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Home My WebLink About10-23-17 City Commission Packet Materials - A3. University Crossing Minor Sub Preliminary Plat17396, Staff Report for University Crossing MiSub Page 1 of 18 17396, Staff Report for University Crossing MiSub Preliminary Plat Public Hearing Date: City Commission meeting is on October 23, 2017 at 6:00 pm Project Description: A preliminary plat application for a proposed commercial five lot minor subdivision of an existing 3.02-acre tract of record to create three commercially zoned lots, one open space lot, and dedicate right-of-way. Project Location: The property is addressed at 1915 South 19th Avenue, legally described as Tract 1A, COS 2008A, situated in the South East One-Quarter (SE ¼) of Section 14, Township Two South (T2S), Range Five East (R5E), P.M.M., Gallatin County, Montana, Plat J-498. The property is zoned B-2 (Community Business District). Recommendation: Approval with conditions. Recommended Motion: “Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 17-396 and move to approve the University Crossing Minor Subdivision Preliminary Plat with conditions and subject to all applicable code provisions.” Report Date: October 18, 2017 Staff Contact: Tom Rogers, Senior Planner Agenda Item Type: Action (Quasi-judicial) EXECUTIVE SUMMARY Unresolved Issues There are no known unresolved issues at this time. Project Summary The property owner and applicant, 19th Capital Group, LLC, 322 W. Mendenhall Street, Bozeman, MT 59715, represented by C&H Engineering and Surveying, Inc., 1091 Stoneridge Drive, Bozeman MT 59718 submitted an application to subdivide 3.0211 acres into three commercial lots, open space, and dedicate street right-or-way. No parkland is required. No additional streets or similar improvements are requested or required with the proposed subdivision. Additionally, no subdivision or zoning variances are needed or requested with this application. The existing Crowley|Fleck building, approved in 2013, site plan review and approval contemplated future subdivision of the property to allow additional buildings to be constructed on site. The plat matches the approved site plan. 46 17396, Staff Report for the University Crossing MiSub Page 2 of 18 This is a first minor subdivision from a tract of record. The final decision for a first minor subdivision Preliminary Plat must be made within 35 working days of the date it was deemed adequate; or in this case by October 25, 2017. Alternatives 1. Approve the application with the recommended conditions; 2. Approve the application with modifications to the recommended conditions; 3. Deny the application based on the Commission’s findings of non-compliance with the applicable criteria contained within the staff report; or 4. Open and continue the public hearing on the application, with specific direction to staff or the applicant to supply additional information or to address specific items. TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................ 1 Unresolved Issues ............................................................................................................. 1 Project Summary ............................................................................................................... 1 Alternatives ........................................................................................................................ 2 SECTION 1 - MAP SERIES .......................................................................................................... 3 SECTION 2 – REQUESTED VARIANCES ................................................................................. 7 SECTION 3 - RECOMMENDED CONDITIONS OF APPROVAL ............................................ 7 SECTION 4 - CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS ........................ 8 SECTION 5 - RECOMMENDATION AND FUTURE ACTIONS ............................................ 10 SECTION 6 - STAFF ANALYSIS and findings .......................................................................... 10 Applicable Subdivision Review Criteria, Section 38.03.040, BMC. ............................. 10 Primary Subdivision Review Criteria, Section 76-3-608 ............................................. 12 Preliminary Plat Supplements ....................................................................................... 13 APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY..................................... 16 APPENDIX B–PROJECT DESCRIPTION AND BACKGROUND .......................................... 16 APPENDIX C – NOTICING AND PUBLIC COMMENT ......................................................... 17 APPENDIX D – OWNER INFORMATION AND REVIEWING STAFF ................................. 18 FISCAL EFFECTS ....................................................................................................................... 18 ATTACHMENTS ......................................................................................................................... 18 47 17396, Staff Report for the University Crossing MiSub Page 3 of 18 SECTION 1 - MAP SERIES 48 17396, Staff Report for the University Crossing MiSub Page 4 of 18 Zoning Map Growth Policy Designation Map Subject Property Subject Property 49 17396, Staff Report for University Crossing MiSub Page 5 of 18 50 17-396, Staff Report for the University Crossing MiSub Page 6 of 18 Development Review Division Policy and Planning Division Building Division 51 17396, Staff Report for the University Crossing MiSub Page 7 of 18 SECTION 2 – REQUESTED VARIANCES No subdivision or zoning variances are requested with this preliminary plat application. SECTION 3 - RECOMMENDED CONDITIONS OF APPROVAL Please note that these conditions are in addition to any required code provisions identified in this report. These conditions are specific to the preliminary plat application. Recommended Conditions of Approval: 1. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way, create a deviation or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law. 2. The final plat must conform to all requirements of the Bozeman Municipal Code and the Uniform Standards for Monumentation, Certificates of Survey, and Final Subdivision Plats (24.183.1101 ARM, 24.183.1104 ARM, 24.183.1107 ARM) and must be accompanied by all required documents, including certification from the City Engineer that record drawings for public improvements were received, a platting certificate, and all required and corrected certificates. 3. Prior to final plat approval an executed waiver of right to protest the creation of special improvement districts (SIDs) for a park maintenance district will be required to be filed and of record with the Gallatin County Clerk and Recorder, unless already filed with annexation. 4. The final plat shall include the following certificate: CERTIFICATE OF TRANSFER OF OWNERSHIP & COMPLETION OF NON-PUBLC IMPROVEMENTS The following are hereby granted and donated to the property owners association noted below for their use and enjoyment: (insert description and designations, e.g. open space parcels, storm water, etc. with each parcel having its own description like open space parcel A which corresponds to the labels on the plat face). Unless specifically listed in the Certificate of Dedication, the city accepts no responsibility for maintaining the same. I, (insert subdivider), hereby further certify that the following non-public improvements, required to meet the requirements of Chapter 38 of the Bozeman Municipal Code, or as a condition(s) of approval of the subdivision plotted herewith, have been installed in conformance with any approved plans and specifications prepared in accordance with the standards of Chapter 38 or other City design standards, or have been financially guaranteed and are covered by the subdivision improvements agreement accompanying and recorded with this plat. Installed Improvements: (list as appropriate - STORM DRAINAGE, DETENTION PONDS, COMMON OPENSPACE IMPROVEMENTS EXCLUDING THOSE LISTED BELOW). 52 17396, Staff Report for the University Crossing MiSub Page 8 of 18 Financially Guaranteed Improvements: (list as appropriate - COMMON OPEN SPACE IRRIGATION & LAWN.) The subdivider hereby grants ownership of all non-public infrastructure improvements to the property owners association created by Document Number____________________. (To be filled in when recorded) By: _________ , Subdivider Date: ________________ 5. The subdivider must provide the necessary declaration and recitals to facilitate the property owners’ association bylaws and/or declaration of covenants, conditions and restrictions. Any cost sharing agreements for maintenance must be included with the final plat. 6. The applicant shall submit with the application for Final Plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code provisions have been satisfactorily addressed, and shall include a digital copy (pdf) of the entire Final Plat submittal. This narrative shall be in sufficient detail to direct the reviewer to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal. 7. The applicant shall provide and file with the County Clerk and Recorder's office executed Waivers of Right to Protest Creation of Special Improvement Districts (SID’s) for the following: a. Street improvements to Kagy Boulevard including paving, curb/gutter, sidewalk, lighting, and storm drainage. b. Street improvements to S. 19th Avenue including paving, curb/gutter, sidewalk, lighting, and storm drainage. c. Intersection improvements to the intersection of Kagy Boulevard and S. 19th Avenue. The document filed shall specify that in the event an SID is not utilized for the completion of these improvements, the developer agrees to participate in an alternate financing method for the completion of said improvements on a fair share, proportionate basis as determined by square footage of property, taxable valuation of the property, traffic contribution from the development, or a combination thereof. The applicant must provide this item prior to final plat approval. SECTION 4 - CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS 1. Pursuant to section 38.26.060, BMC a 10 foot public utility easement must be shown on the final plat, south of the existing 15 foot public street easement and utility easement (Doc #2303763) prior to final plat approval. The existing public road and utility easement is insufficient to meet minimum ROW requirements for a Principle Arterial road section. An additional 10 foot public utility easement is required. 2. Pursuant to section 38.06.030 Mortgagee – If there are liens or mortgages against the property the appropriate Mortgagee certificate must be included. A preliminary title report was not 53 17396, Staff Report for the University Crossing MiSub Page 9 of 18 included with the submittal. Therefore, staff cannot determine whether or not this certificate is required. A title report is required at submittal of final plat. 3. Section 38.27.070 “Landscaping of Public Lands” – Installation by the developer of vegetative ground cover, boulevard trees, and irrigation system in the public right-of-way boulevard strips along all external perimeter development streets and adjacent to public parks or other open space areas is required with the final plat application. Details for required street tree were not submitted with the application. 4. Bozeman Municipal Code (BMC) Section 38.23.060.A states: Where determined to be necessary, public and/or private easements shall be provided for private and public utilities, drainage, vehicular or pedestrian access, etc. The applicant must provide a drainage easement for drainage that will cross lot lines. The applicant must execute and file the easement with the County Clerk and Recorder and provide a copy of the filed easement prior to final plat approval. 5. Bozeman Municipal Code (BMC) Section 38.23.030.A states: The developer shall install complete drainage facilities in accordance with the requirements of the state department of environmental quality and the city, and shall conform to any applicable facilities plan and the terms of any approved site specific stormwater control plan. The city's requirements are contained in the design standards and specifications policy and the city modifications to state public works standard specifications, and by this reference these standards are incorporated into and made a part of these regulations. The applicant must provide a stormwater maintenance plan for the existing stormwater system improvements and incorporate that plan in the property owner’s association documents prior to final plat approval. 6. BMC 38.24.080.A states: City standard sidewalks (including a concrete sidewalk section through all private drive approaches) shall be constructed in all developments on all public and private street frontages, except for alleys. The requirements of the city design standards and specifications policy and the city modifications to state public works standard specifications shall apply. The City parks, recreation, open space, and trails (PROST) plan identifies the need for a shared use path along Kagy Boulevard. A shared use path must be constructed adjacent to the property frontage for the proposed project when the Montana Department of Transportation (MDT) Kagy Boulevard design is finalized, or if the design is not to be finalized prior to future site plan approval, must be constructed as a condition of future site plan approval of Lot 1. The applicant must file a building restriction with Lot 1 that indicates construction of the shared use path must be completed as a condition of future site plan approval of Lot 1. 7. BMC 38.24.090.A states: All final site plans and plats shall contain a statement requiring lot accesses to be built to the standard contained in this section, the city design standards and specifications policy, and the city modifications to state public works standard specifications. A City standard drive access must be constructed to Kagy Boulevard per Standard Drawing 02529-13 when improvements to Kagy Boulevard are complete, or if improvements to Kagy Boulevard will not be built adjacent to this property by the future site plan approval on Lot 1, the access must be constructed as a condition of future site plan approval. The applicant must file a building restriction with Lot 1 that indicates construction of the drive access must be completed as a condition of future site plan approval of Lot 1. 54 17396, Staff Report for the University Crossing MiSub Page 10 of 18 SECTION 5 - RECOMMENDATION AND FUTURE ACTIONS Project Name: University Crossing Minor Subdivision Preliminary Plat File: 17-396 The Development Review Committee (DRC) reviewed the Preliminary Plat application on August 30, 2017. On August 30, 2017 the DRC determined the application submittal contained detailed, supporting information that is sufficient to allow for the review of the proposed subdivision; and as a result, finds that the application, with the recommended conditions of approval, is in compliance with the adopted growth policy, the Montana Subdivision and Platting Act and the Unified Development Code. SECTION 6 - STAFF ANALYSIS AND FINDINGS Analysis and resulting recommendations are based on the entirety of the application materials, municipal codes, standards, and plans, public comment, and all other materials available during the review period. Collectively this information is the record of the review. The analysis is a summary of the completed review. Applicable Subdivision Review Criteria, Section 38.03.040, BMC. In considering applications for subdivision approval under this title, the advisory boards and City Commission shall consider the following: 1) Compliance with the survey requirements of Part 4 of the Montana Subdivision and Platting Act The preliminary plat has been prepared in accordance with the survey requirements of the Montana Subdivision and Platting Act by a Professional Engineer registered in the State of Montana. As noted in recommended condition no. 2 the final plat must comply with State statute, Administrative Rules of Montana, and the Bozeman Municipal Code. 2) Compliance with the local subdivision regulations provided for in Part 5 of the Montana Subdivision and Platting Act The final plat shall comply with the standards identified and referenced in the Unified Development Code (UDC). The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as a condition of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or State law. Therefore, the subdivision will be in compliance with the subdivision regulations. 3) Compliance with the local subdivision review procedures provided for in Part 6 of the Montana Subdivision and Platting Act The hearing before the City Commission has been properly noticed as required by the Bozeman UDC. Based on the recommendation of the Development Review Committee (DRC) and other 55 17396, Staff Report for the University Crossing MiSub Page 11 of 18 applicable review agencies, as well as any public testimony received on the matter, the City Commission will make the final decision on the applicant’s request. A preliminary plat application was submitted to the Department of Community Development on August 9, 2017 and was deemed acceptable for initial review on August 22, 2017. The preliminary plat was reviewed by the DRC on August 30, 2017. The DRC and Staff determined the submittal contained detailed and supporting information that is sufficient to allow for the review of the proposed subdivision on September 6, 2017. All supplemental information under 38.41.060, BMC was found to be satisfactory. Public notice for this application was posted with a public notice on October 6, 2017. Public notice was sent to property owners of record within 200 feet of the subject property via first class mail, on August 5, 2017. No comment has been received as of the production date of this report. On October 13, 2017, this subsequent minor subdivision staff report was drafted and forwarded with a recommendation of conditional approval by the Director of Community Development for consideration by the City Commission. The Commission is scheduled to make a final decision at their October 23, 2017. The final decision for a first minor subdivision Preliminary Plat must be made within 35 working days of the date it was deemed adequate; or in this case by October 25, 2017. 4) Compliance with Chapter 38, BMC and other relevant regulations Based on review of the DRC and the Department of Community Development all applicable regulations appear to be met. Some conditions of approval are noted to complete the application processing as the project proceeds to final plat. Pertinent code provisions and site specific requirements are included in this report for City Commission consideration. 5) The provision of easements to and within the subdivision for the location and installation of any necessary utilities As noted under Staff Finding no. 2 above and required by Section 38.23.060.A, all easements, existing and proposed, shall be accurately depicted and addressed on the final plat and in the final plat application. Therefore, all utilities and necessary utility easements will be provided and depicted accordingly on the final plat. 6) The provision of legal and physical access to each parcel within the subdivision and the notation of that access on the applicable plat and any instrument transferring the parcel All of the proposed lots have frontage to public streets constructed to City standards with lot frontage meeting minimum standard shown on the preliminary plat. The required width for a primary arterial, Kagy Blvd., does not currently exist. A code correction is identified for the required easement to meet the requirement. Once provided, the necessary legal access will be available. In addition, pursuant to Section 38.24.090.A, BMC, plats shall contain a statement requiring lot accesses to be built to the standard contained in this section, the city design standards and specifications policy, and the city modifications to state public works standard specifications. 56 17396, Staff Report for the University Crossing MiSub Page 12 of 18 Primary Subdivision Review Criteria, Section 76-3-608 1) The effect on agriculture The subject property is designated as a commercial area according to the City of Bozeman Community Plan. The property is zoned for commercial uses, partially developed as a commercial property, and is adjacent to a primary Arterial Street in the City of Bozeman. Therefore, this subsequent subdivision will have no adverse effects on agriculture. 2) The effect on Agricultural water user facilities No agricultural water user facilities were identified on the subject property. The property is designated as a commercial area according to the City of Bozeman Community Plan. The property is zoned for commercial uses, partially developed as a commercial property, and is adjacent to a primary Arterial Street in the City of Bozeman. Therefore, this subdivision will have no adverse effects on agricultural water user facilities. 3) The effect on Local services Water/Sewer – Municipal water and sewer mains exist in the adjacent street right-of-ways in Kagy Boulevard and South 19th Avenue. The existing building is being served by municipal services. Subsequent development plans for the undeveloped property is undetermined at this time. The developer installed water service stubs (fire and domestic) exist for each proposed lot with the Crowley|Fleck building site plan. Streets – The DRC has determined that the adjacent streets have capacity to accommodate this development. No additional streets or access roads are required with this subdivision. Additional width for Kagy Blvd is needed to provide compliant street width. The additional width will offset the impacts to Kagy Blvd from additional traffic resulting from development of the minor subdivision. Police/Fire – The property is located within the City’s Police and Fire emergency response area. The subdivider must obtain addresses for the new lots from the City Engineer’s Office prior to filing the final plat to facilitate emergency response to the site. Stormwater - The standard requirement for a detailed review of the final grading and drainage plan, and approval by the City Engineer, will be required as part of the infrastructure plan and specification review process prior to final plat approval. Parkland – Additional parkland is not required with this commercial subdivision. 4) The effect on the Natural environment No significant physical or topographical features have been identified, (e.g., outcroppings, geological formations, steep slopes), on the subject property. 5) The effect on Wildlife and wildlife habitat The further subdivision of the existing commercial lot will have little to no impacts on wildlife and wildlife habitat. Further, the project is in an area identified for development. 57 17396, Staff Report for the University Crossing MiSub Page 13 of 18 6) The effect on Public health and safety The intent of the regulations in Chapter 38 of the Bozeman Municipal Code is to protect the public health, safety and general welfare. The subdivision has been reviewed by the DRC which has determined that it is in general compliance with the title. Any other conditions deemed necessary to ensure compliance have been noted throughout this staff report. In addition, all subdivisions must be reviewed against the criteria listed in 76-3-608.3.b-d, Mont. Code Ann. and as a result, the Department of Community Development has reviewed this application against the listed criteria and further provides the following summary for submittal materials and requirements. Preliminary Plat Supplements A subdivision pre-application plan review was completed by the DRC on June 10, 2015. Numerous waivers were requested by the applicant from Section 38.41.060 “Additional Subdivision Preliminary Plat Supplements” with the pre-application plan review application. The Development Review Committee granted the following waivers with the Preliminary Plat Application:1) Surface Water, 2) Floodplains, 3) Groundwater, and 4) Geology-soils-slopes, 5) Vegetation, 6) Wildlife, 7) Historical Features, 8) Agriculture, 9) Agricultural Water User Facilities, 10) Water and Sewer, 11) Stormwater management, 12) Streets, roads and alleys, 14) Educational Facilities. 16) Parks and recreational facilities, 17) Neighborhood center plan, 18) Lighting plan. 19) Miscellaneous, 20) Affordable Housing, A waiver to the supplemental information for the following are not granted: 13) Utilities, and 15) Land use Staff offers the following summary comments on the supplemental information required with Article 38.41, BMC. 38.41.060.A.1 Surface Water Supplemental information waived by the DRC. There are no areas of surface water within the subdivision. 38.41.060.A.2 Floodplains Supplemental information waived by the DRC. There are no floodway or flood plain areas within 2,000 horizontal feet of the subdivision. 58 17396, Staff Report for the University Crossing MiSub Page 14 of 18 38.41.060.A.3 Groundwater Supplemental information waived by the DRC. Groundwater is known and will be considered with subsequent development applications. 38.41.060.A.4 Geology, Soils and Slopes Supplemental information waived by the DRC. There are no known geologic hazards associated with the site. The property is relatively flat minimizing geologic hazards. 38.41.060.A.5 Vegetation Supplemental information waived by the DRC. No significant or critical vegetation exists on the subject property. Noxious weeds are being controlled by the required Noxious Weed Management Plan. In addition, there are ongoing performance measures required with the Weed Management Plan to insure control of noxious weeds on site. 38.41.060.A.6 Wildlife Supplement information waived by the DRC. This is a developing urban area. The property is designated as an commercial area according to the City of Bozeman Community Plan. The property is zoned for commercial development and is within a developed commercial corridor. Although there are incidental small animals residing on this and adjacent property infill development within the City limits will occur. 38.41.060.A.7 Historical Features Supplemental information waived by the DRC. This is a developing urban area. There are no known cultural resources historical structures existed on the site. 38.41.060.A.8 Agriculture Supplemental information waived by the DRC. This is a developing area and this property is not used for agriculture. 38.41.060.A.9 Agricultural Water User Facilities Supplemental information waived by the DRC. There are no agricultural water user facilities on or adjacent to the subject property. 38.41.060.A.10 Water and Sewer Water for domestic and fire protection will be provided by connections to the City of Bozeman water system. As noted earlier in this report water stubs were installed with the existing site development in appropriate locations for the proposed lot lines. Sewer lines will be required with subsequent development. Wastewater collection is installed under the excess road with sufficient capacity to accommodate future development. 59 17396, Staff Report for the University Crossing MiSub Page 15 of 18 38.41.060.A.11 Stormwater Management A stormwater management plan was provided for the existing building and parking on the property. It is anticipated that a stormwater management plan will be provided for the proposed Lot 18-A-2 at the time of site plan review for that lot. 38.41.060.A.12 Streets, Roads and Alleys No new streets, roads or alleys are proposed with this preliminary plat. Future development of proposed Lot 18-A-2 will require the construction of a drive access meeting the requirements of Section 38.24.090, BMC. To insure that the proposed easement for the shared access is sufficient to allow vehicular entrance and egress to both lots without encroaching on areas with no easement for Lot 18-A-1 and 18-A-2 Condition No. 6 is included to allow for the additional setbacks for Minor Arterial streets. 38.41.060.A.13 Utilities Utilities are located adjacent to and within the site. The existing public road and utility easement is insufficient to meet minimum ROW requirements for a Principle Arterial road section. Therefore, an additional 10 foot public utility easement is required as required by section 38.26.060, BMC a 10 foot public utility easement must be shown on the final plat, south of the existing 15 foot public street easement and utility easement (Doc #2303763) prior to final plat approval. 38.41.060.A.14 Educational Facilities As this is an industrial subdivision, educational enrollment is not affected. 38.41.060.A.15 Land Use The two proposed lots comply with the existing zoning designation of M-1. 38.41.060.A.16 Parks and Recreation Facilities The development is planned for commercial development and therefore, parkland is not required. However, as required an executed waiver the right to protest the creation of special improvement districts (SIDs) for a park maintenance district will be required to be filed and of record with the Gallatin County Clerk and Recorder, unless already filed with annexation. 38.41.060.A.17 Neighborhood Center Plan A neighborhood center is not included or required with this subdivision. The subdivision does not meet the requirements to require a neighborhood center. 60 17396, Staff Report for the University Crossing MiSub Page 16 of 18 38.41.060.A.18 Lighting Plan Subdivision or street lighting is not required pursuant to Section 38.23.150.B, BMC. No lighting is being proposed with this subdivision. 38.41.060.A.19 Miscellaneous The subdivision will not impact access to any public lands and there are no identified hazards in proximity to the subject property. 38.41.060.A.20 Affordable Housing Supplemental information waived by the DRC. The Workforce Housing Ordinance (Ordinance 1710) had been suspended by the City Commission. Subsequently, the City has adopted an inclusionary housing ordinance. This project does not count towards the City’s affordable housing goals. APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY Zoning Designation and Land Uses: The subject property is zoned “B-2” (Community Business District). The intent of the B-2 community business district is to provide for a broad range of mutually supportive retail and service functions located in clustered areas bordered on one or more sides by limited access arterial streets. Adopted Growth Policy Designation: The property is designated as “Community Commercial Mixed Use” in the Bozeman Community Plan. The Plan indicates that, “Activities within this land use category are the basic employment and services necessary for a vibrant community. Establishments located within these categories draw from the community as a whole for their employee and customer base and are sized accordingly. A broad range of functions including retail, education, professional and personal services, offices, residences, and general service activities typify this designation.” APPENDIX B–PROJECT DESCRIPTION AND BACKGROUND Project Description The property owner 19th Capital Group, LLC, represented by C&H Engineering and Surveying, Inc., submitted a preliminary plat application to further subdivide 3.36 acres into two light industrial zoned lots. No parkland is required. No additional streets or 61 17396, Staff Report for the University Crossing MiSub Page 17 of 18 similar improvements are requested or required with the proposed subdivision. Additionally, no subdivision or zoning variances are requested with this application. This is a first minor subdivision from a tract of record. Project Background The parent tract was created by COS 1837 in 1994 and expanded by boundary relocation in in 2010 (COS 2008-A)) to accommodate the current development. In 2013 application was submitted to construct the Crowley|Fleck commercial building on the property, see application Z-13174. The site plan shows proposed lot lines in anticipation of the University Crossing minor subdivision. A preliminary plat application was submitted to the Department of Community Development on August 9, 2017 and was deemed acceptable for initial review on August 22, 2017. The preliminary plat was reviewed by the DRC on August 30, 2017. The DRC and Staff determined the submittal contained detailed and supporting information that is sufficient to allow for the review of the proposed subdivision on September 6, 2017. All supplemental information under 38.41.060, BMC was found to be satisfactory. Public notice for this application was posted with a public notice on October 6, 2017. Public notice was sent to property owners of record within 200 feet of the subject property via first class mail, on August 5, 2017. No comment has been received as of the production date of this report. On October 13, 2017, this subsequent minor subdivision staff report was drafted and forwarded with a recommendation of conditional approval by the Director of Community Development for consideration by the City Commission. The Commission is scheduled to make a final decision at their October 23, 2017. The final decision for a first minor subdivision Preliminary Plat must be made within 35 working days of the date it was deemed adequate; or in this case by October 25, 2017. APPENDIX C – NOTICING AND PUBLIC COMMENT Public notice for this application was posted with a public notice on October 6, 2017. Public notice was sent to property owners of record within 200 feet of the subject property via first class mail, on October 5, 2017. No comment has been received as of the production date of this report. On October 13, 2017, this subsequent minor subdivision staff report was drafted and forwarded with a recommendation of conditional approval by the Director of Community Development for consideration by the City Commission. The Commission is scheduled to 62 17396, Staff Report for the University Crossing MiSub Page 18 of 18 make a final decision at their October 23, 2017. The final decision for a first minor subdivision Preliminary Plat must be made within 35 working days of the date it was deemed adequate; or in this case by October 25, 2017. APPENDIX D – OWNER INFORMATION AND REVIEWING STAFF Owner: 19th Capital Group, LLC, Bozeman, MT 59715 Representative: C&H Engineering and Surveying, Inc., 1091 Stoneridge Drive, Bozeman MT 59718 Report By: Tom Rogers, AICP, Senior Planner FISCAL EFFECTS No unusual fiscal effects have been identified. ATTACHMENTS 1. Staff Report 2. Applicant’s submittal materials The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street. 63 A1 Development Review Application A1 Page 1 of 3 Revision Date 01-04-16 Required Forms: Varies by project type Recommended Forms: Presentation of submitted plans and specifications DEVELOPMENT REVIEW APPLICATION 1. PROJECT Development Name: Description: 2. PROPERTY OWNER Name: Full Address: Phone: Email: 3. APPLICANT Name: Full Address: Phone: Email: 4. REPRESENTATIVE Name: Full Address: Phone: Email: 5. PROPERTY Full Street Address: Full Legal Description: Current Zoning: Current Use: Community Plan Designation: 64 Development Review Application A1 Page 2 of 3 Revision Date 01-04-16 Required Forms: Varies by project type Recommended Forms: Presentation of submitted plans and specifications Overlay District: Neighborhood Conservation Entryway Corridor None Urban Renewal District: Downtown North 7th Avenue Northeast None 6. STATISTICS (ONLY APPLICATION TYPES 2-12, 17, 24 AND 26) Gross Area: Acres: Square Feet: Net Area: Acres: Square Feet: Dwelling Units: Nonresidential Gross Building Square Feet: 7. APPLICATION TYPES Check all that apply, use noted forms. Form Form 1. Pre-application Consultation None 17. Informal Review INF 2. Master Site Plan MSP 18. Zoning Deviation None 3. Site Plan SP 19. Zoning or Subdivision Variance Z/SVAR 4. Subdivision pre-application PA 20. Conditional Use Permit CUP 5. Subdivision preliminary plat PP 21. Special Temporary Use Permit STUP 6. Subdivision final plat FP 22. Comprehensive Sign Plan CSP 7. Subdivision exemption SE 23. Regulated Activities in Wetlands RW 8. Condominium Review CR 24. Zone Map Amendment (non Annexation) ZMA 9. PUD concept plan PUDC 25. UDC Text Amendment ZTA 10. PUD preliminary plan PUDP 26. Growth Policy Amendment GPA 11. PUD final plan PUDFP 27. Modification/Plan Amendment MOD 12. Annexation and Initial Zoning ANNX 28. Extension of Approved Plan EXT 13. Administrative Interpretation Appeal AIA 29. Reasonable Accommodation RA 14. Administrative Project Decision Appeal APA 30. Other: 15. Commercial Nonresidential COA CCOA 1 6. Historic Neighborhood Conservation Overlay COA NCOA 8. APPLICATION FEES AND MATERIALS A. Fees are to be provided based upon the adopted fee schedule FS. Contact our office for an estimate. 65 Development Review Application A1 Page 3 of 3 Revision Date 01-04-16 Required Forms: Varies by project type Recommended Forms: Presentation of submitted plans and specifications B. Application materials shall be submitted for each application as shown in the specific guidance and checklists that is provided for each application type. A common development review application form and common notice materials may be provided for an application that includes more than one application type. All other application materials shall be submitted for each individual application type per the project guidance and checklists. 9. CERTIFICATIONS AND SIGNATURES This application must be signed by both the applicant(s) and the property owner(s) (if different) for all application types before the submittal will be accepted. The only exception to this is an informal review application that may be signed by the applicant(s) only. As indicated by the signature(s) below, the applicant(s) and property owner(s) submit this application for review under the terms and provisions of the Bozeman Municipal Code. It is further indicated that any work undertaken to complete a development approved by the City of Bozeman shall be in conformance with the requirements of the Bozeman Municipal Code and any special conditions established by the approval authority. I acknowledge that the City has an Impact Fee Program and impact fees may be assessed for my project. Further, I agree to grant City personnel and other review agency representative’s access to the subject site during the course of the review process (Section 38.34.050, BMC). I (We) hereby certify that the above information i s true and correct to the best of my (our) knowledge. Certification of Completion and Compliance – I understand that conditions of approval may be applied to the application and that I will comply with any conditions of approval or make necessary corrections to the application materials in order to comply with municipal code provisions. Statement of Intent to Construct According to the Final Plan – I acknowledge that construction not in compliance with the approved final plan may result in delays of occupancy or costs to correct noncompliance. Applicant Signature: Printed Name: Owner Signature: Printed Name: Owner Signature Printed Name: If signing as a corporation, please provide the title and position of the individual signing on behalf of the corporation. Attach separate sheets for additional owner signatures. CONTACT US Alfred M. Stiff Professional Building 20 East Olive Street 59715 (FED EX and UPS Only) PO Box 1230 Bozeman, MT 59771 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net 66 PLS Plans and Specifications PLS Page 1 of 4 Revision Date 5-1-17 Required Forms: Applies to all applications Other Forms: None. PLANS AND SPECIFICATIONS INTRODUCTION In order for city staff to efficiently review your project in a timely manner, the application materials and the plan sets submitted must be clear, complete and thorough. This handout provides additional details for the application requirements outlined in the project checklists. If the requirements of this handout are met with your application it will minimize the delays that can occur when an application is unclear, incomplete or not formatted correctly. These requirements are mandatory. If the application materials do not meet these standards they will require correction, which will delay your project. GENERAL PLAN REQUIREMENTS 1. All plans and drawings must be accurately drawn, using a conventional scale such as 1:20 or 1:1/4, and with only one scale per sheet. Details may contain a separate scale if clearly labeled. 2. All text and annotations should be at a font size to enable it to be easily read – 10 point or more. Many plan sets require that 11” x 17” plan sizes be submitted. The text and annotations on plans that size must be readable when printed at that size. If plans are unreadable at the 11” x 17” size, they will not be accepted for review. 3. Plan sizes must meet minimum and maximum size requirements. No plans outside of the stated sizes will be accepted. 4. Plans/drawings must not contain disclaimers such as “Not to Scale” and “Do Not Scale.” (perspectives excepted) and drawings must be drawn true to the stated scale(s). 5. Plans must not contain disclaimers such as “Preliminary” and “Not for Construction.” 6. Provide all relevant measured dimensions annotated on the plans/drawings. For example label typical dimensions of parking spaces, drive accesses, drive aisles and sidewalks. 7. Consistent detailing. All existing and proposed site plan elements (e.g., sidewalks, parking spaces, fire lanes, building foot prints, etc.) must be labeled (unless a legend is provided) and dimensioned (unless a detail is provided). 8. The clearest way to present proposals is to group “existing” and “proposed” drawings side by side, using the same scale for both. 9. Each sheet and/or drawing must have a title box with the drawing name, sheet number and date clearly visible in bold. If sheets are updated or revised a new date must be applied to the sheet. For example, the civil utility plans might be labeled: C2.0 Utilities 05-01-2017. This is important as this will also be the digital file name. See naming protocol below. 10. The use of a title sheet for all general information, project team, data, calculations (parking, parkland, open spaces, and table of contents is required. The title must appear in bold letters across the top of the cover sheet. If the site plan includes a conditional use include the words “and Conditional Use.” 11. If the project is part of an existing development the name of the existing development must appear in the title. For example, “Arbys at Bozeman Gateway” or “Building K at the Cannery District.” 12. The vicinity map with zoning must be on the cover page. 13. A table of contents or plan schedule for all sheets in the plan set must be included on the title sheet with a date for each sheet. If revisions are required, the title sheet must be updated to reflect all revised sheets with a new date. 14. Fully annotated plans and drawings are more understandable, e.g. if a line is shown on the plan between two properties or other conditions such as easements, it must be annotated by adding descriptors to clarify the site condition. 67 Plans and Specifications PLS Page 2 of 4 Revision Date 5-1-17 Required Forms: Applies to all applications Other Forms: None. 15. A legend for all line types and symbols must be included on plan sets. 16. The plan sheets must not be overly congested with line types. When in doubt produce an extra sheet that separates the information. For example, produce a separate utility and easement sheet for utilities to clarify that information if the overall site plan contains too many lines and line types. 17. In general, the plan sheets are where most project information must be included. Separate cut sheets, exhibits, and summary tables on 8 1/2” by 11” will not be accepted. The only exception is for project narratives, property owners’ association documents, SID documents, easements, agreements, maintenance plans, water rights information, payback district information, contracts, deeds, weed plans, and standalone technical reports such as traffic studies, wetland reports, sewer and water reports, environmental, etc. PARKLAND TRACKING REQUIREMENTS 1. Parkland tracking on plans is required in 38.27.020BMC. This only applies to projects with residential development or residential units. 2. Documentation of compliance with the parkland dedication requirements of Section 38.27.020, UDC must be provided with the final plat, preliminary plat layout (park site plan) or individual development site plan (if previously subdivided). A parkland dedication tracking table showing the parkland requirements for the overall subdivision and the method of meeting the parkland dedication shall be included on the site plan. The table shall explicitly state how much parkland acreage, cash-in-lieu, or value of improvements-in-lieu was approved and allocated, as well as what is being proposed, for each lot of the subdivision or site development. 3. If residential development, each phase, lot or individual site plan of the development must have a copy of the parkland dedication tracking table provided below included on the site plan. Contact the Parks Department if you have questions on how to fill out the table. 4. If improvements in lieu are proposed for an existing park within the subdivision, a detailed park improvement site plan, including layout and product manufacturer cut sheets with a cost estimate for all improvements must be provided for Parks Department review. The Parks Department will provide a comparison chart indicating the value of code-required basic improvements versus proposed improvements. 5. Unless previously provided, provide the appropriate waiver of protest for future park maintenance district statement on the plat or site plan. Contact the Parks Department if you are uncertain if a waiver has been granted. 6. The parkland dedication tracking table that must be included on plans is as follows. If you have questions on how to fill out this table contact the Parks Department. PUBLIC PARK LAND DEDICATION TRACKING TABLE CURRENT PREVIOUS PHASES SUBDIVISION NAME: _______________________ PROJECT NAME: ___________________________ TOTAL FOR SUBDIVISION THIS PROPOSAL PHASE / LOT ___________ PARK DED AC CIL &/OR IIL PHASE / LOT __________ PARK DED AC, CIL &/OR IIL PHASE/LOT* __________ PARK DED AC CIL &/OR IIL NUMBER OF RES. UNITS PER PHASE / LOT / SITE PLAN: ACREAGE PARK LAND AND / OR CIL REQUIRED: ** VALUE OF IMPROVEMENTS IN LIEU PROPOSED: $___________________ VS. VALUE OF CODE-REQD. BASIC PARK IMPROVEMENTS: $___________________ (ATTACH COMPARISON CHART SPREADSHEET) ACREAGE PARK LAND PREVIOUSLY DEEDED TO COB: 68 Plans and Specifications PLS Page 3 of 4 Revision Date 5-1-17 Required Forms: Applies to all applications Other Forms: None. COLOR AND MATERIAL PALETTE 1. Color and material palettes are required for all new buildings and structures. A color and material palette must include all the proposed exterior building materials for all structures and site details. 2. The exterior building materials must include all siding, trim, roofing, windows, stairways, doors, balconies, railings windows, storefront, glass/glazing, walls, mechanical screening, trash enclosures, accessory equipment enclosures (generator, etc.), awnings and other architectural elements. 3. For smaller less complex projects that are using readily known building materials, a color and material palette may be presented in color on an 11” x 17” sheet that includes a color picture of the material and the specification. Each material must be keyed to the building elevations. 4. For larger, more complex projects the palette must be presented on a physical board with samples of the proposed building materials in their proposed color. Each sample must have a specification and be keyed to the building elevations. 5. Color perspectives that depict the building accurately and with the proposed building materials are encouraged to be submitted with each application. The color perspective does not satisfy the color and materials palette requirement. APPLICATION SETS 1. Application sets are independent sets of information that include one copy of all information submitted with the application. 2. Application sets that include legal documents, letters, technical reports, narratives, studies and other documentation in addition to plan sheets must include a copy of each item in each application set. All documentation of this type must have a visible and clear date of preparation on the front sheet of the document or study. 3. Three total sets of all information are required with most applications. Two of the sets must include full size plans, one set may include 11” x 17” plans. Full size plan set sizes must not exceed 24” x 36.” 4. Application sets must be bound and two hole punched at the top of the page. Three ring binders with three hole punch are not accepted. 5. If 11” x 17” plans are included, do not trifold them. Fold them in half, then fold the right half back on itself at a 45 degree angle in order to accommodate a two hole punch at the top. Plans must be accessible to be unfolded when bound in a two hole file. 6. Application sets should be organized and collated in the following general order 1) cover sheet/routing sheet 2) applications and checklists; 3) narratives/responses/photographs; 4) legal docs: CC&R’s, easements, deeds, agreements, CIL water rights, etc.; 5) plans; 6) appendices: standalone technical reports 7. Project narratives and responses must not be overwritten or provided on the application checklists. If responding to a checklist item provide a response on a separate document. 8. Plans must be grouped by discipline: Civil, Architectural, Landscape and Electrical/Lighting. 9. All plans must be stapled together and folded to a final size of 8 ½” x 11” or 8 ½” x 14”.If the plan set is large the plans must be stapled into sets by discipline and folded independently. State law requires us to keep a full size paper copy of all plans in our files. The plan sets must be folded so that they can be filed in the project archives. ACREAGE PARK LAND YET TO BE CONVEYED: PARK MASTER PLAN APPROVAL DATE: ______________ * INDICATE ADDITIONAL PHASES AS APPLICABLE **SHOW ACTUAL CALCULATIONS 69 Plans and Specifications PLS Page 4 of 4 Revision Date 5-1-17 Required Forms: Applies to all applications Other Forms: None. DIGITAL COPIES AND NAMING PROTOCOL The city requires digital copies of all planning applications in order to produce cost savings, eliminate paper waste and enhance the flow of information between the city, external agencies, neighborhoods and the applicant. The digital copy must include a copy of all documents and plan sheets submitted as part of the application. The following requirements apply to digital copies. 1. Two digital copies are required with most applications. The copies may be on CD or on a USB drive. 2. The digital copies must be separated into three categories: Documents, Plans and Appendices. 3. Naming protocol. Each individual document or plan sheet must have a proper name and date. The name should be easily understandable. Groups of plan sheets or document sets with multiple types of documents will not be accepted. Plan sheets must include the sheet number. For example a document might be labeled “A1 Development Review application 05-01-2017” or “City Parkland Deed 05-01-17.” Plan sheets are required to be listed individually. For example a plan sheet might be labeled “A300 Floor Plan level 1 and 2 05-01-2017” or “PM Photometric Plan 05-01-17.” Do not include other tab, section or other references in the digital file names. 4. No individual files will be accepted that are larger than 5 mb. Files that are larger must be broken down into smaller files. 5. Label all CD’s with the project name and date. Attach a small tag to all USB drive with the project name and date. CONTACT US Alfred M. Stiff Professional Building 20 East Olive Street 59715 (FED EX and UPS Only) PO Box 1230 Bozeman, MT 59771 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net 70 INTRODUCTION The proposed University Crossing Subdivision is a 4-lot commercial minor subdivision located on a 3.02-acre parcel legally described as Tract 1A, COS No. 2008A, according to the plat thereof, on file and of record in the office of the Clerk and Recorder, Gallatin County, Montana, and located in the Southeast Quarter of Section 14, Township 2 South, Range 5 East of P.M.M., City of Bozeman, Gallatin County, Montana. The property is zoned B-2. The site contains the existing Crowley Fleck Office building and associated parking facilities. The preliminary plat shows the concept master site plan for the expansion of the parking lot with two future building pad sites on individual lots. A Common Open Space parcel is provided at the northwest corner of the site for stormwater retention. This subdivision is intended to meet the goals and ideals outlined in the City’s adopted growth policy, the “2020 Community Plan” and the standards included in the City of Bozeman Unified Development Ordinance. RESPONSE TO PREAPPLICATION COMMENTS Please find below the responses to comments received from the City of Bozeman during the preapplication process. DEPARTMENT OF COMMUNITY DEVELOPMENT COMMENTS 1. These waivers have been noted. Additional subdivision preliminary plat supplements which have not been waived are addressed in this submittal. 2. These preliminary plat requirements have been noted. 3. The final plat will include the noted certificates on the Conditions of Approval sheet. Standard Code Provisions 1. A consent of Mortgagee certificate will be included on the final plat if necessary. 2. Cash-in-lieu of water rights will not be provided during the subdivision process as this is a commercial subdivision and the future building uses, sizes, and water demands are unknown at this type. Cash-in-lieu payments for the future buildings will be provided during the site plan review process. A note is included on the preliminary plat (and will be on the final plat). 3. The proposed layout complies with this requirement. 4. The existing stormwater retention pond is contained on an individual lot as a Common Open Space parcel. 5. This item is noted. 6. There are no proposed stormwater facilities with this subdivision. The existing stormwater pond in the Common Open Space parcel will comply with these requirements. 7. This requirement has been noted. 71 8. The property owners’ association documents will contain this boulevard landscaping requirements. 9. This requirement has been noted. 10. Executed waivers of right to protest the creation of SIDs for a park maintenance district will be filed with the final plat application. 11. No subdivision improvements are proposed; therefore, no Improvements Agreements are anticipated. 12. The final plat and property owners’ association documents will include the required sidewalk language. 13. A draft copy of the covenants, restrictions, and articles of incorporation is included in Section 5 of this preliminary plat submittal. 14. The Weed Management Plan is included in Section 3.4 of this preliminary plat submittal. 15. The applicable certificates are included on the plat. 16. The preliminary plat requirements are provided with this preliminary plat submittal. 17. An extension to the pre-application comments was applied for in January 2017. ENGINEERING COMMENTS 1. The original stormwater master plan is included in Section 7 of this preliminary plat application. No changes to the plan have occurred. 2. The owner is aware of this requirement. 3. The owner acknowledges this requirement and will coordinate with City Staff and MDT once design begins on the improvements to Kagy Boulevard. Please see the note on the preliminary plat. 4. Please see the note on the preliminary plat. Cash-in-lieu (CIL) of water rights were provided for the existing Crowley Fleck building on the proposed Lot 3. CIL of water rights will be provided for the future building pad developments once the building use, size, and demand is determined. 5. The owner acknowledges this requirement. Executed waivers will be provided with the final plat application. 6. The owner acknowledges this requirement – any required easements that do not currently exist will be filed with the final plat application. a. Shared parking, drainage, and access easements will be provided once the exact parking lot expansion plan is determined. This will be handled through a future site plan/master site plan modification review. b. The water and sewer main easements have previously been filed, please see the preliminary plat map for reference. 72 c. A public access easement for the private road extension of Stockman Way already exists to the southern boundary of the property. Please see the preliminary plat map for reference. d. A 15’ public street and utility easement exists outside of the Kagy Boulevard right-of-way. Please see the preliminary plat map for reference. 7. The owner acknowledges this requirement. 8. No improvements are proposed with this subdivision. Existing snow storage facilities were review as part of the approved Crowley Fleck site plan. Any future parking lot improvements and the associated snow storage facilities will be reviewed as part of a future site plan application. 73 Square FeetAcresAREA OF LOTS119,1312.7349KAGY BOULEVARD7,0310.1614COMMON OPEN SPACE5,4350.1248TOTAL131,5973.021174 Design Guidelines Development: University Crossings Location: South 19th Avenue & West Kagy Boulevard 75 1 | Page Table of Contents Part 2 – Design Guidelines: Team Contact Information Section 1 – Project Overview 1.1 Project Overview 1.2 Improvements Schedule 1.3 Project Uses Section 2 – Site Guidelines 2.1 Site Design Overview 2.2 Site Design Guidelines 2.3 Site Signage 2.4 Access Circulation and Parking 2.5 Pedestrian Routes and Open Space 2.6 Site Grading and Drainage 2.7 Utilities, Communications and Refuse 2.8 Site Lighting Section 3 – Landscape Design Guidelines 3.1 Landscape Design Overview 3.2 Vegetation 3.3 Hardscape 3.4 Maintenance Section 4 – Building Design 4.1 Building Design Overview 4.2 Dimensional Considerations 4.3 Programmatic Considerations 4.4 Building Exterior 4.5 Building Lighting 4.6 Building Signage Section 5 – Submittal Review Requirements and Procedures 5.1 Design Review Process and Requirements Design Guideline Attachments Attachment 1 – Preliminary Parking Calculations Attachment 2 – Comprehensive Sign Plan 76 2 | Page Project Team Developer: Barry Brown | (406) 581-3837 | barry@cannerydistrict.com | Bozeman, Montana Dan Hitchcock | (406) 223-7957 | danhitchcock@msn.com | Bozeman, Montana Architect: Locati Architects Jerry Locati | (406) 587-1139 | jl@locati.co | Bozeman, Montana Civil Engineer: C&H Engineering Matt Hausauer | (406) 587-1115 | mhausauer@chengineers.com | Bozeman, Montana 77 3 | Page Section 1 – Project Overview 1.1 Project Overview a. Overview The University Crossing design guidelines are intended to create a cohesive development that adds to the character to the extension of South 19th Avenue. The development revitalizes the area while infilling the vacant site adding density to Bozeman’s core. Important design objectives that should guide all site, landscape, and building design in the development are: • Ensure that all new construction or re-development is consistent with the character of that area. Enhance the appearance through streetscaping and building accents. Incorporate signage and lighting that is minimally-applied. Such enhancement features shall exhibit an understated elegance when deemed necessary. • Positive consciousness of inhabitants and the public should motivate all design decisions. Navigating the development by foot or vehicle should be safe, intuitive, and the path of least resistance. b. Intent of Guidelines It is the goal of this Development Manual to set the standards for the planning, design and construction of the development. All entities will use this document as a set of guidelines for creating a quality development. Any un-met code provisions, or code provisions that are not specifically listed, does not in any way create a waiver or other relaxation of lawful requirements of the Bozeman Municipal Code or Montana State law. 1.2 Improvements Schedule It is anticipated that future site plan applications will be made as necessitated by planned building construction. Site plan applications will be made for approval of an individual building and those adjacent common space improvements required for approval of the proposed building. The scope of each phase will be dependent upon the requirements of the individual building. 1.3 Project Uses The Bozeman Growth Policy identifies the future land use of the development as Community Commercial Mixed Use. This use provides basic employment and services necessary for a vibrant community and draws from the community as a whole for their employee and customer base and are sized accordingly. This land use is consistent with uses allowed under the B-2 Zoning designation. As such, all uses allowed or conditionally allowed under B-2 zoning will be allowed or conditionally allowed in the development. 78 4 | Page Section 2 – Site Guidelines 2.1 Site Design Overview The intent of these guidelines is to establish a framework upon which to base site design including site layout, circulation and parking, site drainage, utilities, site lighting and site signage. 2.2 General Site Design Guidelines In addition to the developments design objective in section 1.1, site improvements shall meet the following objectives: - provide necessary emergency vehicle access and associated curb painting; - efficient and appropriately sized vehicle circulation and parking; - safe, concise, and all weather pedestrian pathways to be installed; - the entire site is to be accessible and have pedestrian connections between all structures and the public way; - provide crime prevention through environmental design; - each phase shall address exterior space for the occupants; - only underground utility services to be installed; - meters are to be placed on the least public side of each building or screened so they are not easily seen; - All satellite antennas are to be screened so they are not seen from public ways; - Incorporate security site lighting with the least number of fixtures possible. 2.3 Site Signage The following design guidelines govern the design of all wayfinding signs and signs identifying the development. Signs identifying individual businesses or buildings that are installed by individual pad site owners or building tenants are addressed in Section 4 - Building Design. All site signage will be designed under a comprehensive sign package to assure all site signage is meets the development’s overall aesthetic goal. Following are general design criteria for site signage: 1. The design of all signs should be compatible with development’s overall design guidelines. Sign form, material, texture, and size should comply with Section 4 - Building Design guidelines and strategically integrated with the buildings, landscape and site. 2. All site signs and sign lighting must comply with City of Bozeman Unified Development Code requirements and with the project’s comprehensive sign plan. Prior to the fabricating any site sign, a sign permit must be obtained by the City of Bozeman. Sign Approvals All site signs are required to be approved in writing by the Development Review Committee (DRC) prior to fabrication. Review of signs shall be in accordance with the Design Review Procedures described in Section 5 of these Guidelines. 79 5 | Page 1. Entities applying for signage approvals shall submit complete signage design drawings with sufficient information for the DRC to clearly understand signage locations, size, assembly, mounting methods, materials, and lighting. 2. The following information to be included in all signage approval submittals: - Elevation drawings of the proposed signage with dimensions indicating the size and location of the proposed signage. Drawings should include identification of materials, color schemes, and illumination. - Detail drawings showing sign fabrication techniques, materials, illumination, and mounting systems. - Material samples, when requested by DRC 2.4 Access circulation and parking The Development Master Plan outlines proposed access, circulation, and parking. Alternative designs are acceptable, when the function provided remains the same. The following guidelines address general access, circulation, and parking planning: 1. Parking lot drive aisles should be inter-connected providing appropriate circulation routes. Dead end bays should be minimized and restricted to specific parking needs. Drive aisles shall remain unobstructed and accommodate turning movements required by emergency vehicles, delivery vehicles, and snow removal equipment as required. 2. Development strategies that minimize parking, such as mixed uses, bicycle parking and mass transit are encouraged. 3. Every building shall have associated bike parking in convenient and visible locations. Parking Allocations: Parking within the development is shared through a joint-use agreement. Parking has been preliminarily calculated based on possible uses. These allocations are based on preliminary building sizes and uses and should not be interpreted as a “reservation” for the building. Parking requirements should always be quantified based on a development-wide parking study, in accordance with City requirements, completed with each application. It is the intention of the development that parking allocation remains flexible throughout the life of the project. Ultimately, parking availability may limit the size, use, or re-use of a building. If this occurs, mitigation of parking requirements is encouraged within accordance of City and industry accepted standards. Individual lot owners may be allowed some dedicated parking restrictions, if approved by the DRC, and if the resulting changes make parking use more efficient. An example of this may be accessible spaces, short-term parking, or drop-off parking restrictions near a building’s main entry. 2.5 Pedestrian Routes The Master Plan outlines the proposed pedestrian corridors. Alternative designs for the pedestrian elements are acceptable, when the function provided remains the same. The following guidelines direct the design of general pedestrian access elements: 1. The pedestrian inner site connectivity should be of suitable width and dimension to meet city standards. 2. Pedestrian walkways should be accessible, safe, and convenient. The intent is that all users may conveniently visit multiple locations within the development on foot, without returning to their vehicle. 80 6 | Page 3. Pedestrian walks through the development must connect back to the public way providing connectivity through the development. 4. Pedestrian crossings at high traffic areas should be designed for maximum safety. For instance, crosswalks should be made of a gray concrete with patterned scouring which create a defined path across roads. 2.6 Site Grading and Drainage The following guidelines direct the design of site grading and drainage elements: 1. Incorporate existing site grading and drainage into any future phased site grading and drainage plan to ensure the entire site grading and drainage plan is accommodated. 2. Design finished grades to provide positive drainage of all lawns and paved areas. Surface water shall be directed away from buildings per applicable building codes. 3. Parking lot slopes shall be a minimum of .05% and maximum of 4%. 4. The slope of grass areas should be between 1.5% and 6%. 5. Erosion control methods shall be utilized to prevent siltation onto adjacent properties. 6. Pedestrian hardscapes and plazas are encouraged to have adequate permeable areas to retain runoff from these areas. 7. Where practical, runoff from building roofs is encouraged to be discharged to dry wells. 2.7 Utilities, Communications and Refuse The Master Site development shall include the provision of essential utilities and services. The following are general utilities, communications and refuse guidelines: Water and Sewer 1. Water supply for drinking and fire protection and sewage collection shall be provided by City of Bozeman Municipal System. 2. Plans for water and sewer utilities shall be approved by the City of Bozeman and Montana Department of Environmental Quality. 3. Water for landscape irrigation should be provided by on-site wells or storm water re- use systems, and not be supplied by City municipal systems. 4. Water and sewer mains shall be located within easements allowing the regular access to and repair of these facilities. Solid Waste 1. Solid waste shall be collected within enclosed on-site containers, screened from view. The design of trash enclosures shall be in conformance with Section 4 - Building Design Guidelines. 2. The location of the trash enclosures and access should accommodate large collection trucks. 3. Recycling is encouraged and materials stored for pick-up should be within enclosures. Franchise utilities 1. Franchise utilities for power, gas, and communication shall be provided to each building site. All services shall be installed underground. 2. Franchise utilities shall be located in dedicated corridors through the common open space and within utility easements on private lots. 3. Above ground utility service structures such as transformers and junction boxes need to be coordinated with the least obtrusive location possible. 81 7 | Page 2.8 Site Lighting The following design guidelines govern the design of lighting for drive aisles, parking, plaza areas and pedestrian routes. Building lighting is addressed in Section 4 - Building Design. 1. Site lighting should maintain appropriate light levels to provide a sense of clarity and safety for both vehicular and pedestrian movement. 2. Light fixtures should be simple, functional. Pole fixtures are encouraged to be the primary and only light source other than fixtures mounted on the building. Poles must match existing poles in style, height, lighting source and bases. 3. All parking lot lights shall be turned off within one hour of closing. Security lighting is permitted to remain on through the night. 4. Security lighting is to be provided as part of the site lighting design such that illumination levels dim to 30% of full output illumination levels at night in public and non-public parking and service areas. 5. All site lighting shall conform to City of Bozeman Unified Development Code standards and shall meet the cut-off shield requirements outlined therein. Section 3 – Landscape Design Guidelines 3.1 Landscape Design Overview The intent of the landscape design guidelines is to ensure that site and landscape development is consistent across the site; to encourage sustainable design that is complimentary to the natural environment of the region; an attractive and ecologically balanced environment; and to provide positive experiences for adjoining occupants. These guidelines provide: the buffering of properties from wind and snow; the enhancement of entry areas to the development and to individual buildings; the conservation of water and the use of native or adapted plant species; and other landscape design techniques with the goal of creating an inviting environment. General Landscape Design Guidelines 1. All landscape designs shall be drawn and stamped by a Landscape Architect Licensed by the State of Montana, or professional landscape designer with demonstrated native or water wise plant experience. 2. Landscaping and outdoor improvements must be completed within one (1) year of substantial completion of any or each structure. 3. Native and water wise plant selection to be primarily used. 4. Ensure proper erosion control techniques: All disturbed areas must implement erosion control techniques to ensure on-site and off-site protection. Slope stabilization is required on all slopes 3:1 and greater with Best Management Practices (BMP’S) implemented as necessary. 5. Conflicts with utilities: All landscape plans shall clearly illustrate all proposed utilities and infrastructure, both in plan and legend. All landscaping and irrigation shall begin only after a thorough utility location survey is completed. All planting and irrigation within a utility easement shall begin only after discussing their location with the appropriate utility provider. 6. Landscape Remodels: All landscape remodel projects are to be consistent with the design guidelines. Landscape remodels and additions must be reviewed and approved by the Development Review Committee (DRC). 82 8 | Page 3.2 Vegetation Trees Tree and shrub species shall be selected based upon: species diversity, adaptability, hardiness, and maintenance requirements. All planting plans and species will be required to obtain written approval from the Development Review Committee (DRC). Street and Parking Lot Trees The project or site developer shall plant a predetermined mix of approved street trees within the right-of-way as required by COB standards. 1. All street trees to be compatible with current City of Bozeman Approved Street Tree list and approved by City Forester prior to installation. Shrubs Shrubs may be placed throughout the project to provide accents, texture, color, and interest to the landscape. Planting Beds Planting beds may be found along side pedestrian corridors, next to buildings, near site and building entrances, raised planters and as a backdrop to plazas, patios, and seating areas. Landscaping and planting beds shall act as a unifying element throughout the development, and shall strive to create unique and interesting spaces through the use of planting elements, while maintaining a visually coherent landscape and providing seasonal interest. Screening and Buffering Screening and buffering shall be used to mitigate conflicts between dissimilar land uses and to visually disguise unsightly elements as viewed from both within and outside of the site boundaries. All mechanical equipment (including air conditioner condensers, power transformers, tv/phone boxes, etc.) must be screened through landscape or architectural means. Open Space Open spaces throughout the project shall strive to create places with distinct identities while maintaining a consistent visual language throughout the development. 1. Pad Site developers shall coordinate the planning and design of open spaces on the pad site property that may be shared by both pad site and common open space uses. 2. Lawns, gardens, eating courts and decks, porches, balconies and plazas (outside of private property) must function as usable public open space. 3. Undeveloped land that remains after construction of the buildings and parking shall not be considered functional open space. Native Seeding The use of native and/or waterwise seeding in the rehabilitation of disturbed areas within the site is encouraged. 1. All seed areas must be clearly illustrated on the landscape plan and approved by the DRC prior to installation. 2. The use of supplementary irrigation is required for an establishment period of 3 (three) years in order to promote growth and weed competition. 3. Mechanical weed control along with over seeding may be required for all seed areas. Mechanical and organic methods are preferred to chemical methods. Plaza spaces 83 9 | Page Plaza spaces are to be created as unique and interesting places for site patrons though the use of vegetation, raised planters, public art, seating and gathering areas, and hardscape materials. 1. Plaza spaces shall be along pedestrian corridors or next to buildings. 2. All public plaza spaces shall remain accessible, barrier free, and inviting for all visitors to the site. 3. Plaza design shall strive to create visually dynamic experiences through the use of vegetative material and design of elements, and encourages plaza use. Stormwater Facilities All stormwater facilities indicated in the Master Plan are to be planted in a manner which enhances their visual appeal, while not impeding their function or use. 3.3 Hardscape All site furnishings are to be simple in character and designed to be compatible with the building they support. This will give each building site its own identity while ensuring all phases provide similar amenities. All site furnishings are to be approved in writing by the DRC. 1. Benches or seating: installed within the commercial projects are to complement the building itself and its materials. Benches are to be constructed out of low maintenance materials. 2. Bike Racks: Bike racks are required per the City of Bozeman UDC standards. They are to be located in convenient locations at building entrances. 3. Plaza spaces are typically hardscape areas with seating, public art, and integrated planting beds. a. Plazas can be for either public or private use on a lot. b. Plazas provide site patrons with areas to gather, socialize, relax, or work in a visually interesting environment. Plazas can provide opportunity for street sales or advertising within commercial districts. Plazas function as public open space within the development. c. Visually appealing pavers and paving are to be used to delineate plaza spaces from other site uses. The use of one or two paving patterns or materials should be used in a similar manner in all plazas found within the site in order to create coherence. d. All poured concrete surfaces shall be broom finished with hand tooled edges and joints. Any alternative pavers or paving materials must be submitted to the DRC for review and approval prior to installation. 4. Planters can be used throughout the development along trails and pedestrian corridors, near buildings, parking areas, entry corridors, plaza spaces, and open spaces. They shall be supporting elements to the building they serve. a. Raised Planters are to be constructed from similar materials as the building they are adjacent to. The design and construction of all raised planters are to be submitted to the DRC for review and approval prior to installation. b. Grade Level Planters must be installed with pre-approved edging in order to reduce maintenance and maintain clear visual boundaries between site uses. Edge treatments can be made of metal or wood and their design must be submitted to the CRC for review and approval prior to installation. 5. Boulders a. Landscape boulders, the placement and approximate dimensions of all landscape boulders must be clearly indicated on landscape plans and subject to review by the DRC. b. Allowable Uses: Boulders may be used only for retaining soil and erosion control. 84 10 | Page c. Boulder Specifications: All landscape boulders are to be a minimum of two (2) feet in diameter and of locally available mineral content. Boulders are to be cut to a rectangular shape. 3.4 Maintenance The development will contract landscape maintenance service for all of the developments within the development. Warranty The project or site developer shall choose a landscape contractor that will install all landscape and irrigation elements with a warranty on all landscaping and irrigation for at least one(1) year. Irrigation All landscape areas including parking lots, perimeter landscape treatments, boulevards and right-of-ways, lawn and seeding areas, trees, shrubs, and flower beds shall be irrigated with a permanent automatic irrigation system installed by a qualified irrigation contractor. The irrigation system shall be charged in April and winterized no later than October each fall all routine irrigation maintenance is to be performed by a licensed irrigation contractor. 1. An ‘as-built’ irrigation plan is required upon completion of installation, the plan shall clearly indicate the location of all irrigation components including; all irrigation lines, valves, wiring, and sleeves. 2. Water conservation is encouraged throughout all aspects of landscaping within the development. The use of water-wise plant selection and drought tolerant species selections is encouraged. All landscape plans must clearly indicate per week water use based on plant species requirements. 3. Lawn and seed areas are to be irrigated with permanent overhead watering systems utilizing spray or rotor irrigation heads. Head to head coverage is required in all irrigated lawn and seeding areas. All irrigation heads are to be installed at a grade so not to be damaged by maintenance equipment. Water schedules and timing will be closely monitored and may be restricted by the development if necessary. An initial establishment period resulting in increased water use may be allowed on a case-by- case basis by the development. 4. Perennial plantings are to be irrigated with a designated drip irrigation system and should be adjusted appropriately for plant requirements throughout the growing season. 5. Trees and shrubs are to be irrigated with a designated bubbler irrigation system adjusted appropriately for tree species, maturity, and size. If trees and shrubs are installed within the confines of a perennial planting area with an established drip irrigation system, the incorporation of these trees and shrubs will be addressed on an individual basis and assessed by a landscape professional. Vegetation All maintenance services are to be performed by a landscape professional contracted by the development. Routine and thorough weeding, mulching, and pruning, along with proper irrigation are the preferred methods for weed control and encouragement of plant growth and health. 1. Trees and shrubs should be maintained in a healthy state, any tree or shrub showing more than 30% desiccation or damage shall be replaced. 85 11 | Page 2. Pruning and weeding is to be performed at a pre-established regular interval. All pruning and weeding is to be preformed by a landscape professional at the appropriate times throughout the growing season in order to prevent shock to plant material and promote weed competition. 3. Mulch is to be used in all planting beds and around the base of all trees and shrubs planted within lawns and open spaces. Mulch type and depth is to be clearly indicated on landscape plans and is subject to approval by the DRC prior to installation. A sample of proposed mulch material is to be submitted to DRC for approval prior to installation. 4. Sod lawn areas are to be maintained at a mowed height no less than 3 inches and be allowed to grow to a height of 4”- 4 1/2” between cuttings. Native seed areas should be mowed twice a year, once in May and again in the late fall, with a mow height no less than 6 inches. 5. Fertilization and Pest Control: A predetermined fertilization regiment shall be established by the development working in conjunction with a landscape professional. All lawn areas, native seeding, trees, shrubs, and perennials shall be fertilized as necessary in order to maintain plant health and promote long term growth. Organic methods of pest control are encouraged, the use of chemical pest control applications on trees, shrubs, perennials, and lawn areas will be allowed if deemed necessary by the landscape maintenance professional with approval from the development and applied by a licensed applicator. The use of pollinator friendly pesticides is required and are to be applied in a sustainable and environmentally conscious manner. Hardscape All hardscape material including plazas, pedestrian corridors, parking areas, and sidewalks shall be maintained in a manner that is safe for all public and private uses and is representative of the original design intent. 1. Snow Removal: All plaza spaces, pedestrian corridors, sidewalks, parking areas, and patios will need sweeping and/or snow removal. All public and private hardscape shall be kept clear of any obstructions or hazards. 2. Responsibility: Maintenance of the public open spaces will be provided by the development. Section 4 – Building Design 4.1 Building Design Overview The intent of these guidelines is to establish a basis for the development to have a cohesive nature where buildings complement on another. These guidelines are intended to describe a design approach which will result in a diverse yet compatible set of buildings that support the developments design goals. Building Design Objectives The following building design objectives should aid all architectural design decisions: 1. Building design should respond to the site’s location and the surrounding structures. 2. All buildings should be logically and coherently designed such that all building components have an identifiable purpose. 3. The spaces between buildings should be primary to the buildings themselves. All buildings should have an active role in defining exterior spaces. 4. Building exterior materials are to complement the existing professional building(s). Exterior materials must require low maintenance. Exterior color schemes shall 86 12 | Page emphasize the natural tones of the surrounding natural environment and those of the existing development. Brick is not required but recommended to be present. Bick should be used as a primary material and used in large massed sections of the building (i.e. not used as a wainscot). Other suggested materials are metals, engineered products (i.e. high density laminates or acrylic panels), pre-finished anodized aluminum storefront glazing and metal building accent details. 5. The use of sloped or gable roofs in combination with flat roofs is strongly recommended to help maintain the cohesive character of existing buildings and to the development. 6. Gutters and snow guards are to be used on any roof over a pedestrian path to provide a safe environment. 7. Each building must include metal awnings, canopies or balconies to create accents on the building which create interest where the designer intends the focus to be. Professional Competence All building design shall be performed by or under the supervision of, and stamped by, an Architect licensed to practice in the State of Montana. 4.2 Dimensional Considerations Building Form and Scale The following guidelines advise building form and scale for the development: 1. The existing commercial buildings have set a canvas for any future buildings to complement. 2. The use of sloped and gable roofs in combination with flat roofs is strongly recommended to help maintain the cohesive character to the development. 3. Elements should transition in scale and level of articulation so they respond to pedestrian interaction. Subtractive and additive elements of the building form should be composed to create emphasis on important pedestrian areas such as building entries. 4. Each individual building should not attempt to focus all visual interest unto itself, but rather be a part of the overall development. The roll of the building form on the site is to help define the common spaces between buildings. Building Height Careful consideration should be given to any new construction so that it does not visually overshadow existing buildings. 1. Building height shall be restricted per Bozeman’s Unified Development Code (UDC), B-2 Zoning requirements. New buildings are limited to a façade height (measured from main entry grade to top of parapet or fascia) of 38’-0” for buildings with roof pitch less than 3:12. For sloped roofs with greater than 3:12 pitch, the maximum ridge height shall be 44’-0”. These building height restrictions may be increased as allowed by the UDC with approval by the Development Review Committee (DRC) 4.3 Program Considerations Street Frontage The site is identified by the City of Bozeman Department of Community Development as being within an entryway corridor. Most sides of all planned buildings are visible from at least one (if not more) intensely utilized public ways. This results in a condition where there is no ‘back of building’ on most planned structures. The following guidelines provide specific instruction for building design as it relates to street frontage: 87 13 | Page 1. Buildings must be designed such that all facades contribute to the quality of common space at the overall development. 2. The building elevation facing a public right of way shall be either the primary or secondary building facade and should be designed to add interest to the streetscape. Awnings or other building articulation at pedestrian scale are required. Building Entries As previously described in these guidelines, individual buildings should contribute to the unity of the development. Building entrances provide an opportunity to implement architectural design components that create an identity unique to each building’s use within the development. This is an opportunity to express the function of the building. 1. Main entrances should face the primary pedestrian circulation path. When a building is fronted on more than one side by major pedestrian circulation paths, the side most accessible under adverse weather conditions and by those with physical disabilities should include the main entry. 2. Main entries should be articulated at the pedestrian-scale and primarily transparent. The use of mirrored glass at building entries is discouraged. Doors constructed of opaque materials are acceptable if clear glass is adjacent to or in close proximity to the door. 3. Main entries shall open directly, or by way of a vestibule, into a publicly accessible portion of the building such as a sales floor, a reception area, or a lobby. 4. Secondary entrances are encouraged on all building facades facing primary pedestrian circulation paths. Secondary entries shall provide a pedestrian-friendly and transparent entry to encourage interaction with the passer-by and provide visual interest to the common space or public way upon which they face. 5. Service entries should be compatible with the building design and may be industrial in nature as required for their use. Mechanical Equipment and Utilities All mechanical equipment and utilities visible from public ways must be screened. The following guidelines apply to screening. 1. If feasible, building service areas and mechanical equipment should be integrated into the overall building design such that it is not visible from a public way. 2. Screening should use elements, materials, and forms compatible with the building design and shall be compliant with all guidelines pertaining to building design described herein. 3. Screening shall be as required by the City of Bozeman’s Unified Development Code. Residential Considerations Residential uses, if ever considered, in this largely commercial development must be designed to ensure the residential users privacy and security while recognizing the urban conditions of the development. Residences should maintain a degree of separation from the surrounding commercial development such that users sense that they are transitioning from public to semi-private or private space. The following guidelines apply to residential uses: 1. Residential entries should be clearly defined and should clearly demark the transition from public or semi public space to private space. 2. Should a residential component be included in the development, it is anticipated that the required parkland dedication would be met by a cash-in-lieu payment or equivalent to improvements to a nearby existing park. 3. Open space requirements are to be met through using balconies or rooftop courtyards and meet Bozeman UDC requirements. 88 14 | Page 4.4 Building Exterior Materials The following guidelines describe building materials: 1. Building exterior materials are to complement the existing buildings. 2. New materials should be true to the nature of the material. Imitative materials that mimic natural materials or authentic methods of detailing and construction are not allowed. 3. Materials should be applied in a manner that is consistent with their inherent material properties. Concrete should be used to express mass and solidity. The use of corrugated sheet metal as a building skin or an overhead element is encouraged at accent areas or at transitions between other façade materials. Installation methods should be carefully detailed to provide clean transitions at corners, between panels, material changes, openings and the general exposed fastener pattern. Brick is highly encouraged but does not have to match the brick on existing buildings. However, brick must complement or work with the existing color pallet. 4. When seen from a distance, materials should emphasize the form of the structure. When viewed at a closer range, materials should have a rich textural quality. 5. Exterior materials must require low maintenance. 6. Exposed structure is appropriate and encouraged but must be authentic and efficient. Appropriate exterior materials include the following: a. Brick b. Metal wall panels, metal roof panels, plate steel, trim, exposed steel structure c. Engineered panels – high density laminates or acrylic panels d. Pre-finished anodized aluminum storefront glazing e. Concrete f. EIFS 7. The following materials will not be allowed, unless specifically approved by the DRC: a. Cultured Stone b. Vinyl Siding c. Medium Density Fiber Cement Siding Patterns & Colors Material texture, repetitive structure, window placement, and decoration add a pattern or rhythm to architectural design. The following guidelines inform the use of pattern in building design: 1. Patterns should be subtle and repetitive from a distance to enhance the building form and its relation to the space created between structures. As seen from a distance, buildings should read as a ‘backdrop’ to common outdoor spaces and landscaping. 2. Patterns should be used to reinforce the inherent properties of the respective material. For example, corrugated steel, board-formed concrete, or running bond brick patterns are patterns consistent with the material’s application and/or creation. 3. Patterns should be used to create a human scale and increased level of detail when experiencing the building in close proximity Plantings, vehicles, public art, tenant signage, building interiors seen through windows and people, will add the majority of color to the development. The following guidelines inform color selection in building design: 1. Colors used should be consistent with their material properties whenever possible and as applicable to the material performance. 2. Exterior color schemes shall emphasize the natural tones of the surrounding natural environment and those of the existing development. 89 15 | Page 3. Primary fenestration systems should be finished black or very dark bronze. 4. Bright (painted) colors are appropriate only when used as small building accents or surfaces occurring within the overall primary building façade. Fenestration & Treatment The following guidelines inform fenestration type size and placement in building design: 1. Fenestration should establish pattern and rhythm on exterior walls.. 2. Large-scale window openings are encouraged at the primary and secondary entrances. The building form should use a combination of fenestration as punctures and larger glazing systems. Careful consideration should be given to both as they relate to the overall façade and building elements. 3. The scale and location of fenestration should allow the primary building skin and structure enough room to form an intuitive visual connection. The size and location of fenestration should be balanced with the need for the building to maintain its overall form 4. Fenestration should be used to provide adequate natural light to the building interior. It should also provide interest to the development at night with use of artificial lighting to express the building interior. Shading and sheltering devices at windows and building entrances contribute to positive user experiences. They provide protection and safety from the weather and the elements and add human- scaled feel to building facades. Fenestration treatment, designed under the following guidelines is encouraged: 1. Careful consideration should be given to shading devices for the applicable building facades. Shading devices are encouraged to be functional rather than purely decorative. These devices shall be consistent in materials and detailing for the overall building design. 2. Shading devices should read as an integral element to the building form and mass. Connections and finishes should provide an opportunity for creative detailing that can be experienced at a pedestrian scale when close to the building. 4.5 Building Lighting Site lighting at pedestrian and vehicular ways and parking areas is addressed in the Site Lighting Section. Lighting guidelines specific to signs are described in the Site Signage and Building Signage Sections. The following guidelines pertain to architectural lighting on the exterior of buildings: 1. Exterior architectural lighting is encouraged but should be carefully used in select locations. Exterior architectural lighting should be primarily used for the following functions: a. Lighting should accent building entries b. Lighting should illuminate the overall form of significant building elements. 2. Where used to illuminate overall building form of significant building elements, Building lighting should accentuate rhythms, textures and patterns established by the building design. 3. Light fixtures should be simple and functional. Recessed linear or can fixtures are encouraged. Decorative light fixtures should be used selectively in limited locations and become a building element with a with a defined base plate. Refer to exterior fixtures on existing building(s) in the development for inspiration. Fixtures should complement the style of existing fixtures. 4. The following lighting types are permitted with approximate 3500k color temperature: a. Compact Fluorescent which has appropriate color rendering characteristics. b. LED 90 16 | Page 5. The following lighting types are not permitted: a. Colored Lamps b. Mercury vapor or High Pressure Sodium Lamps c. Any type of moving or flashing lighting 6. Exposed neon tube or LED string lighting must be approved by the Design Review Board. Neon tube or LED string lighting may not be used as intense visual element for advertising or other purposes. Neon tube or LED string lighting may be used as subtle recessed or concealed light elements for wall washing or back lighting. 7. Light spread from fixtures illuminating a building facade may not significantly spill over onto facades of neighboring buildings. 8. All building lighting shall conform to City of Bozeman Unified Development Code standards and shall meet the cut-off shield requirements outlined therein. 9. All exterior facade and sign lighting should be programmed to automatically turn off. 4.6 Building Signage General building signage types and sizes are described in a Comprehensive Sign Plan. The following are general design criteria for building signage: 1. The design of all signs should be compatible with the development’s overall design guidelines. Sign form, material, texture, and size should be compatible and integrated with building design. 2. A sign permit must be obtained by the City of Bozeman. All signs and sign lighting must comply with City of Bozeman Unified Development Code requirements and with the Project’s Comprehensive Sign Plan. 3. Sign materials should be low maintenance 4. The following sign materials are encouraged: a. Metal b. Glass c. Acrylic Sheet in appropriate colors and limited quantity 5. Signage must be of quality construction. Concealed attachment mechanisms are encouraged. Sign Size and Quantity Signs add vibrancy and color at both pedestrian and vehicular scales. The following guidelines encourage a variety of sign styles to engage all of the Development’s users. Sign quantities are described in the Comprehensive Sign Plan. 1. Each tenant is allowed one primary sign per exterior facade with frontage on a public way. This sign should be located to accent the main store entry where applicable. 2. Secondary signage such as blade signs and window signage is encouraged. 3. Tenants and building owners are encouraged to maximize signage with respect to the allowed quantities outlined in the Comprehensive Sign Plan. Signage should, however, be proportional to the scale of the overall building facade. The Development Review Committee (DRC) will closely review all signage to confirm proper facade design-to-signage relationship. Sign Approvals All exterior signs or window signs visible from the building exterior shall be required to be specifically approved in writing by the DRC. 1. Tenants applying for signage approvals shall submit complete signage design drawings. Drawings shall provide sufficient information for the DRC to clearly understand signage location(s), size, assembly, attachment, materials, and lighting. 2. The following information shall be included in all signage approval submittals: 91 17 | Page a. Elevation drawings: clearly indicate proposed signage on the building facade on which it will be located. Provide dimensions indicating the size and location of the proposed signage. Drawings to include identification of materials, color schemes, and illumination. b. Detail drawings: indicate sign fabrication technique, materials, illumination, and mounting system. c. Material samples to be provided upon request of DRC. Permitted Sign Types The following sign types are permitted at the development: Back-lit Illuminated Signs - Signs to be constructed of individual reverse channel letters and/or graphic components and/or panels with cut-out letter and/or graphic components mounted directly to the building and/or a non-reflective background surface with concealed stand-off brackets. - All signs located should minimize connection points back to the building. - All illumination must be fully concealed within the letter or logo component and not directly visible. - On large letters or graphic components, clear Lexan backing must be used on the back side of channel letters to prevent bird nesting. Externally Illuminated Signs - Signs to be constructed of individual letters and/or graphic components and/or panels with cut-out or applied letter and/or graphic components mounted directly to the building or a non-reflective background surface with concealed brackets. - External illumination must be integrated into the facade design and may be by concealed fixture or a sign light type fixture - Gooseneck sign light or linear sign light fixtures may be used but are not as desirable. Sign light fixtures should be simple, functional and industrial in character. Internally Illuminated, Fully Integrated Signs - Signs to be fully integrated into the building facade such that the face of the sign is flush with the surrounding exterior building finish material. - Letters or logos shall be the only components on the sign face through which light is visible. All other materials shall be opaque. Letters should be push- through dimensional translucent letters which extend through the routed opaque sign face. - Internal illumination must be fully concealed such that no lamps are visible. Painted Signs - Signs painted directly onto the building surface are not allowed unless approved by the DRC. Blade Signs - Projecting blade signs that address pedestrian users are highly encouraged. - Blade signs shall be integrated into the building facade design. - Blade sign dimensions are governed by the Comprehensive Sign Plan and Bozeman UDC standards. Window Signs and Graphics - Any sign or graphics placed closer than 4’-0” of a window surface is considered a window sign and is subject to approval by the DRC. - Appropriate temporary poster type signage, open/closed and hours of operation signs less that two square feet in size may be placed in windows without DRC approval. Freestanding Temporary Signage 92 18 | Page - Temporary signage may be placed outside of the lease line during tenant hours of operation and is encouraged. Temporary signs are subject to DRC approval. - Freestanding temporary signage must be placed as to not impede pedestrian traffic. Section 5 – Submittal Review Requirements and Procedures 5.1 Building Design Overview The intent of The preceding Design Guidelines establish a framework that acts to structure site, landscape, and building design such that the resulting development maintains it’s unique historic character while becoming a vibrant progressive place within the fabric of Bozeman’s neighborhoods. Development Review Committee (DRC) The Design Guidelines are enforced by the Development Review Committee (DRC) which is established by the developer & original property owner of the entire development. The Design Guidelines are intended as a guide to assist the DRC in reviewing plans and specifications. The Design Guidelines shall not be binding upon the DRC and shall not constitute in every event the basis for a recommendation of approval or disapproval of plans, specifications, or other materials submitted to the DRC for review. The DRC will be the interpreter of the Design Guidelines and their decisions in matters relating to the Design Guidelines shall be final. The Design Guidelines may be amended from time to time by the Property Owners. No improvements constructed in accordance with plans and specifications approved by the DRC and Association shall be required to be changed because such standards are thereafter amended. Work Requiring Design Review No exterior construction, alteration, addition, or renovation of any building, structure, parking lot, sign, or landscape feature, or other Improvement of any kind or nature shall be commenced, except such as is reviewed by the DRC and approved in writing. Design Review Process All development plans shall be reviewed and approved according to the following phased process. 1. Sketch Plan Review (optional) 2. Preliminary Plan Review 3. Final Plan Review 4. Construction Compliance The applicant, at its expense, shall submit (1) complete set of printed documents and one (1) set of documents in electronic format to the DRC at review stages 1-3. The following details document format. Sketch Plan Review Sketch Plan Review is an optional but recommended submittal phase. The intent of the sketch plan review is to provide general feedback to the applicant regarding development plans. There is no fee for Sketch Plan Review. The follow items should be submitted by the applicant for Sketch Plan Review: 1. Site Plan (if applicable) with the following information: • project name, date, architect and civil engineer, applicant, north arrow, scale (minimum 1”-30’); • approximate building area; 93 19 | Page • general layout of site showing building location; • location of sidewalks within the property and parking areas in accordance with the master plan; • location of building setbacks, property lines, easements and other restrictions on the property. 2. Building Plans (if applicable) with the following information: • project name, date, architect, applicant, north arrow, scale (minimum 1”-30’); • preliminary floor plan; • building data: uses and areas associated with each use including seating areas if applicable; • elevations of all sides of the building with preliminary material selections designated; • building signage information including locations and areas of signs. The DRC shall review the Sketch Plan Application and return it to the applicant with the Committee’s informal feedback. Applications are not approved or disapproved at the sketch plan phases. DRC comment at this phase is to be considered informal and non- binding and is subject to change in future applications Preliminary Plan Review Preliminary Plan Review is a required review phase in which information pertaining the use, size, location, and character of the proposed development is “approved”, “conditionally approved”, or “disapproved”. The follow items shall be submitted by the applicant for Preliminary Plan Review unless the item is not applicable to the project. If an item is not included, a narrative must accompany the submittal describing why the item is not applicable to the project. 1. The fee for Preliminary Plan Review is $800. The fee must be submitted with the complete application. 2. Site Plan with the following information: • project name, date, architect and civil engineer, applicant, north arrow, scale (minimum 1”-30’); • existing features to remain; • location of view corridors; building setbacks, property lines, easements and other restrictions on the property; • building footprint area; • parking data: number and ratio required by Code and number required, size of stalls and aisles, accessible spaces provided; • layout of site showing building locations; lighting and other site amenities; • proposed light fixture cut sheets; • location of sidewalks within the property and parking areas and drives in accordance with the masterplan; • location of existing and proposed utilities; • grading plans indicating grades for the entire property; building floor elevations; • proposed site signs; • location and design of utility screening. 3. Landscape Plans with the following information: 94 20 | Page • project name, date, landscape architect, applicant, north arrow, scale (minimum 1”- 30’); • existing features to remain; • location of view corridors; building setbacks, property lines, easements and other restrictions on the property; • location of building, parking and drives; pedestrian, and service areas. • location of existing and proposed utilities; • locations and types of hardscape materials, furniture, lighting and other site amenities; • planted areas, plants, and ground cover materials: show type, size and location of materials. 4. Building Plans with the following information: • project name, date, architect, applicant, north arrow, scale (minimum 1”-30’); • floor plans at 1/8” = 1’-0” scale minimum; • building data: uses and areas associated with each use including seating areas, if applicable; • elevations of all sides of the building with material selections designated; note locations of exterior mechanical equipment and utility meters; • provide information describing proposed exterior lighting including fixture cut sheets; • elevations of dumpster enclosure and mechanical screening; • building signage drawings showing locations and areas of signs, style, copy, illumination, colors, construction and mounting; include samples of actual materials to be used; • samples of actual materials to be used corresponding to material designations on the elevations. 5. Other materials as requested by the DRC The DRC shall review the Preliminary Plan Application and return it to the applicant marked “Approved”, “Conditionally Approved”, or “Disapproved” with the Committee’s applicable comments and conditions. Final Plan Review Final Plan Review is a required review phase in which information is reviewed for conformance with the comments made in the preliminary review. There is no fee for Final Plan Review. Final Plan applications shall include the following: 1. All items submitted in the Preliminary Plan Application, revised according to the comments and conditions made in the preliminary review: 2. Any additional items requested by the DRC; 3. A narrative explaining how all the comments and conditions made in the Preliminary Review have been incorporated in the to Final Plan Application. The DRC shall review the Final Plan Application and return it to the applicant marked ‘Approved’, or ‘Disapproved’ with the Committee’s applicable comment. Upon approval, one (1) complete set of final plans and one (1) complete electronic set of final plans shall be re-submitted and retained by the DRC for their records and use. 95 21 | Page City of Bozeman Site Plan Review In addition to DRC review and approval, all proposed development is required to undergo City of Bozeman Department of Planning and Community Development (COB Planning) review per the City of Bozeman UDC. At the discretion of COB Planning, their review may occur concurrently with DRC review, with DRC review being a condition of final approval. An approval letter from the DRC shall be included in the COB Planning application as required. Sequential individual site plan submittals for each specific phase of the Master Site Plan must be submitted to the DRC design review approval and the COB planning department for approval. Each site plan phase application shall be consistent with the approved Master Site Plan and subject to the review criteria of Section 38.19.100A BMC. Construction Compliance At completion of construction and prior to occupancy, improvements as submitted and approved by the DRC shall be physically verified by a representative of the DRC for conformance with the approved Final Site Plan. If found non-compliant, it may be required to restore such Owner’s improvements to the condition existing prior to the construction thereof. 96 PRELIMINARY PARKING CALCULATIONS July 7, 2017 Zoning B2 Building Site C (Constructed)  New Structures: 16,690 SF Parking  Floor Area: 16,690 sf x 85% = 14,186 SF (or use Sec. 38.25.010 1a to calculate)  Parking Required: 14,186 / 250 = 56 spaces  Reduction 56 x 10% = 50 spaces (Community Commercial)  Required 50 spaces required (Includes 2 accessible spaces)  Provided 56 spaces provided w/ Phase I  Bike 6 bicycle parking spaces provided Building Site B (Future Phase)  New Structures: 15,500 SF Parking  Floor Area: 15,500 sf x 85% = 13,175 SF (or use Sec. 38.25.010 1a to calculate)  Parking Required: 13,175 / 250 sf office space = 52.7 spaces  Reduction 52.7 x 10% = 47 spaces (Community Commercial)  Required 47 spaces (Includes 2 accessible spaces) Building Site A (Future Phase)  New Structures: options vary Parking OFFICE  Floor Area: 16,500 sf x 85% = 14,025 SF (or use Sec. 38.25.010 1a to calculate)  Parking Required: 14,025 / 250 sf office space = 56 spaces  Reduction 56 x 10% = 50 spaces (Community Commercial)  Required 50 spaces (Includes 2 accessible spaces) COMBO OFFICE & RESTAURANT  Floor Area: 13,855 sf x 85% = 14,025 SF (or use Sec. 38.25.010 1a to calculate)  Parking Required: 10,111 sf office / 250 sf office space = 40 spaces 1,666 sf restaurant x 60% dining area (40% kitchen/boh) = 1,000 sf/ 50 sf dining space = 20 spaces  Reduction 40 spaces x 10% office = (-4) 36 spaces (Community Commercial) 20 spaces x 30% restaurant = (- 6) 14 spaces (Community Commercial) Required 50 spaces (Includes 2 accessible spaces) Master Site Plan  147 spaces provided 97 Page | 1 | UNIVERSITY CROSSINGS| South 19th Ave & W Kagy Blvd Bozeman, Montana SIGNAGE Building Site C (constructed) 77 Linear Feet of Building Frontage on S 19th Ave 25 lf building frontage x 2 sf of signage = 50 sf signage 52 lf building frontage x 1.5 sf of signage = 78 sf signage Signage = 128 sf of signage allowed x (weighted lot allowance) = 400sf max signage /3 buildings sf = 133 sf signage allowed per building 133 SF TOTAL SIGNAGE MAX ALLOWED Building Site A (future estimate) 100 Linear Feet of Building Frontage on S 19th Ave 25 lf building frontage x 2 sf of signage = 50 sf signage 75 lf building frontage x 1.5 sf of signage = 112 sf signage Signage = 162 sf of signage allowed x (weighted lot allowance) = 400sf max signage /3 buildings sf = 133 sf signage allowed per building 133 SF TOTAL SIGNAGE MAX ALLOWED Building Site B (future estimate) 65 Linear Feet of Building Frontage on W Kagy Blvd lf building frontage x 2 sf of signage = 50 sf signage 40 lf building frontage x 1.5 sf of signage = 60 sf signage Signage = 110 sf of signage allowed x (weighted lot allowance) = 400sf max signage /3 buildings sf = 133 sf signage allowed per building 133 SF TOTAL SIGNAGE MAX ALLOWED 400 SF MAX SIGNAGE ALLOWED FOR 3 PAD SITES LOCATED AT UNIVERSITY CROSSINGS Building Site C (constructed) Actual Signage installed: 11.5 ft x 2 ft = 23 sf x 2 = 46 sf 1.16 ft x 6 ft = 7 sf TOTAL 53 SF SIGNAGE 98 Page | 2 MASTER SITE PLAN COMPREHENSIVE SIGNAGE PLAN Site Signage The following design guidelines govern the design of all wayfinding signs and signs identifying the development. Signs identifying individual businesses or buildings that are installed by individual pad site owners or building tenants are addressed below under Building Signage. All site signage will be designed under a comprehensive sign package to assure all site signage is meets the development’s overall aesthetic goal. Following are general design criteria for site signage: 1. The design of all signs should be compatible with development’s overall design guidelines. Sign form, material, texture, and size should comply with Building Signage guidelines and strategically integrated with the buildings, landscape and site. 2. All site signs and sign lighting must comply with City of Bozeman Unified Development Code requirements and with the project’s comprehensive sign plan. Prior to the fabricating any site sign, a sign permit must be obtained by the City of Bozeman. Building Signage General building signage types and sizes are described in a Comprehensive Sign Plan. The following are general design criteria for building signage: 1. The design of all signs should be compatible with the development’s overall design guidelines. Sign form, material, texture, and size should be compatible and integrated with building design. 2. A sign permit must be obtained by the City of Bozeman. All signs and sign lighting must comply with City of Bozeman Unified Development Code requirements and with the Project’s Comprehensive Sign Plan. 3. Sign materials should be low maintenance 4. The following sign materials are encouraged: a. Metal b. Glass c. Acrylic Sheet in appropriate colors and limited quantity 5. Signage must be of quality construction. Concealed attachment mechanisms are encouraged. Sign Size and Quantity Signs add vibrancy and color at both pedestrian and vehicular scales. The following guidelines encourage a variety of sign styles to engage all of the Development’s users. Sign quantities are described in the Comprehensive Sign Plan. 1. Each tenant is allowed one primary sign per exterior facade with frontage on a public way. This sign should be located to accent the main store entry where applicable. 2. Secondary signage such as blade signs and window signage is encouraged. 3. Tenants and building owners are encouraged to maximize signage with respect to the allowed quantities outlined in the Comprehensive Sign Plan. Signage should, however, be proportional to the scale of the overall building facade. The Development Review Committee (DRC) will closely review all signage to confirm proper facade design-to-signage relationship. Sign Approvals All exterior signs or window signs visible from the building exterior shall be required to be specifically approved in writing by the Development Review Committee (DRC). 99 Page | 3 1. Tenants applying for signage approvals shall submit complete signage design drawings. Drawings shall provide sufficient information for the Development Review Committee (DRC) to clearly understand signage location(s), size, assembly, attachment, materials, and lighting. 2. The following information shall be included in all signage approval submittals: a. Elevation drawings: clearly indicate proposed signage on the building facade on which it will be located. Provide dimensions indicating the size and location of the proposed signage. Drawings to include identification of materials, color schemes, and illumination. b. Detail drawings: indicate sign fabrication technique, materials, illumination, and mounting system. c. Material samples to be provided upon request of Development Review Committee (DRC). Permitted Sign Types The following sign types are permitted at the development: Back-lit Illuminated Signs - Signs to be constructed of individual reverse channel letters and/or graphic components and/or panels with cut- out letter and/or graphic components mounted directly to the building and/or a non-reflective background surface with concealed stand-off brackets. - All signs located should minimize connection points back to the building. - All illumination must be fully concealed within the letter or logo component and not directly visible. - On large letters or graphic components, clear Lexan backing must be used on the back side of channel letters to prevent bird nesting. Externally Illuminated Signs - Signs to be constructed of individual letters and/or graphic components and/or panels with cut-out or applied letter and/or graphic components mounted directly to the building or a non-reflective background surface with concealed brackets. - External illumination must be integrated into the facade design and may be by concealed fixture or a sign light type fixture - Gooseneck sign light or linear sign light fixtures may be used but are not as desirable. Sign light fixtures should be simple, functional and industrial in character. Internally Illuminated, Fully Integrated Signs - Signs to be fully integrated into the building facade such that the face of the sign is flush with the surrounding exterior building finish material. - Letters or logos shall be the only components on the sign face through which light is visible. All other materials shall be opaque. Letters should be push- through dimensional translucent letters which extend through the routed opaque sign face. - Internal illumination must be fully concealed such that no lamps are visible. Painted Signs - Signs painted directly onto the building surface are not allowed unless approved by the DRC. Blade Signs - Projecting blade signs that address pedestrian users are highly encouraged. - Blade signs shall be integrated into the building facade design. - Blade sign dimensions are governed by the Comprehensive Sign Plan and Bozeman UDC standards. Window Signs and Graphics - Any sign or graphics placed closer than 4’-0” of a window surface is considered a window sign and is subject to approval by the DRC. - Appropriate temporary poster type signage, open/closed and hours of operation signs less that two square feet in size may be placed in windows without DRC approval. Freestanding Temporary Signage 100 Page | 4 - Temporary signage may be placed outside of the lease line during tenant hours of operation and is encouraged. Temporary signs are subject to DRC approval. - Freestanding temporary signage must be placed as to not impede pedestrian traffic. APPROVAL AUTHORITY Development Review Committee Contact: Jerry Locati 1007 E Main St, Ste 202 Bozeman, MT 59715 406-587-1139 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 1 Matt Hausauer From:Cunningham, Julie <juliecunningham@mt.gov> Sent:Monday, February 29, 2016 10:21 AM To:Matt Hausauer Cc:Moser, Dave Subject:FW: Crowley Fleck Minor Subdivision Attachments:MT FWP_Cover Letter.pdf; 3.0 Pre-Application Plan.pdf Hi Matt – I have no wildlife comments. I am cc’ing to Dave Moser (my counterpart in fisheries) for his review as well. Best, Julie Julie Cunningham Bozeman Area Wildlife Biologist Montana Fish, Wildlife and Parks 1400 S. 19th Ave Bozeman, MT 59718 (406) 994‐6341 (406) 994‐4090 (fax) From: Matt Hausauer [mailto:mhausauer@chengineers.com] Sent: Thursday, February 18, 2016 3:20 PM To: Cunningham, Julie Subject: Crowley Fleck Minor Subdivision Hi Julie, I’m working on a summary of probable impacts for the preliminary plat submittal of a 3‐lot minor subdivision on the southwest corner of the Kagy Blvd and S. 19th Ave intersection in Bozeman. Could you please review the attachments and provide comments addressing the effects this project may have on wildlife and wildlife habitat? Please let me know if you need any additional information. Thanks! Matt Hausauer, P.E. C&H Engineering and Surveying, Inc 1091 Stoneridge Drive, Bozeman, MT 59718 Phone: 406‐587‐1115 Fax: 406‐587‐9768 mhausauer@chengineers.com Providing Civil Engineering, Structural Engineering, Land Surveying, Subdivision Design, Geotechnical Engineering, Septic/Water System Design and Soils/Concrete testing since 1994. 123 _______________________________________________________________________________________________________ February 29, 2016 Matt Hausauer C&H Engineering and Surveying Inc. 1091 Stoneidge Drive Bozeman, Montana 59718 Via email: mhausauer@chengineers.com Subject: Proposed Crowley Fleck Minor Subdivision – Tract 1A, COS No. 2008A; Bozeman, MT (151041) Dear Mr. Hausauer, Referencing your letter received February 22nd, 2016 concerning the evaluation of the subject development. As the proposed subdivision is located entirely within the City of Bozeman’s B-2 zoning district, and the intended use appears to be for commercial lots, the District would expect no added students. While B-2 zoning does have provisions for residential uses, the amount that would be expected for this type of development would likely be nominal as it relates to the overall impact of our student enrollment. Sincerely, Todd Swinehart, PE cc: Steve Johnson, Deputy Superintendent of Operations – Bozeman Public Schools Vance Ruff, Transportation Coordinator – Bozeman Public Schools Todd Swinehart, PE Director of Facilities (406) 522-6009 todd.swinehart@bsd7.org Bozeman Public Schools 404 West Main, PO Box 520 Bozeman, MT 59771-0520 www.bsd7.org 124 125 Additional Subdivision Preliminary Plat Supplements Page1f3 Additional Subdivision Preliminary Plat Supplements University Crossing Subdivision 1. Surface Water (Waived) There is no surface water on or immediately adjacent to this site. 2. Floodplains (Waived) There are no designated floodplains on or immediately adjacent to this site. 3. Groundwater (Waived) Groundwater levels are known and will be accounted for in any future improvements. 4. Geology, Soils and Slope (Waived) No unusual geological features are present on the subdivision site. 5. Vegetation (Waived) No wetlands or setbacks are present within the proposed subdivision. 6. Wildlife (Waived) No critical wildlife species or habitats are known to be found on this property. 7. Historical Features (Waived) There are no historical features on this property. 8. Agriculture (Waived) The property is not a viable agriculture facility. 9. Agricultural Water User Facilities (Waived) No water user facilities exist within this proposed major subdivision. 10. Water and Sewer (Waived) Water Supply Water for domestic use and fire protection will be provided by connections to the City of Bozeman water system. Water mains were installed into property as part of the 2013 Crowley 126 Additional Subdivision Preliminary Plat Supplements Page2f3 Fleck Site Plan (original design report enclosed in Section 7. Water service stubs (fire and domestic) exist for each proposed lot, please see the preliminary plat for the locations of the stubs. Cash-in-lieu of water rights will be provided at the time of future site plan reviews once the use and size of the future buildings are known. Sanitary Sewer Sanitary sewer service will be provided through connection to the City of Bozeman’s existing sanitary sewer collection system. Sanitary sewer mains were installed into the property as part of the 2013 Crowley Fleck Site Plan (original design report enclosed in Section 7). Sanitary sewer stubs exist for each lot – please see the preliminary plat for the locations of these stubs. 11. Stormwater Management (Waived) No improvements or buildings are proposed with this subdivision – future improvements will be reviewed through the site plan process. Stormwater within the subdivision is conveyed via surface flow to the existing retention pond on the northwest corner of the property (within Common Open Space – please see the original design report in Section 7). Additional stormwater facilities (or expansion of the existing pond) will be required under a future site plan for expansion of the existing parking lot and addition of new buildings. 12. Streets, Roads, and Alleys (Waived) No improvements are proposed with this subdivision. The existing parking lot accesses the street network via Kagy Boulevard and South 19th Avenue. A 45-ft section of Kagy Boulevard will be dedicated as part of this subdivision to provide a 90-ft right-of-way for the street. Future expansions of the parking lot will be reviewed through the site plan process. 13. Utilities Letters requesting comments on their ability to service this subdivision have been sent to the following service providers: Republic Services of Montana, American Medical Response, Bozeman Deaconess Hospital, Bozeman Public School District, Charter Communications, NorthWestern Energy, CenturyLink, Streamline Transit, and the United States Postal Service. Response letters from all of those who chose to comment are enclosed in Section 8. NorthWestern Energy has power and gas stubbed into the property with the ability to serve all the proposed lots. Cable, phone, and internet are also readily available on the property through multiple companies. 127 Additional Subdivision Preliminary Plat Supplements Page3f3 14. Educational Facilities (Waived) This property is zoned B-2 and the intended uses are commercial; however, residential uses are allowed within the B-2 district. Todd Swinehart of the Bozeman School District responded to the subdivision indicating that the number of students expected in this type of development “would likely be nominal as it relates to the overall impact of our student enrollment.” 15. Land Use The University Crossing Subdivision is proposed as a 4-lot commercial minor subdivision which includes 3 commercial lots and 1 Common Open Space lot. The proposed Lot 3 on the south end of the property contains the Crowley Fleck Office Building - constructed in 2013. The existing stormwater retention pond in the northwest corner of the site will be placed on a Common Open Space lot as it accepts runoff from multiple parcels. 16. Parks and Recreation Facilities (Waived) This proposal is a minor subdivision and does not have any parks and recreation requirements. 17. Neighborhood Center Plan (Waived) The proposed subdivision is less than ten acres and does not include a neighborhood center. 18. Lighting Plan (Waived) The existing parking lot and access road has a private parking lot lighting system. 19. Miscellaneous (Waived) No additional impacts or hazards are anticipated. 20. Affordable Housing (Waived) The proposed development is less than 10 lots – the affordable housing ordinance does not apply to this subdivision. 128 Return to: 19th Capital Group, LLC DRAFT 7-21-2017 c/o Barry Brown 113 East Oak Street, Suite 4-A Bozeman, Montana 59715 - 1 - BYLAWS of UNIVERSITY CROSSING PROPERTY OWNERS ASSOCIATION _____ TABLE OF CONTENTS SECTION 1. INTRODUCTION ........................................................................................................................2 1.1 Application...............................................................................................................................2 1.2 Association Powers..................................................................................................................2 1.3 Relation to other Documents; Conflicts...................................................................................2 SECTION 2. OFFICES .......................................................................................................................................2 2.1 Registered Office......................................................................................................................2 2.2 Principal Office........................................................................................................................3 SECTION 3. MEMBERSHIP ..............................................................................................................................3 3.1 Mandatory Membership...........................................................................................................3 3.2 Membership Interest.................................................................................................................3 3.3 Transfer of Membership...........................................................................................................3 3.4 Annual Membership Meeting...................................................................................................3 3.5 Special Membership Meetings.................................................................................................3 3.6 Place of Meeting.......................................................................................................................3 3.7 Notice of Membership Meetings..............................................................................................4 3.8 Conduct of Membership Meetings...........................................................................................4 3.9 Membership Quorum Requirements ........................................................................................5 3.10 Proxies 5 3.11 Voting of Membership ............................................................................................................5 3.12 Action by Written Consent......................................................................................................5 SECTION 4. DIRECTORS..................................................................................................................................5 4.1 Number, Tenure and Qualifications of Directors.....................................................................5 4.2 Removal of Directors...............................................................................................................6 4.3 Regular Meetings of the Board of Directors............................................................................6 4.4 Special Meetings of the Board of Directors.............................................................................6 4.5 Board of Director Meetings by Conference Telephone...........................................................6 4.6 Notice of Special Director Meetings; Waiver..........................................................................6 4.7 Directors, Manner of Acting.....................................................................................................7 4.8 Conduct of Board of Directors Meetings.................................................................................7 4.9 Director Action Without a Meeting..........................................................................................7 4.10 Director Compensation............................................................................................................7 4.11 General Powers........................................................................................................................7 4.12 Committees..............................................................................................................................8 4.13 Managing Agent ......................................................................................................................8 129 DRAFT 7-21-2017 - 2 - 4.14 Borrowing................................................................................................................................9 4.15 Enforcement ............................................................................................................................9 SECTION 5. OFFICERS...................................................................................................................................10 5.1 Number of Officers; Qualification.........................................................................................10 5.2 Appointment and Term of Office...........................................................................................10 5.3 President.................................................................................................................................10 5.4 Vice President.........................................................................................................................10 5.5 Secretary.................................................................................................................................10 5.6 Treasurer.................................................................................................................................10 Section 5.7 Officer Compensation...............................................................................................10 SECTION 6. INDEMNIFICATION OF DIRECTORS, OFFICERS AND AGENTS..............................................11 6.1 Indemnification of Directors ..................................................................................................11 6.2 Advance Expenses for Directors ............................................................................................12 6.3 Indemnification of Officers, Agents and Employees .............................................................12 6.4 Mandatory Indemnification ....................................................................................................12 SECTION 7. BOOKS AND RECORDS; INSPECTION ......................................................................................12 7.1 Corporate Records..................................................................................................................12 7.2 Member's Rights to Inspect Corporate Records.....................................................................13 SECTION 8. MISCELLANEOUS ....................................................................................................................14 8.1 Contracts 14 8.2 Checks, Drafts, etc..................................................................................................................14 8.3 Deposits 14 8.4 Insurance.................................................................................................................................14 8.5 Fiscal Year..............................................................................................................................14 SECTION 9. AMENDMENTS ......................................................................................................................14 9.1 Amendments...........................................................................................................................14 SECTION 1. INTRODUCTION 1.1 Application. These Bylaws, upon being recorded with the Clerk and Recorder of Gallatin County, Montana, apply to and govern the University Crossing Property Owners Association (the “Association”), a Montana nonprofit corporation formed under the Montana Nonprofit Corporation Act, Title 35, Chapter 2, of the Montana Code Annotated (the “Act”). The Association is authorized and created by the Declaration of Covenants, Conditions, and Restrictions for University Crossing Minor Subdivision (the “Declaration”). All Owners, Occupants, and Lessees shall have the rights and responsibilities described in these Bylaws and shall be subject to the provisions thereof. Unless the context requires otherwise, capitalized terms in these Bylaws shall have the meanings given them in the Declaration. 1.2 Association Powers. Except as expressly limited by its articles of incorporation, the Declaration, and these Bylaws, the Association shall have all the powers of a nonprofit corporation enumerated and set forth in the Montana Nonprofit Corporation Act, Title 35, Chapter 2, Montana Code Annotated. 1.3 Relation to other Documents; Conflicts. These Bylaws are subject to and governed by the articles of incorporation of the Association. These Bylaws are further subject to the Declaration, as such may be from time to time amended. If there is any conflict between these Bylaws and the Declaration, the Declaration shall control. No acts by the Association or its Board of Directors shall be contrary to the Declaration. SECTION 2. OFFICES 2.1 Registered Office. The Association’s registered office shall be located within Montana at the address of the Association’s registered agent. The Board of Directors or Members holding a 130 DRAFT 7-21-2017 - 3 - majority of Member Votes may change the registered agent and the address of the registered office from time to time, upon filing the appropriate statement with the Secretary of State. 2.2 Principal Office. The Association’s principal office shall be within Gallatin County, Montana, at such location as may be designated by the Board of Directors upon notice to the Members. The principal office need not be identical with that of the registered office. SECTION 3. MEMBERSHIP 3.1 Mandatory Membership. Every Person who is an Owner of a Lot shall be a Member of the Association. Persons holding a Mortgage or other interest in any portion of the Property merely as security for the performance of an obligation shall not be entitled to membership. 3.2 Membership Interest. Ownership of each Lot within the Property, as shown on the recorded plat or plat amendment(s), shall entitle the Owner thereof to a Percent Membership Interest in the Association and a specified number of Member Votes. The Percent Membership Interest and Member Votes allocated to each Lot shall be as provided in the Declaration and any amendments thereto. Multiple Owners of a single Lot shall have, collectively, the Percent Membership Interest and Member Votes allocated to such Lot. If an Owner owns more than one Lot, such Owner shall have the Percent Membership Interest and Member Votes allocated to all of its Lots. 3.3 Transfer of Membership. A membership interest shall run with the land. A membership interest is an incident to ownership that is created when ownership of a Lot is acquired and terminated when ownership is divested. Except as otherwise provided in the Declaration, a membership interest may not be assigned, transferred, pledged, hypothecated, conveyed or alienated in any way except upon transfer of the corresponding ownership interest in a Lot, and then only to the transferee of that ownership interest. Any attempt to transfer a membership interest other than by a transfer of the corresponding ownership interest shall be null and void. 3.4 Annual Membership Meeting. The Association shall hold an annual meeting of the membership at such date, place, and time as shall be set by the Board of Directors. At the annual meeting, the Members shall review and approve a budget, elect directors and transact any other business as may come before the meeting. 3.5 Special Membership Meetings. The president (or vice-president in absence of the president) may call a special membership meeting for any purpose or purposes described in the meeting notice. Members having the requisite percent membership interest specified in the Declaration may call a special membership meeting to review Assessments. Members holding one-third (1/3) of the membership interest may call a special membership meeting for other purposes described in the meeting notice. If Members request a special membership meeting, they must do so in writing, and sign, date, and deliver the demand to any corporate officer at least ten (10) days before the Association must give notice of the meeting. The president shall then call the special meeting on these Members’ behalf. For purposes of determining whether Members hold the requisite percent membership interest to call a special meeting, the record date is the close of business on the 30th day before delivery of the demand or demands for such meeting to any corporate officer. 3.6. Place of Meeting. The Board of Directors may designate any place within Gallatin County, Montana, as the meeting place for any annual or special meeting of the Members. If the Board of Directors does not designate a meeting place, then the Members shall meet at the principal office of the Association. 131 DRAFT 7-21-2017 - 4 - 3.7 Notice of Membership Meetings. (a) Notice Required. The secretary of the Association shall deliver notice of all annual or special membership meetings to each record owner. (b) Manner of Notice. Notice of annual and special membership meetings shall be given by separate written notice. Notice shall be given not less than 30 or more than 60 days before the date of the meeting. Notice shall be deemed effective at upon personal delivery of the notice to a Member or upon the date when the notice was deposited postpaid in the United States mail. Notice by United States mail shall be addressed to each Member at the address listed in the records of the Gallatin County Treasurer’s office unless the Member has provided the Association in writing another mailing address. (c) Contents of Notice. The notice shall state the place, day, and hour of any annual or special membership meeting. Unless otherwise required by the Declaration or the Act, the notice of an annual membership meeting need not include a description of the meeting’s purpose or purposes. The notice of each special membership meeting, however, shall include a description of the meeting’s purpose or purposes. (d) Adjourned Meeting. If the Members adjourn any membership meeting to a different date, time, or place, the secretary need not give notice of the new date, time and place, if the new date, time, and place is announced at the meeting before adjournment. (e) Waiver of Notice. A Member entitled to a notice of a meeting, or to any other notice required by the Act, the Declaration, or these Bylaws, may waive such notice by a writing signed by the Member. The Member must send the notice of waiver to the Association (either before or after the date and time stated in the notice) for inclusion in the minutes or filing with the Association’s records. A Member’s attendance at a meeting: (i) waives the Member’s right to object to lack of notice or defective notice of the meeting, unless the Member at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; and (ii) waives the Member’s right to object to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the Member objects to considering the matter when it is presented. 3.8 Conduct of Membership Meetings. (a) Conduct of Meeting. The president, or in the president’s absence, the vice president, or in their absence, any person chosen by the Members present shall call the membership meeting to order and shall act as the chairperson of the meeting. The chairperson (or a person designated by the chairperson) shall establish rules of the meeting that will freely facilitate debate and decision-making. The chairperson will indicate who may speak when and when a vote will be taken. The secretary of the Association shall act as the secretary of all meetings of the Members, but in the secretary’s absence, the presiding officer may appoint any other person to act as the secretary of the meeting. (b) Order of Business. The order of business at a membership meeting shall be as follows (i) Call to order; (ii) Reading of prior minutes; (iii) Election of directors, if that is the purpose of the meeting; (iv) Business specified by the notice; (v) Unfinished business; (vi) New business; 132 DRAFT 7-21-2017 - 5 - (vii) Adjournment. At the annual meeting, the president and treasurer shall report on the activities and financial condition of the Association. 3.9 Membership Quorum Requirements (a) Annual Meeting Quorum. There is no quorum requirement for an annual meeting. Unless the Declaration, Bylaws or Montana Nonprofit Corporation Act require a greater than majority vote for a particular matter, actions may be taken on matters coming before the annual meeting by Members holding a majority of Member Votes present at the meeting in person or by proxy. (b) Meeting Quorum. Unless otherwise provided by the Declaration, fifty percent (50%) of the total Member Votes of the Association, either present or by proxy, shall constitute a quorum at any meeting of the membership. If the required quorum is not present, another meeting may be called subject to the notice requirements of Section 3.7 of these Bylaws, and the required quorum at such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that no such subsequent meeting may be held more than sixty (60) days following the preceding meeting. 3.10 Proxies A Member may vote in person or by proxy at all membership meetings. The Member may appoint a proxy to vote by signing an appointment form, either personally or by attorney-in-fact. The Association shall consider a proxy appointment valid if made in writing and filed with the secretary of the Association before or at the time of the meeting. No proxy shall be valid after 11 months from the date it was made, unless otherwise provided in the proxy. The Association, and its director, officer or agent who accepts or rejects a proxy appointment in good faith, is not liable in damages to a Member for the consequences of such acceptance or rejection. 3.11 Voting of Membership Each Member is entitled to exercise the number of Member Votes attributable to such Member’s Lot on each matter voted on by the Members. If a membership stands of record in the names of two or more Persons, then the vote of one representative shall bind all names on that one membership. Except as specifically provided otherwise in the Declaration or these Bylaws, when Members vote to take action on a matter, a majority of Member Votes shall carry. 3.12 Action by Written Consent The Members may act on any matter generally required or permitted at a membership meeting, without actually meeting, if: all the Members take the action, each one signs a written consent describing the action taken, and the Members file all the consents with the records of the corporation. Action taken by consents is effective when the last Member signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting vote and may be referred to as a meeting vote in any document. The record date for determining Members entitled to take action without a meeting is the earliest date that a Member signs a consent. SECTION 4. DIRECTORS 4.1 Number, Tenure and Qualifications of Directors. (a) Appointment During Declarant Control Period. During the Declarant Control Period (defined in the Declaration), the Declarant shall appoint three (3) persons to serve on the Board of Directors. Those persons shall serve at the pleasure of the Declarant. 133 DRAFT 7-21-2017 - 6 - (b) Election After Declarant Control Period. After the Declarant Control Period the Members may set the number of directors, provided that such number shall be no less than three (3) and no more than five (5). A director shall be elected by the Members for a term set by the membership, provided that such term shall be not less than one (1) year nor greater than five (5) years. If a director’s term expires, the director shall continue to serve until the Members have elected and qualified a successor or until there is a decrease in the number of directors. If a vacancy occurs on the Board of Directors prior to a membership meeting, the remaining directors may fill the vacancy. When the directors elect a director to fill a vacancy, the director’s term expires at the next membership meeting at which Members elect directors. Directors shall be either individual Members of the Association or authorized representatives of entity Members of the Association. (c) Nomination and Voting. The Board may nominate qualified persons for vacant director positions. Members may also make such nominations from the floor at a meeting where directors are to be elected. Each Member (or if more than on Person holds a membership interest, their representative) shall be entitled to cast the number of Member Votes allocated to such Member’s Lot as set forth in the Declaration with respect to each vacancy to be filled at any election of directors. The candidates receiving the greatest number of votes shall be elected. 4.2 Removal of Directors. One or more directors elected by the Members may be removed, with or without cause, if a majority of the Member Votes present at a duly constituted meeting affirmatively votes for such removal. Notice must be sent to all Members and directors that a purpose of the meeting is removal. 4.3 Regular Meetings of the Board of Directors. The Board of Directors shall hold a regular meeting immediately after, and at the same place as, the annual membership meeting. No notice of the meeting other than this Bylaw is required. The Board of Directors may provide, by resolution, the date, time and place (which shall be within Gallatin County, Montana) of additional regular meetings. Regular Board meetings may be held by conference telephone, if convened in accordance with Section 4.5. 4.4 Special Meetings of the Board of Directors. The president, or one-third (1/3) of the directors then in office may call and give notice of special meetings of the Board of Directors. Those authorized to call special Board meetings may fix any place within Gallatin County, Montana, as the special meeting place. Special Board meetings may be held by conference telephone, if convened in accordance with Section 4.5. 4.5 Board of Director Meetings by Conference Telephone. If authorized by the Board of Directors, the Board or any designated committee of the Association may participate in a Board or committee meeting by means of conference telephone or similar communications equipment, provided all persons entitled to participate in the meeting receive proper notice of the telephone meeting (see Section 3.9), and provided all persons participating in the meeting can hear each other at the same time. A director participating in a conference telephone meeting is deemed present in person at the meeting. The chairperson of the meeting may establish reasonable rules governing conduct of the meeting by phone. 4.6 Notice of Special Director Meetings; Waiver. The Association’s secretary shall give either oral or written notice of any special Board meeting at least two (2) days before the meeting. The notice shall include the meeting place, day and hour. If the meeting is to be held by conference telephone, the secretary must provide instructions for participating in the telephone meeting. Any director may waive notice of any meeting. The waiver must be in writing, signed by the director entitled to the 134 DRAFT 7-21-2017 - 7 - notice, and filed with the minutes or corporate records. A director’s attendance at a meeting waives the director’s right to object to lack of notice or defective notice of the meeting; this shall be true unless the director, at the beginning of the meeting (or promptly upon arrival), objects to holding the meeting or transacting business at the meeting, and does not vote for or assent to action taken at the meeting. Neither the secretary nor director needs to specify in the notice or waiver of notice the business to be transacted at, or the purpose of, any special Board meeting. 4.7 Directors, Manner of Acting. (a) Required Number to Constitute Act. The act of a majority of the directors of the Association shall be the act of the Board of Directors. (b) Director Approval. The Association shall deem a director to have approved of an action taken if the director is present at a meeting of the Board unless: (i) The director objects at the beginning of the meeting (or promptly upon arrival) to holding it or transacting business at the meeting; or (ii) The director’s dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) The director delivers written notice of dissent or abstention to the presiding officer of the meeting before its adjournment or to the Association immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. 4.8 Conduct of Board of Directors Meetings. The president, or in the president’s absence, the vice- president, or in their absence, any person chosen by the directors present shall call the meeting of the directors to order and shall act as the chairperson of the meeting. The chairperson, or the chairperson’s designee, shall establish rules of the meeting that will freely facilitate debate and decision-making. The chairperson will indicate who may speak when and when a vote will be taken. The secretary of the Association shall act as the secretary of all meetings of the directors, but in the secretary’s absence, the presiding officer may appoint any other person to act as the secretary of the meeting. 4.9 Director Action Without a Meeting. The directors may act on any matter generally required or permitted at a Board meeting, without actually meeting, if all the directors take the action, each one signs a written consent describing the action taken, and the directors file all the consents with the records of the Association. Action taken by consents is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting vote and may be referred to as a meeting vote in any document. 4.10 Director Compensation. Directors shall not receive compensation for services rendered to the Association. Directors shall, however, be entitled to reimbursement for actual expenses incurred in the performance of their duties. 4.11 General Powers. Except as otherwise provided by the Declaration and articles of incorporation, all Association powers shall be exercised by or under the authority of the Board of Directors, and the Board shall manage and direct the business and affairs of the Association. Without limiting the generality of the foregoing, the Board of Directors is empowered to do the following things: (a) Exercise ultimate decisional power in and on all matters affecting the Association, except for those matters reserved to the Members or the Declarant. 135 DRAFT 7-21-2017 - 8 - (b) Enter into contracts and agreements as are necessary to conduct the business of the Association. (c) Designate, hire and dismiss the personnel necessary for the Association’s operation and for the maintenance, operation, repair and replacement of the Common Property. The Board may, where appropriate, provide for the compensation of such personnel and for the purchase of equipment, supplies and materials to be used by such personnel in the performance of their duties. (d) Make and establish rules and regulations for the governance of the Common Property. (e) Prepare budgets and levy Assessments as described in these Bylaws and the Declaration. (f) Take necessary and appropriate action to collect Assessments from Members, including filing liens and prosecuting foreclosures. (g) Call meetings of the Association, both annual and special, preside over such meetings, and give appropriate notice of such meetings as required by these Bylaws. (h) Formulate and introduce resolutions at the meetings of the Association. (i) Pay the expenses of the Association, including all property taxes and assessments. (j) Obtain and carry insurance against casualties and liabilities, as provided in the Declaration, and paying the premium cost thereof, and to provide for the use and disposition of insurance proceeds in the event of loss or damage to Association property. (k) Maintain a list of members. (l) Promote, conserve, and preserve the Common Property. (m) Establish accounts in banks or other financial institutions for operating and reserve funds as set out in the Declaration. 4.12 Committees. (a) Committees in General. Pursuant to the Montana Nonprofit Corporation Act, Montana Code Annotated §35-2-433, and subject to the limitations therein, the Board of Directors may create one or more committees and appoint members of the Board to serve on them. Each committee must have two or more members. Committees shall serve at the pleasure of the Board of Directors. (b) University Crossing Review Committee. The Board of Directors shall establish the University Crossing Review Committee (“UCRC”) to review and approve plans for the construction of Improvements on the Property in accordance with the Declaration. The number of CDRC members and the UCRC’s function shall be as set forth in the Declaration. The Board of Directors, in its discretion, may serve as the University Crossing Review Committee. 4.13 Managing Agent. The Board of Directors may employ for the Association a professional management agent at a compensation established by the Board to perform such day-to-day operations of the Association as the Board shall authorize. The Declarant, or an affiliate of the Declarant, may be employed as managing agent or manager. No management contract may have a 136 DRAFT 7-21-2017 - 9 - term in excess of one year and must permit termination by either party without cause and without termination fee on 30 days’ or less written notice. 4.14 Borrowing. The Board of Directors shall have the power to borrow money for the purpose of maintenance, repair or restoration of the Common Property without the approval of the Members of the Association. The Board shall also have the power to borrow money for other purposes; provided, the Board shall obtain Member approval in the same manner provided in Paragraph 5.4(b) of the Declaration for Special Assessments if the proposed borrowing is for the purpose of modifying, improving or adding amenities and the total amount of such borrowing exceeds or would exceed five percent (5%) of the budgeted gross expenses of the Association for that fiscal year. 4.15 Enforcement. The Board shall have the power to impose reasonable fines and to suspend an Owner’s right to use the Common Property for violation of any duty imposed under the Declaration, these Bylaws or any rules and regulations duly adopted hereunder; provided, however, nothing herein shall authorize the Association or the Board of Directors to limit ingress and egress to or from a Lot or to suspend an Owner’s right to vote due to nonpayment of assessments. In the event that any Occupant of a Lot violates the Declaration, Bylaws or a rule or regulation and a fine is imposed, the fine shall first be assessed against the Occupant; provided, however, that if the fine is not paid by the Occupant within the time period set by the Board, the Owner shall pay the fine upon notice from the Association. The failure of the Board to enforce any provision of the Declaration, Bylaws or any rule or regulation shall not be deemed a waiver of the right of the Board to do so thereafter. (a) Notice. Prior to imposition of any sanction, the Board or its delegate shall serve the alleged violator with written notice describing (i) the nature of the alleged violation, (ii) the proposed sanction to be imposed, (iii) a period of not less than 10 days within which the alleged violator may present a written request to the Board of Directors for a hearing; and (iv) a statement that the proposed sanction shall be imposed as contained in the notice unless a challenge is begun within 10 days of the notice. If a timely challenge is not made, the sanction stated in the notice shall be imposed. (b) Hearing. If a hearing is requested in a timely manner, the Board shall conduct a hearing affording the Owner a reasonable opportunity to be heard. Prior to the effectiveness of any sanction hereunder, proof of proper notice shall be placed in the minutes of the meeting. Such proof shall be deemed adequate if a copy of the notice, together with a statement of the date and manner of delivery, is entered by the officer, Director or agent who delivered such notice. The notice requirement shall be deemed satisfied if the alleged violator appears at the meeting. The minutes of the meeting shall contain a written statement of the results of the hearing and the sanction, if any, imposed. The Board of Directors may, but shall not be obligated to, suspend any proposed sanction if the violation is cured within the 10-day period. Such suspension shall not constitute a waiver of the right to sanction future violations of the same or other provisions and rules by any person. (c) Additional Enforcement Rights. Notwithstanding anything to the contrary herein contained, the Association, acting through the Board of Directors, may elect to enforce any provision of the Declaration, these Bylaws or the rules and regulations of the Association by self-help (specifically including, but not limited to, the towing of vehicles that are in violation of parking rules and regulations) or by suit at law or in equity to enjoin any violation or to recover monetary damages or both without the necessity of compliance with the procedure set forth above. In any such action, to the maximum extent permissible, the Owner or Occupant responsible for the violation of which abatement is sought shall pay all costs actually incurred, including reasonable attorney’s fees. 137 DRAFT 7-21-2017 - 10 - SECTION 5. OFFICERS 5.1 Number of Officers; Qualification. The officers of the Association shall be a president, a secretary, and a treasurer. The same person may hold the offices of secretary and treasurer. The Board may appoint a vice-president if it deems such office necessary. All officers must be individual Members of the Association or authorized representatives of entity Members of the Association. The president and vice-president shall be appointed from among the directors. The secretary and treasurer need not be directors. 5.2 Appointment and Term of Office. The Board of Directors shall appoint officers of the Association for a term that the Board determines. If the Board does not specify a term, the officers shall hold office until the next annual meeting of the Board. 5.3 President. The president shall be the principal executive officer of the Association. The president shall be subject to the control of the Board of Directors and shall in general supervise and control, in good faith, all of the business and affairs of the Association. The president shall, when present, preside at all meetings of the Members and of the Board of Directors. 5.4 Vice President. The vice president, if one is appointed, shall perform, in good faith, the president’s duties if the president is absent, dies, is unable or refuses to act. If the vice president acts in the absence of the president, the vice president shall have all presidential powers and be subject to all the restrictions upon the president. The vice president shall perform any other duties that the president or Board of Directors may assign to the vice president. 5.5 Secretary. The secretary shall in good faith: (a) create and maintain one or more books for the minutes of the proceedings of the Members and of the Board of Directors; (b) provide that all notices are served in accordance with these Bylaws, the Declaration, or as required by law; (c) be custodian of the Association’s records; (d) when requested or required, authenticate any records of the Association; (e) keep a current list of the mailing addresses of the Members; (f) sign on behalf of the Association, all records, documents and instruments when such are authorized to be signed by the Association; and (g) in general perform all duties incident to the office of secretary and any other duties that the president or the Board of Directors may assign to the secretary. 5.6 Treasurer. The treasurer shall: (a) have charge and custody of the accounts of the Association; (b) receive and give receipts for moneys due and payable to the Association from any source, and deposit all moneys in the Association’s name in banks or other depositories that the Board shall select; (c) prepare and provide such periodic accounting as shall be required by the Association; and (d) in general perform all of the duties incident to the office of treasurer and any other duties that the president or Board of Directors may assign to the treasurer. 5.7 Officer Compensation. Officers shall not receive compensation for services rendered to the Association. Officers shall, however, be entitled to reimbursement for actual expenses incurred in the performance of their duties. 138 DRAFT 7-21-2017 - 11 - SECTION 6. INDEMNIFICATION OF DIRECTORS, OFFICERS AND AGENTS 6.1 Indemnification of Directors (a) General. An individual made a party to a proceeding because the individual is or was a director of the Association may be indemnified against liability incurred in the proceeding, but only if the indemnification is both: (i) Determined permissible; and (ii) Authorized, as defined in Paragraph 6.1(b). The indemnification is further subject to the limitation specified in Paragraph 6.1(d). (b) Determination, and Authorization. The Association shall not indemnify a director under Section 6.1 unless: (1) Determination. Determination has been made in accordance with procedures set forth in the Montana Nonprofit Corporation Act that the director met the standard of conduct set forth in Paragraph 6.1(c) below; and (2) Authorization. Payment has been authorized in accordance with procedures listed in the Montana Nonprofit Corporation Act based on a conclusion that the expenses are reasonable, the Association has the financial ability to make the payment, and the financial resources of the Association should be devoted to this use rather than some other use by the Association. (c) Standard of Conduct. The individual shall demonstrate that: (i) The individual acted in good faith; and (ii) The individual reasonably believed: (A) In acting in an official capacity with the Association, that the individual’s conduct was in the Association’s best interests; (B) In all other cases, that the individual’s conduct was at least not opposed to the Association’s best interests; and (C) In the case of any criminal proceeding, that the individual had no reasonable cause to believe that the conduct was unlawful. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contenders or its equivalent, is not, of itself, a determination that the director did not meet the standard of conduct described in this section. (d) No Indemnification Permitted in Certain Circumstances. The Association shall not indemnify a director under Section 6.1 if (i) The director was adjudged liable to the Association in a proceeding by or in the right of the Association; or 139 DRAFT 7-21-2017 - 12 - (ii) The director was adjudged liable in any other proceeding charging that the director improperly received personal benefit, whether or not the individual acted in an official capacity. (e) Indemnification Limited. Indemnification permitted under Section 6.1 in connection with a proceeding by the Association or in the right of the Association is limited to the reasonable expenses incurred in connection with the proceeding. 6.2 Advance Expenses for Directors The Association may pay for or reimburse, in advance of final disposition of the proceeding, the reasonable expenses incurred by a director who is a party to a proceeding if: (a) By following the procedures of the Montana Nonprofit Corporation Act the Board of Directors determined that the director met requirements (c)–(e) listed below; (b) The Board of Directors authorized an advance payment to a director; (c) The director has furnished the Association with a written affirmation of the director’s good faith belief that the director has met the standard of conduct described in Section 6.1; (d) The director has provided the Association with a written undertaking, executed personally or on the director’s behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct; the director’s undertaking must be an unlimited general obligation, but need not be secured, and the Association may accept the undertaking without reference to financial ability to make repayment; and (e) The Board of Directors determines that the facts then known to it would not preclude indemnification under Section 6.1 of these Bylaws or the Montana Nonprofit Corporation Act. 6.3 Indemnification of Officers, Agents and Employees The Board of Directors may choose to indemnify and advance expenses to any officer, employee, or agent of the Association applying those standards described in Sections 6.1 and 6.2 of these Bylaws. 6.4 Mandatory Indemnification Notwithstanding any other provisions of these Bylaws, the Association shall indemnify a director or officer who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director or officer was a party because he or she is or was a director or officer of the Association, against expenses incurred by the director or officer in connection with the proceeding. SECTION 7. BOOKS AND RECORDS; INSPECTION 7.1 Corporate Records. (a) Minutes and Financial Records. The Association shall keep a record of the minutes of all meetings of its Members and Board of Directors, a record of all actions taken by the Members or Board of Directors without a meeting, and a record of all actions taken by a committee of the Board of Directors acting in place of the Board and on behalf of the Association. The Association shall maintain appropriate financial records. (b) Membership List. The Association shall maintain a record of the Members’ names and addresses. The membership list shall indicate each Member is entitled to one vote. 140 DRAFT 7-21-2017 - 13 - (c) Form. The Association shall maintain its records in written form or in another form capable of conversion into written form within a reasonable time. (d) Other Records. The Association shall keep a copy of the following records at its principal office or at a location from which the records may be recovered within two (2) business days: (i) Its articles or restated articles of incorporation and all amendments to them currently in effect; (ii) Its Bylaws or restated Bylaws and all amendments to them currently in effect; (iii) A copy of the Declaration; (iv) Resolutions adopted by its Board of Directors; (v) The minutes of all membership meetings, and records of all actions taken by Members without a meeting, for the past three (3) years; (vi) The financial statements, if any, furnished for the past three (3) years to the Members; (vii) A list of the names and business addresses of its current directors and officers; and, (viii) Its most recent annual report delivered to the Secretary of State. 7.2 Member’s Rights to Inspect Corporate Records (a) Absolute Inspection Rights of Records by Members. A Member (or a Member’s agent or attorney) is entitled to inspect and copy, at a reasonable time and location specified by the Association, any of the records of the Association described in Paragraph 7.1(d). The Member must give the Association written notice or a written demand to inspect at least 5 days before the date on which the Member wishes to inspect and copy. (b) Conditional Inspection Right. The Member (or the Member’s agent or attorney) may inspect and copy, at a reasonable time and reasonable location specified by the Association, additional records listed in Paragraph 7.2(c) if the Member meets the following criteria: (i) The Member must give the Association a written demand to inspect made in good faith and for a proper purpose at least 5 business days before the date on which the Member wishes to inspect and copy; and (ii) The Member must describe with reasonable particularity: (A) The Member’s purpose and (B) The records that the Member desires to inspect; and (iii) The Association must approve that the records are directly connected with the Member’s purpose. (c) Additional Records. If the Member meets the requirements of Paragraph 7.2(b), the Member may inspect and copy: 141 DRAFT 7-21-2017 - 14 - (i) Excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors acting on behalf of the Association, minutes of any meeting of the Members, and records of action taken by the Members without a meeting, to the extent not subject to inspection under Paragraph 7.2(a); (ii) Financial records of the Association; and (iii) The membership list. (d) Copy Costs. The right to copy includes the right to photocopy. The Association may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the Member. The charge may not exceed the estimated cost of production or reproduction of the records. SECTION 8. MISCELLANEOUS 8.1 Contracts. The Board of Directors may authorize any officer(s) or agent(s) to enter into any contract or to execute or deliver any instrument in the name of and on behalf of the Association. The authorization may be general or specific. In the absence of another designation, the president and the secretary shall make all corporate deeds, mortgages and instruments of assignment or pledge. 8.2 Checks, Drafts, etc. The Board of Directors shall authorize by resolution which officer(s) or agent(s) may sign and issue all Association checks, drafts or other orders for payment of money, and notes or other evidence of indebtedness. The Board of Directors shall also determine by resolution the manner in which these documents will be signed and issued. 8.3 Deposits. The treasurer of the Association shall deposit in banks and other depositories all Association funds that are not being used. The Board of Directors shall authorize by Board resolution the exact location of the banks and depositories. 8.4 Insurance. The Board of Directors may purchase insurance policies to protect the property of the Association against casualty loss and to protect the Association, and its Board of Directors, officers and agents, when acting in their official capacity from liability. 8.5 Fiscal Year. The fiscal year of the Association shall be the calendar year or as otherwise set by resolution of the Board of Directors. SECTION 9. AMENDMENTS 9.1 Amendments. Prior to the fee conveyance of Lots holding a sixty percent (60%) Membership Interest (determined in accordance with Paragraph 4.3(a) and disregarding the provisions of Paragraph 4.3(b) of the Declaration) in the Association to Persons other than Declarant (or an entity controlled by or under common control with Declarant). Thereafter, these Bylaws may amended by the Association upon approval of seventy-five percent (75%) of the Member Votes at a meeting duly noticed and called for such purpose. If a proposed amendment is favored by a majority of the votes cast at a meeting, but such vote is less than the requisite seventy-five percent (75%) of the votes of the membership interests, Members who were not present in person or by proxy may give their assent to any amendment in writing, provided that the same is received by the secretary of the Association not later than thirty (30) days from the date of such meeting wherein the action was voted upon. No amendment may remove, revoke or modify any right or privilege of Declarant without the written consent of Declarant or the assignee of such right or privilege. 142 DRAFT 7-21-2017 - 15 - IN WITNESS WHEREOF, the undersigned, the incorporator of the Association, hereby adopts the foregoing Bylaws on _____________________, 2017. _________________________________________ Barry L. Brown, Incorporator The Declarant hereby approves the foregoing Bylaws as the bylaws of the Association. 19th Capital Group, LLC by: __________________________________________ Daniel H. Hitchcock, Member by: __________________________________________ Barry L. Brown, Member by: __________________________________________ Jerry D. Locati, Member by: __________________________________________ Dick Anderson, Member ACKNOWLEDGEMENTS STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on _____________, 2017, by Barry L. Brown, as a member of 19th Capital Group, LLC, a Montana limited liability company, and as incorporator of the University Crossing Property Owners Association. _______________________________________ Notary Signature Seal: STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on _____________, 2017, by Daniel H. Hitchcock, as a member of 19th Capital Group, LLC, a Montana limited liability company. _______________________________________ Notary Signature Seal: 143 DRAFT 7-21-2017 - 16 - STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on _____________, 2017, by Jerry D. Locati, as a member of 19th Capital Group, LLC, a Montana limited liability company. _______________________________________ Notary Signature Seal: STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on _____________, 2017, by Dick Anderson, as a member of 19th Capital Group, LLC, a Montana limited liability company. _______________________________________ Notary Signature Seal: 144 Return to: 19th Capital Group, LLC DRAFT 7-21-2017 c/o Barry Brown 113 East Oak Street, Suite 4-A Bozeman, Montana 59715 - 1 - DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR UNIVERSITY CROSSING MINOR SUBDIVISION ___________ TABLE OF CONTENTS SECTION 1. DEFINITIONS ............................................................................................................................4 SECTION 2 PROPERTY SUBJECT TO DECLARATION; PROPERTY RIGHTS..............................................7 2.1 The Property; General Declaration..........................................................................................7 2.2 Property Rights ........................................................................................................................7 2.3 Delegation................................................................................................................................7 2.4 Transfer of Common Property to Association.........................................................................7 2.5 Subdivision and Consolidation of Lots....................................................................................7 SECTION 3 DECLARANT'S RIGHTS.............................................................................................................7 3.1 Right to Transfer......................................................................................................................7 3.2 Limitations on Declarant .........................................................................................................7 3.3 Authorization Required ...........................................................................................................8 SECTION 4 UNIVERSITY CROSSING PROPERTY OWNERS ASSOCIATION ..............................................8 4.1 Creation and Purpose...............................................................................................................8 4.2 Membership in Association.....................................................................................................8 4.3 Membership Interest ................................................................................................................8 4.4 Voting Rights.........................................................................................................................10 4.5 Voting; Quorum.....................................................................................................................10 4.6 Declarant's Right to Appoint Majority of Board ...................................................................10 4.7 Powers and Duties of the Association ..................................................................................10 SECTION 5 ASSESSMENTS, BUDGET & LIENS.........................................................................................11 5.1 Assessments and Owners' Obligation to Pay.........................................................................11 5.2 Computation of General Assessment.....................................................................................12 5.3 Computation of Limited Assessments...................................................................................13 5.4 Special Assessments ..............................................................................................................14 5.5 Reserve Budget and Capital Contribution .............................................................................14 5.6 Date of Commencement of Assessments ..............................................................................14 5.7 Lien of Assessments; Foreclosure .........................................................................................15 5.8 Subordination of the Lien to First Mortgages........................................................................15 5.9 Exempt Property ....................................................................................................................15 5.10 Assessment Obligation of Declarant ....................................................................................15 SECTION 6 MAINTENANCE .......................................................................................................................16 145 DRAFT 7-21-2017 - 2 - 6.1 Association's Maintenance Responsibility ............................................................................16 6.2 Owners' Maintenance Responsibility ....................................................................................16 6.3 Noxious Weeds......................................................................................................................18 6.4 Storm Water Maintenance Plan.............................................................................................18 SECTION 7 COMMON PROPERTY..............................................................................................................20 7.1 Description of Common Property..........................................................................................20 7.2 Intent ......................................................................................................................................20 7.3 Right of Access......................................................................................................................20 SECTION 8 USE RESTRICTIONS AND RULES...........................................................................................21 8.1 Generally................................................................................................................................21 8.2 Laws and Ordinances.............................................................................................................21 8.3 Inspection...............................................................................................................................21 8.4 Operations and Uses ..............................................................................................................21 8.5 Prohibited Uses......................................................................................................................21 8.6 Permitted Uses.......................................................................................................................22 8.7 General Use Provisions..........................................................................................................22 8.8 Construction...........................................................................................................................25 8.9 Parking...................................................................................................................................25 SECTION 9. DESIGN REVIEW PROCESS AND PROCEDURES ..................................................................25 9.1 University Crossing Review Committee ...............................................................................25 9.2 UCRC Review Required........................................................................................................25 9.3 Employment of Architects, Engineers or Other Persons.......................................................26 9.4 Review Fee and Address .......................................................................................................26 9.5 Design Guidelines..................................................................................................................26 9.6 Plan Review and Approval ....................................................................................................26 9.7 Right to Inspect......................................................................................................................26 9.8 Construction Compliance ......................................................................................................26 9.9 Notice of Noncompliance or Noncompletion........................................................................27 9.10 No Liability...........................................................................................................................27 SECTION 10. INSURANCE AND CASUALTY LOSSES...............................................................................27 10.1 Insurance on Common Property...........................................................................................27 10.2 Other Insurance.....................................................................................................................29 10.3 Damage and Destruction.......................................................................................................29 10.4 Disbursement of Proceeds ....................................................................................................30 10.5 Repair and Reconstruction....................................................................................................30 10.6 Property Insured by Owners; Damage and Destruction .......................................................30 SECTION 11 CONDEMNATION ..................................................................................................................30 SECTION 12 ANNEXATION AND WITHDRAWAL OF PROPERTY...........................................................30 12.1 Annexation by Declarant ......................................................................................................30 12.2 Annexation by Association...................................................................................................31 12.3 Additional Covenants and Easements ..................................................................................31 12.4 Withdrawal of Property ........................................................................................................31 12.5 Amendment...........................................................................................................................31 SECTION 13 MORTGAGEE PROVISIONS..................................................................................................32 13.1 Priority of First Mortgages ...................................................................................................32 13.2 Notices to Eligible Lenders ..................................................................................................32 13.3 Notice to Association............................................................................................................32 13.4 Failure of Mortgagee to Respond .........................................................................................32 SECTION 14. EASEMENTS.........................................................................................................................32 14.1 Easements Reserved to Declarant.........................................................................................32 146 DRAFT 7-21-2017 - 3 - 14.2 Easements for the Installation, Maintenance, and Use of Common Property on Owners’ Lots .................................................................................................................33 14.3 Easements for Use and Enjoyment of Common Property ....................................................33 14.4 Permits for Encroachment ....................................................................................................34 14.5 Permit for Overhangs............................................................................................................34 14.6 Easement for Maintenance and Repair of Lot Improvements ..............................................35 14.7 Easement for Maintenance of Common Property ................................................................35 SECTION 15. ENFORCEMENT ....................................................................................................................35 15.1 Owner's Compliance.............................................................................................................35 15.2 Remedies...............................................................................................................................35 15.3 Attorney's Fees .....................................................................................................................36 15.4 No Waiver.............................................................................................................................36 SECTION 16. GENERAL PROVISIONS........................................................................................................36 16.1 Covenants to Run with Land, Duration, Binding Effect ......................................................36 16.2 Amendment...........................................................................................................................36 16.3 Variance and Waiver ............................................................................................................37 16.4 Partition.................................................................................................................................37 16.5 University Crossing – Use of Term ......................................................................................37 16.6 Disclaimer.............................................................................................................................38 16.7 Notice of Sale or Transfer of Title........................................................................................38 16.8 Proper Notice to Owner or Mortgagee .................................................................................38 16.9 No Dedication.......................................................................................................................38 16.10 Severability...........................................................................................................................38 16.11 Captions ................................................................................................................................38 16.12 Cumulative Effect.................................................................................................................38 16.13 Interpretation.........................................................................................................................38 DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS THIS DECLARATION is made ___________________, 2017, by 19TH CAPITAL GROUP, LLC, a Montana limited liability company, c/o Barry Brown, 113 East Oak Street, Suite 4-A, Bozeman, Montana 59715 (“Declarant”). RECITALS A. Declarant is the owner of real property (“Property”) in the City of Bozeman, Gallatin County, Montana, described as follows: Tract 1A of Certificate of Survey No. 2008A, being a portion of Tract 1 of Certificate of Survey No. 2008, and a portion of Lot 2, Minor Subdivision No. 191, located in the SE¼ of Section 14, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder, Gallatin County, Montana. B. Declarant intends to subdivide the Property into smaller tracts and lots for purposes of resale or development. Developer intends that the Property be developed principally as a commercial and business park. The development is known as “University Crossing.” C. Declarant desires to subject the Property and the subdivisions thereof to protective and restrictive covenants, conditions, restrictions, easements, reservations, and guidelines (collectively the “Covenants”). The requirements set forth in the Covenants shall meet or exceed the minimum 147 DRAFT 7-21-2017 - 4 - requirements and standards of all applicable state and local regulations and ordinances governing subdivision and zoning. NOW, THEREFORE, Declarant hereby declares that the Property, and other lands that may be added to the Property pursuant to a Supplemental Declaration and the procedures set forth herein, shall be developed, owned, held, sold, conveyed, encumbered, leased, used, and occupied subject to the following Covenants. The Covenants shall run with the land and shall be binding upon and inure to the benefit of all persons having any right, title or interest in the Property (or any part thereof) and their heirs, successors, and assigns. The Covenants are imposed upon the Property for the purposes of protecting and enhancing the value and desirability of the Property, maintaining a consistent character and architectural theme, regulating the development and use of the Property, and providing for the administration and maintenance of the Common Property. SECTION 1. DEFINITIONS Unless the context requires otherwise, the following definitions shall pertain throughout this Declaration and in the interpretation thereof: • “Additional Property” means and refers to real property in Gallatin County, Montana, described as set forth in the attached Exhibit A. • “Assessment” means the assessments described and authorized in Section 5 of this Declaration. • “Association” means the University Crossing Property Owners Association, a Montana non-profit corporation to be created by Declarant as provided in Section 4. The Association shall consist of all of the Owners, as Members, acting as a group and in accordance with this Declaration and the Bylaws. • “Board of Directors” or “Board” is the elected body of the Association and the term shall have its normal meaning under Montana corporate law. • “Building Envelope” means the designated area of a Lot within which any building or building additions constructed by an Owner on the Lot shall be located. The boundary of Building Envelope for each Lot (other than the Common Open Space Lot) is delineated on the Plat, subject to adjustment as provided in this Declaration. • “Bylaws” mean the Bylaws of the Association, as they may be amended from time to time. • “University Crossing Review Committee” or “UCRC” means the committee established pursuant to Section 9 for architectural, design, and site plan review and approval of proposed construction, alteration, addition, and erection of Improvements to the Property. • “Common Area Easements” shall have the meaning set forth in Section 14.2. • “Common Property” means all real and personal property, including the Common Open Space Lot and Common Area Easements, and other easements, that the Association owns, leases or otherwise holds possessory or use rights in for the common use and enjoyment of the Owners, including roadways, walkways, entrance areas, utility lines and connections, landscaped areas, patios, parking areas, median strips, curbs, drainage courses and storm water facilities, private rights-of-way and easements, utility and drainage easements, common area and sign lighting, and sign location areas and signs located thereon. 148 DRAFT 7-21-2017 - 5 - • “Common Expenses” is an inclusive term referring to both General Common Expenses and Limited Common Expenses. • “Common Open Space Lot” means the Lot identified as such on the plat of the University Crossing Minor Subdivision. Upon conveyance of such Lot to the Association pursuant to this Declaration, the Lot shall be owned in fee by the Association and shall become a part of the Common Property. • “Covenants” shall have the meaning set forth in Recital C. • “Declarant” means 19th Capital Group, LLC, a Montana limited liability company, and any successors and assigns controlled by or under common control with 19th Capital Group, LLC. • “Declarant Control Period” means the period of time described in Section 4.6. • “Declaration” means this document and all parts attached thereto or incorporated by reference. • “Design Guidelines” means the standards, restrictions, and specifications referred to in Section 9 that govern the construction, placement, location, alteration, maintenance or design of any Improvements to the Property, and all amendments thereto at the time of reference. • “General Assessments” means Assessments levied against all Lots on the Property to fund General Common Expenses. • “General Common Expenses” means the expenses incurred by the Association for the general benefit of all Lot Owners, including any reasonable reserve(s), all as may be found necessary and appropriate by the Board pursuant to this Declaration, the Bylaws, and the Articles of Incorporation of the Association. • “Improvements” means and includes, but is not limited to, buildings and roofed structures, changes in any exterior materials, color or shape of buildings, parking areas, loading areas, fences, walls, driveways, walkways, patio areas, hedges, landscaping, poles, signs, lighting, and any new construction or exterior renovation significantly altering the appearance of these improvements. It shall not include public utilities, landscape material replacements, or any other replacement or repair that does not change exterior colors or exterior appearances. It shall include both original improvements and all later changes and improvements. • “Law” means all laws, ordinances, requirements, orders, proclamations, directives, codes, rules, and regulations of any governmental authority that affect the Property, the Improvements, this Declaration, or any Person’s rights and remedies under this Declaration in any way. The term shall include Law in force at the date of this Declaration or passed, enacted or imposed at some later time, subject in all cases, however, to any applicable waiver, variance or exemption. “Governmental authority” as used in this paragraph shall include any agency, authority, bureau, department, quasi-governmental body or other entity or instrumentality having or claiming jurisdiction over the Property. • “Limited Assessments” means Assessments levied against particular Lots to fund Limited Common Expenses, as more particularly described in Section 5 hereof. • “Limited Common Expenses” means the expenses incurred by the Association for the benefit of Owners of fewer than all of the Lots. The Board shall determine what expenses benefit fewer than all Lots, which determination shall be conclusive. Limited Common Expenses may include a reasonable reserve for capital repairs and replacements and shall be specifically authorized by the Board in accordance with Section 5 hereof. 149 DRAFT 7-21-2017 - 6 - • “Lot” means a fractional part of the subdivided Property as depicted on plats recorded from time to time in the Public Records. • “Majority” means those votes, owners, members or other group, as the context may indicate, totaling more than 50% of the total Member Votes and/or Percent Membership Interest. • “Member” means a Person entitled to membership in the Association, as provided herein. • “Member Votes” means the votes assigned to each Lot by this Declaration, as amended from time to time. See Sections 4.3 and 4.4. • “Mortgage” means a mortgage, a deed of trust, trust indenture or other, similar form of consensual security interest or consensual lien intended as security for an obligation. • “Mortgagee” means a beneficiary or holder of a Mortgage. • “Occupant” means a Tenant or licensee of an Owner, or any other person or entity other than an Owner in lawful possession of a Lot with the permission of the Owner. • “Owner” means Declarant or other Person who owns the record title to any Lot, but excluding in all cases any party having an interest in the Lot solely as security for an obligation. If a Lot is sold under a contract of sale with a recorded notice of purchaser’s interest, and the contract specifically so provides, then the purchaser (rather than the holder of the legal interest) shall be deemed the Owner. If the entirety of a Lot and all Improvements thereon are subject to a single, written lease with a primary term in excess of ten (10) years (not including extension or renewal terms) and the lease specifically so provides, then upon filing a copy of the Lease with the Board of Directors, the Tenant (rather than the fee owner) will be deemed the Owner for the purpose of exercising all privileges of membership in the Association • “Percent Membership Interest” means the membership interest in the Association allocated by this Declaration to a Lot. See Section 4.3. • “Person” means a natural person, corporation, limited liability company, partnership, association, trust, other entity or any combination thereof. • “Plat” means the final plat of University Crossing, Minor Subdivision No. ____, filed in the Public Records under Document No. _______, together with any amendments thereto filed in the Public Records from time to time. • “Property” shall have the meaning set forth in Recital A and additionally means the land, buildings, improvements and structures thereon, and all easements, rights and appurtenances belonging thereto, which are hereby subjected to the provisions of this Declaration. • “Public Records” means the records on file and of record in the office of the Clerk and Recorder, Gallatin County, Montana. • “Supplemental Declaration” means an amendment or supplement to this Declaration executed by or consented to by Declarant that subjects Additional Property to this Declaration. The Supplemental Declaration may impose, expressly or by reference, additional restrictions and obligations to the Additional Property described therein. 150 DRAFT 7-21-2017 - 7 - • “Tenant” means the owner of a leasehold interest in a part or all of the Property, or any Improvements located thereon. SECTION 2 PROPERTY SUBJECT TO DECLARATION; PROPERTY RIGHTS 2.1 The Property; General Declaration. Declarant is the present record titleholder of the Property. Upon recording of this Declaration in the Public Records, the Property shall be owned, held, transferred, leased, sold, conveyed, hypothecated, encumbered, and occupied by Declarant, and any subsequent Owner, Tenant or Occupant of all or any part thereof, subject to the Covenants. 2.2 Property Rights. Every Owner shall have a right and nonexclusive easement of use, access, and enjoyment in and to the Common Property. The scope of the easement and the restrictions and limitations on its use and enjoyment are set forth in Section 14.3. 2.3 Delegation. Any Owner may delegate such Owner’s right of use and enjoyment of the Common Property to its Tenants, employees, and invitees, as applicable, subject to reasonable regulation by the Board of Directors and in accordance with procedures the Board may adopt. 2.4 Transfer of Common Property to Association. The Common Property located within University Crossing shall be conveyed to the Association within one (1) year of the first conveyance of a Lot in such Phase to any purchaser other than (i) Declarant or (ii) an entity controlled by or under common control with Declarant. 2.5 Subdivision and Consolidation of Lots. After its initial conveyance by Declarant, no Lot may either be subdivided into two or more parcels or be consolidated with a contiguous Lot or other contiguous real property (whether by boundary realignment or otherwise) without the prior written approval of the Association. If the proposed subdivision or consolidation occurs during the Declarant Control Period, Declarant’s prior written approval shall also be required. Further, an Owner desiring to subdivide a Lot or consolidate a Lot with another Lot or other contiguous real property must comply with all Laws, particularly those governing land subdivision and platting. SECTION 3 DECLARANT’S RIGHTS 3.1 Right to Transfer. Any or all of the rights and obligations of Declarant set forth in this Declaration or the Bylaws may be transferred or assigned in whole or in part to another Person. Such Person will then assume the position of Declarant pertaining to the particular rights, powers, easements, and reservations assigned, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that which Declarant has under this Declaration or the Bylaws. No such transfer or assignment shall be effective unless it is in a written instrument signed by Declarant and duly recorded in the Public Records. If Declarant conveys all of its interest in the Property to another Person, Declarant shall be relieved of the performance of any further duty or obligation hereunder, and such Person shall be obligated to perform all such duties and obligations of Declarant. 3.2 Limitations on Declarant. Declarant is developing the Property for business and commercial purposes. Completion of that work and sale or other disposition of such developed land is essential to the establishment and welfare of the Property as a commercial and business development. To facilitate rapid completion of the Property’s development, nothing in this Declaration shall be understood or construed to: (a) Prevent Declarant, its contractors or subcontractors from doing to the Property whatever is reasonably necessary or advisable in connection with the completion of said work; 151 DRAFT 7-21-2017 - 8 - (b) Prevent Declarant or its representatives from constructing and maintaining structures on the Property as may be reasonable and necessary for completing the work of establishing the Property as a commercial and business park and disposing of the same in parcels by sale, lease or otherwise; (c) Prevent Declarant from conducting on any part or parts of the Property such business as may be necessary to complete work and establish the Property as a commercial and business park; or (d) Prevent Declarant from installing and maintaining signs on any part of the Property as may be necessary for the sale, lease or disposition thereof. No action taken by Declarant pursuant to any provision of this Section 3.2 shall unreasonably interfere with the Owner’s rights and use of such Owner’s Lot. 3.3 Authorization Required. (a) No person shall record any declaration of covenants, conditions and restrictions or similar instrument purporting to affect any portion of the Property during the Declarant Control Period without Declarant’s review and consent. Any attempted recordation without Declarant’s consent shall result in such instrument being void and of no force and effect unless subsequently approved by written consent signed by Declarant and recorded in the Public Records. Any additional covenants or restrictions recorded by any Person other than Declarant may not be less restrictive than the terms of this Declaration. (b) Notwithstanding any contrary provision of this Declaration, no amendment to or modification of any use restriction or Design Guideline shall be effective without prior notice to and the written approval of Declarant so long as Declarant owns any portion of the Property. SECTION 4 UNIVERSITY CROSSING PROPERTY OWNERS ASSOCIATION 4.1 Creation and Purpose. Declarant shall incorporate the Association as a non-profit mutual benefit corporation. Such incorporation shall occur within one (1) year of the initial conveyance of a Lot to a purchaser other than Declarant and prior to Declarant’s transfer and conveyance of any real or personal property interest to the Association. The Association shall be formed for the purpose of administering, implementing, and enforcing this Declaration and operating the Association for the benefit of its Members. 4.2 Membership in Association. All Owners shall be Members of the Association. Each Owner shall be deemed to have an automatic, mandatory, non-severable membership interest and voting right in the Association. No Owner, whether one or more Persons, shall have more than one membership interest per Lot owned. Members may exercise the rights and privileges of membership subject to the provisions of this Declaration and the Bylaws. Membership rights held by multiple individuals, a corporation, limited liability company, partnership, other entity or trust shall be exercised by an individual designated from time to time by the Owner in a written instrument provided to the Association’s secretary. 4.3 Membership Interest. (a) Percent Membership Interest. The Association shall have a single class of membership. Each Owner shall have the membership interest (“Percent Membership Interest”) assigned 152 DRAFT 7-21-2017 - 9 - by this Declaration to such Owner’s Lot. Except as provided in Paragraph 4.4(b), the Percent Membership Interest shall (i) correlate to the Member Votes that each Owner will have in matters that come before the Association for a vote; and (ii) be used as a basis in determining, among other things, each Owner’s liability for Assessments. The Percent Membership Interest for each Lot is as shown in the following table: Lot Designation Building Area (square feet) Percent Membership Interest Member Votes 1 10,000 23.343 23,343 2 12,000 28.012 28,012 3 20,839 48.645 48,645 Totals 42,839 100% 100,000 Declarant reserves the right to adjust the Percent Membership Interest and Member Votes allocated to each Lot at any time before a Lot is conveyed to a purchaser other than Declarant. Declarant further reserves the right to redistribute and reassign equitably the Percent Membership Interest and Member Votes allocated to each Lot if (i) Lot boundary lines for any Lot within the minor subdivision are subsequently adjusted; (ii) the square footage of buildings constructed on one or more Lots materially departs from Declarant’s estimates; (iii) the use of a Lot or building is materially different from the use anticipated or planned by Declarant or (iv) the Additional Property, or any portion of it, is annexed to the Property as provided in Section 12. (b) Phasing of Percent Membership Interest During Development. Notwithstanding the provisions of Paragraph 4(a), the Percent Membership Interest and Member Votes assigned to Lots 1, 2, and 3 prior to substantial completion of building construction on Lots 1 and 2 and prior to expansion and enlargement of the building existing and situated on Lot 3 as of the date of this Declaration, for the purposes of voting and for the calculation of Assessments, shall be as follows: Lot Designation Percent Membership Interest Prior to Lot Development Member Votes 1 5.000 5,000 2 5.000 5,000 3 43.356 43,356 Each of these Lots shall have the Percent Membership Interest and Member Votes designated in the table above until the earliest of the following dates: (i) the date a certificate of occupancy (or equivalent) for any building constructed and/or expanded or enlarged on such Lot is issued by the appropriate governmental authority; or (ii) the date upon which any of the space in a building on such Lot is occupied by the Owner thereof or any Occupant for allowed commercial uses (the earliest, the “Occupancy Date”). Thereafter, the Lot will have the Percent Membership Interest and be assigned the Member Votes designated in Paragraph 4.3(a), and, for all Lots, the effective percentage responsibility for Assessments and effective voting percentage shall be recalculated, all determined pro rata as of the first day of the calendar month during which the Occupancy Date occurs. Prior to completion of construction of buildings on either Lots 1 or 2 or expansion and enlargement of the building existing and situated on Lot 3, the effective voting percentages, and Percent Membership Interests for the purpose of calculating Assessments shall be as follows: 153 DRAFT 7-21-2017 - 10 - Lot Designation Percent Membership Interest Effective Percentage Responsibility for General Assessments Member Votes Effective Voting Percentage 1 5.000 9.371 5,000 9.371 2 5.000 9.371 5,000 9.371 3 43.356 81.258 43,356 81.258 Totals 53.356 100% 53,356 100% 4.4 Voting Rights. Except as provided in Paragraph 4.3(b), the total number of votes in the Association (“Member Votes”) shall be 100,000. Unless a Member’s vote is expressly excluded in a particular matter by this Declaration, each Member shall be entitled to cast the number of Member Votes allocated to such Member’s Lot in any matter that comes before the Association for a vote. The initial number of Member Votes allocated to each Lot is shown in Paragraph 4.3(a). In any situation where a Member is entitled to exercise the Members Votes for a Lot and more than one Person holds the membership interest in such Lot, such Member Votes shall be cast as those Persons determine among themselves, and they shall advise the Secretary in writing at or prior to any meeting as to who is authorized to case such votes. In the absence of such advice, the Lot’s vote shall be suspended if more than one individual seeks to exercise it. The Member Votes allocated to each Lot may not be split. 4.5 Voting; Quorum. Meetings of the Association shall only be conducted when a quorum is present, as defined in the Bylaws. Except as specifically provided otherwise in this Declaration or the Bylaws, when Members vote to take action on a matter, a Majority of Member Votes shall carry. 4.6 Declarant’s Right to Appoint Majority of Board. Until December 31, 2027, or until such time as seventy-five percent (75%) of the Association’s Membership Interest has been conveyed to a Person other than Declarant (or an entity controlled by or under common control with Declarant), whichever first occurs (“Declarant Control Period”), Declarant reserves the right (but shall not have the obligation) to appoint and remove all of the members of the Board. This right shall exist notwithstanding the provisions of this Declaration and the Bylaws governing the election and removal of directors. Board members appointed by Declarant may be Members, officers, employees or agents of Declarant and need not be Lot Owners. Declarant may, in its sole discretion, temporarily or permanently relinquish its right to appoint and remove all of the Board at any time during the Declarant Control Period. 4.7 Powers and Duties of the Association. In addition to the powers and duties provided for elsewhere in this Declaration and the Bylaws, the Association, acting through its Board for the mutual benefit of the Owners, shall generally have the powers and duties necessary or incidental to the operation and management of the Association and the Common Property including, without limitation, the following powers and duties: (a) Take such action to enforce the terms and provisions of this Declaration by appropriate means, including: (i) Expenditure of funds; (ii) Employment of legal counsel, accounting services, and management services; and (iii) Commencement and prosecution of legal or equitable causes of action. 154 DRAFT 7-21-2017 - 11 - (b) Maintain and otherwise manage the Common Property and its facilities, improvements, grounds, and landscaping; (c) Obtain landscape maintenance services and other services which in the opinion of the Association shall be necessary and proper for the benefit of the Common Property; (d) Borrow funds to pay costs of operation secured by assignment or pledge of its rights against delinquent Owners; (e) Enter into contracts for legal, management, security, and accounting services; (f) Maintain one or more accounts in banks or other financial institutions; (g) Enter into contracts for security services for all or portions of the Property. (h) In order to not unduly impede the further development of the Property, monitor existing and potential future use of the Property; (i) Take action to protect or defend the Property from loss or damage by suit or otherwise; (j) Establish and maintain a working capital and contingency fund; (k) Make an annual report available to each Owner and any Mortgagee within a reasonable time after receipt of a written request; (l) Delegate its powers and duties to committees, officers or employees; (m) Employ personnel for maintenance of the Common Property; and (n) Employ a manager or contract with independent contractors or managing agents who have professional experience to perform all or any part of the duties and responsibilities of the Association; provided, that any contract with a Person appointed as manager or managing agent shall be terminable without cause or penalty on not more than 30 days written notice by the Association. SECTION 5 ASSESSMENTS, BUDGETS & LIENS 5.1 Assessments and Owners’ Obligation to Pay. (a) Creation of Assessments. Assessments are hereby created for Association expenses as may from time to time specifically be authorized by the Board of Directors, to be commenced at the time and in the manner set forth in Section 5.6 hereof. Each Owner, by acceptance of a deed or recorded contract of sale for any portion of the Property, is deemed to covenant and agree to pay these Assessments. (b) Types of Assessments. There shall be three types of Assessments: (i) General Assessments to fund General Common Expenses for the benefit of all Members of the Association; (ii) Limited Assessments for Limited Common Expenses benefiting fewer than all Members of the Association, and (iii) Special Assessments as described in Section 5.4 below. General Assessments shall be levied on all Lots from time to time subject to this Declaration, as provided in Section 5.2 below. Limited Assessments shall be levied against all Lots benefiting from the services supported thereby as provided in Section 5.3 below. Special Assessments shall be levied as provided in Section 5.4 below. The Board of Directors shall 155 DRAFT 7-21-2017 - 12 - have the final authority to determine which type of Assessment will be used to cover particular Association expenses. (c) Manner of Payment. Assessments shall be paid in such manner and on such dates as may be fixed by the Board of Directors and, if the Board so elects, Assessments may be paid in two or more installments. Unless the Board otherwise provides, the General Assessment and any Limited Assessment shall be due and payable in advance on the first day of each fiscal year. Assessments or any installment thereof not paid 30 days after the due date shall be deemed delinquent. If any Owner is delinquent in paying any Assessment or other charge levied on its Lot, the Board may require any unpaid installments of the annual Assessment and/or any other Assessments to be paid in full immediately. (d) Certificate of Payment. The Association shall, upon demand at any time, furnish to any Owner liable for any type of Assessment a certificate in writing signed by an officer of the Association setting forth whether such Assessment has been paid as to any particular Lot. Such certificate shall be conclusive evidence of payment to the Association of any Assessments therein stated to have been paid. The Association may require the advance payment of a reasonable processing fee for the issuance of such certificate. (e) No Waiver or Setoff. No Owner may waive or otherwise exempt itself from liability for Assessments by non-use of the Common Property, abandonment of a Lot or any other means. The obligation to pay Assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of Assessment or set-off shall be claimed or allowed by reason of any alleged failure of the Association or Board to take some action or perform some function required to be taken or performed by the Association or Board under this Declaration or the Bylaws, or for inconvenience or discomfort arising from the making of repairs or improvements that are the responsibility of the Association, or from any action taken to comply with any applicable Law. 5.2 Computation of General Assessment. (a) Preparation of Budget. The Board shall, at least 60 days before the beginning of each fiscal year, prepare a budget covering the estimated General Common Expenses of the Association during the coming year. The budget shall include a capital contribution establishing a reserve fund in accordance with a budget separately prepared, as provided in Section 5.5 hereof. (b) Content of Budget. The budget may include the following expenses: (i) Cost of maintenance and operation of the Common Property; (ii) Expenses of management; (iii) Taxes and special governmental assessments; (iv) Insurance premiums for insurance coverage as deemed desirable or necessary by the Association; (v) Landscaping, care of grounds, common lighting; (vi) Repairs and renovations of the Common Property; (vii) Common water and utility charges; 156 DRAFT 7-21-2017 - 13 - (viii) Legal and accounting fees; (ix) Management fees; (x) Property security; (xi) Expenses and liabilities incurred by the Association under or by reason of this Declaration; (xii) Payment of any deficit remaining from a previous assessment period; and (xiii) Within the limitations of this Declaration, the creation of a reasonable contingency or other reserve or surplus fund for maintenance, repair and replacement of Common Property improvements on a periodic basis, as needed. (c) Computation of Individual Lot General Assessments. The General Assessment to be levied for the coming year against each Lot subject to Assessment shall be computed by multiplying the budgeted General Common Expenses by the Percent Membership Interest allocated to each Lot. (d) Approval of Budget. The Board shall cause a copy of the General Common Expense budget and notice of the amount of the General Assessment to be levied against each Lot for the following year to be delivered to each Owner at least 30 days prior to the beginning of the fiscal year. Such budget and Assessment shall become effective unless (i) disapproved at a meeting of the Members by Members representing at least a Majority of the Member Votes in the Association, or (ii) disapproved by Declarant during the Declarant Control Period. There shall be no obligation to call a meeting for the purpose of considering the budget except on petition of the Members for a special meeting made in accordance with the Bylaws. The petition must be presented to the Board within 10 days of delivery of the notice of Assessments. Notwithstanding the foregoing, however, if the proposed budget is disapproved or the Board fails for any reason so to determine the budget for any year, then and until such time as a budget shall have been determined as provided herein, the budget in effect for the immediately preceding year shall continue for the current year, and the General Assessment for the current year shall be based on the preceding year budget. 5.3 Computation of Limited Assessments. (a) Separate Budget for Limited Common Expenses. The Board shall, at least 60 days before the beginning of each fiscal year, prepare a separate budget covering the estimated Limited Common Expenses to be incurred by the Association during the coming year. Limited Common Expenses may be levied by the Association against particular Lots where the Board has determined that certain Association expenditures benefit only such Lots. Such budget may include a capital contribution establishing a reserve fund for repair and replacement of capital items, as appropriate. (b) Computation of Individual Lot Special Assessments. Limited Common Expenses shall be allocated among all Lots benefited thereby proportionately based upon each Lot’s relative Percent Membership Interest or in such other manner as the Board determines is more equitable. The Assessment for Limited Common Expenses shall be levied as a Limited Assessment. 157 DRAFT 7-21-2017 - 14 - (c) Approval of Limited Common Expenses Budget. The Board shall cause a copy of such budget and notice of the amount of the Limited Assessment to be levied on each Lot for the coming year to be delivered to each Owner of a Lot subject to a Limited Assessment at least 30 days prior to the beginning of the fiscal year. Such budget and assessment shall become effective unless (i) disapproved at a meeting of the Members by Members representing at least two-thirds of the Member Votes allocated to the Lot(s) subject to the Assessment, or (ii) disapproved by Declarant during the Declarant Control Period. There shall be no obligation to call a meeting for the purpose of considering the budget except on petition of Owners of at least one of the Lots subject to the Limited Assessment. If the proposed budget for any Limited Common Expense is disapproved or the Board fails for any reason so to determine the budget for any year, then and until such time as a budget shall have been determined as provided herein, the budget in effect for the immediately preceding year shall continue for the current year. 5.4 Special Assessments. (a) Purpose. The Association, acting through its Board of Directors, may levy Special Assessments against all or less than all of the Lots for the following purposes: (i) to cure insufficiencies in the General Assessments due to extraordinary expenses not contemplated in the General Assessment budget for a fiscal year; (ii) for additional capital improvements or acquisitions of Common Property; (iii) for major repairs or renovations of existing Common Property within University Crossing (other than those contemplated by the reserve budget created under Section 5.5); and/or (iv) to offset an extraordinary expense created by an Owner’s particular use of one or more Lots. (b) Special Assessments Affecting the Entire Membership. The Board may levy Special Assessments against all Lots from time to time, provided that the total amount of the Special Assessment levied during any fiscal year shall not exceed the greater of (i) $10,000 or (ii) twenty-five (25%) percent of the General Common Expense budget for such fiscal year. Any Special Assessment in excess of such limitation shall be effective only upon approval by a Majority of the Member Votes and, if the Special Assessment is made during the Declarant Control Period, the written consent of Declarant. Special Assessments levied against the entire membership shall be allocated among the Lots proportionately based upon the Percent Membership Interest allocated to each Lot. (c) Special Assessments Affecting Less Than All Members. The Association may levy a Special Assessment against any one or more (but less than all) Lots (i) to offset an extraordinary expense created by a particular use of one or more Lots; or (ii) to reimburse the Association for costs incurred in bringing a Lot or Member into compliance with the provisions of the Declaration, Bylaws or Association rules. A Special Assessment may be levied upon the vote of the Board after notice to the Member and an opportunity for a hearing. 5.5 Reserve Budget and Capital Contribution. The Board of Directors shall annually prepare a reserve budget to take into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost. The Board shall set the required capital contribution in an amount sufficient to permit meeting the projected needs of the Association, as shown on the budget, with respect both to amount and timing by annual General Assessments over the period of the budget. The capital contribution required, if any, shall be fixed by the Board and included within and distributed with the applicable budget and notice of Assessments, as provided in this Section 5. 5.6 Date of Commencement of Assessments. The obligation to pay Assessments shall commence as to each Lot on the first day of the month following the month in which the Lot is made subject to 158 DRAFT 7-21-2017 - 15 - this Declaration. Until the Association makes such Assessments, Declarant shall pay all the expenses of the Association. Assessments shall be due and payable in a manner and on a schedule as the Board of Directors may provide. The first Assessment levied on a Lot shall be adjusted according to the number of months remaining in the fiscal year at the time Assessments commence on the Lot. 5.7 Lien of Assessments; Foreclosure. All Assessments, together with interest at a rate of 10.0% per annum computed from the date a delinquency first occurs, late charges, costs, and reasonable attorney’s fees, shall be a charge on the land and shall be a continuing lien upon the Lot against which each Assessment is made until paid. Each such Assessment, together with interest, late charges, costs, and reasonable attorney’s fees, shall also be the personal obligation of the Owner of the Lot at the time the Assessment arose, and, if title is transferred, such Owner’s grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance, except no first Mortgagee who obtains title to a Lot pursuant to the remedies provided in the Mortgage shall be liable for unpaid Assessments that accrued prior to such acquisition of title. The Association may record a notice of lien against the Lot(s) and (i) bring a claim for relief against the Owner personally obligated to pay the same and/or (ii) foreclose the lien against the Lot(s) in the same manner as provided by law for the foreclosure of a mortgage on real property. The Association shall be entitled in any such proceedings to recover its costs and expenses, including reasonable attorney’s fees. If a default for which a notice of lien was filed is cured, the Association shall file a release of such notice; provided, however, that the defaulting Owner shall be responsible for the costs (including reasonable attorney’s fees) of preparing and filing such release. 5.8 Subordination of the Lien to First Mortgages. The lien of Assessments, including interest, late charges, and costs (including reasonable attorney’s fees) provided for herein, shall be superior to all other liens and encumbrances, except for taxes, assessments, and special assessment liens imposed on the Property by a statutory authority, other statutory liens, and the lien of a first Mortgage upon any Lot. The sale or transfer of any Lot shall not affect the Assessment lien, except that the sale or transfer of any Lot pursuant to judicial or non-judicial foreclosure of a first Mortgage shall extinguish the lien of such Assessments as to payments that became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from lien rights for any Assessments thereafter becoming due. Where the Mortgagee holding a first Mortgage of record or other purchaser of a Lot obtains title pursuant to judicial or non-judicial foreclosure of the Mortgage, it shall not be liable for the share of the Common Expenses or Assessments by the Association chargeable to such Lot which became due prior to such acquisition of title. Such unpaid share of Common Expenses or Assessments shall be deemed to be Common Expenses collectible from Owners of all the Lots, including such acquirer, its successors and assigns. 5.9 Exempt Property. Notwithstanding anything to the contrary herein, the following property shall be exempt from payment of Assessments: (a) All Common Property; and (b) Unless otherwise determined by the Association, all property dedicated to and accepted by any governmental authority or public utility. 5.10 Assessment Obligation of Declarant. After the commencement of General Assessments, Declarant, on behalf of itself and its successors and assigns, covenants and agrees to pay the full amount of Assessments provided herein for each Lot that it owns. Notwithstanding anything to the contrary herein, Declarant may contribute Assessments due from it in services or materials or a combination of services and materials, rather than in money (collectively, an “in kind contribution”). The amount by which Assessments shall be decreased as a result of any in kind 159 DRAFT 7-21-2017 - 16 - contribution shall be the fair market value of the contribution. If Declarant and the Association agree as to the value of any contribution, the value shall be as agreed. If the Association and Declarant cannot agree as to the value of any contribution, Declarant shall supply the Association with a detailed explanation of the service performed and material furnished, and the Association shall acquire bids for performing like services and furnishing like materials from three independent contractors approved by Declarant who are in the business of providing such services and materials. If the Association and Declarant are still unable to agree on the value of the contribution, the value shall be deemed to be the average of the bids received from the independent contractors. SECTION 6 MAINTENANCE 6.1 Association’s Maintenance Responsibility. The Association shall maintain the Common Property and keep it in good repair. Maintenance shall be funded by Assessments as provided herein. The Association shall be responsible for maintenance, repair, and replacement of all landscaping, structures, and improvements now or hereafter located upon the Common Property, including, without limitation, the following: (a) Irrigation of lawn and landscaped areas; (b) Maintenance of lawn and landscaped areas for attractive appearance; (c) Maintenance of irrigation systems; (d) Maintenance of driveways and parking areas, including cleaning, curb repair, striping, resurfacing, etc.; (e) Maintenance of storm drainage conveyance and treatment systems; (f) Maintenance of walkways; (g) Snow removal from parking areas, roadways, and walkways; (h) Maintenance of area lighting systems; (i) Maintenance of common signs; and (j) Maintenance of garbage and trash containers in common refuse disposal areas. Performance by the Association shall in no way relieve an Owner or Occupant from primary responsibilities for maintenance referred to in Section 6.2 hereof. Easements over the Property as are reasonably necessary to enable the Association, and its agents, contractors, and employees, to access and inspect the Property and to fulfill responsibilities under this Section are hereby reserved to the Association. 6.2 Owners’ Maintenance Responsibility. (a) Owners’ Maintenance. Each Owner shall at all times maintain the real and personal property within its Building Envelope and all structures and other Improvements located thereon in good order and repair, in a safe, clean, and wholesome condition, and free of debris. Such maintenance obligation shall include: (i) Promptly removing all litter, trash, refuse, and wastes; 160 DRAFT 7-21-2017 - 17 - (ii) Maintaining the exterior of all structures and other Improvements in good condition and repair; (iii) Keeping Improvements, exterior lighting, and maintenance facilities in good repair and working order; (iv) Repainting of Improvements; (v) Keeping lawn and landscaped areas alive, free of weeds, and attractive; (vi) Keeping parking, loading areas, and driveways in good repair; (vii) Removing snow from walkways, driveways, and parking areas; (viii) Complying with all applicable governmental, health, fire, and safety regulations, codes, regulations, requirements, and directives; (b) Maintenance of Common Property Damaged by Misuse. Except to the extent that such damage is covered by the Association’s insurance, each Owner shall be responsible for the costs of making all repairs and replacements to the Common Property proximately caused by the willful misuse or the negligence of such Owner, or its Tenants, Occupants, employees, agents, and invitees. (c) Destruction of Improvements on Lots. If the Improvements on any Lot are totally or partially damaged or destroyed by fire or any other cause, each Lot Owner covenants and agrees to commence all necessary repairs, reconstruction or complete removal of the damaged Improvements within three (3) months of the date the damage occurs and to continue diligently such repairs, reconstruction or removal until completed within a reasonable time from the commencement of such work. Delays in commencement of construction may be granted for good cause at the sole discretion of the Association. (d) Repairs; Replacements. All repairs, alterations, replacements or additions to Improvements shall be at least equal to the original work in class and quality. The adequacy of such repairs shall be measured by the same standards required for the original construction. Maintenance work shall be in compliance with the Design Guidelines and, depending upon the scope of work, may be subject to prior review and approval of the University Crossing Review Committee. (e) Enforcement; Remedies. If an Owner fails to perform properly such Owner’s maintenance responsibilities, the Association may perform them and assess all costs incurred by the Association against the Lot and the Owner. However, except where entry is required due to an emergency situation, the Association shall afford the Owner reasonable notice and an opportunity to cure the problem prior to entry. The notice shall set forth with reasonable particularity the maintenance, repairs or replacements deemed necessary. The Owner shall have 10 days within which to complete such maintenance, repairs or replacements. If the maintenance, repairs or replacements are not reasonably capable of completion within the 10-day period, the Owner shall commence such work promptly and diligently proceed to complete it within a reasonable time. If the Owner does not comply with the provisions hereof, the Association shall have the right and power to enter onto the Lot and perform such maintenance, repairs or replacements without any liability to any Person for damages for wrongful entry, trespass or otherwise. The Owner of the Lot on which the work is performed shall be liable (jointly and severally, if more than one) for the cost of such work 161 DRAFT 7-21-2017 - 18 - and shall promptly reimburse the Association for such cost, together with interest at the same rate as provided for delinquent assessments, costs and expenses of collection, court costs, and reasonable attorney’s fees (collectively “charges”). The charges shall also be a continuing lien against the Lot on which the work was performed. If the Owner fails to reimburse the Association within 30 days after receipt of a statement for such work from the Association, the Association may record a notice of lien against the Lot. The Association may foreclose the lien in the same manner as a lien for Assessments, and it shall be entitled to recover, in addition to the charges, all costs and expenses of lien enforcement, including court costs and reasonable attorney’s fees. 6.3 Noxious Weeds. The control of noxious weeds by the Association on those areas for which the Association is responsible and the control of noxious weeds by each Owner on its respective Lot (to the extent such Lot is not burdened by an easement for use as Common Property) shall be as set forth and specified under the Montana Noxious Weed Control Act (Montana Code Annotated Sections 7-22-2101 through 7-22-2153) and the rules and regulations of the Gallatin County Weed Control District. Both unimproved and improved Lots shall be managed for noxious weeds. If an Owner fails to control the noxious weeds on areas within such Owner’s purview after 10 days notice from the Association (given in accordance with the provisions of Paragraph 6.2(e) above), the Association may cause the noxious weeds to be controlled, and the Association shall have the enforcement authority and remedies provided in Paragraph 6.2(e) of this Declaration. 6.4 Storm Water Maintenance Plan. (a) General Information. The University Crossing utilizes Low Impact Development (“LID”) to mitigate storm water impacts. The storm water facilities consist of curb and gutter, drainage swales, bio-retention areas (bio-swales), conveyance piping, and a final retention basin. Additional storm water facilities (or expansion of existing facilities) will be required to manage runoff from additions to the existing parking lot and access roads serving the Crowley Fleck building. The system is designed to accommodate all storm water from the Property. A document entitled Storm Water Management Plan and Record Drawings is on file at the City of Bozeman, Engineering Department. The principal storm water conveyance and treatment facilities are located on the Common Open Space Lots, and are owned by Association. Privately owned LID storm water facilities serving individual Lot development are encouraged and private facilities are allowed to connect to the Association facilities through the Common Open Space Lots with approval from the Association. The Association is responsible for maintaining storm water facilities on the Common Open Space Lots except for private underground service lines, which are to be maintained by the Lot Owner. All storm water facilities located on privately owned Lots shall be maintained by the Lot Owner in accordance with the applicable maintenance schedule provided in Paragraph 6.4(b). The storm water facilities are designed to operate without excessive maintenance. However, like all infrastructure, periodic maintenance will prevent costly repair and replacement. The maintenance plan set forth in this Section 6.4 has been prepared in accordance with City of Bozeman guidelines. Over time, recommended maintenance guidelines may evolve. Please contact the City of Bozeman Storm Water Division if any questions arise. 162 DRAFT 7-21-2017 - 19 - (b) Storm Water Facilities Maintenance Schedule. (i) Site Housekeeping. Site housekeeping is to be conducted continuously as needed. The main cause of storm water facility damage is poor site housekeeping. Sediment tracked onto pavement can be washed into storm water bio-retention basins and conveyance piping and damage these facilities. Trash can clog pipes and inlet structures causing property damage. Site housekeeping consists of the following: • Keep sidewalk and pavement areas clean • Pick up trash • Restore damaged landscaping in order to prevent sediment runoff (ii) System Monitoring. System monitoring is to be conducted quarterly, except in winter. The storm water facilities shall be inspected quarterly to quickly identify small issues before expensive damage can occur. In addition to regular monitoring, the best time to inspect the performance of storm water facilities is during runoff events. System monitoring consists of the following: • Observe system during runoff. Look for ponding outside of retention areas. This can indicate a clogged inlet or pipe. • Inspect bio-retention and retention basins • Inspect inlets, manholes and pipes (iii) Bio-retention and Retention Basin Maintenance. Bio-retention and retention basin maintenance is to be conducted quarterly. The bio-retention and retention basins are designed to provide long-term, sustainable treatment of storm water. With poor housekeeping, however, sediment can clog these facilities and reduce infiltration capacity. Proper and timely cleaning of incidental sediment in these basins can prevent these facilities from being damaged. The bio-retention and retention basins are intended to be vegetated, since the vegetation provides microbiological communities that can treat common pollutants in storm water. Unhealthy vegetation can diminish the performance of these basins. The landscaping of the bio-retention basins shall follow typical landscape maintenance guidelines. The vegetation on the bottom of the retention basin should not be regularly mowed, since mowing can cause plant debris to build up in the basin. Bio-retention and retention basin maintenance consists of the following: • Remove sediment, trash, and debris • Inspect for healthy vegetation • Inspect for uniform ponding and water disappears in 3 days (iv) Bio-retention and Retention Basin Maintenance. Bio-retention and retention basin maintenance is to be conducted annually. The vegetation should be maintained annually to reduce plant debris build-up. The retention basin vegetation should be cut to a height of 6” in the fall with the clippings removed from the basin. Bio-retention and retention basin maintenance consists of the following: • Remove dead plant materials from bio-retention basins. • Cut retention basin vegetation and remove clippings. (v) Bio-retention and Retention Basin Maintenance. This maintenance is to be conducted long-term if and when necessary. If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the basin and reduce 163 DRAFT 7-21-2017 - 20 - the required storage capacity. If this occurs the basins should be excavated back down to original plan grade. Long-term bio-retention and retention basin maintenance consists of the following: • Hire a contractor to inspect and return basin condition to initial design found on City engineering plans. • Dredge basin if sediment build-up is greater than 6” (vi) Inlets, Manholes, and Piping Maintenance. Inlets, manholes, and piping maintenance is to be conducted quarterly. All storm water inlets and manholes have a sump to capture sediment. If this sediment is not periodically removed it can wash downstream and clog infiltration facilities. The sump is typically visible from the surface through the inlet grate. Inlets, manholes, and piping maintenance consists of the following: • Remove visible sediment from sump. • Inspect pipe inlets and outlets for sediment in pipe, and remove if present. (vii) Inlets, Manholes, and Piping Maintenance. This maintenance is to be conducted long- term if and when necessary. If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the storm water conveyance piping, and pipes may become clogged. Long-term inlets, manholes, and piping maintenance consists of the following: • Hire a contractor to clean pipes and remove all sediment from manhole sumps. SECTION 7 COMMON PROPERTY 7.1 Description of Common Property Declarant intends to convey to the Association the tracts delineated as the “Common Open Space Lots” on the Final Plat of the University Crossing subdivision, together with the Improvements located thereon. Upon Declarant’s conveyance of such property to the Association, such property shall be Common Property to be maintained by the Association for the use and benefit of its members, and Declarant shall have no further obligation to improve or maintain any portion of the Common Property. 7.2 Intent. Declarant intends to develop the Common Property in each Phase prior to conveying it to the Association by installing certain Improvements, amenities, and facilities thereon that will serve to enhance the appearance and enjoyment of the Property for Owners, Tenants, and Occupants. Such Improvements may include parking areas, walkways, curbs, a lighting system, landscaped areas, patios, signs or structures intended to identify and promote occupancy of the Property, and other similar or related Improvements. Notwithstanding the foregoing, Declarant does not warrant by this Declaration that it will construct any specific improvements on the Common Property. 7.3 Right of Access. In order for Declarant to construct, place or maintain structures and Improvements on the Common Property as contemplated by the provisions of this Declaration, Declarant reserves for itself the free and unrestricted right of access upon and across each Lot. Each Owner of a Lot, by accepting title thereto, shall be deemed to have consented to the foregoing reservation and to have granted the foregoing right, and shall give notice of Declarant’s reservation of right of access to any Tenant or Occupant of any Lot. The rights of Declarant pursuant to this reservation shall be exercised with diligent efforts to avoid interfering with the normal operations and activities of any Owner, Tenant or Occupant. 164 DRAFT 7-21-2017 - 21 - SECTION 8 USE RESTRICTIONS AND RULES 8.1 Generally. The Property shall be used only for the uses hereinafter set forth. Any Supplemental Declaration may impose stricter standards than those contained in this Section 8. The Association, acting through its Board of Directors, shall have standing and the power to enforce such standards. The Association, acting through its Board of Directors, shall have authority to make and enforce rules governing the use of the Common Property, in addition to those contained herein. 8.2 Laws and Ordinances. No Owner shall permit anything within Owner’s control to be done or kept in any building or on such Owner’s Lot that would violate any Laws or that will result in the cancellation of, or increase the premiums for, any insurance carried by the Association, or that would be in violation of any rule or regulation promulgated by the Association. The Owner shall obtain any and all required governmental permits, approvals, and authorizations prior to beginning any construction. If there are differences between restrictions imposed by these Covenants or by applicable Law, the more restrictive shall apply. 8.3 Inspection. Authorized representatives of the Association may from time to time, during reasonable hours and with reasonable notice, enter upon and inspect any Lot to ascertain whether or not the Declaration has been or is being complied with. Such person or persons shall not be deemed guilty of trespass by reason of such entry. 8.4 Operations and Uses. Lawful operations and uses that are neither specifically prohibited nor specifically authorized by this Declaration may be permitted in specific cases if operational plans and specifications are submitted to and approved in writing by the Association. 8.5 Prohibited Uses. (a) In addition to uses which are inconsistent with municipal zoning for the Property or are prohibited or restricted by other covenants, conditions, restrictions or easements that are recorded in the chain of title respecting the Property, or are otherwise prohibited pursuant to this Declaration, and not as an exhaustive list, the following uses and activities are prohibited within the Property: • Adult-oriented establishments (see Section 8.5(b)) • Automobile body shop • Automobile parking garage • Automobile service and/or repair facility • Bus or taxi terminal • Carwash • Casinos • Frozen food storage and locker rental • Gasoline sales or sales of other flammable and dangerous materials • Laundromat, laundry or dry cleaning facility (but not including facilities that are solely for delivery and pickup of laundry or dry cleaning) • Mortuary • Recycling facility • Vehicle, mobile home, and boat sales and rental • Warehousing or indoor storage of goods or material in quantities greater than normally incidental to the uses permitted in this Declaration • Any other use, that in the sole judgment of the Board of Directors (i) is incompatible with the specifically permitted uses or the desired mix of uses; (ii) adversely affects 165 DRAFT 7-21-2017 - 22 - market value of other Lots; or (iii) may interfere with the expectation of other Owners’ quiet enjoyment of their Lots. (b) Adult-Oriented Establishments. For purposes of this Declaration, the term “adult-oriented establishments” shall include, without limitation: (i) Adult bookstore. Adult bookstores are establishments having a substantial or significant portion of their stock and trade in, or an establishment which, as one of its principal business purposes, offers for sale, books, films, video cassettes or magazines and other periodicals which are distinguished or characterized by their emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas. (ii) Adult Entertainment studios. Any premises to which the public, patrons or members are invited or admitted and which are so physically arranged as to provide booths, cubicles, rooms, studios, compartments or stalls separate from the common areas of the premises for the purpose of viewing adult oriented motion pictures, or where an entertainer provides adult entertainment to a member of the public, a patron or member. An adult entertainment studio shall include any such premises, whether advertised or represented as an adult entertainment studio, rap studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio, massage parlor or any other term of like import. This paragraph shall not be deemed to bar premises offering therapeutic, sports or other types of massage provided on the assigned order of a licensed physician, osteopath, chiropractor or physical therapist. (iii) Other businesses. The operation of any business that involves, in whole or in significant part, the sale, lease, trade, gift or display for sale of any obscene materials. For purposes of this Declaration, “Adult Entertainment” shall mean: (A) an exhibition of any adult oriented motion pictures, meaning those distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas; and/or (B) a live performance, display or dance of any type, which as a significant or substantial portion of the performance, includes any actual or simulated performance of specified sexual activities or exhibition and viewing of specified anatomical areas, removal of articles of clothing or appearing unclothed, pantomiming, modeling or any other person services offered customers. 8.6 Permitted Uses. Unless a use is prohibited or limited in the previous Section or elsewhere in this Declaration, the Property may be used for any use allowed or conditionally allowed by the municipal zoning of the Property. The Property is presently zoned B-2 (Community Business District). Commercial, business, professional, and office uses are encouraged on the Property. 8.7 General Use Provisions. The following general provisions shall apply to all Lots, unless otherwise provided herein: (a) Building Size and Height. No building shall be constructed, other than incidental or accessory structures, which contain less than the minimum square feet of gross floor area designated in the Design Guidelines, unless otherwise approved by the UCRC and the Association. The footprint of such building shall occupy at least the minimum building envelope specified in the Design Guidelines. No building, structure or other Improvement shall exceed the height limitation designated in the Design Guidelines. 166 DRAFT 7-21-2017 - 23 - (b) Building Occupancy. No building shall be occupied by more Occupants than specified in the Design Guidelines, unless otherwise approved by the UCRC and the Association. (c) Temporary Structures, Tents, Trailers, and Storage. No temporary structure, tent or trailer of any kind shall be erected or placed upon any Lot, except for temporary construction offices during a construction period. All construction offices must be removed within 30 days after completion of construction. (d) Landscaping. To the extent any portion of a Lot outside of a Common Area Easement may have open space, the Owner shall landscape such open space in accordance with a plan submitted to and approved in writing by the UCRC. The plan shall be approved prior to any development of the Lot. The plan shall include information regarding the type of seeding and/or sodding, types of trees, hedges and shrubs, and information regarding other landscape treatment for the entire site, such as fences, walls, and screening. All landscaping shall be undertaken and completed in accordance with the approved plan, and the plan may not be substantially modified without submitting a revised landscape plan for prior written approval by the UCRC. All landscaping required hereunder or otherwise to be provided on any Lot shall be completed within the time frame established by the UCRC. (e) Signs. No exterior signs shall be permitted anywhere on the Property without prior written approval of the UCRC. All signs shall be consistent with the Design Guidelines and shall comply with this Declaration and all applicable Laws. (f) Architectural Design and Materials. No building, structure or other Improvement may be constructed, erected, placed, altered or permitted on any Lot until plans and specifications detailing exterior elevations, architectural style, materials and colors have been submitted to and approved in writing by the UCRC. Such approval shall be subject to the Design Guidelines governing architectural styles and quality of building design, appearance, siding, materials, colors, and other attributes that will enhance the overall appearance and environment of the Property. (g) Outdoor Storage. No outdoor storage shall be permitted anywhere on the Property without prior written approval of the Association. (h) Outside Storage Tanks. No outside storage tanks shall be permitted on the Property. (i) Exterior Lighting. No exterior lighting shall be permitted on any Lot without prior written approval of the UCRC. No flashing or intermittent light of any kind shall be permitted. (j) Air Conditioning Units. No window air conditioning units may be installed in any renovation or new construction, except as may be permitted by the UCRC. (k) Antennas, Towers, and Satellite Dishes. No exterior antennas, towers, satellite dishes or other apparatus for sending or receiving of radio, television, electromagnetic or microwave signals shall be placed upon any Lot, building, structure or Improvement without the prior written approval of the UCRC. The UCRC may give or deny approval subject to applicable Law. The UCRC may impose size limitations on such equipment and screening, location, and placement requirements as conditions of approval. Exception: the cellular antenna and related equipment (and similar replacements) situated on Lot 3 as of the date of this Declaration are not subject to the restrictions set forth in this Paragraph and are deemed approved by the UCRC and Association. 167 DRAFT 7-21-2017 - 24 - (l) Fences. Unless approved in writing by the UCRC, no fences, ornamental screens or walls of any nature shall be erected or maintained on or around any portion of any Lot. (m) Utility Lines. All utility easements must be observed, the location of which are available from the Association. All new and extended utility lines shall be placed underground, unless otherwise approved by the Association. (n) Tree Removal. No trees shall be removed from the Property without the prior written consent of the UCRC, except for dead trees and trees posing imminent safety concerns. (o) Drainage. No Owner or Occupant may obstruct or rechannel drainage flows after location and installation of drainage swales, storm sewers or storm drains. Declarant hereby reserves a perpetual easement across all the Property for itself and the Association for the purpose of inspecting drainage and water flow. (p) Explosives and Combustible Materials. All activities carried out in buildings and Improvements that conform to the standards of the National Board of Fire Underwriters. No highly flammable or explosive liquids, solids or gases shall be stored in bulk on the Property. All materials or wastes that might cause fumes, constitute a fire hazard or attract rodents or insects may be stored on the Property only if they are enclosed in approved containers that are adequate to eliminate such hazards and if such storage is in accordance with applicable Law. (q) Animals and Pets. No animals of any kind shall be raised, bred or kept on the Property except as provided in this Paragraph. Owners and Occupants may bring, and may permit their respective employees, agents, and invitees to bring, dogs, cats, and other ordinary, household pets onto the Common Property, subject to rules and regulations from time to time adopted by the Association. Owners and Occupants may bring, and may permit their respective employees, agents, and invitees to bring, dogs, cats, and other ordinary, household pets into the buildings located on their respective Lots, subject to rules and regulations from time to time adopted or imposed by the Lot Owner (including a building owners association, if applicable). In all cases, bringing pets onto the Property shall be subject to all applicable Law, including animal control laws, ordinances, and leash laws. All pets must be controlled and maintained so as not to annoy or be offensive to other Owners or Occupants or to their respective employees, agents, and invitees. Pet owners shall immediately and thoroughly clean up after their pets on the Property. No kennels, tethers, exercise lines, or the like shall be permitted anywhere on the Property. If the Association receives two (2) or more complaints regarding a pet within any twelve-month period, the Board may, after giving appropriate notice of, and opportunity for, a hearing, order the removal or cause the removal of the animal from the Property. An Owner or Occupant who causes or permits any animal to be brought or kept upon the Property shall indemnify and hold harmless the Association and Declarant from any loss, damage, liability or expense (including reasonable attorney fees) which the Association and/or Declarant may sustain as a result of the animal’s presence. (r) Nuisance and Unsightly or Unkempt Conditions. Each Owner and Occupant shall have the responsibility to prevent the development of any unclean, unhealthy, unsightly or unkempt condition on its Lot. No Lot shall be used in whole, or in part, for the storage of any property or thing that will cause the Lot to appear to be in an unclean or untidy condition or that will be obnoxious to the eye. No nuisances shall be permitted to exist or operate on any Lot so as to be offensive or detrimental to another Lot or its Occupants. Nuisances include the following conditions insofar as they may disturb the peace, quiet, safety, and comfort of the Occupants of other Lots or neighboring property: foul or obnoxious odors, noise, 168 DRAFT 7-21-2017 - 25 - vibration, electro-magnetic disturbance and radiation, air or water pollution, and dust. There shall not be maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant or of a nature as may diminish or destroy the enjoyment of the Property. Trash, garbage, debris or other waste matter of any kind may not be burned within the Property. No speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any structure unless approved by the Association. 8.8 Construction. (a) Construction Vehicular Traffic. During the course of construction activity on any Lot, the Lot Owner shall keep all Common Property free of dirt, debris, and the like, and shall repair any construction vehicle damage to any Common Property at the Lot Owner’s sole expense. (b) Completion of Construction. When a Lot is sold or leased by Declarant to speculative builders or developers, the Association may require a performance bond to ensure that such builder or developer will conform to this Declaration and the Design Guidelines and that within a specified period of time such builder or developer will (i) finish all exterior walls and complete installation of all windows and doors; (ii) complete all driveways and walkways on the Lot; (iii) remove all construction debris; and (iv) complete all required landscaping on the Lot. Upon completion of any on-site construction improvements, the Lot Owner shall notify the Association. The Association, or its designee shall inspect the Lot for compliance with this Declaration and the Design Guidelines. (c) Excavation and Grading. No site preparation shall be permitted until all approvals and permits are in place and approved by the Association. No excavation shall be made except in conjunction with the construction of an Improvement. 8.9 Parking. Vehicles may be parked only in designated parking spaces on the Property. All parking on the Common Property shall be subject to such rules and regulations as the Board may adopt. Owners, Occupants, and Tenants of Lots shall be responsible for enforcing this requirement with respect to their employees and visitors. The Board may, in its sole discretion and upon such conditions as it may determine, approve an Owner’s application for assigned or otherwise restricted parking spaces; provided, however, that such approval may be revoked by the Board at any time. SECTION 9. DESIGN REVIEW PROCESS AND PROCEDURES. 9.1 University Crossing Review Committee. The University Crossing Review Committee (the “UCRC”) shall consist of no less than three (3) or more than five (5) members appointed by the Board. UCRC Members need not be Board members, Owners or affiliates of Owners. Until the Board acts to appoint UCRC members, the UCRC shall be comprised of Board members, and their UCRC terms shall be concurrent with their terms as directors. The UCRC shall be responsible for the design review duties and functions specified in this Declaration. 9.2 UCRC Review Required. No exterior construction, alteration, addition or renovation of any building, structure, parking lot, sign, wall or other Improvement of any kind or nature shall be commenced on the Property, except such as is (a) installed by Declarant, (b) reviewed by the UCRC and approved by the Board in accordance with this Section 9, or (c) otherwise expressly permitted in this Declaration. No such construction, alteration, addition or renovation shall be made unless and until plans and specifications detailing at least the nature, kind, shape, height, 169 DRAFT 7-21-2017 - 26 - materials, and location shall have been properly submitted in writing to and approved by the Association after recommendation from the UCRC. 9.3 Employment of Architects, Engineers or Other Persons. The Association may employ architects, engineers or other persons necessary to enable the UCRC to perform its review. The UCRC may, from time to time, delegate any of its rights or responsibilities hereunder to one or more duly licensed architects or other qualified persons, which shall have full authority to act on behalf of the UCRC for all matters delegated. 9.4 Review Fee and Address. The Association may establish a review fee to cover the cost of review of plans and specifications consistent with the type of review being conducted. Plans and specifications shall not be deemed submitted to the UCRC unless and until the review fee has been paid to the Association. The address of the UCRC shall be the office of the Association. 9.5 Design Guidelines. The initial Design Guidelines and procedures have been created and are hereby adopted by Declarant. The Design Guidelines are on file in the records of the Association, and copies of the current Design Guidelines shall be made available to all Owners and prospective Owners in accordance with procedures established by the UCRC. The Design Guidelines shall be explanatory and illustrative of the general intent of the development of the Property, and they are intended as a guide to assist the UCRC in reviewing plans and specifications. Except for those Design Guidelines required as a condition of Plat approval, the Design Guidelines shall not be binding upon the UCRC and shall not constitute in every event the basis for a recommendation of approval or disapproval of plans, specifications or other materials submitted to the UCRC for review. The Design Guidelines may be amended from time to time by the Association; provided, however that if a design standard proposed for amendment was required and included in the Design Guidelines as a condition of Plat approval, then the City of Bozeman must approve the amendment before it is effective. No improvements constructed in accordance with plans and specifications approved by the UCRC and Association in accordance with the then applicable Design Guidelines shall be required to be changed because the design standards set forth therein are thereafter altered or amended. 9.6 Plan Review and Approval. All development plans shall be reviewed and approved in accordance with procedures established by the Association, which procedures may be set out in the Design Guidelines. 9.7 Right to Inspect. Authorized Association representatives may from time to time, during reasonable hours and with reasonable notice, enter upon and inspect any Lot to ascertain whether or not the site development approval has been, or is being, complied with. Such person or persons shall not be deemed guilty of trespass by reason of such entry. 9.8 Construction Compliance. The Association may require, in writing, any Owner to restore such Owner’s improvements to the condition existing prior to the construction thereof (including, without limitation, the demolition and removal of any unapproved Improvement) if such Improvements were commenced or constructed in violation of this Section 9. In addition, the Association may (but has no obligation to) with due notice cause such restoration, demolition, and removal and levy the amount of the cost thereof as a Special Assessment against the Lot upon which such Improvements were commenced or constructed. The Association shall take no action with respect to nonconforming or unapproved improvements until completion of the following review and appeal process if the Owner elects by written notice to the Association to institute such process: (a) Within 15 days of written notice of appeal by the Owner, such Owner and the Association shall each appoint a duly licensed architect to determine whether a violation exists. These 170 DRAFT 7-21-2017 - 27 - two architects shall then choose a mutually acceptable third architect within 10 days after the expiration of the 15-day period. (b) Within 30 days after the appointment of the third architect, a majority of the three architects shall determine whether a violation exists. A written determination shall be filed with the Association and provided to the Owner. (c) If a violation is determined to exist, the Association shall, in its reasonable discretion, determine the manner in which the violation shall be remedied, which remedy may include reasonable fines and fees for architectural services. The Association shall make such determination within 15 days of the above determination of a violation. The Owner shall be notified in writing of any required remedial action. 9.9 Notice of Noncompliance or Noncompletion. Notwithstanding anything to the contrary contained herein, after expiration of one (1) year from the date of substantial completion of construction of any Improvements on the Property, the Improvements shall be deemed to be in compliance with all provisions of this Section 9, unless actual notice of such noncompliance and noncompletion, executed by the Association or its designated representatives, has been delivered to the Owner. For the purposes of this Section, “substantial completion” shall be defined in the manner adopted by the American Institute of Architects. Subsequent improvements, alterations or repairs to a Lot shall not entitle the UCRC to review for compliance any Improvements substantially completed more than one (1) year prior to the more recent improvements, alterations or repairs that are subject to review. 9.10 No Liability. Plans and specifications are not reviewed or approved for engineering or structural design, code compliance or quality of materials. By approving such plans and specifications neither the UCRC, the Association, or Declarant assumes liability or responsibility therefor, nor for any defect in any structure constructed from such plans and specifications. To the fullest extent permitted by Law, neither Declarant, the Association, the UCRC, nor officers, directors, members, employees and agents of any of them, shall be liable for damages to anyone submitting plans and specifications to any one of them for approval, or to any Owner of property affected by these restrictions by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. Every Person who submits plans and specifications and every Owner agrees to refrain from bringing any action or suit against Declarant, the Association, the UCRC, the Board, or officers, directors, members, employees and agents of any of them, to recover any such damages and hereby waives and releases all claims, demands, and causes of action arising out of or in connection with any judgment, negligence or nonfeasance and hereby further waives the provision of any law which provides that a general release does not extend to claims, demands, and causes of action not known at the time the release is given. SECTION 10. INSURANCE AND CASUALTY LOSSES. 10.1 Insurance on Common Property. (a) Property Insurance. The Association’s Board of Directors, or its duly authorized agent, shall have the authority to and shall obtain blanket “all-risk” property insurance, if reasonably available, for all insurable Improvements on the Common Property. If blanket “all-risk” coverage is not reasonably available, then at a minimum an insurance policy providing fire and extended coverage shall be obtained. The face amount of such insurance shall be sufficient to cover the full replacement cost of any repair or reconstruction of the Common Property if it is damaged or destroyed from any insured hazard. 171 DRAFT 7-21-2017 - 28 - (b) Liability Insurance. The Board shall also obtain a public liability policy covering the Common Property (including the Common Area Easement areas), insuring the Association and its Members for all damage or injury caused by the negligence of the Association, any of its Members, employees or agents, or any other Person who has a right to occupy a Lot. The public liability policy shall initially have limits of liability of at least $2,000,000 (combined single limit) covering all claims for death and personal injury (including medical payments) and/or property damage arising out of a single occurrence. If, in the opinion of the Board based on industry and local standards, the insurance coverage limits of the public liability policy become inadequate, the Board may increase the insurance coverage limits as reasonably determined by the Board to be adequate. (c) Premiums, Deductible. Premiums for all insurance on the Common Property shall be Common Expenses of the Association and shall be included in the General Assessment. The policies may contain a reasonable deductible, and the amount thereof shall not be subtracted from the face amount of the policy in determining whether the insurance at least equals the coverage required hereunder. The deductible shall be paid by the party who would be liable for the loss or repair in the absence of insurance and if there are multiple parties shall be allocated in relation to the amount each party’s liability for loss bears to the total. (d) Insurance Criteria. All insurance coverage obtained by the Board of Directors shall be written in the name of the Association as trustee for the respective insurance beneficiaries, as further identified in subparagraph (ii) below. The following provisions shall govern such insurance: (i) All policies shall be written with a company authorized to do business in the State of Montana that holds a Best’s rating of B+ or better and is assigned a financial size category of VI or larger as established by A. M. Best Company, Inc., if reasonably available, or, if not available, the most nearly equivalent rating that is available. (ii) All policies on the Common Property shall be for the benefit of the Association and its Members. (iii) Exclusive authority to adjust losses under policies obtained by the Association on the Common Property shall be vested in the Association’s Board of Directors; provided, however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto. (iv) In no event shall the insurance coverage obtained and maintained by the Association’s Board of Directors hereunder be brought into contribution with insurance purchased by individual Owners, Occupants or their Mortgagees. (v) All property insurance policies shall have an inflation guard endorsement, if reasonably available, and, if the policy contains a co-insurance clause, it shall also have an agreed amount endorsement. (vi) The Association’s Board of Directors shall be required to use reasonable efforts to secure insurance policies that will provide the following: • A waiver of subrogation by the insurer as to any claims against the Association’s Board of Directors, officers, employees and manager, the Owners and Occupants of Lots, and their respective Tenants, servants, agents, and guests; 172 DRAFT 7-21-2017 - 29 - • A waiver by the insurer of its rights to repair and reconstruct, instead of paying cash; • A statement that no policy may be canceled, invalidated, suspended or subject to nonrenewal on account of any one or more individual Owners; • A statement that no policy may be canceled, invalidated, suspended or subject to nonrenewal on account of any curable defect or violation without prior demand in writing delivered to the Association to cure the defect or violation and the allowance of a reasonable time thereafter within which the defect may be cured by the Association, its manager, any Owner, or Mortgagee; • A statement that any “other insurance” clause in any policy exclude individual Owners’ policies from consideration; and • A statement that the Association will be given at least 30 days prior written notice of any cancellation, substantial modification or non-renewal. 10.2 Other Insurance. In addition to the insurance required in Section 10.1 and to the extent required by Law, the Board shall obtain worker’s compensation insurance, and the premium shall be a Common Expense. The Board may also, in its discretion, obtain directors’ and officers’ liability coverage, if reasonably available, and a fidelity bond or bonds on directors, officers, employees, and other persons handling or responsible for the Association’s funds, if reasonably available. The amount of fidelity coverage shall be determined in the Boards’ best business judgment but, if reasonably available, may not be less than one-sixth (1/6) of the annual General Assessments on all Lots plus reserves on hand. Bonds shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and shall require at least 30 days’ prior written notice to the Association of any cancellation, substantial modification or non-renewal. 10.3 Damage and Destruction. (a) Adjustment, Estimates. Immediately after damage or destruction by fire or other casualty to all or any part of the Common Property covered by insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed Common Property. “Repair or reconstruction,” as used in this Section 10, means repairing or restoring the Common Property to substantially the same condition in which it existed prior to the fire or other casualty, allowing for any changes or improvements necessitated by changes in applicable building codes. (b) Decision to Repair. Any damage or destruction to the Common Property shall be repaired or reconstructed unless the Members representing at least seventy-five (75%) percent of the Member Votes of the Association shall decide within 60 days after the casualty not to repair or reconstruct. No Mortgagee shall have the right to participate in the determination of whether the damage or destruction to Common Property shall be repaired or reconstructed. (c) Failure to Repair. If it should be determined in the manner described above that the damage or destruction to the Common Property shall not be repaired or reconstructed and no alternative improvements are authorized, then the affected portion of the Common Property shall be cleared of all debris and ruins and maintained by the Association in a neat and attractive landscaped condition. 173 DRAFT 7-21-2017 - 30 - 10.4 Disbursement of Proceeds. If the damage or destruction for which the proceeds of insurance policies held by the Association are paid is to be repaired or reconstructed, the proceeds, or such portion thereof as may be required for such purpose, shall be disbursed in payment of such repairs or reconstruction as hereinafter provided. Any proceeds remaining after defraying such costs of repair or reconstruction shall be retained by and for the benefit of the Association and placed in a capital improvements account. If no repair or reconstruction is made, the proceeds shall be retained by and for the benefit of the Association and placed in a capital improvement account. 10.5 Repair and Reconstruction. If the damage or destruction to the Common Property for which insurance proceeds are paid is to be repaired or reconstructed, and such proceeds are not sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote of the Members, levy a Special Assessment against the Owners. 10.6 Property Insured by Owners; Damage and Destruction. Each Owner acknowledges and agrees that neither Declarant nor the Association shall have any obligation to insure Owner’s Improvements on a Lot. Each Owner shall carry appropriate liability and casualty insurance or cause such insurance to be carried by another entity. Each Owner fully covenants and agrees that if Owner’s Improvements on a Lot are damaged or destroyed, the Owner shall proceed promptly either (a) to repair or reconstruct the damaged Improvements in a manner consistent with the original construction or in such manner as may be approved in accordance with the provisions of Section 9 hereof; or (b) to clear the Building Envelope and Common Area Easement area of the Lot of all debris and return the Building Envelope to substantially the state in which it existed prior to the beginning of construction of Owner’s Improvements and thereafter to maintain the Building Envelope in a neat and attractive landscaped condition. SECTION 11 CONDEMNATION. Whenever all of any part of the Common Property shall be taken by any authority having the power of condemnation or eminent domain, the Association shall represent the Owners. The award made for such taking shall be payable to the Association. SECTION 12 ANNEXATION AND WITHDRAWAL OF PROPERTY. 12.1 Annexation by Declarant. Notwithstanding any other provision of this Declaration, Declarant shall have the unilateral right, privilege, and option, from time to time at any time until all Additional Property has been subjected to this Declaration or December 31, 2027, whichever is earlier, to subject to the provisions of this Declaration and the jurisdiction of the Association all or any portion of the Additional Property. Annexation shall be accomplished by recording a Supplemental Declaration annexing such property in the Public Records. The Supplemental Declaration shall not require the consent of Members, but shall require the consent of the owner(s) of such Additional Property, if other than Declarant. The Supplemental Declaration may create additional Lots and additional Common Property and/or it may altering the area of one or more existing Lots owned by Declarant (by boundary relocation or otherwise), and it may change the Percent Membership Interest and relative number of Member Votes allocated to each Lot. Each Owner and Mortgagee, by accepting any right, title or interest in a Lot, grants Declarant, and its successors in interest, a limited irrevocable power of attorney, coupled with an interest, to change the Percent Membership Interest and relative number of Member Votes allocated to each Lot in accordance with the plan set forth in the Supplemental Declaration. Recording of a Supplemental Declaration adding additional Lots (or altering the area of existing Lots) and modifying the Percent Membership Interest and Member Votes allocated to pre-existing Lots shall be deemed an assignment and conveyance of membership interests and voting rights in the Association in accordance with the Supplemental Declaration. Any such annexation shall be 174 DRAFT 7-21-2017 - 31 - effective upon the recording of such Supplemental Declaration unless otherwise provided therein. Declarant shall have the unilateral right to transfer to any other Person the right, privilege, and option to annex the Additional Property that is herein reserved to Declarant, provided that such transferee or assignee shall be the owner of at least a portion of the Property or Additional Property and that such transfer is memorialized in a written, recorded instrument executed by Declarant. 12.2 Annexation by Association. Subject to the consent of the owner thereof, the Association may annex real property (or any interest therein) other than the Additional Property, and following the expiration of the right in Section 12.1 hereof, the Additional Property, to the provisions of this Declaration and the jurisdiction of the Association. Such annexation shall require (a) the affirmative vote of Members representing two-thirds of the Member Votes of the Association present at a meeting duly called for such purpose and (b) the written consent of Declarant if the proposed annexation will occur during the Declarant Control Period. Annexation shall be accomplished by recording a Supplemental Declaration describing the property being annexed in the Public Records. Any such Supplemental Declaration shall be signed by the president and the secretary of the Association and by the owner of the property being annexed, and any such annexation shall be effective upon recording unless otherwise provided therein. The relevant provisions of the Bylaws dealing with regular or special meetings, as the case may be, shall apply to determine the time required for and the proper form of notice of any meeting called for the purpose of considering annexation of property pursuant to this Section 12.2 and to ascertain the presence of a quorum at such meeting. 12.3 Additional Covenants and Easements. Declarant may unilaterally subject any portion of the Additional Property submitted to this Declaration by Supplemental Declaration under Section 12.1 to additional covenants and easements. Such additional covenants and easements shall be set forth in a Supplemental Declaration filed either concurrent with or after the annexation of the subject property, and shall require the written consent of the owner(s) of such property, if other than Declarant. 12.4 Withdrawal of Property. Subject to the consent of the Owner thereof, the Association may withdraw real property from the provisions of this Declaration. Such withdrawal shall require (a) the affirmative vote of Members representing two-thirds of the Member Votes of the Association present at a meeting duly called for such purpose; (b) the written consent of Declarant if the proposed withdrawal will occur during the Declarant Control Period; and the written approval of the City of Bozeman. Withdrawal shall be accomplished by recording a Supplemental Declaration describing the property being withdrawn in the Public Records. Any such Supplemental Declaration shall be signed by the president and the secretary of the Association and by the Owner of the Property being withdrawn, and it shall be accompanied by the written approval of the City of Bozeman. Any such withdrawal shall be effective upon recording unless otherwise provided therein. The relevant portions of the Bylaws dealing with regular or special meetings, as the case may be, shall apply to determine the time required for and the proper form of notice of any meeting called for the purpose of considering withdrawal of Property pursuant to this Section 12.4 and to ascertain the presence of a quorum at such meeting. 12.5 Amendment. This Section 12 shall not be amended without the prior written consent of Declarant, so long as Declarant or an entity controlled by Declarant owns any portion of the Property or Additional Property. 175 DRAFT 7-21-2017 - 32 - SECTION 13 MORTGAGEE PROVISIONS. 13.1 Priority of First Mortgages. Notwithstanding any other provisions of this Declaration or any provisions of the Bylaws, a breach of this Declaration by any Owner shall not defeat or invalidate the lien of a first Mortgage made in good faith and value as to a Lot or any portion thereof. As provided in Section 5, any lien which the Association may have on any Lot for the nonpayment of Assessments allocated to such Lot will be subordinate to the lien or equivalent security interest of any first Mortgage on the Lot recorded prior to the date any such Assessments became due. No provision of this Declaration shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any Lot in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or taking of property. 13.2 Notices to Eligible Lenders. Any lender holding a first Mortgage on a Lot (“Eligible Lender”) shall be given notice of the following events if it delivers to the Association a written request that it receive such notices, together with a complete and accurate description of the Lot subject to its Mortgage and an accurate address for such Eligible Lender: (a) Any delinquency in the payment of Assessments or charges owed and any other default in the performance of an obligation set forth in this Declaration by an Owner of a Lot subject to a first Mortgage held by such Eligible Lender which remains uncured for a period of 60 days; (b) Any proposed action that would require the consent of an Eligible Lender. 13.3 Notice to Association. Upon request, each Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner’s Lot. 13.4 Failure of Mortgagee to Respond. Any Mortgagee who receives a written request as herein provided from the Association to respond to or consent to any action shall be deemed to have approved such action if the Association does not receive a written response from the Mortgagee within 15 days of the date of such Mortgagee’s receipt of notice of the Association’s request. SECTION 14. EASEMENTS. 14.1 Easements Reserved to Declarant. Declarant shall have the right to assign and convey, in whole or in part, the easements reserved by it hereunder to one or more public utility companies, quasi- public companies or relevant governmental authorities. The following easements shall be reserved to Declarant, its successors and assigns: (a) Easements, licenses, franchises, permits for installation, maintenance, repair and removal of utilities, public rights-of-way, drainage facilities, and access rights for fire protection services and other similar services over, under and across the Property, as specifically set forth on recorded plats of the Property and portions thereof, or as set forth in other documents of record in the Public Records. (b) Full right of ingress and egress at all times over the Property to the extent reasonably necessary for the installation, operation, maintenance, repair or removal of any utility or drainage facility contained within any of the aforesaid easements. (c) Full right of ingress and egress at all times over the Property as may be reasonably required to remove any obstruction that may be placed in such easements without the approval of Declarant or the owner of the relevant easement, where such unauthorized obstruction 176 DRAFT 7-21-2017 - 33 - would constitute interference with the use of such easement or with the use, maintenance, operation or installation of such utility or other services. (d) Full rights of ingress and egress shall be held by the Association at all times over and upon each Lot for emergency, security, and safety in accordance with the provisions hereof, for carrying out the Association functions, duties and obligations hereunder. Policemen, firemen, ambulance personnel, and similar emergency personnel may exercise such rights in the performance of their respective duties. Except in an emergency situation, entry shall only be during reasonable hours, after notice to the Owner, shall be made with as little inconvenience to the Owner as practical, and the entering party shall repair any damage caused thereby. This right of entry shall include the right of the Association to enter to cure any condition that may increase the possibility of a fire or other hazard if the Owner or Occupant fails or refuses to cure the condition upon the Association’s written request. 14.2 Easements for the Installation, Maintenance, and Use of Common Property on Owners’ Lots. The following easements (collectively the “Common Area Easements”) over, upon, and across each Lot are hereby reserved for the installation, construction, reconstruction, maintenance, use, and enjoyment of improvements intended for the common use and enjoyment of all Owners, Occupants, Tenants, and their respective employees, guests, and invitees: (a) Easements for Construction, Operation, and Maintenance of Improvements. Exclusive easements are reserved to the Declarant and the Association to construct, reconstruct, operate, maintain, and replace roadways, walkways, entrance areas, utility lines and connections, landscaped areas, patios, parking areas, median strips, curbs, drainage courses and storm water facilities, utilities, common area and sign lighting, and sign location areas and signs located thereon, and other similar improvements on any and all Lots. The location of the easements shall correspond with the locations of such improvements as shown on the Plat and generally encompass all portions of a Lot except for Building Envelopes delineated on the Plat; provided, however, that if the improvements are constructed prior to the initial conveyance of an affected Lot to someone other than Declarant and the location of the improvements varies from that shown on the Plat, the corresponding easements for the improvements on such Lot shall be located at the improvements’ “as built” locations. (b) Reciprocal Easements for the Use and Enjoyment of Common Area Improvements. There is reserved, and each Lot is subject to, a non-exclusive easement of ingress and egress, use and enjoyment, for the benefit of the other Lots and the Owners, Occupants, and Tenants thereof, and their respective employees, guests, and invitees. Such Persons may use the Common Property constructed, maintained, and operated on the Lot for the Common Property’s intended purposes. Use of this easement and the Common Property thereon shall be subject to the conditions and restrictions imposed in Section 14.3. The Common Area Easements described in this Section 14.2 shall be part of the Common Property held by the Association for the use and enjoyment of the Owners. 14.3 Easements for Use and Enjoyment of Common Property. Every Owner shall have a nonexclusive right and easement of ingress and egress, use and enjoyment in and to the Common Property for its intended use that shall be appurtenant to and shall pass with the title to such Owner’s Lot, subject to: (a) The provisions of this Declaration as it may be amended from time to time; 177 DRAFT 7-21-2017 - 34 - (b) Any restrictions or limitations contained in any deed or assignment conveying such Common Property to the Association; (c) The right of the Board of Directors to adopt other rules and regulations regulating the use and enjoyment of the Common Property; (d) The right of the Association to limit the number of invitees who may use the Common Property, to allow Persons, such as individuals living or working in the vicinity of the Property, to use the Common Property on a regular or temporary basis and to charge or not charge such Persons a user fee thereof, and to provide for the exclusive use and enjoyment of specific portions thereof at certain designated times by an Owner, its Tenants, guests, Occupants, and invitees; (e) The right of the Association to suspend the right of an Owner to use the Common Property (other than for ingress and egress to the Owner’s Lot) for any period during which any Assessment that is herein provided for remains unpaid. (f) The right of the Association to dedicate or transfer all or any part of the Common Property to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless an instrument signed by the Association certifying that a Majority of the Member Votes has approved such dedication or transfer has been recorded. If such proposed dedication or transfer is to occur within the Declarant Control Period, the written consent of Declarant shall also be required. An Owner’s right of use and enjoyment in and to the Common Property and facilities located thereon shall extend to the Owner’s Tenants, invitees, and guests. An Owner shall be deemed to have made a delegation of all such rights to the Occupants of such Owner’s Lot, if leased. 14.4 Permits for Encroachment. If any portion of the Common Property encroaches upon a Building Envelope as of the date of this Declaration, a valid permit for the encroachment and for the maintenance of the same, so long as it stands, shall and does exist. If any portion of an Owner’s building or other improvement encroaches upon Common Property as of the date of this Declaration, a valid permit for the encroachment and for the maintenance of the same, so long as it stands, shall and does exist. Further, there shall be reciprocal appurtenant permits for encroachment between a Lot’s Building Space and its Common Property adjacent thereto due to the unintentional placement or settling or shifting of the Improvements constructed, reconstructed or altered thereon (in accordance with the terms of this Declaration) to a distance of not more than two (2) feet along a line perpendicular to such boundary at such point; provided, however, in no event shall a permit for encroachment exist if such encroachment occurred due to willful conduct on the part of an Owner, Occupant, or the Association. 14.5 Permit for Overhangs. Overhangs shall be permitted for balconies, awnings, eaves, beams, and other similar structures projecting from buildings, structures, and other improvements situated within a Lot’s designated Building Envelope (collectively “projections”) into that portion of the Lot subject to Common Area Easements. Such projections may overhang the Common Property a distance of not more than five (5) feet, as measured from any point on the boundary of the Building Easement along a line perpendicular to the boundary at such point. All projections shall have sufficient ground clearance so as not to interfere with walkways, driveways or parking areas located on the Common Area Easement and so as not to interfere with the passage of delivery, service, construction, and maintenance vehicles. 178 DRAFT 7-21-2017 - 35 - 14.6 Easement for Maintenance and Repair of Lot Improvements. Each Lot shall have appurtenant easements over and across the Common Property for the purpose of accessing and maintaining structures and other Improvements on such Lot. The Owner of such Lot shall not exercise such easement in a manner that interferes unreasonably with other Owners’ and Occupants’ use of the Common Property. 14.7 Easement for Maintenance and Repair of Common Property. The Association and its representatives, employees, contractors, and agents, shall have the irrevocable right to access each Lot from time to time during reasonable hours, or at any time in the case of an emergency, as may be necessary for the maintenance, repair or replacement of any of the Common Property located on or accessible from such Lot. SECTION 15. ENFORCEMENT. 15.1 Owner’s Compliance. Every Owner, Tenant or Occupant of a Lot shall comply with the provisions of this Declaration, the Bylaws and any rules and regulations of the Association, all as may be amended or modified from time to time. Failure to comply shall be grounds for an action to recover sums due, for damages and fines, for injunctive relief, or for any other remedy available at law or in equity maintainable by the Association or, in a proper case, by an aggrieved Owner. All agreements and determinations lawfully made by the Association shall be deemed to be binding on all Owners, their successors and assigns. 15.2 Remedies. (a) Fines and Penalties. The Board may implement a schedule of reasonable fines and penalties for particular offenses that are common or recurring in nature and for which a uniform fine schedule is appropriate. A late charge for delinquent assessments or costs of collection may be added to an Owner’s total Assessment obligation and may be collected by the Association in the same manner as provided for the collection of Assessments in Section 5. (b) Suit. The Association, in its own name and on its own behalf, or on behalf of all Owners, may enforce the provisions of this Declaration by prosecuting a proceeding at law or in equity against any persons or persons violating or attempting to violate any of the Covenants to enjoin or prevent them from doing so, to cause the violation to be remedied, and/or to recover damages resulting from the violation. The Association may also file suit to enforce any lien created by this Declaration. The decision as to whether it is necessary or desirable for the Association to take enforcement action shall rest within the sole discretion of the Board. (c) Self-Help; Abatement. In addition to any other remedies provided for herein and available under law, the Association or its duly authorized agent shall have the power to enter upon a Lot or any portion of the Property to abate or remove, using such force as may be reasonably necessary, any Improvement, structure, thing or condition that violates this Declaration. Except in the case of emergency situations and towing, the Association shall give the violating Owner or Occupant 10-days written notice of its intent to exercise self- help. All cost of self-help shall be assessed against the violating Owner, shall be a continuing lien on the violating Owner’s Lot, and shall be collected as provided in this Declaration for the collection of Assessments. (d) Nuisance. Without limiting the generality of the remedies elsewhere provided in Declaration, the result of every act or omission whereby any Covenant is violated in whole 179 DRAFT 7-21-2017 - 36 - or in part is hereby declared to be a nuisance, and every remedy against nuisance, either public or private, shall be available to the Association. (e) Remedies Not Exclusive. The remedies provided in this Section 15 and elsewhere in this Declaration and the Bylaws shall be cumulative and shall not be exclusive of any other remedies that may now or in the future be available to the parties as provided for at law or in equity. 15.3 Attorney’s Fees. In any legal or equitable proceeding for the enforcement of this Declaration, whether it be an action for damages, declaratory relief or injunctive relief or any other action, the losing party or parties shall pay the costs and attorney’s fees of the prevailing party or parties, in such reasonable amount as shall be fixed by the court in such proceedings or in a separate action brought for that purpose. 15.4 No Waiver. The failure of any Owner, the Association or the Board to enforce a Covenant contained in this Declaration shall in no event be deemed to be a waiver of the right to enforce such Covenant or any other Covenant thereafter, nor shall such failure result in or impose any liability upon Declarant, the Association or the Board. SECTION 16. GENERAL PROVISIONS. 16.1 Covenants to Run with Land, Duration, Binding Effect The Covenants contained in this Declaration shall run with the land and bind the Property, including every Lot made subject to this Declaration, and shall inure to the benefit of and be binding upon the Lot Owners, and the heirs, personal representatives, nominees, successors and assigns of such Lot Owners, for a term of 30 years from the date this Declaration is recorded. After such time, the term of the Declaration shall be automatically extended for successive periods of 10 years, unless an instrument in writing, signed by Owners representing 75% of the total Member Votes of the Association, has been recorded within the year preceding the beginning of each successive period of 10 years, agreeing to change said covenants and restrictions, in whole or in part, or to terminate the same, in which case this Declaration shall be modified or terminated as specified therein. 16.2 Amendment. (a) Amendment by Declarant. Prior to the fee conveyance of Lots holding a sixty percent (60%) Membership Interest (determined in accordance with Paragraph 4.3(a) and disregarding the provisions of Paragraph 4.3(b)) in the Association to Persons other than Declarant (or an entity controlled by or under common control with Declarant), Declarant may unilaterally amend this Declaration. After such conveyance, but no later than the expiration of the Declarant Control Period, Declarant may unilaterally amend this Declaration at any time and from time to time if such amendment is (i) necessary to bring any provision hereof into compliance with any applicable governmental statutes, rule or regulation, or judicial determination; (ii) necessary to enable any reputable title insurance company to issue title insurance coverage on the Lots; (iii) necessary to enable any governmental agency or reputable private insurance company to insure mortgage loans on the Lots; or (iv) necessary to document adjustment and redistribution of Owners’ Percent Membership Interests and Member Votes as provided in Paragraphs 4.3(a) and 4.3(b); provided, however, any such amendment shall not adversely affect the title to any Lot unless the Owner shall consent thereto in writing. The provisions of this Paragraph 16.2(a) shall be in addition to Declarant’s right to annex Additional Property and file a Supplemental Declaration as provided in Section 12.1. 180 DRAFT 7-21-2017 - 37 - (b) Amendment by Members. Except as provided in Section 16.2(a), this Declaration or any Covenant contained in it may be amended only by (i) the affirmative vote of Members representing seventy-five (75%) percent of the total Member Votes in the Association; and (ii) the consent of Declarant during the Declarant Control Period. Any amendment to be effective must be recorded in the Public Records. If an Owner consents to any amendment to this Declaration or the Bylaws, it will be conclusively presumed that such Owner has the authority so to consent and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment. No amendment may remove, revoke or modify any right or privilege of Declarant without the written consent of Declarant or the assignee of such right or privilege. (c) City of Bozeman as Party to Amendment. Notwithstanding the provisions for amendment set forth in Paragraphs 16.2(a) and 16.2(b), no provision of the Covenants or Design Guidelines that was required by ordinance or as a condition of Plat approval shall be amended or revoked unless the City of Bozeman is made party to such amendment or revocation and consents thereto. Without limiting the generality of the preceding sentence, the Covenants requiring the City of Bozeman’s consent for amendment or revocation include: (i) Section 6.4 (Storm Water Maintenance Plan); (ii) Section 9.5 (Design Guidelines), insofar as it requires the City of Bozeman’s consent to alter the design standards set forth therein; (iii) Section 12.4 (Withdrawal of Property), insofar as it requires the City of Bozeman’s approval to withdraw or remove Property from the Covenants once established; and (iv) Section 14.3 (Easements for Use and enjoyment of Common Property) granting Lot Owners rights and easements for ingress and egress to and from and rights of use and enjoyment in and to the Common Property for its intended purposes, including for access, utility connections, drainage courses, and storm water facilities. 16.3 Variance and Waiver. Notwithstanding anything to the contrary contained herein, the Association shall be authorized to grant individual variances or waivers from any of the provisions of this Declaration, except the provisions of Section 5 hereof regarding Assessments, if it determines that a variance or waiver of application or enforcement of the provision in a particular case would not be inconsistent with the overall scheme of development for the Property; provided that such variance or waiver does not violate any applicable Laws. Such variance or waiver shall not constitute a variance or waiver from any governmental authority’s rules and regulations. 16.4 Partition. The Common Property shall remain undivided and, upon Declarant’s conveyance to the Association, remain titled in the Association. No Owner nor any other Person shall bring any action for partition or division of the whole or any part thereof, without the written consent of all Owners, the written consent of all the Eligible Mortgagees, and, if such partition or division occurs within the Declarant Control Period, the written consent of Declarant. 16.5 University Crossing – Use of Term. No Person shall use the term or name “University Crossing” in the name of any building, condominium or business enterprise that is built, established or conducted on any Lot or in any printed or promotional material without the prior written consent of Declarant. Owners and Occupants may use the term “University Crossing” in printed or promotional matter where such term is used solely to specify that the particular property is located within the minor subdivision. 181 DRAFT 7-21-2017 - 38 - 16.6 Disclaimer. Except as expressly provided in this Declaration, the Bylaws, or in agreements or instruments pertaining to conveyance of the Lots, Declarant does not intend by this Declaration to make, and hereby expressly negates and disclaims, any warranties and representations regarding the value, nature, quality, physical condition, suitability, compliance with Laws, or any other aspect of the Property or the Lots. Estimates of Common Expenses made by Declarant are reasonably believed to be accurate at the time they are made, but Declarant makes no warranty or representation that such estimates are either correct or may be relied upon by any Person. 16.7 Notice of Sale or Transfer of Title. If any Owner desires to sell or otherwise transfer title to its Lot, such Owner shall give the Board of Directors at least ten (10) days prior written notice of the name and address of the purchaser or transferee, the date of such transfer of title, and such other information as the Board may reasonably require. Until the Board receives such written notice, the transferor shall continue to be jointly and severally responsible for all obligations of the Owner of the affected Lot, including payment of Assessments, notwithstanding the transfer of title to the Lot. 16.8 Proper Notice to Owner or Mortgagee. Except as otherwise set forth in this Declaration, any notice required to be given to any Owner or Mortgagee under the provisions of this Declaration shall be personally served or sent by fax with confirmation, overnight courier or certified U.S. mail, return receipt requested, addressed to the last known address of the Person who appears as the Owner or Mortgagee on the records of the Association at the time of such service. If there are multiple Owners of a Lot, the Association shall be obligated to send notice to only one of the multiple Owners, and notice to one shall be deemed notice to all. Multiple Owners may designate one of them as the Person entitled to notice by so notifying the Association in writing stating the name and address of such Person. Notices under this section shall be deemed to have been received: (a) if by personal delivery, on the date delivered; (b) if by facsimile transmission, on the date confirmed; (c) if by overnight delivery service, on the date delivered; and (d) if by mail, five (5) days after mailing. 16.9 No Dedication. Nothing contained in this Declaration shall be construed or deemed to constitute a dedication, express or implied, of any part of the Property or the Common Property to or for any public use or purpose whatsoever. 16.10 Severability. The provisions of this Declaration shall be deemed independent and severable, and the invalidity, partial invalidity or unenforceability of any one or more provisions shall not affect the validity or enforceability of any other provision. 16.11 Captions. The captions, titles, section, and paragraph headings throughout this Declaration are for convenience and reference only and shall not be deemed or held to explain, modify, amplify or aid in the interpretation, construction or meaning or the provisions of this Declaration, nor to define, limit or describe the scope or intent of a particular section. 16.12 Cumulative Effect. The provisions of this Declaration shall be cumulative with the provisions of any applicable Supplemental Declaration. The Association shall have the standing and authority to enforce the provisions of any Supplemental Declaration. 16.13 Interpretation. (a) A term defined in the singular may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which also govern all other language in this Declaration; (b) the words “hereof,” “herein,” “hereunder,” “herewith,” and words of similar import shall, unless otherwise stated, be construed to refer to this Declaration and not to any particular provision of this Declaration, and references to Section, Paragraph, and Exhibit are references to the Sections, Paragraphs, and Exhibits to this Declaration unless otherwise 182 DRAFT 7-21-2017 - 39 - specified; (c) the word “including” and words of similar import when used in this Declaration shall mean “including, without limitation,” unless otherwise specified; and (d) the provisions of this Declaration and of the Bylaws to be promulgated and recorded herewith shall be liberally construed to effectuate the intent and purpose of the Declaration and the Bylaws. IN WITNESS WHEREOF, Declarant has caused this Declaration to be made and executed as of the date set forth at the head of this instrument. 19th Capital Group, LLC by: __________________________________________ Daniel H. Hitchcock, Member by: __________________________________________ Barry L. Brown, Member by: __________________________________________ Jerry D. Locati, Member by: __________________________________________ Dick Anderson, Member [Acknowledgments on next page] 183 DRAFT 7-21-2017 - 40 - ACKNOWLEDGEMENT STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on _____________, 2017, by Daniel H. Hitchcock, as a member of 19th Capital Group, LLC, a Montana limited liability company. _______________________________________ Notary Signature Seal: STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on _____________, 2017, by Barry L. Brown, as a member of 19th Capital Group, LLC, a Montana limited liability company. _______________________________________ Notary Signature Seal: STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on _____________, 2017, by Jerry D. Locati, as a member of 19th Capital Group, LLC, a Montana limited liability company. _______________________________________ Notary Signature Seal: STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on _____________, 2017, by Dick Anderson, as a member of 19th Capital Group, LLC, a Montana limited liability company. _______________________________________ Notary Signature Seal: 184 DRAFT 7-21-2017 - 41 - EXHIBIT A ADDITIONAL PROPERTY The “Additional Property,” all or a portion of which may be annexed to the Property and subjected to the Covenants pursuant to Section 12.1 of the Declaration, is described as follows: Lot 2A of Minor Subdivision No. 191, located in the SE¼ of Section 14, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder, Gallatin County, Montana. 185 186 187 188 189 190 191 192 193