacier Town Center. Neighborhood District Kalispell, Montana Page 2 Codes, Covenants, & Restrictions G. Section 7. The term "The Glacier Town Center Commercial District" shall mean the adjacent commercial shopping center to the west of the primarily residential Glacier Town Center Neighborhood District. This includes the Commercial Parcels and the Lifestyle Center. H. Section 8. The term "Majority" shall refer to 51 % of cast votes in reference to the Association, its members and its Owners I. Section 9. The term "member" shall mean any owner or lot owner. Each member or owner agrees to abide and be bound by these Covenants, the Articles of Incorporation, and the Bylaws and the Resolutions of the Property Owners' Association, if any. The phrase Property Owner's Association shall be referred to as P.O.A. from hereon. J. Section 10. The term "Open Space" or "Common Area" shall mean all of the property conveyed to the Association for use by the Association and its Members and Owners in common including roads, trails, parks and waterways K. Section 11. The term "Owner" or "lot owner" shall mean any person or entity owning a fee simple interest in a lot or a contract purchaser, whether one or more persons or entities, owning or purchasing a lot, but excluding those having a mortgage or an interest merely as security for the performance of an obligation;, provided, however, that prior to first conveyance of a lot for value, the term "owner" shall mean "Declarant" or its successors or assigns. The term "person" hereinafter shall include any person, persons or entities. L. Section 12. The terms "properties" and "lots" shall mean all of the real property herein described and subsequently surveyed and platted into lots as The Glacier Town Center Neighborhood District, according to the official plats thereof filed of record in the office of the Clerk and Recorder of Flathead County, Montana. M. Section 13. The term "Subdivision" and "The Subdivision" shall mean this mixed residential community called the Glacier Town Center Neighborhood District. N. Section 14. Other definitions may be found throughout these covenants and those covenants are binding upon all Owners. Any term not specifically defined shall be deemed to have a common and ordinary meaning. III. Article III. Confidentiality A. Section 1. Anonymity in reporting violations: It is required that those who report Covenants violations to the association disclose their identity. Violation reports shall be submitted in writing and signed; board action on reports submitted anonymously to the Association does not normally occur. There are several reasons for this policy: 1. Requirement for signed written reports allows contact to the reporter when additional information is needed. If an anonymous report is not specific enough, there is no recourse for follow up. Glacier Town Center. Neighborhood District Kalispell, Montana Page 3 Codes, Covenants, & Restrictions 2. Requiring disclosure of a violation reporter's identity to the Association significantly reduces the number of frivolous or unnecessary complaints submitted. Anonymous complaints are often signs of grudges rather than legitimate violations. 3. The Association cannot initiate enforcement action without due cause; written complaints document that cause. This helps internally within the Association; directors who must act on any given problem can be assured of a reliable rendition of the complaint exists. If the matter results in legal action, written documentation exists. 4. Maintaining public anonymity helps to protect from any form of retaliation. IV. Article IV. The Property Owners' Association A. Section 1. An association is hereby established known as The Glacier Town Center "Property Owners' Association" herein after referred to as the P.O.A. Said Association may be incorporated under a different name as may be approved by the Montana Secretary of State. B. Section 2. Every owner or contract purchaser of a lot shall be a member of the Property Owners' Association. Membership shall be appurtenant to and may not be separate from the ownership of any lot. Each owner shall be responsible for advising the Association of their acquisition of ownership, of their mailing address, and of any changes of ownership or mailing address. The initial address of the Association shall be - . The address of the Association may be changed by the Board of Directors upon notice to the Owners. C. Section 3. For the purpose of determining membership, any meeting of a person or entity shall be deemed to be a member upon the recording of a duly executed deed to that owner, or upon the recording of Notice of Purchaser's Interest or an Abstract of Contract for Deed showing a contract purchase by an owner. The legal title retained by the vendor selling under contract shall not qualify such vendor for membership. Foreclosure of a mortgage, trust indenture or the termination of foreclosure of a contract for deed wherein title is vested in the mortgagee, beneficiary or original seller on a contract, or repossession for any reason of a lot or unit sold under a contract shall terminate the vendee's membership, whereupon all rights to such membership shall vest in the legal owner. D. Section 4. The annual meeting of the Association shall occur on the first Wednesday of March each year. Any special meetings may be called by the President, or in the absence of the President, by the Vice -President. In addition, a special meeting shall be held upon call of 50% of the Owners. Special meetings shall require seven (7) days notice, in writing. Notice of annual and special meetings shall be mailed to Owners at the address for each owner as provided pursuant to Section 2 of this Article. The presence of members, in person or by written proxy, representing 60% of the total votes of the membership shall constitute a quorum. Glacier Town Center. Neighborhood District Kalispell, Montana Page 4 Codes, Covenants, & Restrictions At the annual meeting, the members shall review and approve a budget for the next year, shall elect Directors to fill any expired term or vacant position, and shall conduct such other business as shall be reasonable or necessary to carry out the purpose of the Association. The members shall have the authority to set the number of Directors, which number shall not be less than three (3) nor more than seven (7). E. Section 5. The annual meeting of the Board of Directors shall be held immediately after the annual meeting of the members. At the annual meeting, the Directors shall elect a President, Vice -President, and Secretary/Treasurer for the Association from among the Directors, except that the Secretary/Treasurer may be a member who is not a Director. Two of the members of the Board of Directors shall be residential property owners. The President and Vice -President shall automatically be P.O.A. representatives on the Glacier Town Center Executive Group, unless one is not a residential property owner. In this latter case, the Secretary/Treasurer shall be chosen instead. F. Section 6. The Board of Directors shall serve for a term to be set by a simple majority of the membership, which shall not be for less than one year. Each director shall serve until replaced by his or her successor. Any vacancy on the Board of Directors occurring before the next annual meeting of the members shall be filled by the remaining directors. G. Section 7. The Board of Directors shall have the power and responsibility of acting on behalf of the Association and its members as shall be reasonably necessary to carry out the purposes of the Association, including but not limited to take such actions as shall be necessary or reasonable to care for, protect and maintain the easements, trails, boundary fences, drainage easements, open spaces; to enforce these Covenants; to collect assessments; to set annual and/or special meetings; and to act in any other matters set forth herein or which may serve the development, including the formation of special improvement districts, either public or private, for such improvements as the Association shall approve. H. Section 8. Voting shall be as follows: 1. The Association shall have two (2) classes of voting membership: a. Class `A': Class A members shall be all owners with the exception of Class B members named below. b. Class `B': Class B members shall be the Declarant. 2. Class A members shall be entitled to one vote for each tract owned. When more than one person holds an interest in any lot, all such persons shall be members. The vote for such lot shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any lot. 3. Class B members shall be entitled to two votes for each lot owned. 4. The Directors shall act by majority vote of a quorum. Glacier Town Center. Neighborhood District Kalispell, Montana Page 5 Codes, Covenants, & Restrictions I. Section 9. The duties of each of the offices shall be as follows: 1. President: The President shall preside over all meetings of the P.O.A. He or she shall call the membership together whenever necessary. The President shall be the general administrative and executive officer of the P.O.A., and shall perform such duties as may be specified, and exercise such powers as may be delegated to the office of President by the Board of Directors. 2. Vice -President: The Vice -President shall exercise the powers of the President in the absence of the President. 3. Secretary: The Secretary shall give notice of all meetings of the P.O.A., and shall keep a record of the proceedings of the meetings of the P.O.A. The Secretary shall be authorized to sign on behalf of the P.O.A., all records, documents and instruments when such are authorized to be signed by the P.O.A. 4. Treasurer: The Treasurer shall keep and maintain adequate and correct accounts of the accounts, properties, and business of the P.O.A., including accounts of its assets, liabilities, receipts, disbursements, gains and losses of the P.O.A. The Treasurer shall prepare and report such periodic accountings as shall be required by the P.O.A. 5. Residential Representative: The Residential Representative shall provide information and concerns related specifically to any and all residential concerns within The Glacier Town Center Neighborhood District. The Residential Representative shall carry out actions for all Residential Owners within The Glacier Town Center Neighborhood District. J. Section 10. A vacancy in any office of the Association shall be filled by appointment by the Board of Directors until the next annual meeting or the successor duly appointed or elected. V. Article V. Annual and Special Assessments A. Section 1. Assessments Each owner, whether or not it shall be so expressed in any deed or contract, is deemed to have agreed to these Covenants, and to pay to the Association: 1. Annual assessments or charges; and, 2. Special assessments for capital improvements and reserve assessments, such assessments to be established and collected as hereinafter provided The annual, special and reserve assessments, together with interest, costs and reasonable attorney's fees, shall be a charge on the land, and shall be a continuing lien upon the property against which each such assessment is made. Each assessment, together with the interest, costs and reasonable attorney's fees, shall be the personal obligation of the owner of such property at the time when the assessments are due. Glacier Town Center. Neighborhood District Kalispell, Montana Page 6 Codes, Covenants, & Restrictions B. Section 2. Purpose of Assessments The assessments levied by the Association shall be used to promote the recreation, health, safety, convenience and welfare of the Owners and the patrons of the Residential Properties; for the improvement, repair and maintenance of alleys, sidewalks, easements, trails, common space; and for any other purposes, expressed or implied, in these Covenants. C. Section 3. Amount and Approval of Assessments The maximum annual assessment per lot which may be made by the Association in every calendar year shall not substantially exceed the projected and budgeted actual and reasonable costs to be incurred by the Association during the coming year in carrying out the purposes herein set forth, and may include a reasonable reserve for contingencies. The amount of the annual assessments shall be fixed by the Board of Directors of the Association in the following manner: At each annual meeting of the members of the Association, the Directors shall present a proposed budget of the estimated expenses for the Association for the coming year to the members for review, discussion, amendment, comment and approval. The members shall approve or amend the proposed budget by a majority vote of the members present or voting by proxy. After the annual meeting, the Board of Directors shall set the amount of the assessments and the date(s) due for the coming year to cover the budget approved in the manner herein set forth. D. Section 4. Special Assessments for Capital Improvements and Reserve Assessments 1. In addition to the annual assessments authorized above, the Association may levy special assessments for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, or other capital improvements on the properties and open space, including fixtures and personal property related thereto, provided that any such assessment shall have the approval of two-thirds (2/3) or more of all of the votes of the members who are present, in person or by proxy, at a meeting duly called for that purpose. Special assessments may be levied to be paid over one or more years. Assessments for normal maintenance and repairs shall not require two-thirds (2/3) vote. 2. The Association may levy reserve assessments for the replacement and upkeep of the improvements enjoyed by the Association members. Reserve assessments need not be levied against all lots during any budget cycle provided that any such assessment shall have the approval of two-thirds (2/3) or more of all the votes of the members being assessed, who are present, in person or by proxy, at a meeting duly called for that purpose. Glacier Town Center. Neighborhood District Kalispell, Montana Page 7 Codes, Covenants, & Restrictions E. Section 5. Uniform Rate of Assessment Annual assessments shall be fixed by the Directors at a uniform rate for each block within the following two (2) categories: Category A: Residential Town homes, Category B: Residential Single -Family. F. Section 6. Date of Commencement of Annual Assessments Due Dates: Except as herein provided, the annual and special assessments provided for herein shall be due on the date determined by the Board of Directors. The Board of Directors shall fix the amount of the annual assessments against each lot at least (30) thirty days in advance of the due date of each annual assessment, and at least ninety days in advance of a special assessment and reserve assessments. Written notice of the annual and special assessments shall be mailed or personally delivered to every member subject thereto, at their last known mailing address. G. Section 7. Effect of Nonpayment of Assessments - Remedies of the Association are as follows: 1. Any assessment not paid within (30) thirty days after the due date shall bear interest from the due date at the rate of ten percent (10%) per annum. The Association may bring an action at law against the Owners obligated to pay the same or foreclose the lien against the property. No owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the open space or by abandonment of their lot. 2. Upon delivery of the notice of assessment to the owner, the assessment shall be a lien upon the owner's lot until paid. The Association may record a notice of the lien with the Clerk and Recorder of Flathead County, Montana. In the event of non-payment within thirty days after the recording of the notice of lien, the Association may foreclose the lien in the manner set forth under Montana law for the foreclosure of liens against real property. The Association is entitled to collect during an action for delinquent assessments any and all reasonable attorney fees and costs accrued prior to and in association with the collection of delinquent assessments. H. Section 8. Sale or Transfer of a Lot The sale, transfer or encumbrance of any lot shall not affect the assessment lien if recorded in the records of Flathead County, Montana, or the personal liability of the owner responsible for the assessment. No sale or transfer to a third party with actual or constructive knowledge of an assessment shall relieve such new owner from the liability for any outstanding assessments, or from any assessments thereafter becoming due, or from the recorded lien thereof. A person or entity purchasing a lot shall be responsible for checking with the Association for any outstanding assessments against said lot before the closing upon the purchase. Glacier Town Center. Neighborhood District Kalispell, Montana Page 8 Codes, Covenants, & Restrictions VI. Article VI. Glacier Town Center Neighborhood District Design Review Guidelines A. Section 1. The intent of these guidelines is to define a level of quality and consistency of building design which will be consistent with and maximize the quality of the overall project. The unique design elements of the Architect, Developer, Building Contractor, Home Builder, and Owners for the site, landscape, and the buildings will be respected. Individual expression is encouraged, provided it is harmonious with the overall character set forth in the Glacier Town Center Neighborhood District Design Review Guidelines. B. Section 2. All developments shall be built in conformance with the Glacier Town Center Neighborhood District Design Review Guidelines, a separate document, adopted to govern the building of any and all structures in The Glacier Town Center Neighborhood District. The Glacier Town Center Neighborhood District Design Review Guidelines are incorporated by reference herein and are enforceable as if they are a part of the document. C. Section 3. The Glacier Town Center Neighborhood District Design Review Committee (DRC) is hereby created and shall carry out all duties bestowed upon it by these covenants and the Glacier Town Center Neighborhood District Design Review Guidelines, and any amendments made thereto. See Article XII. D. Section 4. The procedures for application, consideration and approval of any building are set forth in the Glacier Town Center Neighborhood District Design Review Guidelines. E. Section 5. No development shall commence without the signed approval of the DRC. Each structure must be constructed in compliance with the Design Regulations stated herein, including but not limited to, location, square footage requirements, and height; and in compliance of the Glacier Town Center Neighborhood District Design Review Guidelines including but not limited to color, material choices and usage, and all requirements of the Glacier Town Center Neighborhood District Design Review Guidelines. F. Section 6. All landscaping shall be installed within the first growing season following substantial completion of the residential development. VII. Article VII. Property Use and Required Covenants A. Section 1. Hunting No hunting of, shooting at or harassing of birds, animals or any wildlife will be permitted. Skunks, gophers, and rodents may be trapped; however, poison may not be used. B. Section 2. Pets 1. No livestock, poultry or other animals, except dogs, cats, or small in-house pets and birds, are permitted on the properties. Excessive amounts of pets of any type are not allowed. Excessive pertains to numbers that become uncontrollable from within the Glacier Town Center. Neighborhood District Page 9 Kalispell, Montana Codes, Covenants, & Restrictions interior confines of the structure on the property, thus becoming a nuisance to neighboring properties and thus decreasing the value of said property. 2. All dogs, cats and other pets shall be strictly controlled by their owners so as not to annoy or interfere with the use of the properties by the other owners and to prevent any interference or harassment of wild birds or animals in The Glacier Town Center Neighborhood District or on surrounding or adjacent properties. Dogs and cats shall be kept on the owner's property and shall not be allowed to roam free. C. Section 3. Artificial Feeding The artificial feeding of all big game shall be prohibited. D. Section 4. Animal Proof Containers All garbage shall be stored in animal -proof containers. Foodstuffs, including garden, pet and other sources shall not be stored out of doors or in non -animal proof containers. E. Section 5. Acceptance of Wildlife Damage Lot Owners acknowledge that wildlife damage to landscaping will occur. Lot Owners accept that risk and shall not file claims against adjacent lot Owners, the Association, or any other governing body for such damages unless evidence of violation of these Covenants is proven. F. Section 6. Open Space and Trail Maintenance The Association shall be responsible for trail maintenance within The Glacier Town Center Neighborhood District. The Association is also responsible for the weed control, mowing, care and maintenance of open spaces along with all common amenities within The Glacier Town Center Neighborhood District. The Association may use the provision of Covenants for collecting funds to pay for such maintenance. G. Section 7. Noxious Weeds In order to comply with the Flathead County Weed Control 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 Flathead County. The covenants are as follows: 1. The P.O.A. is responsible for noxious weed control in all parks, open spaces, community areas, trails and roadways within the subdivision. Each landowner is responsible for the subdivision roadway adjoining their property. The P.O.A. will also act as the contact point for any noxious weed complaints within the subdivision. 2. The control of noxious weeds by the P.O.A. on those areas for which the P.O.A. 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 Flathead Glacier Town Center. Neighborhood District Kalispell, Montana Page 10 Codes, Covenants, & Restrictions 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 P.O.A., the P.O.A. 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 P.O.A. is responsible for the control of state and county declared noxious weeds in the subdivision's parks, open spaces, community areas, trails, and roadways. H. Section 8. Construction Codes All structures shall be constructed in compliance with Montana State adopted codes for construction, including codes for seismic Zone 3 and National Fire Protection Codes. I. Section 9. Water Testing The Subdivision will be connected to city water and sewer. Any and all testing shall be performed by the appropriate authorities appointed by the city of Kalispell. J. Section 10. Road Ownership and Maintenance All roads within The Glacier Town Center Neighborhood District are to be owned and maintained by the City of Kalispell. K. Section 11. Alley Ownership and Maintenance All alleys within The Glacier Town Center Neighborhood District are to be owned and maintained by the Property Owner's Association. Alley ownership is split down to the center between the property owners that flank the alley. L. Section 12. Sidewalk and Boulevard Maintenance All sidewalks and boulevards within The Glacier Town Center Neighborhood District are to be constructed by the Declarant, and owned and maintained by the owner of property on which the sidewalk and boulevard reside. The "boulevard" is the land area between the curb and the sidewalk. M. Section 13. Driveway Placement All lots shall have only one driveway access. Each driveway access point must be at least fifty (50) feet from the nearest road intersection. N. Section 14. Fencing Fences are strictly prohibited in the Glacier Town Center Neighborhood District. Glacier Town Center. Neighborhood District Kalispell, Montana Page 11 Codes, Covenants, & Restrictions O. Section 15. Exterior Lighting All exterior building lights shall be reflected downward with full cutoff luminaires. There shall be zero light spill outside of the property being illuminated. Light fixtures shall not supply light pollution thus detracting from night sky visibility. P. Section 16. Storage of Equipment No lot or adjacent street, roadway shall be used for the storage of any inoperable vehicle, machinery or equipment. No lot shall be used for storage of any articles, vehicles, equipment or other personal property of any quantity in excess of the personal use of the owner of a lot or the occupants and guests thereof as the case may be, and shall not interfere with the use or enjoyment of neighboring lots. Q. Section 17. Recreational Equipment All campers, trailers, motor homes, boats, and all other recreational shall only be parked on the owner's lot. In no event shall such equipment be parked on roads, nor shall any equipment be parked such that it is visible from the streets or adjacent lots for a period exceeding two (2) days in any 30 day period. Storage or location of such equipment and vehicles, in excess of the requirements of this section, shall occur in an enclosed garage or other screened area with such garage or screen having been pre -approved in writing by the committee for design review. R. Section 18. Offensive Activity 1. No noxious odors or offensive activity shall take place upon any portion of the above described property, nor shall anything be done thereon which may be, or may become, an annoyance to the neighborhood. 2. No firearms shall be discharged on the above -described property. 3. Any violation of county ordinances or other regulations shall be a violation of these Covenants and can be enforced by the Association or individual lot Owners. S. Section 19. Ditches and Water Courses Each owner of property within The Glacier Town Center Neighborhood District acknowledges the presence of water features located in open spaces of the development. Each owner of property with The Glacier Town Center Neighborhood District, as individuals and as members of the Association, acknowledges that water could pose a danger to humans, animal life and property. By this acknowledgement, each owner of property with The Glacier Town Center Neighborhood District, as individuals and as members of the Association assumes the normal and ordinary consequences of their actions when in, next to, or in the vicinity of water features within The Glacier Town Center Neighborhood District. Glacier Town Center. Neighborhood District Kalispell, Montana Page 12 Codes, Covenants, & Restrictions VIII. Article VIII. Emergency Services The Glacier Town Center Neighborhood District will be under the jurisdiction of the Kalispell Fire Department. IX. Article IX. Open Spaces A. Section 1. Purpose The open space within the development is proposed for passive activities and is to be accessible for public use by members of the Glacier Town Center Neighborhood District as well as the City of Kalispell community. B. Section 2. Mandatory Requirements 1. The Board, among its other duties, shall establish assessments for the taxes, insurance, and maintenance of all open space, roads, trails and easements under the control and authority of the Association. 2. The Association shall be responsible for liability insurance, local taxes and maintenance of recreation and other facilities in designated open spaces. The assessments levied by the Board for the maintenance, upkeep, repair and operation of said open spaces like all other assessments, become a lien on each lot within The Glacier Town Center Neighborhood District . The Board may in its discretion adjust the assessments to meet the changing needs of the community and the areas serving the community. C. Section 3. Applicable Uses Open spaces shall be used for both active and passive recreation determined by their location and size. At no time or place is motorized travel or horseback travel allowed within these open spaces, except as designated. Signage is also hereby prohibited unless approved by the P.O.A. Open spaces preserved as natural wetlands/wiIdlands as designated on final plat shall receive minimal development in the form of walking paths and areas of respite/seating along these paths. D. Section 4. Nuisance No Owner, guest or invitee may use or occupy the open space, trails, roads, or any lot in such a manner as to disturb or interfere with the peaceful use, occupancy or enjoyment of any other Owner, guest of the Glacier Town Center Neighborhood District . Violations shall be enforced as provided for in Article XI of these Covenants. E. Section 5. Control and Management The Association shall have the exclusive right and obligation to manage, control and maintain the Open Space. Glacier Town Center. Neighborhood District Kalispell, Montana Page 13 Codes, Covenants, & Restrictions X. Article X. Utilities Installation and Maintenance A. Section 1. Utilities Easement Utilities easements for electricity, gas, sewer, communications, telephone, water, television, cable communications, and other utility equipment shall be underground and are designated on the Glacier Town Center Neighborhood District Plat. All Owners shall have the right to enter upon and excavate in such easements upon the approval of the DRC. Easements for ingress and egress and for utilities shall not be moved, deleted or restricted without the written approval of all the lot Owners affected. Utility companies and Owners must restore disturbed land to a condition as close as possible to the natural condition of the land before work commenced. B. Section 2. Utilities Installation and Maintenance 1. The Glacier Town Center Neighborhood District, or its designated representative, shall cause the installation and maintenance of electric power, gas, cable, and telephone utility service to the junction of the main access road and home lot driveways. Owners shall bear all responsibility and costs from such junction to home lots. 2. All utilities of every nature shall be installed and maintained underground. Piping and wiring shall be concealed. Each owner shall be responsible for utility installation and maintenance in accordance with state and local regulations. C. Section 3. Water and Sewage All improvements or structures designed for occupancy or use by humans shall be connected with domestic water provided by the City of Kalispell. All lot Owners shall hook up to the city water and sewer system when a structure is constructed on a lot. XI. Article XI. Term, Enforcement, Applicability, and Change Enforcement A. Section 1. Violation or breach of any covenant, condition or restriction herein contained shall give to Declarant, or the Association, following thirty (30) days written notice to the Owner or Occupant in question except in extenuating circumstances, the right, privilege and license to prosecute a proceeding at law or in equity against the person or persons who have violated or are attempting to violate any of these Covenants to enjoin or prevent them from doing so, to cause said violation. The cost of any abatement, remedy or removal hereunder shall be a binding personal obligation on any Owner or Occupant in violation of any provision of this Declaration, as well as a lien (enforceable in the same manner as a trust indenture) upon the Lot in question. The lien provided for in this section shall not be valid as against a bona fide purchaser or mortgagee for value of the Lot in question unless a suit to enforce said lien shall have been filed in a court of record in Flathead County, Montana, prior to the recordation of the deed or mortgage conveying or encumbering the Lot in question to such purchase or mortgage, respectively. Glacier Town Center. Neighborhood District Kalispell, Montana Page 14 Codes, Covenants, & Restrictions B. Section 2. Right of Entry: During reasonable hours and upon reasonable notice (24 hours), and subject to reasonable security requirements, Declarant, the Association or their agents, shall have the right to enter upon and inspect any Lot and the Improvements thereon covered by this Declaration for the purpose of ascertaining whether or not the provisions of this Declaration have been or are being complied with, and neither Declarant nor the Association nor their agents shall be deemed to have committed a trespass or wrongful act by reason of such entry or inspection. C. Section 3. The term of the provisions of these Covenants shall be binding for a term of fifteen (15) years from the date of these Covenants and may be modified, altered or amended during that period only by the Declarant at the Declarant's sole option. After the initial fifteen (15) year period, the Covenants should be automatically extended for successive periods of ten (10) years not to exceed three (3) such extensions unless an instrument agreeing to amend, revoke or terminate these Covenants has been signed by the Owners of eighty (80) percent of the lots in The Glacier Town Center Neighborhood District. Any covenant required as a condition of preliminary subdivision approval shall not be altered or amended without the agreement of the governing body. D. Section 4. Enforcement of these Covenants shall be by proceedings either at law or in equity against any person or persons violating, or attempting to violate, any Covenant; and the legal proceedings may either be to restrain violation of these Covenants, to recover damages, or both. Should any lawsuit or other legal proceeding be instituted by the Association or an owner against an owner alleged to have violated one or more of the provisions of these Covenants and should the Association or owner enforcing the provisions of the covenants be wholly or partially successful in such proceedings, the offending owner shall be obligated to pay the costs of such proceeding, including reasonable attorney's fees for all time associated with the action. E. Section 5. The failure of the Declarant, the Association or an owner, to enforce any Covenant or restriction contained herein shall not be deemed a waiver or in any way prejudice the rights to later enforce that Covenant or any other Covenant thereafter, or to collect damages for any subsequent breach of Covenants. The waiver or approval of a variance of a Covenant provision by the Board of Directors, or non -action of the Association or Declarant in the event of a violation of a Covenant by a particular owner or lot, shall not be deemed to delete or waive the Covenant or enforcement thereof as it pertains to other Owners or lots. F. Section 6. Invalidation of any one of these Covenants by judgment or by Court order shall in no way affect any of the other Covenants or provisions, all of which shall remain in full force and effect. G. Section 7. In any conveyance of the above described real property or of any lot thereon, it shall be sufficient to insert a provision in any deed or conveyance to the effect that the property is subject to protective or restrictive Covenants without setting forth such restrictions and Covenants verbatim or in substance in said deed nor referring to the Glacier Town Center. Neighborhood District Kalispell, Montana Page 15 Codes, Covenants, & Restrictions recording data. All of the above described real property and lots shall be subject to the restrictions and Covenants set forth herein, whether or not there is a specific reference to the same in a deed or conveyance. H. Section 8. A breach of any of the foregoing restrictions or Covenants shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon any lot or portion of the real property or any improvements thereon. However, the Covenants shall be binding upon and shall insure to the benefit of any subsequent owner whose title thereto was acquired by foreclosure, trustee sale or otherwise. XII. Article XII. Design Review Committee (DRC) A. Section 1. Authority The Design Review Committee (DRC) shall act in addition to, and not in lieu of the City of Kalispell Planning Board and City of Kalispell Zoning Commission. The City of Kalispell Planning Board and Zoning Commission are not however, appeal boards for the DRC. The DRC is given authority through Article VI of the Declaration of Covenants, Condition and Restriction for The Glacier Town Center Neighborhood District. B. Section 2. Committee Organization 1. The committee is established by the P.O.A. who is responsible for appointing members and terms. The DRC shall then consist of three to seven members appointed by the P.O.A. 2. The DRC shall modify when necessary, and enforce the design regulations related to the external design, appearance, and location of all specified properties and improvements within The Glacier Town Center Neighborhood District. C. Section 3. Purpose The DRC is established and given the authority to coordinate, expedite, and assure fair equitable implementation of the Design Guidelines. The objective of this committee is to encourage development quality that will enhance both the natural and built environments. D. Section 4. Duties 1. The DRC is responsible for administering the Design Guidelines and performing the following duties: a. To form such reasonable rules and by-laws and adopt such procedures as it deems necessary to carry out its functions. b. To review all of the following it deems necessary: 1) Site plans 2) Landscape plans 3) Building plans, elevations, and associated drawings Glacier Town Center. Neighborhood District Kalispell, Montana Page 16 Codes, Covenants, & Restrictions 4) Material and color samples 5) Other information deemed appropriate to individual proposals c. To require in writing, all improvements, such as the following, to be reviewed and approved by the DRC before construction commences: 1) Construction of buildings, auxiliary structures or roads 2) Alterations and Remodeling 3) Restorations 4) Landscaping and Walls 5) Private Parking and Driveways 6) Signs and Exterior Lighting 7) Other Improvements specific to an individual proposal d. To enforce height requirements contained within the Covenants and Design Guidelines and to designate such requirements where they are not called out. e. To reject materials, designs, and colors submitted with the plans and the plans themselves, if they are not compatible with or are inappropriate to the overall vision of The Subdivision or are non -conforming to the Design Guidelines. f. To hear all testimony related to variances and grant variances to the Design Guidelines as it deems appropriate. g. To interpret Design Guidelines as is deems appropriate and make rulings thereon. h. To insist upon the completion of all improvements in substantial compliance with the approved plans and specifications. i. To revoke or suspend approvals and order the suspension or cessation of any construction in violation of the Design Guidelines or any approval issued by the DRC. j. To require that a fee of $200.00 be paid to the P.O.A. for the review and approval of building plans and specifications. E. Section 5. Liability 1. Neither the DRC nor any member thereof shall be liable to the Association or to any Owner for any damage, loss or prejudice suffered or claimed on account of the following: a. The approval of any plans, drawings or specifications, whether or not defective. b. The construction or performance of any work, whether or not pursuant to approved plans, drawings, or specifications; c. The development or manner of development of any property within The Glacier Town Center Neighborhood District provided, however, that such member has acted in good faith. XIII. Article XIII. Zoning Regulations and Codes A. Section 1. General Information 1. The Glacier Town Center Neighborhood District is located within the jurisdictional area of the City of Kalispell. The Glacier Town Center Neighborhood District shall be consistent Glacier Town Center. Neighborhood District Kalispell, Montana Page 17 Codes, Covenants, & Restrictions with the ordinances of the City of Kalispell and the Design Guidelines stated herein. In addition to these Design Guidelines, building design will be regulated by City, County, State, and Federal regulatory agencies having jurisdiction. The Owner or his or her agent shall be responsible to ensure compliance with the most recently adopted jurisdictional regulations. 2. Lot Owners and residents of The Glacier Town Center Neighborhood District are informed that adjacent uses may be agricultural. Lot Owners accept and are aware that standard agricultural and farming practices can result without limitation in dust, smoke, animal odors, flies and machinery noise. Standard agricultural practices feature the use of heavy equipment, chemical sprays, periodic burning and the use of machinery early in the morning and sometimes late into the evening. 3. No construction of, or alteration to any improvements whether temporary or permanent, including but not necessarily limited to buildings, walls, earthwork, paving, vegetation, signs, or secondary structures such as utility or trash enclosures, or storage tanks shall be commenced on any lot prior to receiving the written approval of the DRC. 4. Interior modifications and/or improvements that do not alter the exterior appearance of a building or the site improvements shall not require the approval of the DRC. B. Section 2. General Development Parameters: Density 1. Density: Not more than one single-family residence may be built on each single-family residential lot. 2. Zoning Classification: The following classifications for each of the following residential types shall follow the applicable section of the City of Kalispell zoning Ordinance, unless specifically noted otherwise: a. R-3 Single -Family Residential. b. R-4 Town Home Residential. C. Section 3. Allowable uses - Residential 1. Each residential lot shall be used exclusively for residential purposes, and no more than one family (including its servants and transient guests) shall occupy such residence; provided however, that nothing in this subparagraph below shall be deemed to prevent: a. Construction of detached garages shall be in accordance with the Covenants and Design Guidelines. b. The leasing of any lot from time to time by the Owner thereof, subject, however, to all of the restrictions as may be adopted from time to time by the Owner's Association. 2. Allowable uses are as per the Kalispell Zoning Ordinances, with the exceptions listed below. D. Section 4. Prohibited uses for each applicable classification are as follows: 1. R-3 Single -Family and R-4 Town Home Residential: a. Day care (family or group day-care homes) b. Safe houses and domestic violence shelters. Glacier Town Center. Neighborhood District Kalispell, Montana Page 18 Codes, Covenants, & Restrictions E. Section 6. Prohibited Uses — Community Center The Community Center site is not allowed to be used for public infrastructure such as a fire station, police station, etc. F. Section 7. Building Envelope Each building lot in The Glacier Town Center Neighborhood District shall have, a building envelope surveyed and located on site established by the setbacks. All dwellings, exterior parking spaces, garages, sheds, carports, porches, and decks shall be contained within the building envelope. Swimming pools may be located outside of, but immediate to the building envelope, however, adequate and acceptable screening and fencing must be provided. G. Section 8. Maximum Lot Coverage The maximum allowable coverage of any lot by any built surface (driveway, garage, primary residence, auxiliary structure, decking, etc.) shall be no greater than 35% of the lot including said setbacks. H. Section 9. Setbacks 1. Single -Family (R-3) Residential setbacks a. Front Yard: Twenty (20) feet b. Side Yard: Ten (10) feet c. Side Corner yard: Twenty (20) feet d. Rear Yard: Ten (10) feet 2. Residential (R-4) Town Home setbacks: As shown on the Glacier Town Center conceptual Site Plan as submitted in the PUD, dated September 7, 2007. a. Front Yard: Fifteen (15) feet b. Side Yard: Five (5) feet c. Rear Yard: Ten (10) feet d. Shared Side Yard: Zero (0) feet e. Side Corner Yard: Fifteen (15) feet f. Garage: Twenty (20) feet from the front property line I. Section 10. Additional Provisions 1. Tennis courts, swimming pools and other areas of active use and noise shall be buffered from adjacent properties. 2. Additional setbacks from tree masses, native vegetation transition zones, topography, drainage, view corridors, roads, paths and utility easements shall be enforced by the DRC. 3. A minimum setback of 100 feet is required for all buildings adjacent to declared wetlands and 50 feet to all other declared waterways. Glacier Town Center. Neighborhood District Kalispell, Montana Page 19 Codes, Covenants, & Restrictions 4. Any building envelope overlapping with front, rear or side yard setbacks shall be restricted by the required setbacks. J. Section 11. Maximum building Footprints and Minimum Floor Areas 1. Single family residences shall have a maximum building footprint of 3400 SF or 35% of lot square footage (whichever is less), including exterior parking spaces, garages, carports, porches, and decks. 2. The minimum floor area at or above ground level (single floor) of any single family residence shall not be less than 1800 SF for a single story home and not less than 1600 SF on the main level for a two-story home. Minimum square footage for a two-story home shall not be less than 2400 SF. These square footages are exclusive of exterior parking spaces, garages, carports, porches and decks. The ground level (walkout) portion of a basement shall be considered in the calculation of minimum floor area. Each principal residential structure shall have at a minimum, an attached or detached single -car garage, with not more than a three car garage on any one lot. 3. Maximum total square footage of any residence and its associated auxiliary buildings shall be 6000 SF or 35% of lot square footage, whichever is less. 4. Residential Town Home residences shall have a maximum building footprint of 1800 SF or 45% of the lot square footage (whichever is less), including exterior parking spaces, garages, carports, porches, and decks. K. Section 12. Building Height Maximum allowable building height is set at 35 feet from the natural ground surface to the highest ridge of said construction for residential developments. L. Section 13. Applicable Codes 1. Glacier Town Center Neighborhood District Design Guidelines 2. Covenants of The Glacier Town Center Neighborhood District 3. Uniform Business Code (UBC) 4. National Electric Code 5. Uniform Mechanical Code 6. Uniform Fire Code 7. National Fire Protection Association Code 8. State Fire Code Standards 9. Montana Energy Code 10. All other applicable County, State, and Federal Regulations Glacier Town Center. Neighborhood District Kalispell, Montana Page 20 Codes, Covenants, & Restrictions XIV. Article XIV. Construction Procedures A. Section 1. Approvals Required Prior to Construction Commencement 1. Permits a. Construction shall not commence until Final Plan Approval has been received form the DRC and a building permit has been issued by appropriate agencies. Building construction must strictly conform to the approved final plan and must be completed within eighteen (18) months after obtaining the building permit unless specific written extension is granted by the DRC. b. No accessory structure, buildings, garages, or sheds shall be constructed or maintained on any lot prior to the construction of the main structure of the residence provided however, that the provisions of this sub -paragraph shall not apply to temporary construction shelters which may be constructed for use after the issuance of the residence's building permit. 2. Approvals All modifications to previously approved site, landscape and architectural plans must be submitted and approved by the DRC. B. Section 2. Construction Regulations 1. Noise Abatement and Hours of Work a. Blasting, heavy equipment operation and other loud noise from construction is prohibited between 7:30 p.m. and 6:30 a.m. All blasting will require prior written approval of the DRC. The owner/owner's agent shall take necessary precautions and notify adjacent property Owners, local traffic, pedestrians, etc. prior to blasting. C. Section 3. Construction Staging and Material Storage All construction staging, including but not limited to, daily vehicular movement and parking, material storage, equipment storage, construction trailers, etc., must take place within the lot for which the building permit was issued unless an alternate staging area is approved in writing by the P.O.A. D. Section 4. Trash Containment and Removal 1. Trash and construction debris shall be kept in containers, and be emptied on a regular basis to insure sufficient room to store trash at the end of each working day. It shall be the responsibility of the general contractor to remove and dispose of, at an authorized county land fill, any excess trash and construction debris. Glacier Town Center. Neighborhood District Kalispell, Montana Page 21 Codes, Covenants, & Restrictions 2. Open burning shall be prohibited outside of personal fire pits no larger than three (3) feet in diameter. No burning shall take place in conditions where there is a moderate or high fire risk potential posted by the local forest service office. E. Section 5. Tree and Property Protection 1. Construction practices must include care during grading and excavation to avoid damage to existing trees, shrubs, and their root structures. 2. All construction equipment and activity including vehicular movement, unloading or daily parking, as well as stockpiling of materials and topsoil must be kept within the perimeter of the lot unless written authorization is received from the DRC. Any adjacent property including roads or common grounds damaged during construction shall be promptly restored a re -vegetated to the satisfaction of the DRC. If such restoration is not completed promptly, the DRC will contract for the repairs with all costs charged to the person in whose name the Final Plan approval was issued. F. Section 6. Temporary Structures A small job office or trailer may be located on the site during the construction period. The job office must be removed from the site prior to occupancy. G. Section 7. Erosion Control All disturbed areas of the site shall be protected from erosion during and after the construction period. Erosion control measures must be taken during construction to insure soil stabilization, sediment control, and timely re -vegetation. H. Section 8. Building Inspections 1. The DRC will not inspect projects for building code conformance. The DRC will however, from time to time review the construction sites for conformance to these design standards. 2. It is the responsibility of the Applicant or the Applicant's builder to contact the state and other authorities regarding electrical, plumbing and other required inspections for building code conformance. XV.Article XV. Waiver Neither Declarant or the Neighborhood Association nor their successors or assigns shall be liable to any Owner or Occupant of the Property by reason of any mistake in judgment, negligence, nonfeasance, action or inaction or for the enforcement or failure to enforce any provision of this Declaration. Every Owner or Occupant of any said property by acquiring its interest therein agrees that it will not bring any action suit against the Declarant and/or the Association to recover any such damages or to seek equitable relief because of same. Glacier Town Center. Neighborhood District Kalispell, Montana Page 22 Codes, Covenants, & Restrictions XVI. Article XVI. Amendment These covenants shall remain in effect until amended or terminated. The covenants, or any portion thereof, may be amended, terminated, or supplemented at any time by the execution of a written document containing the terms of the amendment, supplement or termination of any of the covenants, duly acknowledged by a Notary Public, and recorded with the office of the Flathead County Clerk and Recorder, executed by at least two-thirds (2/3) of the Owners of the property based on one vote per lot, EXCEPT as noted below. If there is more than one owner for a lot, each owner must execute the amendment, supplement or termination document to count for one vote towards the two-thirds total. The easements for roads, utilities, and common areas shall not be changed without the unanimous consent of all of the Owners affected by the change. 1. The President or Vice -President shall execute and record the amendment, change or addition with the Clerk and Recorder of Flathead County, Montana. 2. Any change of these Covenants shall be effective upon the filing and recording of such an instrument in the office of the Flathead County Clerk and Recorder. Any change in these Covenants shall not affect existing structures and uses of the lots. XVII. Article XVII. Severability Captions and paragraph headings are designated herein as a matter of convenience. A determination of invalidity of any portion of these covenants shall not in any manner affect the other portions or provisions. XVIII. Article XVIII. Design Review Process A. Section 1. The design review process must be followed for any of the following: 1. Construction of any building 2. Renovation, expansion, or refinishing of the exterior of any building 3. Interior changes which affect the major function of a building 4. Major landscape, road or parking changes 5. Exterior lighting changes B. Section 2. Additional Review Requirements: 1. In addition to meeting the requirements of this manual, an owner must comply with the requirements of all governing agencies including City of Kalispell and the State of Montana in order to obtain a building permit, Certificate of Occupancy, Temporary Certificate of Occupancy, or similar occupancy approval. 2. All architectural and building plans submitted to the DRC shall be of an architectural quality submitted by a licensed architect or architectural designer. All site, landscape and irrigation plans shall be submitted by a certified irrigation designer, landscape architect or landscape designer. The DRC shall reject materials, designs, and colors Glacier Town Center. Neighborhood District Kalispell, Montana Page 23 Codes, Covenants, & Restrictions submitted with the plans, and the plans themselves, if they are not compatible or are inappropriate with the overall plan of the subdivision. 3. The Design Review Process has two steps: Initial Plan Review and Final Plan Approval. It is recommended that Owners follow this two step process for any major building project. However, Owners may submit materials for Final Plan Review and Approval without an Initial Plan Review. In addition, the owner may appeal the DRC's decision to The Property Owner's Association. Upon appeal, the POA's decision shall be final and binding. C. Section 3. Initial Plan Review: 1. The Initial Plan Review addresses the conceptual design of the project. The review will address existing site conditions and planned improvements, building floor plans and elevations, roof design, architectural character or expression, exterior materials, grading, drainage, and erosion control measures. Reference Initial Plan Review Checklists and Evaluation Criteria for complete submission requirements. 2. The Initial Plan Review includes the following steps: a. Owner/Architect prepare and submit to the DRC two copies of the Initial Plan which will include all information required by the Initial Plan Review Checklist. b. DRC reviews Initial Plan at scheduled meeting and notifies owner in writing of the findings within ten (10) working days of receipt of the Initial Plan. c. If necessary, the Owner may resubmit an Initial Plan or appeal to the P.O.A. within thirty (30) working days of receipt of the DRC review of the prior Initial Plan. D. Section 4. Final Plan Review and Approval 1. The Final Plan Review and Approval addresses the final design details of the project. The review will address planned improvements, building elevations, building sections, roof design, architectural character or expression, exterior materials, site conditions, grading, drainage and erosion control measures. Reference Final Plan Review Checklist and Evaluation Criteria for complete submission requirements. 2. The Final Plan Review and Approval includes the following steps: a. Upon approval of the Initial Plan the owner/architect shall prepare and submit two copies of the final plan which shall include all information required by the Final Plan Review Checklist. b. DRC will notify owner in writing of the Final Plan Approval decision within ten (10) working days. c. Upon issuance of written approval, owner may apply for a building permit and design approval from the governing authorities. 3. Chapter XX of the Design Guidelines document contains the Checklist Forms, listing the required steps and submittals needed for both the Initial Plan Review and the Final Plan Review. To make sure that the Lot Owner, the Owner's Architect, Builder or their representative files a complete Submittal Package with the DRC at each stage of the Glacier Town Center. Neighborhood District Kalispell, Montana Page 24 Codes, Covenants, & Restrictions review, it is recommended that these forms be used during the compilation of needed materials prior to scheduling a review by the DRC. END OF CC&R'S Glacier Town Center. Neighborhood District Kalispell, Montana Page 25 Codes, Covenants, & Restrictions