HomeMy WebLinkAbout14497038_7_Declaration of CCRs for the Cottonwood ProjectDECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND EASEMENTS
FOR
THE COTTONWOOD PROJECT
NOTICE
THIS DOCUMENT IS A VERY IMPORTANT LEGAL DOCUMENT WHICH EACH
POTENTIAL OWNER AND OCCUPANT OF PROPERTY WITHIN THE COTTONWOOD PROJECT
SHOULD READ AND UNDERSTAND.
THE COTTONWOOD PROJECT IS A UNIQUE MIXED USE COMMUNITY AND THIS
DOCUMENT SETS FORTH THE OBLIGATIONS AND RESPONSIBILITIES OF ALL OWNERS
AND OCCUPANTS OF THE COTTONWOOD PROJECT.
THIS DOCUMENT AFFECTS THE LEGAL RIGHTS OF EACH OWNER AND OCCUPANT.
POTENTIAL OWNERS AND OCCUPANTS ARE ADVISED TO REVIEW THIS DOCUMENT WITH
THEIR LEGAL AND OTHER ADVISORS PRIOR TO ACQUIRING OR OCCUPYING A LOT.
THE DECLARANT EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
STATEMENTS OR INFORMATION NOT SET FORTH HEREIN OR IN ANY WRITTEN
DOCUMENT EXECUTED BY DECLARANT. ANY REPRESENTATIONS OR WARRANTIES
MADE BY ANY REAL ESTATE BROKER OR AGENT OR OTHER PERSON CONCERNING THE
TOTAL OR TYPES OF ASSESSMENTS TO BE LEVIED AGAINST AN OWNER OR LOT WITHIN
THE COTTONWOOD PROJECT SHOULD BE DISREGARDED IN THEIR ENTIRETY AND IN ALL
EVENTS THE TERMS AND CONDITIONS OF THIS DOCUMENT SHALL CONTROL.
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TABLE OF CONTENTS
ARTICLE I. RECITALS ............................................................................................................. 1
1.1 Property Covered ............................................................................................................ 1
1.2 Development ................................................................................................................... 1
1.3 Purpose ............................................................................................................................ 1
ARTICLE II. DECLARATION .................................................................................................. 1
ARTICLE III. DEFINITIONS .................................................................................................... 2
3.1 “Articles” ........................................................................................................................ 2
3.2 “Assessments” ................................................................................................................ 2
3.3 “Association” ................................................................................................................. 2
3.4 “Association Rules” ....................................................................................................... 2
3.5 “Board” .......................................................................................................................... 2
3.6 “Building Envelope”...................................................................................................... 2
3.7 “Bylaws” ......................................................................................................................... 2
3.8 “Common Area” ............................................................................................................ 2
3.9 “Declarant” .................................................................................................................... 3
3.10 “Design Committee”...................................................................................................... 3
3.11 “Design Guidelines” ...................................................................................................... 3
3.12 “First Mortgage” ........................................................................................................... 3
3.13 “Improvement” .............................................................................................................. 3
3.14 “Limited Assessment” ................................................................................................... 3
3.15 “Limited Common Area” ............................................................................................. 3
3.16 “Lot” ............................................................................................................................... 3
3.17 “Maintenance Property” .............................................................................................. 3
3.18 “Member” ...................................................................................................................... 4
3.19 “Mortgage” .................................................................................................................... 4
3.20 “Occupant” .................................................................................................................... 4
3.21 “Owner” ......................................................................................................................... 4
3.22 “Party Wall” .................................................................................................................. 4
3.23 “Person(s)” ..................................................................................................................... 4
3.24 “Project Documents” .................................................................................................... 4
3.25 “Property” ...................................................................................................................... 4
3.26 “Regular Assessment” ................................................................................................... 4
3.27 “Restricted Area” .......................................................................................................... 4
3.28 “Special Assessment” .................................................................................................... 4
ARTICLE IV. GENERAL AND SPECIFIC RESTRICTIONS .............................................. 5
4.1 Uses-Generally ................................................................................................................ 5
4.2 Improvements Generally ................................................................................................. 5
4.3 Exterior Maintenance; Owner’s Obligations .................................................................. 5
4.4 Landscaping .................................................................................................................... 6
4.5 Weed Control .................................................................................................................. 6
4.6 Nuisances ........................................................................................................................ 6
4.7 Hunting and Firearms. .................................................................................................... 6
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4.8 No Hazardous Activities ................................................................................................. 7
4.9 Notice of Water Features ................................................................................................ 7
4.10 No Mining or Drilling ..................................................................................................... 7
4.11 Vehicles and Equipment ................................................................................................. 7
4.12 Animals/Pets ................................................................................................................... 7
4.13 No Farming ..................................................................................................................... 7
4.14 No Mobile Homes or Temporary Structures .................................................................. 7
4.15 Drainage .......................................................................................................................... 7
4.16 Grading ........................................................................................................................... 8
4.17 Water Supply Systems .................................................................................................... 8
4.18 Sewage Disposal Systems ............................................................................................... 8
4.19 Water Rights Appurtenant to Subdivision Lands ........................................................... 8
4.20 No Further Subdivision ................................................................................................... 8
4.21 Declarant’s Right of Development ................................................................................. 8
4.22 Fences ............................................................................................................................. 9
4.23 Compliance with Laws ................................................................................................... 9
4.24 Adjacent Uses ................................................................................................................. 9
ARTICLE V. ASSOCIATION .................................................................................................... 9
5.1 Organization of Association ........................................................................................... 9
5.2 Membership .................................................................................................................... 9
5.3 Voting at the Association .............................................................................................. 10
5.4 Board of Directors and Officers .................................................................................... 10
5.5 Power and Duties of the Association ............................................................................ 10
5.6 Annual Meeting ............................................................................................................ 14
5.7 Budgets and Financial Statements ................................................................................ 14
5.8 Manager ........................................................................................................................ 14
5.9 Personal Liability .......................................................................................................... 15
5.10 Waiver of Consequential Damages. .............................................................................. 15
ARTICLE VI. RIGHTS TO COMMON AREAS; DESIGNATION OF
COMMON AREAS, RESTRICTED AREAS AND MAINTENANCE
PROPERTY................................................................................................................................. 15
6.1 Use of Common Are ..................................................................................................... 15
6.2 Designation of Common Area ...................................................................................... 16
6.3 Designation of Limited Common Area......................................................................... 16
6.4 Delegation of Right to Use ........................................................................................... 16
6.5 Designation of Restricted Area. .................................................................................... 16
6.6 Designation of Maintenance Property. ......................................................................... 16
6.7 Association’s Responsibility. ........................................................................................ 17
ARTICLE VII. ASSESSMENTS ............................................................................................... 17
7.1 Covenant to Pay Assessments ....................................................................................... 17
7.2 Uniform Rate of Assessment ........................................................................................ 17
7.3 Special Assessments ..................................................................................................... 18
7.4 Limited Assessments .................................................................................................... 19
7.5 Assessment Period ........................................................................................................ 19
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7.6 Notice and Assessment Due Date ................................................................................. 19
7.7 Estoppel Certificate ....................................................................................................... 19
7.8 Special Notice and Quorum Requirements ................................................................... 19
ARTICLE VIII. ENFORCEMENT OF ASSESSMENTS; LIENS ........................................ 20
8.1 Right to Enforce ............................................................................................................ 20
8.2 Assessment Liens .......................................................................................................... 20
8.3 Method of Foreclosure .................................................................................................. 20
8.4 Subordination to Certain Mortgages ............................................................................. 20
8.5 Rights of Mortgagees .................................................................................................... 21
ARTICLE IX. INSPECTION OF THE ASSOCIATION’S BOOKS AND
RECORDS ................................................................................................................................... 21
9.1 Member’s Right of Inspection ...................................................................................... 21
9.2 Rules Regarding Inspection of Books and Records ...................................................... 21
9.3 Director’s Rights of Inspection ..................................................................................... 21
ARTICLE X. DESIGN COMMITTEE .................................................................................... 21
10.1 Creation; Declarant’s Right of Appointment ................................................................ 21
10.2 Appointment of Design Committee Representative ..................................................... 22
10.3 Improvements Generally ............................................................................................... 22
10.4 Expenses ....................................................................................................................... 22
10.5 Non-Liability of Design Committee Members ............................................................. 22
10.6 Variances....................................................................................................................... 23
10.7 Declarant’s Exemption.................................................................................................. 23
ARTICLE XI. EASEMENTS .................................................................................................... 23
11.1 Owners: Easements of Enjoyment ................................................................................ 23
11.2 Delegation of Use ......................................................................................................... 23
11.3 Recorded Easements ..................................................................................................... 23
11.4 Easements of Encroachment ......................................................................................... 23
11.5 Party Walls .................................................................................................................... 24
11.6 Easements of Access ..................................................................................................... 24
11.7 Drainage and Utility Easements .................................................................................... 24
11.8 Improvement of Drainage and Utility Easement Areas ................................................ 24
11.9 Rights and Duties Concerning Utility Easements ......................................................... 25
11.10 Maintenance and Use Easement Between Walls and Property .................................... 25
11.11 Disputes as to Sharing of Costs .................................................................................... 25
11.12 Declarant’s Rights Incident to Construction ................................................................. 25
11.13 Emergency Easement .................................................................................................... 26
11.14 Maintenance Easement – Association’s Responsibility ............................................... 26
11.15 Easements Deemed Created .......................................................................................... 26
ARTICLE XII. DAMAGE OR DESTRUCTION .................................................................... 26
12.1 Association as Attorneys in Fact................................................................................... 26
12.2 Estimate of Damages or Destruction ............................................................................ 26
12.3 Repair and Reconstruction ............................................................................................ 26
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12.4 Funds for Repair and Reconstruction ........................................................................... 27
12.5 Disbursement of Funds for Repair and Reconstruction ................................................ 27
12.6 Decision Not to Rebuild................................................................................................ 27
12.7 Damage or Destruction Affecting Lots ......................................................................... 27
ARTICLE XIII. CONDEMNATION........................................................................................ 27
13.1 Rights of Owners .......................................................................................................... 27
13.2 Condemnation; Distribution of Award; Reconstruction ............................................... 27
ARTICLE XIV. RESOLUTION OF DISPUTES .................................................................... 28
14.1 Agreement to Avoid Litigation ..................................................................................... 28
14.2 Exemptions ................................................................................................................... 28
14.3 Dispute Resolution ........................................................................................................ 29
ARTICLE XV. ANNEXATION AND DEANNEXATION ..................................................... 30
ARTICLE XVI. MISCELLANEOUS ....................................................................................... 30
16.1 Term .............................................................................................................................. 30
16.2 Amendment ................................................................................................................... 30
16.3 Notices .......................................................................................................................... 31
16.4 Enforcement and Non Waiver ...................................................................................... 31
16.5 Use of Trademark ......................................................................................................... 32
16.6 Interpretation ................................................................................................................. 32
16.7 Successors and Assigns................................................................................................. 32
16.8 No Dedication ............................................................................................................... 32
16.9 Owners’ Acknowledgements ........................................................................................ 32
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, AND EASEMENTS
FOR THE COTTONWOOD PROJECT - 1
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DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND EASEMENTS
FOR
THE COTTONWOOD PROJECT
THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND
EASEMENTS FOR THE COTTONWOOD PROJECT (“Declaration”) is executed this ___ day of
, 2020 (the “Effective Date”), by The Cottonwood Project, LLC, a Delaware
limited liability company (“Declarant” and “Class B Member”). All capitalized terms not otherwise
defined in the text hereof are defined in ARTICLE III.
ARTICLE I.
RECITALS
1.1 Property Covered. The property subject to this Declaration (the “Property”) is legally
described as Lots 1 and 2 and Open Space Lots 1 through 3 in Block 1; Lots 1 and 2 and Open Space Lot
1 in Block 2; Lots 1 and 2 and Open Space Lot 1 in Block 3; City Park Lot 1 in Block 4; Lot 1 and City
Park Lot 1 in Block 5; Lot 1 and City Park Lot 1 in Block 6; and City Park Lot 1 in Block 7 of
Cottonwood Subdivision Phase 1 & 2, according to the official plat thereof recorded in the real property
records of Gallatin County, Montana in Book ___ of Plats at Pages _______ - _______, Instrument No.
________, as amended from time to time (the “Plat”), which Property consists of approximately 28.087
acres and has been approved by the City of Bozeman for a mixed-use development consisting of
residential living space and retail elements (the “Cottonwood Project”).
1.2 Development. The Cottonwood Project is a mixed-use development which Declarant
currently intends to develop in accordance with existing development approvals obtained by Declarant
from the City of Bozeman, or any other development plan(s) for which Declarant may from time to time
obtain approval from the City of Bozeman, as may be amended or changed from time to time at the sole
discretion of Declarant without approval from any Owner (collectively the “Development Plan”). The
Property will be developed for residential living space and retail elements in accordance with the
Development Plan.
1.3 Purpose. The purpose of this Declaration is to set forth the basic restrictions, covenants,
limitations, easements, conditions and equitable servitudes (collectively “Restrictions”) that will apply to
the Cottonwood Project and the use of any and all portions of the Property. The Restrictions are designed
to protect, enhance and preserve the value, amenities, desirability, and attractiveness of the Project; to
ensure a well-integrated, high quality development; and to guarantee adequate maintenance of the
Common Area, Restricted Area and Maintenance Property, including any Improvements located thereon
in a cost effective and administratively efficient manner.
ARTICLE II.
DECLARATION
Declarant hereby declares that the Property, and each lot, parcel, unit and portion thereof, is
and/or shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved
subject to the following terms and Restrictions, all of which are declared and agreed to be in furtherance
of a general plan for the protection, maintenance, subdivision, improvement and sale of the Property, and
to enhance the value, desirability and attractiveness of the Property. The terms and Restrictions set forth
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, AND EASEMENTS
FOR THE COTTONWOOD PROJECT - 2
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herein shall run with the land constituting the Property, and with each estate therein, and shall be binding
upon any Person having or acquiring any right, title or interest in the Property or any lot, parcel, unit or
portion thereof; shall inure to the benefit of every lot, parcel, unit or portion of the Property and any
interest therein; and shall inure to the benefit of and be binding upon Declarant, Declarant’s successors in
interest and each grantee or Owner and such grantee’s or Owner’s respective successors in interest, and
may be enforced by Declarant, any grantee or grantee’s successors, any Owner or Owner’s successors, or
by the Association. In the event of any conflict between this Declaration and any other of the Project
Documents, this Declaration shall control.
ARTICLE III.
DEFINITIONS
3.1 “Articles” means the Articles of Incorporation of the Association.
3.2 “Assessments” means those payments required of Owners who are Members, including
Regular Assessments, Special Assessments, and Limited Assessments.
3.3 “Association” means the Montana non-profit corporation, or its successors, organized
and established by Declarant to exercise the powers and to carry out the duties set forth in this
Declaration. The Association shall be formed before any Lots are sold by Declarant. Declarant shall
have the power, in its discretion, to name the Association “Cottonwood Property Owners Association,
Inc.”, or any similar name which fairly reflects its purpose. The Association shall have no right, title or
interest in the name “Cottonwood Project,” stylized or otherwise, or any logo in connection therewith.
The Association shall obtain the written consent of the City of Bozeman prior to dissolving.
3.4 “Association Rules” means those rules and regulations promulgated by the Association
from time to time governing conduct upon and use of the Property under the jurisdiction or control of the
Association, the imposition of fines and forfeitures for violation of Association Rules and regulations, and
procedural matters for use in the conduct of business of the Association.
3.5 “Board” means the Board of Directors or other governing board or individual, if
applicable, of the Association.
3.6 “Building Envelope” means the area within a Lot where residential or retail, as
applicable, and accessory structures may be located, always subject to the prior written approval of the
Design Committee. Building Envelopes may be designated by the Declarant by describing such an area
on the Plat, reserving it in a deed or other instrument, or by designating it as such in this Declaration or
the Design Guidelines. If a Building Envelope is not so designated within a Lot, then the Building
Envelope shall be that portion of the Lot not located within legal setback areas or designated easements.
3.7 “Bylaws” means the Bylaws of the Association.
3.8 “Common Area” means all real or personal property in which the Association holds an
interest or which is held or maintained for the mutual use and benefit of the Association and its Members.
Common Area may be established from time to time by Declarant on any portion of the Property by
describing such area on the Plat, by granting or reserving it in a deed or other instrument, or by
designating it as such in this Declaration. In addition, the Association may acquire any Common Area or
Restricted Area it deems necessary and/or beneficial to the Property. Common Area may include any
lease, license, use rights, or agreement rights for amenities or facilities held by the Association from time
to time.
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3.9 “Declarant” means The Cottonwoods Project, LLC, a Delaware limited liability
company, or its successors in interest, or any Person to whom the rights under this Declaration are
expressly transferred, in whole or in part, other than a transfer to individual Lot Owners.
3.10 “Design Committee” means the Design Committee created by Declarant pursuant to
ARTICLE X hereof.
3.11 “Design Guidelines” means the design guidelines and rules, if any, promulgated,
published, amended and supplemented from time to time pursuant to ARTICLE X.
3.12 “First Mortgage” means any Mortgage which is not subordinate to any lien or
encumbrance except liens for taxes or other liens which are given priority by statute.
3.13 “Improvement” means any structure, facility or system, or other improvement or object,
whether permanent or temporary, which is erected, constructed, placed upon or allowed on, under or over
any portion of the Property, including, without limitation, residential structures, retail structures,
accessory buildings, fences, streets, drives, driveways, parking areas, sidewalks, bicycle paths, curbs,
landscaping, walls, hedges, plantings, trees, wildlife habitat improvements, living and/or dead vegetation,
rocks, signs, lights, basketball hoops, trampolines, mail boxes, electrical lines, irrigation systems and
facilities, pipes, pumps, ditches, sprinklers, grading, road construction, utility improvements, removal of
trees and other vegetation, plantings, and landscaping, and any new exterior construction or exterior
improvement which may not be included in the foregoing. Improvement(s) includes both original
improvements existing on the Property on the date hereof and all later changes and Improvements.
3.14 “Limited Assessment” means (a) a charge against a particular Owner and such Owner’s
Lot, directly attributable to the Owner, equal to the cost incurred by the Association in connection with
corrective action performed pursuant to the provisions of this Declaration, including, without limitation,
damage to any Common Area, Restricted Area, Maintenance Property or the failure of an Owner to keep
such Owner’s Lot in proper repair, and including interest thereon as provided in this Declaration; or (b) a
charge against one or more Owners, but less than all Owners for the purpose of paying costs and expenses
benefiting less than all Owners.
3.15 “Limited Common Area” means those Common Areas designated for the exclusive use
of an Owner or Owners to the exclusion, limitation or restriction of other Persons. Limited Common
Area may be established from time to time by the Declarant or the Association on any portion of the
Property by describing or depicting such area on the Plat, by granting or reserving it in a deed or other
instrument, or by designating it as such in this Declaration.
3.16 “Lot” means each lot, parcel, unit or portion thereof, as specified or shown on the Plat.
For voting, membership and Assessment purposes herein, “Lot” shall not include any Common Area or
Restricted Area.
3.17 “Maintenance Property” means any real or personal property located upon or within the
general vicinity of the Property not owned by the Association, but which the Association operates and/or
maintains for the benefits which will accrue to the Property and its Owners, including, without limitation,
private property, signs, benches, lights, trails, parks, or other open space and lands. Maintenance Property
may be established from time to time by Declarant on any portion of the Property by describing such area
on the Plat, by granting or reserving it in a deed or other instrument, or by designating it as such in this
Declaration.
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3.18 “Member” means each Owner holding a membership in the Association, including
Declarant.
3.19 “Mortgage” means any mortgage, deed of trust, or other document pledging any portion
of the Property or interest therein as security for the payment of a debt or obligation.
3.20 “Occupant” means any resident or permanent or temporary occupant of a Lot other than
the Owner, including, without limitation, family members, guests, licensees, invitees and tenants.
3.21 “Owner” means the record owner, whether one or more Persons, including Declarant,
holding fee simple interest of record to a Lot which is a part of the Property, and buyers under executory
contracts of sale, but excluding those Persons having such interest merely as security for the performance
of an obligation, unless and until such Person has acquired fee simple title pursuant to foreclosure or other
proceedings.
3.22 “Party Wall” means any common wall between two (2) residential and/or retail spaces,
which wall is also the legal dividing line between the two (2) Lots on which the (2) two Townhomes are
located.
3.23 “Person(s)” means any individual, partnership, corporation, trust, estate or other legal
entity, including Declarant.
3.24 “Project Documents” means the basic documents creating and governing the Property
including, without limitation, this Declaration, Articles Bylaws, any Association Rules, any Design
Guidelines and any other procedures, rules, regulations or policies adopted under such documents by the
Association or the Design Committee, all as the same may be amended according to their respective terms
from time to time.
3.25 “Property” means the “Property” identified in the opening recital, including, without
limitation, each lot, parcel, unit or portion thereof and interest therein.
3.26 “Regular Assessment” means the portion of the cost of maintaining, improving,
repairing, managing and operating the Common Area, Restricted Area and the Maintenance Property,
including all Improvements located thereon, and the other costs and expenses incurred to conduct the
business and affairs of the Association which is levied against the Lot of each Owner by the Association,
pursuant to the terms of this Declaration.
3.27 “Restricted Area” means that portion of the Property which is not Common Area or
Maintenance Property, but is owned or leased, operated and maintained by the Association. Restricted
Area may be established from time to time by Declarant on any portion of the Property by describing such
area on a recorded Plat, by granting or reserving it in a deed or other instrument, or by designating it as
such in this Declaration, or the Design Guidelines. In addition, the Association may acquire any
Restricted Area it deems necessary and/or beneficial to the Property and/or the Owners. Restricted Area
may include easement, lease and/or license rights. Restricted Area shall not be subject to use by
Members, Owners or the public; provided however, that the Association shall have the power to convert
any Restricted Area into Common Area or to allow limited or selective uses of the Restricted Area.
3.28 “Special Assessment” means that portion of the costs of the capital improvements or
replacements, equipment purchases and replacements or shortages in Regular Assessments which are
authorized to be paid to the Association, pursuant to the provisions of this Declaration.
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ARTICLE IV.
GENERAL AND SPECIFIC RESTRICTIONS
4.1 Uses-Generally. All Lots (except Lots that are Common Area) shall be used primarily
for residential living space or retail sales in accordance with the Project Documents, and other appropriate
incidental uses permitted under any zoning ordinances applicable to the Property provided such other
appropriate uses are in compliance with the Project Documents.
4.2 Improvements Generally. All Improvements are to be designed, constructed and used in
such a manner as to promote compatibility between the types of uses contemplated by this Declaration.
The general instructions set forth in this Declaration shall govern the right of a Person or Owner,
excluding the Declarant, to construct, reconstruct, refinish, remove, add, alter or maintain any
Improvement upon, under or above the Property, and to make or create any excavation or fill on the
Property, or make any change in the natural or existing surface contour or drainage, or install any utility
line or conduit on, under or over the Property, including, without limitation, any Lot. All Improvements
by any Owner, excluding Declarant and any Person performing work at the direction of Declarant, must
be pre-approved in writing by the Design Committee prior to their construction or reconstruction. In the
event any Improvements are damaged or completely destroyed, the Owner of such Improvements shall
repair or reconstruct such Improvements in accordance with the plans and designs approved by the
Design Committee for such repair or reconstruction.
This Declaration is not intended to serve as authority for the Design Committee to control the
interior layout or interior design of residential or retail structures except to the extent incidentally
necessitated by use, size and height restrictions, if any. This Declaration is intended to serve as authority
for the Design Committee to use its judgment to see that all Improvements conform and harmonize as to
external design, quality and type of construction, architectural character, materials, color, location on the
Property, height, grade and finished ground elevation, natural conditions, landscaping, and related
aesthetic considerations.
The Association, after reasonable notice to the offender and/or to the Owner, may remove any
Improvement constructed, reconstructed, refinished, removed, added, altered or maintained in violation of
this Declaration and/or the Design Guidelines and the Owner of the Improvements shall immediately
reimburse the Association for all expenses incurred in connection with such removal. Each violation of
this Declaration and the Design Guidelines is hereby declared to be and to constitute a nuisance, and
every public or private remedy allowed for such violation by law or equity against an Owner shall be
applicable.
4.3 Exterior Maintenance; Owner’s Obligations. Each Owner shall be responsible for
maintaining, repairing, and replacing each Improvement on such Owner’s Lot so as to at all times keep
the same in good operating condition and repair. The foregoing obligation includes, without limitation,
the following:
4.3.1 Restriping and maintaining, repairing, seal coating, and resurfacing all paved
surfaces in a level, smooth and evenly covered condition with the type of surfacing material originally
installed or such substitute as shall in all respects be equal or superior in quality, use and durability;
4.3.2 Removing all papers, debris, filth and refuse from such Owner’s Lot and placing
the same in trash receptacles;
4.3.3 Removing snow and ice from all pedestrian and vehicular passageways; and
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4.3.4 Maintaining, watering, trimming, repairing and replacing all landscaping and
landscape Improvements (including without limitation all irrigation systems, facilities, sprinklers, and the
like);
Additionally, no Improvement on an Owner’s Lot shall be permitted to fall into disrepair. In the event
that any Owner shall permit any Improvement to fall into disrepair so as to create a dangerous, unsafe,
unsightly or unattractive condition, or damages property or facilities on or adjoining the Owner’s Lot, the
Association, upon thirty (30) days prior written notice to the Owner, shall have the right to correct such
condition, and to enter upon such Owner’s Lot for the purpose of doing so, and such Owner shall
promptly reimburse the Association for the cost thereof. Such cost shall be a Limited Assessment and
shall create a lien enforceable in the same manner as other Assessments as set forth herein. Each Owner
shall pay all amounts due for such work within ten (10) days after receipt of written demand therefor.
4.4 Landscaping. The Design Committee may adopt guidelines regulating permitted and/or
required landscaping. In the event that any Owner shall fail to install and maintain landscaping in
conformance with such guidelines (if any), or if any Owner shall allow such Owner’s landscaping to
deteriorate to a dangerous, unsafe, unsightly or unattractive condition, the Association, upon thirty (30)
days prior written notice to the Owner, shall have the right to correct such condition, and to enter upon
such Owner’s Lot for the purpose of doing so, and such Owner shall promptly reimburse the Association
for the cost thereof. Such cost shall be a Limited Assessment and shall create a lien enforceable in the
same manner as other Assessments as set forth herein. Each Owner shall pay all amounts due for such
work within ten (10) days after receipt of written demand therefor.
4.5 Weed Control. The Owner of each Lot shall be responsible for Weed Control of Noxious
Weeds (as each term is defined in the Montana Noxious Weed Control Act) on such Owner’s Lot as
required by Section 7-22-2101 et seq., as amended from time to time (the “Weed Noxious Weed Control
Act”) and the rules, regulations, and management plans of the Gallatin County Weed Control District. In
the event that any Owner shall fail to perform such Weed Control, the Association, upon thirty (30) days
prior written notice to the Owner, shall have the right to perform such Weed Control, and to enter upon
such Owner’s Lot for the purpose of doing so, and such Owner shall promptly reimburse the Association
for the cost thereof. Such cost shall be a Limited Assessment and shall create a lien enforceable in the
same manner as other Assessments as set forth herein. Each Owner shall pay all amounts due for such
work within ten (10) days after receipt of written demand therefor.
4.6 Nuisances. No rubbish or debris of any kind shall be placed or permitted to accumulate
anywhere upon the Property, including the Common Area and Restricted Area or vacant Lots, and no
odor shall be permitted to arise from any portion of the Property so as to render the Property or any
portion thereof unsanitary, unsightly, offensive or detrimental to the Property or to its occupants or
residents, or to any other property in the vicinity thereof or to its occupants or residents. No noise, no
exterior fires, no obstructions of pedestrian walkways, no unsightliness, or other nuisance shall be
permitted to exist or operate upon any portion of the Property so as to be offensive or detrimental to the
Property or to its occupants or residents or to other property in the vicinity or to its occupants or residents,
as determined by the Association, in its reasonable judgment, or in violation of any state or local law or
ordinance.
4.7 Hunting and Firearms. Neither hunting nor the discharge of firearms is allowed on any
portion of the Property.
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4.8 No Hazardous Activities. No activities shall be conducted on the Property, and no
Improvements shall be constructed on any Property which are or might be unsafe or hazardous to any
Person or property.
4.9 Notice of Water Features. Each Owner and Occupant acknowledges the presence of
water features within the Cottonwood Project, and further acknowledges that such water features may
pose a danger to life (both human and animal) and property. By this acknowledgment, each Owner and
Occupant assumes all risk relating to the water features. In furtherance of the foregoing, and without
limiting the generality of Section 5.9 hereof, each and each Owner and Occupant hereby knowingly and
voluntarily waives and releases each Released Party (as defined in Section 5.9) from all action, expense,
damage, loss or prejudice suffered or claimed by, through, or under any such Owner or Occupant arising
from or related to the water features within the Cottonwood Project.
4.10 No Mining or Drilling. No portion of the Property shall be used for the purpose of
blasting, mining, quarrying, drilling, boring or exploring for or removing water, oil, gas or other
hydrocarbons, minerals, rocks, stones, sand, gravel or earth. This Section shall not prohibit exploratory
drilling or coring which is necessary to construct Improvements.
4.11 Vehicles and Equipment. The use of all vehicles and equipment, including, without
limitation, trucks, automobiles, bicycles, golf carts, motorcycles, recreational vehicles, all-terrain
vehicles, motor homes, motor coaches, campers, trailers, snowmobiles, aircraft, boats, snow removal
equipment, garden maintenance equipment, and yard maintenance equipment shall be subject to all of the
Project Documents which prohibit or limit the use thereof within the Property. Without limiting the
foregoing, the following specific restrictions apply: (a) all on street parking shall be limited to those
specific areas where on-street parking is not expressly prohibited and shall be limited to temporary
parking by guests and invitees; and (b) vehicles shall not extend or otherwise be permitted on or into any
sidewalk, bicycle path, or pedestrian path unless such vehicle is engaged in an emergency procedure, or
as provided elsewhere in the Project Documents.
4.12 Animals/Pets. All animals located on the Property shall: (a) be properly restrained and
controlled; (b) be kept in compliance with the laws and ordinances of the City of Bozeman; and (d) not
unreasonably bother or constitute a nuisance to others as determined by the Board, in its reasonable
judgment. Without limiting the generality of the foregoing, consistent and/or chronic barking by dogs
shall be considered a nuisance.
4.13 No Farming. No agricultural or farming operations of any kind shall be allowed on any
portion of the Property.
4.14 No Mobile Homes or Temporary Structures. No house trailer, mobile home, tent, shack
or other temporary building, improvement or structure shall be placed upon any portion of the Property,
except temporarily as may be required by construction activity undertaken on the Property.
4.15 Drainage. There shall be no interference with the established drainage pattern over any
portion of the Property, unless an adequate alternative provision is made for proper drainage and is first
approved in writing by the Design Committee. For the purposes hereof, “established” drainage is defined
as the system of drainage, whether natural or otherwise, which exists at the time the overall grading of
any portion of the Property is completed by Declarant, or that drainage which is shown on any plans
approved by the Design Committee, which may include drainage from Common Area and Restricted
Area over any Lot in the Property. In all events, each Owner shall be responsible for retaining any
drainage originating on its Lot on-site and shall not otherwise install, construct or place any Improvement
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within any drainage swale located upon any Maintenance Property, which is the obligation of the
Association to maintain.
4.16 Grading. The Owner of any Lot within the Property in which grading or other work has
been performed pursuant to a grading plan approved under applicable provisions of the Bozeman City
Code or by the Design Committee, shall maintain and repair all graded surfaces and erosion prevention
devices, retaining walls, drainage structures, means or devices which are not the responsibility of any
public agency, and plantings and ground cover installed or completed thereon. Such requirements shall
be subject to Regular, Special, and Limited Assessments provided for herein.
4.17 Water Supply Systems. No separate or individual water supply system, regardless of the
proposed use of the water to be delivered by such system, shall be permitted on any Lot unless such
system is approved by all government authorities having jurisdiction, and designed, located, constructed
and equipped in accordance with the requirements, standards and recommendations of the Design
Committee and Declarant, so long as Declarant is the Owner of a Lot.
4.18 Sewage Disposal Systems. No individual sewage disposal system shall be used on the
Property. Each Owner shall connect the appropriate facilities on such Owner’s Lot to the public sewer
system and pay all charges assessed thereon.
4.19 Water Rights Appurtenant to Subdivision Lands. Declarant owns certain water rights
which are appurtenant to the Property. Upon conveyance of the Lots to Owners, Declarant shall be
deemed to have reserved in itself any and all water rights appurtenant to the Property, and accordingly,
Owners of any and all Lots shall have no right, title or interest in any of said water or water rights.
4.20 No Further Subdivision. No Lot may be further subdivided unless expressly approved in
writing by the Association and consistent with all applicable city and state laws and ordinances. This
Section shall not apply to any portion of the Property owned by Declarant.
4.21 Declarant’s Right of Development. Nothing contained herein shall limit the right of
Declarant to grant licenses, to reserve rights of ways and easements for Declarant, utility companies,
public agencies or others, or to complete excavation, grading and construction of Improvements to and on
any portion of the Property owned by Declarant, or to alter the foregoing and its construction plans and
designs, or to construct such additional Improvements as Declarant deems advisable in the course of
development of the Property so long as any Lot in the Property remains unsold. Such right shall include,
but shall not be limited to, erecting, constructing and maintaining on the Property such structures and
displays as may be reasonably necessary for the conduct of Declarant’s business of completing the work
and disposing of the same by sales, lease or otherwise. Declarant may use any structures owned by
Declarant on the Property as model home complexes or real estate sales or leasing offices. Declarant
need not seek or obtain Association or Design Committee approval of any Improvement constructed or
placed by Declarant on any portion of the Property owned by Declarant. The rights of Declarant
hereunder may be assigned by Declarant to any successor in interest in connection with Declarant’s
interest in any portion of the Property, by an express written assignment recorded in the Gallatin County
Recorder’s Office.
Declarant, in Declarant’s sole discretion and in accordance with all applicable City of Bozeman
zoning laws, may amend and modify the Development Plan. By acceptance of a deed to any portion of
the Property, each Owner of such Property thereby acknowledges and agrees the Development Plan for
the Property may be amended, modified or changed in Declarant’s sole discretion, so long as the
Development Plan is consistent with the City of Bozeman’s zoning laws. Each Owner by acceptance of a
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deed to any Lot or other portion of the Property agrees that such Owner shall not object to or oppose any
development of any portion of the Property, or other property owned by Declarant and annexed to the
Property. Such agreement not to oppose development is a material consideration to the conveyance of
any portion of the Property by Declarant to any and all Owners.
No provision of this Declaration shall be construed as to prevent or limit Declarant’s right to
complete development of the Property, including any subdivision or resubdivision of the Property, or to
construct Improvements thereon, nor Declarant’s right to maintain model homes, construction, sales or
leasing offices or similar facilities on any portion of the Property, including the Common Area, Restricted
Area or any public right-of-way, nor Declarant’s right to post signs incidental to construction, sales or
leasing.
4.22 Fences. If the fence on any Owner’s (including the Association’s) Lot is subject to the
provisions of Montana Code Annotated § 70-16-205, then such Owner shall be required to maintain the
fence with the conterminous owner if and to the extent required by Montana Code Annotated § 70-16-
205.
4.23 Compliance with Laws. Subject to the rights of reasonable contest, each Owner shall
promptly comply with the provisions of all applicable laws, regulations, ordinances and other
governmental or quasi-governmental regulations with respect to all or any portion of the Property.
4.24 Adjacent Uses. Owners and Occupants are informed that adjacent uses may be
agricultural. Owners and Occupants accept and are aware that standard agricultural and farming practices
can result in dust, animal odors and noise, smoke, flies, and machinery noise. Standard agricultural
practices feature the use of heavy equipment, chemical sprays, and the use of machinery early in the
morning and sometimes late into the evening.
ARTICLE V.
ASSOCIATION
5.1 Organization of Association. The Association shall be initially organized by Declarant as
a Montana non-profit corporation under the provisions of the Montana Code Annotated relating to general
non-profit corporations and shall be charged with the duties and invested with the powers prescribed by
law and set forth in the Project Documents. Neither the Articles nor the Bylaws shall be amended or
otherwise changed or interpreted so as to be inconsistent with this Declaration. Declarant may, in its
discretion, grant to the Association a revocable, non-exclusive license to use the name “Cottonwood
Project.” Each Owner shall abide by and benefit from the provisions, covenants, conditions, restrictions
and easements contained in the Project Documents.
5.2 Membership. Each Owner, by virtue of being an Owner and for so long as such
ownership is maintained, shall be a Member of the Association, and no Owner, except Declarant, shall
have more than one (1) membership in the Association for each Lot owned by such Member. When more
than one (1) Person holds an ownership interest in any Lot, all such Persons and entities will be Members;
provided, however, the vote for such Lot with common ownership will be exercised as the Owners of
such Lot determine, but in no event will more than one (1) vote be cast with respect to such Lot.
Memberships in the Association shall be appurtenant to the Lot or other portion of the Property owned by
such Owner. The memberships in the Association shall not be transferred, pledged, assigned or alienated
in any way except upon the transfer of Owner’s title and then only to the transferee of such title. Any
attempt to make a prohibited membership transfer shall be void and will not be reflected on the books of
the Association. The Association shall have two (2) classes of membership, as follows:
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5.2.1 Class A Members. Class A Members shall be the Owners of the Lots, with the
exception of the Declarant for so long as the Class B Member exists. Upon the Class B Member
Termination Date (defined below), at all meetings of the Association each Member will be entitled to one
(1) vote for each Lot owned by such Member.
5.2.2 Class B Member. Declarant shall be the Class B Member, and shall be the sole
voting Member of the Association entitled to vote the collective voting power of the Association until the
Class B Member Termination Date. The Class B Member shall cease to exist upon the earlier to occur of
the following: (i) Declarant owns less than five percent (5%) of the Lots within the Property; or (ii)
Declarant informs the Board, in writing, that Declarant no longer wishes to exercise its rights as the Class
B Member. This date may be referred to herein as the “Class B Member Termination Date.”
5.3 Voting at the Association. Upon the Class B Member Termination Date, each Class A
Member will be entitled one (1) vote per Lot owned by such Member at all meetings of the Association.
5.4 Board of Directors and Officers. The affairs of the Association shall be conducted and
managed by the Board and such officers as the Board may elect or appoint, in accordance with the
Articles and Bylaws, as the same may be amended from time to time.
5.5 Power and Duties of the Association.
5.5.1 Powers. The Association shall have all the powers of a non-profit corporation
organized under the non-profit corporation laws of the State of Montana subject only to such limitations
upon the exercise of such powers as are expressly set forth in the Project Documents. The Association
shall have the power to do any and all lawful things which may be authorized, required or permitted to be
done by the Association under Montana law and under the Project Documents, and to do and perform any
and all acts which may be necessary to, proper for, or incidental to the proper management and operation
of the Common Area, Restricted Area, Maintenance Property and the Association’s other assets,
including water rights when and if received from Declarant, and the performance of the other
responsibilities herein assigned, including without limitation:
5.5.1.1 Assessments. The power to levy Assessments on behalf of itself, on
any Owner and Association Member, or any portion of the Property pursuant to the restrictions
enunciated in this Declaration, and to force payment of such Assessments, all in accordance with the
provisions of this Declaration. This power shall include the right of the Association to levy Assessments
on any Owner of any portion of the Property to cover the operation and maintenance costs of the
Common Area, Restricted Area and the Maintenance Property. The right to levy Assessments shall
include the right to establish start-up and/or transfer fees payable upon purchase and/or sale of any Lot.
5.5.1.2 Right of Enforcement. The power and authority from time to time in
its own name, on its own behalf, or on behalf of any Owner or Owners who consent thereto, to commence
and maintain actions and suits to restrain and enjoin any breach or threatened breach of the Project
Documents, and to enforce by injunction or otherwise, all provisions hereof.
5.5.1.3 Power to Levy Fines. The power to impose reasonable monetary fines
which shall constitute a lien upon the Lot owned or occupied by the Owner, Occupant or other Person
determined by the Board to be in violation of the Project Documents (individually, a “Violation”).
Provided, however, the Association shall not impose a fine on an Owner for a Violation unless: (i) the
Board votes to impose the fine at any regular or special meeting of the Board or the Association
(individually, a “Levy Meeting”); (ii) such Owner is provided at least thirty (30) days advance written
notice of the Levy Meeting by personal service or certified mail at the last known address of such Owner
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as shown in the records of the Association; and (iii) such Owner is given a reasonable opportunity to
respond to the Violation during the Levy Meeting. Provided further, the Association shall not impose a
fine on an Owner if such Owner, prior to the Levy Meeting, begins resolving the Violation and continues
to address the Violation in good faith until the Violation is fully resolved (the “Remedial Period”). For
purposes of this Section, the phrase “address the violation in good faith until the Violation is fully
resolved” means the Owner must resolve the Violation within thirty (30) calendar days of the Notice;
provided, however, if the nature of the Violation is such that more than thirty (30) calendar days are
required for its resolution, then the Owner must diligently prosecute the same to completion within sixty
(60) calendar days. All such fines shall be deemed to be a part of the Assessments to which the Owner’s
Lot is subject under this Declaration. In all events, no portion of such fines may be used to increase the
compensation to the Board or agent thereof.
5.5.1.4 Delegation of Powers. The authority to delegate its power and duties
to committees, officers, employees, or to any Person to act as manager. Neither the Association nor the
members of its Board shall be liable for any omission or improper exercise by the manager of any such
duty or power so delegated. All contracts for management of any Common Area, Restricted Area or
Maintenance Property shall be for a term not exceeding one (1) year, and shall be subject to review by the
Board upon termination of the Class B membership.
5.5.1.5 Association Rules. The power to adopt, amend and repeal by majority
vote of the Board such Association Rules as the Association deems reasonable. The Association may
govern the use of the Common Area by the Owners, their Occupants, or contract purchasers, including,
without limitation, the use of Common Area for organized recreational activities; provided, however, that
any Association Rules shall apply equally to all Owners and shall not be inconsistent with this
Declaration, the Articles or the Bylaws. A copy of the Association Rules as they may from time to time
be adopted, amended or repealed shall be mailed, e-mailed, faxed or otherwise delivered to each Owner.
Upon such mailing or delivery, the Association Rules shall have the same force and effect as if they were
set forth in and were a part of this Declaration. If the Association sends the Association Rules by e-mail
or facsimile, they shall be deemed delivered upon transmission. In the event such Association Rules are
inconsistent with or less restrictive than any other provisions of this Declaration, the Articles, Bylaws,
and/or Design Guidelines, the provisions of the Association Rules shall be deemed to be superseded by
the provisions of this Declaration, the Articles, Bylaws, or Design Guidelines to the extent of any such
inconsistency.
5.5.1.6 Improvements Within the Public Right of Way. The authority to own,
maintain, repair, replace and/or operate any Improvements, including, without limitation, drainage
facilities, landscaping islands, bridges, bridge facades, median strips and pathways located within any
public right-of-way located within the Property or identified on the Plat.
5.5.1.7 Emergency Powers. The power, exercised by the Association or by
any Person authorized by it, to enter upon any portion of the Property (but not inside any building
constructed thereon) in the event of any emergency involving illness or potential danger to life or property
or when necessary in connection with any maintenance or construction for which the Association is
responsible. Such entry shall be made with as little inconvenience to the Owner as practicable, and any
damage caused thereby shall be repaired by the Association.
5.5.1.8 Licenses, Easements and Rights of Way. The power to grant and
convey to any third party such licenses, easements and rights of way in, on or under the Common Area
and Restricted Area as may be necessary or appropriate for the orderly maintenance, preservation and
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enjoyment of the same, and for the preservation of the health, safety, convenience and the welfare of the
Owners, for the purpose of constructing, erecting, operating or maintaining:
5.5.1.8.1 Underground lines, cables, wires, conduits or other devices
for the transmission of electricity or electronic signals for lighting, heating, power, telephone, television
or other purposes, and the above ground lighting stanchions, meters, and other facilities associated with
the provisions of lighting and services;
5.5.1.8.2 Public sewers, storm drains, water drains and pipes, water
supply systems, sprinkling systems, heating and gas lines or pipes, and any similar public or quasi-public
improvements or facilities; and
5.5.1.8.3 Mailboxes and sidewalk abutments around such mailboxes
or any service facility, berm, fencing and landscaping abutting Common Areas, public and private streets
or land conveyed for any public or quasi-public purpose including, without limitation, pedestrian and
bicycle pathways.
5.5.2 Duties. In addition to duties necessary and proper to carry out the powers
delegated to the Association by the Project Documents, without limiting the generality thereof, the
Association or its agents, if any, shall have the authority and the obligation to conduct all business affairs
of the Association and to perform, without limitation, each of the following duties:
5.5.2.1 Operation and Maintenance of Common Area. Operate, maintain, and
otherwise manage or provide for the operation, management, maintenance, repair and replacement of the
Common Area, and all Improvements located thereon, and the repair and replacement of property
damaged or destroyed by casualty loss and including any signs placed at the entrances to, or otherwise in
the vicinity of the Property. The Association shall, at Declarant’s sole discretion, operate and maintain all
properties owned by Declarant which are designated by Declarant for temporary or permanent use by
Members of the Association;
5.5.2.2 Operation and Maintenance of Restricted Area. Operate, maintain,
and otherwise manage or provide for the operation, maintenance and management of the Restricted Area,
including, without limitation, any fencing located thereon, and the repair and replacement of property
damaged or destroyed by casualty loss;
5.5.2.3 Operation and Maintenance of Maintenance Property. Operate,
maintain, and otherwise manage or provide for the operation, maintenance and management of the any
Maintenance Property the Association, in its sole discretion, has decided to operate and/or maintain due to
the benefits flowing through to the Owners and Members, including, without limitation, any signs,
benches, lights, trails or parks, and/or as specifically provided in this Declaration. The rights and duties
enunciated in this Subsection 5.5.2.3 shall include the right to levy Assessments on Owners as provided in
Subsection 5.5.1.1;
5.5.2.4 Identification Signs. Maintain, repair and replace all permanent entry
and special identification signs, including without limitation, entrance and monument signs, for the
Property whether the same be located within or outside of the boundaries of the Property;
5.5.2.5 Maintenance of Berms, Landscape Buffers and Fences. Maintain any
berms, retaining walls, landscape buffers, and water amenities within any Common Area, Restricted Area
and Maintenance Property;
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5.5.2.6 Improvements in the Public Right of Way. Maintain, improve,
operate, repair and replace any facilities and Improvements, including, without limitation, drainage
systems or facilities, bridge facades, pathways, landscape islands or median strips, any pathways abutting
the Property, and landscaping or landscaping improvements located in any public rights-of-way which the
Association is obligated to maintain, improve, operate, repair and/or replace pursuant to separate written
agreement or applicable law, or which the Board otherwise deems advisable;
5.5.2.7 Operation and Maintenance of Storm Drainage Facilities. Operate
and maintain or otherwise provide for the operation and maintenance of all storm drainage facilities
constructed by Declarant within the Cottonwood Project and adjacent to the Cottonwood Project,
including, without limitation, drainage pipes, stormwater swales and collection ponds, whether located on
and through the Lots, Restricted Area, Common Area or rights-of-way, all in accordance with the
applicable provisions of the Bozeman Municipal Code;
5.5.2.8 Taxes and Assessments. Pay all real and personal property taxes and
Assessments separately levied against the Association, the Common Area, the Restricted Area, the
Property or any other property owned by the Association. Such taxes and Assessments may be contested
or compromised by the Association, provided, however, that such taxes and Assessments are paid or a
bond insuring payment is posted prior to the sale or disposition of any property to satisfy the payment of
such taxes and Assessments. In addition, the Association shall pay all other federal, state and/or local
taxes, including income or corporate taxes levied against the Association in the event that the Association
is denied the status of a tax exempt corporation;
5.5.2.9 Water and Other Utilities. Acquire, provide and/or pay for water,
sewer, garbage disposal, refuse and rubbish collection, electrical, telephone and gas and other necessary
services for the Common Area, Maintenance Property, and/or Restricted Property, as applicable, and to
own and/or manage for the benefit of the Cottonwood Project all water rights and rights to receive water
held by the Association, whether such rights are evidenced by license, permit, claim, decree, stock
ownership or otherwise; and
5.5.2.10 Insurance. Obtain insurance from reputable insurance companies
authorized to do business in the State of Montana, and maintain in effect any insurance policy the Board
deems necessary or advisable, and to the extent possible to obtain, including, without limitation the
following policies of insurance:
5.5.2.10.1 Fire insurance including those risks embraced by coverage
of the type known as the broad form “All Risk” or special extended coverage endorsement on a blanket
agreed amount basis for the full insurable replacement value of all Improvements, equipment and fixtures
located within the Common Area and Restricted Area;
5.5.2.10.2 Comprehensive public liability insurance insuring the
Board, the Association, Declarant, and the individual grantees, tenants, agents and employees, invitees
and guests of each of the foregoing against any liability incident to the ownership and/or use of the
Common Area, Restricted Area and Maintenance Property. Limits on liability of such coverage shall be
as follows: Not less than One Million Dollars ($1,000,000) per person and One Million Dollars
($1,000,000) per occurrence with respect to personal injury or death, and One Million Dollars
($1,000,000) per occurrence with respect to property damage;
5.5.2.10.3 Full coverage directors’ and officers’ liability insurance in
an amount determined by the Board;
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5.5.2.10.4 Such other insurance, including motor vehicle insurance and
worker’s compensation insurance, to the extent necessary to comply with all applicable laws and
indemnity, faithful performance, fidelity and other bonds as the Board shall deem necessary or required to
carry out the Association functions or to insure the Association against any loss from malfeasance or
dishonesty of any employee or other Person charged with the management or possession of any
Association funds or other property;
5.5.2.10.5 The Association shall be deemed trustee of the interests of
all Owners in connection with any insurance proceeds paid to the Association under such policies, and
shall have full power to receive such Owner’s interests in such proceeds and to deal therewith; and
5.5.2.10.6 Insurance premiums for the above insurance coverage shall
be deemed a common expense to be included in the Regular Assessments levied by the Association.
5.5.2.11 Rule Making. Make, establish, promulgate, amend and repeal such
Association Rules as the Board shall deem advisable;
5.5.2.12 Design Committee. Appoint and remove members of the Design
Committee, subject to the provisions of this Declaration;
5.5.2.13 Enforcement of Restrictions and Rules. Perform such other acts,
whether or not expressly authorized by this Declaration, as may be reasonably advisable or necessary to
enforce any of the provisions of the Project Documents and any and all laws, ordinances, rules and
regulations of the City of Bozeman and Gallatin County. Also including, without limitation, the
recordation of any claim of lien with the Gallatin County Recorder’s Office, as more fully provided
herein; and
5.5.2.14 Duties Imposed During Entitlement Process. Carry out all duties
imposed by any governmental, municipal or other agencies as part of the entitlement process for the
development of the Cottonwood Project.
5.6 Annual Meeting. The Association shall hold an annual meeting each year as more
particularly set forth in the Articles and/or Bylaws.
5.7 Budgets and Financial Statements. Financial statements for the Association shall be
prepared regularly and, upon request, copies shall be made available to each Member of the Association
as follows:
5.7.1 A pro forma operating statement or budget for each fiscal year shall be available
not less than sixty (60) days before the beginning of each fiscal year. The operating statement shall
include a schedule of Assessments received and receivable.
5.7.2 Within ninety (90) days after the close of each fiscal year, the Association shall
cause to be prepared and available to each Owner, a balance sheet as of the last day of the Association’s
fiscal year and annual operating statements reflecting the income and expenditures of the Association for
its last fiscal year. Copies of the balance sheet and operating statement shall be available to each Member
within ninety (90) days after the end of each fiscal year.
5.8 Manager. The Association may employ or contract for the services of a manager or
management company, provided that no such employment or contract shall have a term of more than one
(1) year, and each such contract shall be subject to cancellation by the Association with or without cause
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and without payment of a termination fee; provided thirty (30) days or less prior notice is given. The
manager so employed or contracted with shall not have the authority to make expenditures chargeable
against the Association except upon specific prior written approval and direction by the Board. The
Board shall not be liable for any omission or improper exercise by such manager of any such duty, power
or function so delegated by or on behalf of the Board.
5.9 Personal Liability. Each Owner and Occupant understands and agrees that Declarant, the
Association, the Association’s manager (if any), the Design Committee and the directors, officers,
members, managers, agents, employees and committee members of each of them (each individually a
“Released Party”) are immune from personal liability to such Owner and all other Persons for any action,
expense, damage, loss or prejudice suffered or claimed on the account of any act, omission, error or
negligence of a Released Party, and each Owner and Occupant hereby knowingly and voluntarily waives
and releases all such action, expense, damage, loss or prejudice suffered or claimed against each Released
Party. The Association will indemnify, defend and hold each Released Party harmless from any action,
expense, damage, loss or prejudice suffered or claimed by any Person arising from or related to each
Released Party’s acts, omissions, errors or negligence, provided that such Released Party, based upon the
information possessed by such Released Party, acted in good faith without willful or intentional
misconduct.
5.10 Waiver of Consequential Damages. Neither the Association nor the Declarant shall be
liable to any Owner or Occupant for, and each Owner and Occupant releases the Association and
Declarant from, any form of indirect, special, punitive, exemplary, incidental, or consequential or similar
costs, expenses, damages, or losses.
ARTICLE VI.
RIGHTS TO COMMON AREAS; DESIGNATION OF COMMON AREAS, RESTRICTED
AREAS AND MAINTENANCE PROPERTY
6.1 Use of Common Are. Every Owner shall have a right to use each Common Area Lot and
all Maintenance Property, which right shall be appurtenant to and shall pass with the title to every Lot
subject to the following provisions:
6.1.1 The right of the Association to levy and increase Assessments for the
construction, protection, maintenance, repair, management and operation of Improvements on the
Common Area and Maintenance Property, including the right to levy and increase Special Assessments;
6.1.2 The right of the Association to suspend the voting rights and rights of use, or
interest in, the Common Area or Maintenance Property by an Owner for any period during which any
Assessment or charge against such Owner’s Lot remains unpaid, and for a period not to exceed sixty (60)
days for any infraction of the Association Rules;
6.1.3 The right of the Association to dedicate, transfer or mortgage all or any part of
the Common Area to any public agency, authority or utility or other Person for such purposes and subject
to such conditions as may be permitted by the Project Documents; provided however, that no such
dedication, transfer or mortgage outside the contemplation of Section 5.5.1.8 shall be effective unless an
instrument agreeing to such dedication, transfer or mortgage signed by Members holding at least two-
thirds (2/3) of the total voting power in the Association, has been recorded;
6.1.4 The right of the Association to prohibit the construction of Improvements on all
Common Areas or Maintenance Property;
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6.1.5 Common Areas may be used by the public as established from time to time by
Declarant on any portion of the Property by describing such area on the Plat, by granting or reserving it in
a deed or other instrument, or by designating it as such in this Declaration; and
6.1.6 Owners shall not be entitled to use those areas established from time to time by
Declarant on any portion of the Property as Restricted Area, unless expressly allowed by the Association.
6.2 Designation of Common Area. Declarant may designate and reserve Common Area in
this Declaration, the Plat, deeds or other instruments. Open Space Lots 1 through 3 in Block 1; Open
Space Lot 1 in Block 2; Open Space Lot 1 in Block 3; City Park Lot 1 in Block 4; City Park Lot in Block
5; City Park Lot 1 in Block 6; and City Park Lot 1 in Block 7 of the Plat are hereby designated as
Common Area. The Common Area shall be deeded by Declarant to the Association and the Common
Area, together with any and all Improvements thereon shall be operated and maintained by the
Association pursuant to this Declaration.
6.3 Designation of Limited Common Area. Declarant may designate and reserve Limited
Common Area in this Declaration, the Plat, deeds or other instruments.
6.4 Delegation of Right to Use. Any Owner may delegate, in accordance with the Project
Documents, such Owner’s right of enjoyment to the Common Area to the members of such Owner’s
family in residence, and such Owner’s tenants or contract purchasers who occupy such Owner’s Lot.
Only Declarant or the Association shall have the right to delegate the right of enjoyment to the Common
Area to the general public, and such delegation to the general public may be for a fee set by Declarant or
the Association.
6.5 Designation of Restricted Area. Declarant may designate and reserve Restricted Area in
this Declaration, the Plat, deeds or other instruments.
6.6 Designation of Maintenance Property. Declarant may designate and reserve Maintenance
Property in this Declaration, the Plat, deeds or other instruments. The following are hereby designated as
Maintenance Property:
6.6.1 All cluster mailbox units located within the Property;
6.6.2 All Project signage located within the Property, including without limitation, all
trailhead signage, street signage, Common Area signage, Cottonwood Project identification signage and
other directional and identification signage, but only to the extent not otherwise maintained by the City of
Bozeman or other public or quasi-public governmental authority.
6.6.3 All storm drainage facilities constructed by Declarant within the Cottonwood
Project and adjacent to the Cottonwood Project, including, without limitation, drainage pipes, stormwater
swales and collection ponds, whether located on and through the Lots, Restricted Area, Common Area or
rights-of-way (except to the extent maintained by the City of Bozeman or other governmental agency), all
in accordance with the applicable provisions of the Bozeman Municipal Code.
6.6.4 In the event that City Park Lot 1 in Block 4; City Park Lot in Block 5; City Park
Lot 1 in Block 6; and City Park Lot 1 in Block 7 of the Plat, together with all Improvements thereon
(including, without limitation, the pavilion) (collectively, the “Park Lots”) are dedicated or otherwise
conveyed to the City of Bozeman or other governmental authority such that they are no longer owned by
the Association and therefore no longer Common Area, then the Park Lots shall be and hereby are
designated by the Grantor as Maintenance Property.
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6.7 Association’s Responsibility. The Association shall operate, manage, maintain, repair,
and replace the Common Area, Restricted Area, and Maintenance Area so as to keep the same in good
operating condition and repair. The Association’s cost in connection with performing its obligations
under this Section 6.7 shall be paid through Regular Assessments, Special Assessments, or Limited
Assessments, whichever the Association shall deem appropriate under the circumstances.
Notwithstanding anything to the contrary contained in this Declaration, in the event that the need for the
maintenance, repair or replacement is caused by the willful or negligent acts of an Owner(s) (or the
Occupant of an Owner’s Lot), such Owner shall promptly reimburse the Association for the cost of such
maintenance, repair, and/or replacement. Such cost shall be a Limited Assessment and shall create a lien
enforceable in the same manner as other Assessments as set forth herein. Each Owner shall pay all
amounts due for such work within ten (10) days after receipt of written demand therefor.
ARTICLE VII.
ASSESSMENTS
7.1 Covenant to Pay Assessments. By acceptance of a deed to any Lot, each Owner of such
Lot thereby covenants and agrees to pay when due all Assessments, set-up fees or charges made by the
Association, including, without limitation, all Regular, Special and Limited Assessments and charges
made against such Owner pursuant to the provisions of this Declaration or other applicable Project
Document.
7.1.1 Assessment Constitutes Lien. Such Assessments and charges together with
interest, costs and reasonable attorneys’ fees which may be incurred in collecting the same, shall be a
charge on the land and shall be a continuing lien upon the property against which each such Assessment
or charge is made.
7.1.2 Assessment is Personal Obligation. Each such Assessment, together with
interest, costs and reasonably attorneys’ fees, shall also be the personal obligation of the Owner of such
property beginning with the time when the Assessment falls due. The personal obligation for delinquent
Assessments shall not pass to such Owner’s successors in title unless expressly assumed by them but shall
remain such Owner’s personal obligation regardless of whether such Owner remains an owner.
7.2 Uniform Rate of Assessment. Initially, all Regular Assessments and Special
Assessments must be fixed at a uniform rate for each Lot; provided, however, upon the approval of the
Board, the Association may levy Regular Assessments and Specials Assessments various Lots at such
rates as the Board shall determine in its reasonable discretion. In exercising its power to levy Regular
Assessments and Special Assessments differently against different elements of the Cottonwood Project,
the Board may take into consideration the relative size of the Lots, the size of the structures located on the
Lots, type of use, the intensity of use, and any other considerations as the Board deems appropriate.
7.2.1 Regular Assessments. All Owners are obligated to pay Regular Assessments to
the treasurer of the Association on a schedule of payments established by the Board.
7.2.2 Purpose of Regular Assessments. The proceeds from Regular Assessments are to
be used to pay for all costs and expenses incurred by the Association, including, without limitation, legal
and attorneys fees and other professional fees, for the conduct of its affairs, including without limitation
the costs and expenses of construction, improvement, protection, maintenance, repair, management and
operation of the Common Areas, Restricted Areas and Maintenance Property, including all Improvements
located on such areas owned and/or managed and maintained by the Associations (the “Operating
Expenses”), and an amount allocated to an adequate reserve fund to be used for repair, replacement,
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maintenance and improvement of those elements of the Common Area, Restricted Area and Maintenance
Property, or other property of the Association that must be replaced and maintained on a regular basis (the
“Repair Expenses”). The Operating Expenses and the Repair Expenses are collectively referred to
herein as the “Expenses”.
7.2.3 Computation of Regular Assessments. The Association shall compute the
amount of its Expenses on an annual basis. The Board shall compute and levy the amount of Regular
Assessments owed by its Members for the first fiscal year within six (6) months following the month in
which the closing of the first sale of a Lot occurs in the Property for the purposes of the Association’s
Regular Assessment (“Initiation Date”). Thereafter, the computation of Regular Assessments by the
Association shall take place not less than thirty (30) nor more than sixty (60) days before the beginning of
each fiscal year of the Association. The computation of the Regular Assessment for the period from the
Initiation Date until the beginning of the next fiscal year shall be reduced by an amount which fairly
reflects the fact that such period was less than one (1) year.
7.2.4 Amounts Paid by Owners. The Board can require, in its discretion or as provided
in the Project Documents, payment of Regular Assessments to the Association in monthly, quarterly,
semiannual or annual installments. Regardless of the installment schedule adopted by the Board, the
Board may bill for Assessments monthly, quarterly, semi-annually or annually, at its sole discretion. The
Regular Assessment to be paid by any particular Owner for any given fiscal year shall be computed as
follows:
7.2.4.1 As to the Association’s Regular Assessment, each Owner, except for
the Declarant, as provided further in Subsection 7.2.4.2 below, shall be assessed and shall pay an amount
computed by multiplying the Association’s total advance estimate of Expenses by the fraction produced
by dividing the Lots attributable to the Owner by the total number of Lots in the Property; and
7.2.4.2 For two (2) years following the date assessments are first assessed
against the Owners of Lots, Declarant shall not be assessed any Regular Assessments for each Lot of
which Declarant is an Owner. However, during such two (2) year period, Declarant shall pay an amount
equal to the lesser of: (i) the actual Operating Expenses shortfall of the Association (the “Shortfall”); or
(ii) the Regular Assessments multiplied by the total number of Lots owned by Declarant on the date
Regular Assessments are assessed against the Owners of Lots (the “Shortfall Payment”). Declarant’s
Shortfall Payment shall end two (2) years after the date assessments begin. Thereafter, Declarant shall be
assessed Regular Assessments for each Lot of which Declarant is an Owner.
7.3 Special Assessments.
7.3.1 Purpose and Procedure. In the event that the Board shall determine that its
respective Regular Assessment for a given calendar year is or will be inadequate to meet the Expenses of
the Association for any reason, including, without limitation, costs of construction, improvement,
protection, maintenance, repair, management and operation of Improvements upon the Common Area,
Restricted Area or Maintenance Property, attorney’s fees and/or litigation costs, other professional fees,
or for any other reason, the Board shall determine the approximate amount necessary to defray such
Expenses and levy a Special Assessment against the Owners which shall be computed in the same manner
as Regular Assessments. The Board shall, in its discretion, determine the schedule under which such
Special Assessment will be paid.
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7.3.2 Consistent Basis of Assessment. Every Special Assessment levied by and for the
Association shall be levied and paid upon the same basis as that prescribed for the levying and payment of
Regular Assessments.
7.4 Limited Assessments. Notwithstanding the above provisions with respect to Regular and
Special Assessments, the Board may levy a Limited Assessment against a Member as a remedy to
reimburse the Association for costs incurred in bringing the Member and/or such Member’s Lot into
compliance with the provisions of the Project Documents or for damage caused by the Member, or any of
such Member’s family, representatives, tenants or invitees, to any Common Area, Restricted Area,
Maintenance Property or any other portion of the Property.
7.5 Assessment Period. Unless otherwise provided in the Project Documents, the
Assessment period for the Association, shall be determined by the Board. The first Assessment shall be
prorated according to the number of months remaining in the fiscal year and shall be payable in equal
installments.
7.6 Notice and Assessment Due Date. The Association shall send ten (10) days prior written
notice of Regular and Special Assessments to the Owner of every Lot subject thereto, and to any Person
in possession of such Lot. The Association shall determine if payments for all Assessments shall be due
monthly, quarterly, semi-annually or annually. The Assessment installment schedule shall be the same
for all Assessments. The due dates for installment payment of Regular Assessments and Special
Assessments shall be the first day of each month unless some other due date is established by the Board.
Each monthly installment of the Regular Assessment or Special Assessment shall become delinquent if
not paid within ten (10) days after receipt of notice thereof. There may accrue, solely at the Board’s
discretion, with each delinquent installment payment a late charge equal to ten percent (10%) of the
delinquent installment. In addition, each installment payment which is delinquent for more than twenty
(20) days may accrue, at the Board’s uniform discretion, interest at eighteen percent (18%) per annum
calculated the date of delinquency to and including the date full payment is received by the Association.
The Association may bring an action against the delinquent Owner and may foreclose the lien against
such Owner’s Lot as more fully provided herein. Each Owner is personally liable for Assessments,
together with all interest, costs and attorneys’ fees, and no Owner may be exempt from such liability by a
waiver of the use and enjoyment of the Common Area, or by lease or abandonment of such Owner’s Lot.
7.7 Estoppel Certificate. The Association, upon at least twenty (20) days prior written
request, shall execute, acknowledge and deliver to the party making such request, a statement in writing
stating whether or not, to the knowledge of the Association, a particular Owner is in default under the
provisions of this Declaration, and further stating the dates to which any Assessments have been paid by
the Owner. Any such certificate delivered pursuant to this ARTICLE VII may be relied upon by any
prospective purchaser or mortgagee of the Owner’s Lot. Reliance on such Certificate may not extend to
any default as to which the signor shall have had no actual knowledge. The Association shall be entitled
to charge a reasonable fee for such statements.
7.8 Special Notice and Quorum Requirements. Notwithstanding anything to the contrary
contained in the Project Documents, written notice of any meeting called for the purpose of levying a
Special Assessment by the Association, or for the purpose of obtaining a membership vote in connection
with an increase in the Regular Assessment shall be sent to all Members and to any Person in possession
of a Lot, not less than fifteen (15) days nor more than thirty (30) days before such meeting. At the first
such meeting called, the presence of Members or of proxies entitled to cast sixty percent (60%) of the
total votes of the Association shall constitute a quorum. If such quorum is not present, subsequent
meetings may be called subject to the same notice requirement, and the required quorum at the
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subsequent meetings shall be fifty percent (50%) of the quorum required at the preceding meeting. No
such subsequent meeting shall be held more than thirty (30) days following the preceding meeting.
ARTICLE VIII.
ENFORCEMENT OF ASSESSMENTS; LIENS
8.1 Right to Enforce. The Association has the right to collect and enforce its Assessments
which are created hereby and pursuant to the provisions hereof. Each Owner of a Lot, upon becoming an
Owner of such Lot, shall be deemed to covenant and agree to pay each and every Assessment provided
for in this Declaration and agrees to the enforcement of all Assessments in the manner herein specified.
In the event an attorney or attorneys are employed for the collection of any Assessment, whether by suit
or otherwise, or to enforce compliance with or specific performance of the terms and conditions of this
Declaration, each Owner agrees to pay reasonable attorney’s fees in addition to any other relief or remedy
obtained against such Owner. The Board or its authorized representative may enforce the obligations of
the Owners to pay such Assessments by commencement and maintenance of a suit at law or in equity to
enforce the liens created hereby. A suit to recover a money judgment for an unpaid Assessment shall be
maintainable without foreclosing or waiving the lien hereinafter provided.
8.2 Assessment Liens.
8.2.1 Creation. There is hereby created a claim of lien on each and every Lot to secure
payment of any and all Assessments levied against such Lot pursuant to this Declaration together with
interest thereon at the maximum rate permitted by law and all costs of collection which may be paid or
incurred by the Association making the Assessment in connection therewith, including reasonable
attorneys’ fees. All sums assessed in accordance with the provisions of this Declaration shall constitute a
lien on such respective Lots upon recordation of a claim of lien with the Gallatin County Recorder’s
Office. Such lien shall be prior and superior to all other liens or claims created subsequent to the
recordation of the notice of delinquency and claim of lien except for tax liens for real property taxes on
any Lot and Assessments on any Lot in favor of any municipal or other governmental assessing body
which, by law, would be superior thereto.
8.2.2 Claim of Lien. Upon default of any Owner in the payment of any Regular,
Special or Limited Assessment levied hereunder, the Association may cause to be recorded in the Gallatin
County Recorder’s Office a claim of lien. The claim of lien shall state the amount of such delinquent
sums and other authorized charges (including the cost of recording such notice), a sufficient description of
the Lot(s) against which the same have been assessed, and the name of the record Owner thereof. Each
delinquency shall constitute a separate basis for a notice and claim of lien, but any number of defaults
may be included within a single notice and claim of lien. Upon payment to the Association of such
delinquent sums and charges in connection therewith or other satisfaction thereof, the Association shall
cause to be recorded a further notice stating the satisfaction of relief of such delinquent sums and charges.
The Association may demand and receive the cost of preparing and recording such release before
recording the same.
8.3 Method of Foreclosure. Such lien shall be foreclosed by appropriate action in court.
8.4 Subordination to Certain Mortgages. The lien for the Assessments provided for herein in
connection with a given Lot shall not be subordinate to the lien of any Mortgage except the lien of a First
Mortgage given and made in good faith and for value that is of record as an encumbrance against such
Lot prior to the recordation of a claim of lien for the Assessments. Except as expressly provided in this
ARTICLE VIII, with respect to a mortgagee of a First Mortgage who acquires title to a Lot, the sale or
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transfer of any Lot shall not affect the Assessment lien provided for herein, nor the creation thereof by the
recordation of a claim of lien, on account of the Assessments becoming due whether before, on, or after
the date of such sale or transfer, nor shall such sale or transfer diminish or defeat the personal obligation
of any Owner for delinquent Assessments as provided for in this Declaration.
8.5 Rights of Mortgagees. Notwithstanding any other provision of this Declaration, no
amendment of this Declaration shall operate to defeat the rights of the beneficiary under any Mortgage
upon a Lot made in good faith and for value, and recorded prior to the recordation of such amendment,
provided that after the foreclosure of any such Mortgage such Lot shall remain subject to this Declaration
as amended.
ARTICLE IX.
INSPECTION OF THE ASSOCIATION’S BOOKS AND RECORDS
9.1 Member’s Right of Inspection. The membership register, books of account and minutes
of meetings of the board and committees of any Association shall be made available for inspection and
copying by any Member of said Association or by such Member’s duly appointed representatives, at any
reasonable time and for a purpose reasonably related to such Member’s interest as a Member at the office
of the Association or at such other place as the board of such Association shall prescribe. No Member or
any other Person, other than Declarant, shall copy the membership register for the purposes of solicitation
of or direct mailing to any Member of said Association.
9.2 Rules Regarding Inspection of Books and Records. The Board shall establish reasonable
rules with respect to: notice to be given to the custodians of the records by the Persons desiring to make
the inspection; hours and days of the week when such an inspection may be made; and payment of the
cost of reproducing copies of documents requested pursuant to this ARTICLE IX.
9.3 Director’s Rights of Inspection. Every director of the Board shall have the absolute right
at any reasonable time to inspect all books, records and documents of the Association, and the physical
properties owned or controlled by the Association. The right of inspection by a director includes the right
to make extracts and copies of documents.
ARTICLE X.
DESIGN COMMITTEE
10.1 Creation; Declarant’s Right of Appointment. On or before (30) days after the date on
which Declarant first conveys a Lot to an Owner, Declarant shall appoint three (3) individuals to serve on
the Cottonwood Project’s design committee (the “Design Committee”). Thereafter, at any time, and
from time to time, until such time as the Class B Membership is terminated, Declarant shall have the
exclusive right, in Declarant’s sole discretion, to appoint, remove and replace all members of the Design
Committee. At all other times, the Board shall have the right to appoint, remove and replace all members
of the Design Committee. If a vacancy on the Design Committee occurs and a permanent replacement
has not yet been appointed, Declarant, prior to the Class B Member Termination Date, and the Board
thereafter, as the case may be, may appoint an acting member to serve for a specified temporary period
not to exceed one (1) year. A member of the Design Committee need not be an Owner. Members of the
Design Committee may be removed by the Declarant or the Board, as applicable, with or without cause.
Pursuant to Section 10.3 below, the Design Committee shall review, study, and either approve or reject
the proposed plans for Improvements on the Property, all in compliance with the Declaration. The actions
of the Design Committee in the exercise of its discretion by its approval or disapproval of the proposed
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Improvements on the Property, or with respect to any other matter before it, shall be conclusive and
binding on all interested parties.
10.2 Appointment of Design Committee Representative. The Design Committee may
appoint in writing one (1) of its members to act as its designated representative (the “Committee
Representative”). The Committee Representative may be delegated all duties and obligations of the
Design Committee. In the event a Committee Representative is appointed, it is intended that the Design
Committee shall look to the Committee Representative to perform all functions of the Design Committee;
provided however, the Design Committee shall make all final determinations and decisions regarding all
Design Committee duties and obligations. Any action or decision made by two (2) members of the
Design Committee shall be a binding decision of the entire Design Committee.
10.3 Improvements Generally. The Design Committee is authorized to draft Design
Guidelines for the construction and reconstruction of all Improvements on the Property and amend and
supplement the same, from time to time. No Improvements on any portion of the Property shall be
constructed, reconstructed, placed or removed from the Property without prior written consent of the
Design Committee, and without being in compliance with the Project Documents. The Design
Guidelines, if any, shall be used by the Design Committee to ensure that all Improvements conform and
harmonize as to external design, quality and type of construction, architectural character, materials, color,
location within the Building Envelope, height, grade and finish ground elevation, natural conditions,
landscaping and all aesthetic considerations, including guidelines designed to protect the special qualities
of the Cottonwood Project, and to encourage creative design, by providing general architectural, design
and construction guidelines (including Building Envelope guidelines), landscape guidelines (including a
description of existing, natural conditions and vegetation), submittal and review procedures, and fees and
charges for review. The Design Guidelines shall be drafted to conform to this Declaration, the Articles
and the Bylaws, and must be approved by the Board prior to implementation. In the event of a conflict
between the Design Guidelines and this Declaration, the Articles or the Bylaws, this Declaration, the
Articles or Bylaws, as the case may be, shall govern. The content of the Design Guidelines may be
modified and amended from time to time as provided in the Design Guidelines, and in all events can be
modified and changed by a majority vote of the Board. Nothing contained in this ARTICLE X limits any
Owner’s obligation and duty to ensure that such Owner’s Lot development is in compliance with this
Declaration, the Design Guidelines, any other Project Documents or applicable local, state and federal
laws, rules, regulations and ordinances.
10.4 Expenses. All expenses of the Design Committee shall be paid by the Association. The
Design Committee shall have the right to charge a fee for each application submitted to it for review in an
amount which may be established by the Design Committee from time to time and such fees shall be
collected by the Design Committee and remitted to the Association to help defray the expenses of the
Design Committee’s operation, including reasonable payment to each member of the Design Committee
for their services.
10.5 Non-Liability of Design Committee Members. Approval by the Design Committee does
not assure approval of the Improvements by any appropriate governmental or quasi-governmental agency,
board or commission. Notwithstanding that the Design Committee has approved Improvements, plans
and specifications, neither the Design Committee nor any of its members shall be responsible or liable to
the Association or to any Person, Owner, or Declarant with respect to any loss, liability, claim or expense
which may arise by reason of such approval of the Improvements, unless due to the willful misconduct or
bad faith of the Design Committee. Neither the Board, Design Committee or any agent thereof nor
Declarant or any of its members, managers, employees, agents or consultants shall be responsible in any
way for any defects in any plans or specifications submitted, revised or approved in accordance with the
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provisions of the Project Documents, nor for any structural or other defects in any work done according to
such plans and specifications. In any and all events, the Design Committee shall be defended,
indemnified and held harmless by the Association in any such suit or proceeding which may arise by
reason of the Design Committee’s decision. The Association, however, shall not be obligated to defend,
indemnify and hold harmless any member of the Design Committee to the extent any such member of the
Design Committee shall be adjudged to be liable for willful misconduct or bad faith in the performance of
such member’s duty as a member of the Design Committee, unless and only to the extent that the court in
which such action or suit may be brought shall determine that, despite the adjudication of liability, but in
view of all circumstances of the case, such member is fairly and reasonably entitled to indemnification
and defense for such expense if such court shall deem it proper.
10.6 Variances. The Design Committee may authorize variances from compliance with any of
the Design Guidelines, including restrictions upon height, size, floor area or placement of structures, or
similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or
environmental considerations may require. Such variances must be evidenced in writing, must be signed
by at least two (2) members of the Design Committee. If such variances are granted, no violation of the
covenants, conditions, restrictions and easements contained in this Declaration or the Design Guidelines
shall be deemed to have occurred with respect to the matter for which the variance was granted. The
granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration
or the Design Guidelines for any purpose except as to the particular property and particular provision
hereof covered by the variance, nor shall it affect in any way the Owner’s obligation to comply with all
governmental laws and regulations affecting his or her use of the Property, including, but not limited to
zoning ordinances and lot set-back lines or requirements imposed by any governmental or municipal
authority.
10.7 Declarant’s Exemption. Any and all Improvements constructed by or at the direction of
Declarant on or to the Property are not subject to review and approval by the Design Committee.
ARTICLE XI.
EASEMENTS
11.1 Owners: Easements of Enjoyment. Every Owner shall have a nonexclusive easement for
the use and enjoyment of the Common Area which shall be appurtenant to and shall pass with the title to
every Lot, subject to the easements set forth in this Declaration, as supplemented and amended from time
to time.
11.2 Delegation of Use. Any Owner may delegate, in accordance with the Project Documents,
such Owner’s right of enjoyment in the Common Area, to such Owner’s tenants, employees, family,
guests or invitees.
11.3 Recorded Easements. The Property, and all portions thereof, shall be subject to all
easements shown or identified on the Plat affecting the Property, or any portion thereof, and to any other
easements of record or of use as of the date of recordation of this Declaration, as supplemented and
amended from time to time.
11.4 Easements of Encroachment. There shall be reciprocal appurtenant easements of
encroachment as between each Lot and such portion or portions of the Common Area or Restricted Area
adjacent thereto, or as between adjacent Lots, due to the unwillful placement or settling or shifting of the
Improvements including, without limitation, structures, walkways, bike paths, sidewalks and driveways
constructed, reconstructed or altered thereon in accordance with the terms of this Declaration. Easements
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of encroachment shall be valid only so long as they exist, and the rights and obligations of Owners shall
not be altered in any way because of encroachments, settling or shifting of the Improvements; provided,
however, that in no event shall a valid easement for encroachment occur due to the willful or bad faith
act(s) of an Owner. In the event a structure on any Lot is partially or totally destroyed, and then repaired
or rebuilt, the Owners of each Lot agree that minor encroachments within and over adjoining Lots that
existed prior to the encroachment may be reconstructed pursuant to the easement granted by this Section
11.4.
11.5 Party Walls. Lots may include Party Walls. To the extent any Party Wall exists, there is
hereby created a common reciprocal easement for the location of such Party Wall. Each Owner shall
have the right to use the surface of any Party Wall contained within the interior of the Owner’s Lot,
provided that an Owner shall not drive, place or cause to be driven or placed any nail, bolt, screw or other
object into a Party Wall which penetrates a Party Wall equal to or greater than the Party Walls’ width.
The Owner shall respectively own to the centerline of any Party Wall. The cost of reasonable repair and
maintenance of a Party Wall shall be shared equally by the Owners of such Party Wall. Such Party Wall
shall be maintained in good condition by the Owners thereof, free of structural defects and using
reasonable care to avoid injury to the adjoining property. Notwithstanding any other provisions in this
Section 11.5, an Owner who by negligent or willful act(s) causes a Party Wall to be damaged and/or
exposed to the elements shall bear the whole cost of furnishing the necessary protection against such
elements and/or repair to such Party Wall. If such Party Wall is destroyed or damaged by fire or other
casualty, either Owner may restore such Party Wall and the other Owner shall contribute one-half (1/2) of
the cost of such restoration. This right of contribution shall be without prejudice to any right to call for a
larger contribution under any rule of law regarding liability for negligent or willful acts or omissions.
11.6 Easements of Access. Declarant expressly reserves for the benefit of all the Property
reciprocal easements of ingress and egress for all Owners to and from their respective Lots, for
installation and repair of utility services, for drainage of water over, across and upon adjacent Lots,
Common Areas and Restricted Areas resulting from the normal use of adjoining Lots, Common Areas or
Restricted Areas, and for necessary maintenance and repair of any Improvement in the condition required
by this Declaration, including, without limitation, fencing, retaining walls, lighting facilities, mailboxes
and sidewalk abutments, trees and landscaping. Such easements may be used by Declarant, and by all
Owners, their guests, tenants and invitees, residing on or temporarily visiting the Property, for pedestrian
walkways, vehicular access and such other purposes reasonably necessary for the use and enjoyment of a
Lot or Common Area.
11.7 Drainage and Utility Easements. Notwithstanding anything expressly or impliedly
contained herein to the contrary, this Declaration shall be subject to all easements heretofore or hereafter
granted by Declarant for the installation and maintenance of utilities and drainage facilities that are
required for the development of the Property, including, without limitation, those identified on the Plat.
In addition, Declarant hereby reserves for the benefit of the Association the right to grant additional
easements and rights of way over the Property to utility companies and public agencies as necessary or
expedient for the proper development of the Property until close of escrow for the sale of the last Lot in
the Property.
11.8 Improvement of Drainage and Utility Easement Areas. The Owners of Lots are hereby
restricted and enjoined from constructing or altering any Improvements upon any drainage or utility
easement areas identified on the Plat or otherwise designated in any recorded document which would
interfere with or prevent the easement from being used for its intended purpose; provided, however that
any Owner, the Association, designated Person or the Declarant having an interest in the drainage and
utility easement described in this ARTICLE XI, shall be entitled to install and maintain landscaping on
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such easement areas, subject to approval by the Design Committee, so long as the same would not
interfere with or prevent the easement areas from being used for their intended purposes or violate the
terms of such easement; provided further, that any damage sustained to Improvements on the easement
areas as a result of legitimate use of the easement area shall be the sole and exclusive obligation of the
Owner of the Lot where Improvements were so damaged, or in the event the easement area where
Improvements were so damaged is located in a Common Area or Restricted Area, the Association, shall
be responsible for the damage sustained and may impose a Special Assessment therefore.
11.9 Rights and Duties Concerning Utility Easements. The rights and duties of the Owners of
the Lots within the Property with respect to utilities shall be governed by the following:
11.9.1 Wherever utility house connections are installed within the Property, which
connections or any portions thereof lie in or upon Lots owned by an Owner other than the Owner of the
Lot served by the connections, the Owner of the Lot served by the connections shall have the right, and is
hereby granted an easement to the full extent necessary therefor, to enter upon any Lot or to have their
agent enter upon any Lot within the Property in or upon which said connections or any portion thereof lie,
to repair, replace and generally maintain the connections as and when it may be necessary; and
11.9.2 Whenever utility house connections are installed within the Property, which
connections serve more than one Lot the Owner of each Lot served by the connections shall be entitled to
full use and enjoyment of such portions of said connections as service such Owner’s Lot.
11.10 Maintenance and Use Easement Between Walls and Property. Whenever the wall of a
structure, a fence, eave or overhang constructed on a Lot pursuant to the Design Committee’s approval is
located within three (3) feet of the property line of such Lot, the Owner of such Lot is hereby granted an
easement over and on the adjoining Lot (not to exceed three (3) feet from the property line of the Lot) for
purposes of maintaining, repairing or replacing such wall, fence, eaves or other overhangs, and the Owner
of such adjoining Lot is hereby granted an easement for landscaping purposes over and on the area lying
between the property line and such structure or fence so long as such use does not cause damage to the
structure or fence. Nothing contained in this Section 11.10 shall be deemed to grant an easement within
the interior of any Improvement.
11.11 Disputes as to Sharing of Costs. In the event of a dispute between Owners with respect to
the repair, replacement or maintenance of any Improvement, Party Wall, roofs, utility connections or
driveways, or with respect to the sharing of the cost therefor, upon written request of one of such Owners
addressed to the Association, the matter shall be submitted to the Board which shall decide the dispute
and, if appropriate, make an appropriate Assessment against any or all of the Owners involved on behalf
of the prevailing Owner(s), which Assessment shall be collected and enforced in the manner provided by
this Declaration for Limited Assessments.
11.12 Declarant’s Rights Incident to Construction. Declarant, for itself and its successors and
assigns, hereby retains a right and easement of ingress and egress over, in, upon, under, and across the
Property and the right to store materials thereon and to make such other use thereof as may be reasonably
necessary or incident to the construction of the Improvements on the Property owned by Declarant;
provided, however, that no such rights shall be exercised by Declarant in such a way as to unreasonably
interfere with the occupancy, use, enjoyment, or access to an Owner’s Lot by that Owner or such Owner’s
family, tenants, employees, guests, or invitees.
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11.13 Emergency Easement. A general easement is hereby granted to all police, sheriff, fire
protection, ambulance, and all other similar emergency agencies or Persons to enter upon the Property in
the proper performance of their duties.
11.14 Maintenance Easement – Association’s Responsibility. A general easement is hereby
reserved to the Association and to the Association’s contractors, agents and employees, on, over and
across all Common Area, Restricted Area, and Maintenance Property, for the purpose of maintaining the
Common Area, Restricted Area and Maintenance Property in good repair. This maintenance shall
include, without limitation, maintenance, repair, and replacement, subject to any insurance then in effect,
of all landscaping and other flora, structures, and Improvements situated within the Common Area,
Restricted Area and Maintenance Property. A general easement is also hereby reserved to the Association
and the Association’s contractors, agents and employees, on, over and across all those portions of the Lots
identified in Section 6.7 as appropriate to allow the Association to complete the maintenance, repair and
replacement contemplated by such Section.
11.15 Easements Deemed Created. All conveyances of Lots made after the date of the
recording of the Declaration, as amended and supplemented from time to time whether by Declarant or
otherwise, shall be construed to grant and reserve the easements contained in this ARTICLE XI, even
though no specific reference to such easements or to this ARTICLE XI appears in the instrument for such
conveyance.
ARTICLE XII.
DAMAGE OR DESTRUCTION
12.1 Association as Attorneys in Fact. Each Owner hereby irrevocably constitutes and
appoints the Association as such Owner’s true and lawful attorneys-in-fact in such Owner’s name, place,
and stead for the purpose of dealing with the Improvements on the Common Area and Restricted Area
upon damage or destruction as provided in this ARTICLE XII or a complete or partial taking as provided
in ARTICLE XIII below. Acceptance by any grantee of a deed or other instrument of conveyance from
Declarant or from any Owner shall constitute appointment of the attorneys-in-fact as herein provided. As
attorneys-in-fact, the Association shall have full and complete authorization, right, and power to make,
execute, and deliver any contract, assignment, deed, waiver, or other instrument with respect to the
interest of any Owner which may be necessary or appropriate to exercise the powers granted herein to the
Association as attorneys in fact.
12.2 Estimate of Damages or Destruction. As soon as practical after an event causing damage
to or destruction to any part of the Common Area or Restricted Area, the Association shall, unless such
damage or destruction shall be minor, obtain an estimate or estimates that it deems reliable and complete
of the costs of repair and reconstruction of that part of the Common Area or Restricted Area so damaged
or destroyed. “Repair and reconstruction” as used in this ARTICLE XII shall mean restoring the
damaged or destroyed Improvements to substantially the same condition in which they existed prior to the
damage or destruction.
12.3 Repair and Reconstruction. As soon as practical after obtaining estimates, the
Association shall diligently pursue to completion the repair and reconstruction of the damaged or
destroyed Improvements. As attorney in fact for the Owners, the Association may take any and all
necessary or appropriate action to effect repair and reconstruction, and no consent or other action by any
Owner shall be necessary. Assessments of the Association shall not be abated during any period of
insurance adjustments and repair and reconstruction.
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12.4 Funds for Repair and Reconstruction. The proceeds received by the Association from
any hazard insurance shall be used for the purpose of repair and reconstruction. If the proceeds of the
insurance are insufficient to pay the estimated or actual cost of such repair and reconstruction, the
Association may assess in advance from all Owners a Special Assessment sufficient to provide funds to
pay such estimated or actual costs of repair and reconstruction. Further assessments may be made in like
manner if the amounts collected prove insufficient to complete such repair and reconstruction.
12.5 Disbursement of Funds for Repair and Reconstruction. The insurance proceeds held by
the Association and the amounts received from the Special Assessments constitute a fund for the payment
of the costs of repair and reconstruction after casualty. It shall be deemed that the first money disbursed
in payment for the costs of repair and reconstruction shall be made from insurance proceeds, and the
balance from the Special Assessments. If there is a balance remaining after payment of all costs of such
repair and reconstruction, such balance shall be distributed to the Owners in proportion to the
contributions each Owner made as a Special Assessment to the Association under this ARTICLE XII, or,
if no Special Assessments were made, then in equal shares per Lot, first to the mortgagees of a First
Mortgage and then to the Owners, as their interests appear.
12.6 Decision Not to Rebuild. If Owners representing at least two-thirds (2/3) of the total
voting power in the Association and at least two-thirds (2/3) of the mortgagees of a First Mortgage (based
upon one vote for each mortgage owned) of the Lots agree in writing not to repair and reconstruct and no
alternative Improvements are authorized, then and in that event the damaged Common Area shall be
restored to its natural state and maintained as an undeveloped portion of the Common Area by the
appropriate Association in a neat and attractive condition, and any remaining insurance proceeds shall be
distributed in equal shares per Lot, first to the mortgagees of a First Mortgage and then to the Owners, as
their interests appear. Notwithstanding the foregoing, in the event any Common Area improvement which
was required by the City of Bozeman as a condition of approval for the development of the Cottonwood
Project is damaged, the Association shall repair or reconstruct such improvement unless the Association
obtains the prior written consent of the City of Bozeman not to repair or reconstruct such improvement.
12.7 Damage or Destruction Affecting Lots. In the event of damage or destruction to the
Improvements located on any of the Lots, the Owner thereof shall promptly repair and restore the
damaged Improvements to their condition prior to such damage or destruction. Subject to the provisions
of Section 5.5.1.3, if such repair or restoration is not commenced within one hundred eighty (180) days
from the date of such damage or destruction, or if repair and reconstruction is commenced but then
abandoned for a period of more than ninety (90) days, then the Association may impose a fine of not less
than one hundred dollars ($100) per day on the Owner of the Lot until repair and reconstruction is
commenced, unless the Owner can prove to the reasonable satisfaction of the Association that such failure
is due to circumstances beyond the Owner’s control.
ARTICLE XIII.
CONDEMNATION
13.1 Rights of Owners. Whenever all or any part of the Common Area or Restricted Area
shall be taken or conveyed in lieu of and under threat of condemnation, the Board acting as attorney in
fact for all Owners, shall notify each Owner of the taking, but the Association shall act as attorney in fact
for all Owners in the proceedings incident to the condemnation proceeding, unless otherwise prohibited
by law.
13.2 Condemnation; Distribution of Award; Reconstruction. The award made for such partial
or complete taking shall be payable to the Association as trustee for all Owners to be disbursed as
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follows: If the taking involves a portion of the Common Area or Restricted Area on which Improvements
have been constructed, then, unless within sixty (60) days after such taking Declarant and Owners holding
at least two-thirds (2/3) of the total voting power in the Association shall otherwise agree, the Association
shall restore or replace such Improvements so taken on the remaining land included in the Common Area
or Restricted Area to the extent lands are available therefor, in accordance with plans approved by the
Board and the Design Committee. If such Improvements are to be repaired or restored, the provisions in
ARTICLE XII regarding the disbursement of funds in respect to casualty damage or destruction which is
to be repaired shall apply. If the taking does not involve any Improvements on the Common Area or
Restricted Area, or if there is a decision made not to repair or restore, or if there are net funds remaining
after any such restoration or replacement is completed, then such award or net funds shall be distributed
in equal shares per Lot, first to the mortgagees of any First Mortgage and then to the Owners, as their
interests appear.
ARTICLE XIV.
RESOLUTION OF DISPUTES
14.1 Agreement to Avoid Litigation. Declarant, the Association and the Owners agree that it
is in their best interests to provide a fair, impartial and expeditious procedure for the resolution of disputes
related to the Project Documents instead of costly, lengthy and unpredictable litigation. Accordingly,
Declarant (including its members and managers), the Association (including its officers, directors and
committee members), each Owner, each Occupant and any party claiming a right or interest under the
Project Documents (each, a “Bound Party”) agree to encourage the efficient resolution of disputes within
the Community without the emotional and financial costs of litigation. Accordingly, each Bound Party
covenants and agrees that all claims, grievances or disputes arising out of or relating to the interpretation,
application or enforcement of the Project Documents or the rights, obligations and duties of any Bound
Party under the Project Documents (“Claims”) will be subject to the provisions of Section 14.3 unless
exempt under Section 14.2. All Claims will be subject to resolution pursuant to this ARTICLE XIV as a
condition precedent to the institution or continuation of any legal or equitable proceeding; provided,
however, any Bound Party may proceed in accordance with applicable law to comply with any notice or
filing deadlines prior to resolution of the Claim.
14.2 Exemptions. The following Claims will not be subject to this ARTICLE XIV unless all
Bound Parties thereto agree to submit such Claim to these dispute resolution procedures:
14.2.1 Any Claim by the Association against any Bound Party to enforce the obligation
to pay any Assessment to the Association under the Project Documents;
14.2.2 Any Claim by Declarant or the Association to obtain injunction or equitable
relief to enforce any provision of the Project Documents;
14.2.3 Any Claim between Owners where the Declarant or the Association are not a
party thereto, which Claim would constitute a cause of action independent of the Project Documents;
14.2.4 Any Claim in which any indispensable party is not a Bound Party;
14.2.5 Any Claim against a Released Party that would be barred by Section 4.9 or
Section 5.9;
14.2.6 Any Claim which otherwise would be barred by any applicable law (such as, for
example, the applicable statute of limitations); and
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14.2.7 Any Claim arising out of or relating to the interpretation, application or
enforcement of any purchase, sale or construction agreement with Declarant or any builder related to the
construction of Improvements within the Community, or the rights, obligations and duties of any Bound
Party under such agreements, it being understood that applicable law and the provisions of such
agreements will control the resolution of any claims or disputes related thereto.
14.3 Dispute Resolution.
14.3.1 Direct Discussions. Any Bound Party having a Claim against any other Bound
Party will notify such party(ies) of the Claim in writing, stating plainly and concisely the following: (a) the
nature of the Claim; (b) the legal basis of the Claim (i.e., the specific authority out of which the Claim
arises); (c) the basic facts supporting the allegations in the Claim; (d) the other Persons involved in the
Claim or with personal knowledge of the facts alleged; and (e) the claimant’s proposed remedy, including
the specific monetary amounts (if any) demanded. The Bound Parties to the Claim will make reasonable
efforts to meet in person to resolve the Claim by good faith discussions and negotiations – it being
understood that the best opportunity to achieve a fair and satisfactory resolution to a Claim is ordinarily
through early discussions and negotiations held in good faith.
14.3.2 Dispute Resolution. If the Bound Parties to a Claim are unable to resolve the
Claim through direct discussions within a reasonable time, either Bound Party may submit the Claim to the
Board for assistance in resolving the Claim. In such event, the Board may, by notice to each Bound Party
to the Claim within thirty (30) days of its receipt of a request for assistance:
14.3.2.1 Order the Bound Parties to continue direct discussions and
negotiations for a period of up to thirty (30) days. If the Claim is not resolved in such period, any Bound
Party may request the Board’s assistance to resolve the Claim;
14.3.2.2 Order the Bound Parties to mediate the Claim with an independent
real estate attorney, real estate professional or judge selected by the Association. The mediator will set the
rules of the mediation. Any party to the mediation can invite additional parties to the mediation if the
presence of such additional party is required for a complete resolution of any Claim. The parties will
share the mediator’s fee and any filing fees equally. Unless otherwise agreed, the mediation will be held
within thirty (30) days of the order for mediation and will be held in a neutral location near the
Community selected by the mediator. Agreements reached in mediation will be enforceable as settlement
agreements in any court having jurisdiction thereof. If the mediation does not resolve the Claim, the
Bound Parties may proceed to litigation of the Claim in any court of competent jurisdiction;
14.3.2.3 Order the Bound Parties to settle the Claim through arbitration by a
single arbitrator conducted in accordance with the Montana Uniform Arbitration Act (MCA, Title 27,
Chapter 5) except as otherwise provided herein. The arbitrator will be any independent real estate attorney
or judge appointed by the Association. The arbitrator will set the rules of the arbitration. The arbitrator
may, in its discretion, order parties to produce documents relevant to the dispute and may order written
discovery and depositions (but with care to avoid burdensome discovery or depositions). The arbitrator
will endeavor to hold the arbitration at mutually convenient times and locations; provided, however, the
arbitrator will endeavor to complete the arbitration within forty-five (45) days after appointment of the
arbitrator. The parties will bear their own attorneys’ fees (if any) and share the arbitrator’s fees equally;
provided, however, the arbitrator may award costs, arbitrator’s fees and attorneys’ fees to the substantially
prevailing party. The arbitrator’s award will be final, and judgment may be entered upon it in accordance
with applicable law in any court having jurisdiction thereof;
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14.3.2.4 If the Claim is within the jurisdiction of the small claims court under
MCA, Title 25, Chapter 35 (currently, monetary claims for $7,000 or less), order a Bound Parties to file
such Claim exclusively therein; or
14.3.2.5 Elect to exempt the Claim from this ARTICLE XIV, at which time
the Bound Parties are free to exercise any right or remedy in accordance with applicable law.
If the Board fails to notify the Bound Parties within thirty (30) days of its receipt of a request for
assistance, the Board will be deemed to have elected to exempt the Claim from this ARTICLE XIV.
14.3.3 Enforcement. If the Bound Parties resolve any Claim through mediation or
arbitration pursuant to this ARTICLE XIV and any Bound Party thereafter fails to abide by the terms of
such resolution (i.e., settlement agreement or arbitrator’s award), then any other Bound Party may take any
legal or other action to enforce such settlement agreement or arbitrator’s award without the need to comply
again with the procedures set forth in this ARTICLE XIV. In such event, the Bound Party taking action to
enforce the resolution will be entitled to recover from any non-complying Bound Party all costs and
attorneys’ fees reasonably incurred in such enforcement.
ARTICLE XV.
ANNEXATION AND DEANNEXATION
Declarant may annex additional lands into the Cottonwood Project from time to time by recording
a supplement to this Declaration declaring such additional lands to be part of the Cottonwood Project and
subject to this Declaration (each a “Supplemental Declaration”). Such Supplemental Declaration may
add or delete covenants, conditions, restrictions and easements applicable to the annexed lands as
Declarant may deem appropriate. Upon annexation, Owners within the annexed lands shall become
Owners in the Cottonwood Project on equal footing with the then current Owners in the Cottonwood
Project and shall have the same rights, privileges and obligations (except as may otherwise be set forth in
the annexing Supplemental Declaration). Declarant shall have the right to de-annex any property owned
by Declarant from the Cottonwood Project upon Declarant’s recordation of a Supplemental Declaration
identifying the de-annexed lands and declaring that such lands shall no longer be subject to this
Declaration. In order to be valid, all Supplemental Declarations must refer to this Declaration and be
recorded in the Gallatin County Recorder’s Office.
ARTICLE XVI.
MISCELLANEOUS
16.1 Term. The easements created hereunder shall be perpetual, subject only to termination
by the holders of such easements as provided by law. The covenants, conditions, restrictions and
equitable servitudes of this Declaration shall run until December 31, 2069, unless earlier amended or
terminated as herein provided. After December 31, 2069, such covenants, conditions, restrictions and
equitable servitudes shall be automatically extended for successive periods of ten (10) years each, unless
amended or terminated by a written instrument executed by Members holding at least a majority of the
voting power of the Association and such written instrument is recorded with the Gallatin County
Recorder’s Office.
16.2 Amendment.
16.2.1 By Whom. From and after the recordation of this Declaration until the expiration
or earlier termination of the Class B Member Termination Date, Declarant shall have the exclusive right
to amend, or terminate, this Declaration by executing a written instrument setting forth such amendment,
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or termination, and the same shall be effective upon the recordation thereof with the Gallatin County
Recorder’s Office. After the expiration or earlier termination of the Class B Member Termination Date,
any amendment to this Declaration, or termination hereof, shall be by a written instrument setting forth
such amendment or termination, signed and acknowledged by the president and secretary of the
Association certifying and attesting that such amendment or termination has been approved by the vote or
written consent of members representing more than sixty-five percent (65%) of the total voting power in
the Association, and the same shall be effective upon the recordation thereof with the Gallatin County
Recorder’s Office. All Owners and Members acknowledge and agree that Declarant owns and controls
one hundred percent (100%) of the voting power of the Association from the Effective Date until the
Class B Member Termination Date. Notwithstanding the foregoing, to the extent any covenant herein is
required as a condition to preliminary plat approval or is otherwise required by the commission of the
City of Bozeman, then such covenant shall not be amended or revoked with the prior written consent of
commission of the City of Bozeman.
16.2.2 Effect of Amendment. Any amendment or termination of this Declaration
approved in the manner specified above shall be binding on and effective as to all Owners and their
respective properties notwithstanding that such Owners may not have voted for or consented to such
amendment or termination. Such amendments may add to and increase, or eliminate, the covenants,
conditions, restrictions and easements applicable to the Property but shall not prohibit or unreasonably
interfere with the allowed uses of such Owner’s property which existed prior to the said amendment.
16.3 Notices. Any notices permitted or required to be delivered as provided in this
Declaration shall be in writing and may be delivered either personally, or by fax, mail or e-mail. If
delivery is made by mail, it shall be deemed to have been delivered seventy two (72) hours after the same
has been deposited in the United States mail, first class, postage prepaid, addressed to any Person at the
address given by such Person to the Association for the purpose of service of such notice, or to the
residence of such Person if no address has been given to the Association or to the address of such Person
as contained in the Gallatin County tax assessor’s rolls. Such address may be changed from time to time
by notice in writing to the Association. Notices sent by e-mail or facsimile shall be deemed delivered
upon transmission of the same.
16.4 Enforcement and Non Waiver.
16.4.1 Right of Enforcement. Except as otherwise provided herein, any Owner, the
Association or Declarant shall have the right to enforce any or all of the provisions hereof against any
property within the Property and against the Owners thereof. No Person that is not an Owner, the
Association, or the Declarant, including without limitation the City of Bozeman and all other
governmental authorities, shall have the right enforce the terms of this Declaration.
16.4.2 Violations and Nuisances. The failure of any Owner of a Lot to comply with any
provision hereof, or with any provision of the Project Documents, is hereby declared a nuisance and will
give rise to a cause of action in Declarant, the Association or any Owner for recovery of damages or for
negative or affirmative injunctive relief or both.
16.4.3 Violation of Law. Any violation of any state, municipal or local law, ordinance
or regulation pertaining to the ownership, occupation or use of any property within the Property is hereby
declared to be a violation of this Declaration and subject to any or all of the enforcement procedures set
forth in this Declaration and any or all enforcement procedures in law and equity.
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16.4.4 Remedies Cumulative. Each remedy provided herein is cumulative and not
exclusive.
16.4.5 Non Waiver. The failure to enforce any of the provisions herein at any time shall
not constitute a waiver of the right to enforce any such provision.
16.5 Use of Trademark. Each Owner by acceptance of a deed for such Owner’s Lot shall be
deemed to acknowledge that “Cottonwood Project” is a service mark and trademark of Declarant, or its
licensees, and to covenant that such Owner shall not use the term “Cottonwood Project” without the prior
written permission of Declarant, or its licensees.
16.6 Interpretation. The provisions of this Declaration shall be liberally construed to effectuate
its purpose of creating a uniform plan for the development and operation of the Property. This
Declaration shall be construed and governed under the laws of the State of Montana.
16.6.1 Restrictions Construed Together. All of the provisions hereof shall be liberally
construed together to promote and effectuate the fundamental concepts of the development of the
Property as set forth in the recitals of this Declaration.
16.6.2 Restrictions Severable. Notwithstanding the provisions of the foregoing
Subsection 16.6.1, each of the provisions of this Declaration shall be deemed independent and severable,
and the invalidity or partial invalidity of any provision or portion thereof shall not affect the validity or
enforceability of any other provision herein.
16.6.3 Singular Includes Plural. Unless the context requires a contrary construction, the
singular shall include the plural and the plural the singular; and the masculine, feminine or neuter shall
each include the masculine, feminine and neuter.
16.6.4 Captions. All captions and titles used in this Declaration are intended solely for
convenience of reference and shall not affect that which is set forth in any of the provisions hereof.
16.7 Successors and Assigns. All references herein to Declarant, Owners, Members,
Association or Person shall be construed to include all successors, assigns, partners and authorized agents
of such Declarant, Owners, Members, Association or Person.
16.8 No Dedication. Nothing contained in this Declaration shall constitute or be deemed a
dedication, express or implied, of any part of the Property to or for any public use other than those areas
indicated on the Plat.
16.9 Owners’ Acknowledgements. By accepting a deed to any Lot(s) contained within the
Property, each Owner acknowledges that Owner has accepted title to the Lot(s) after conducting all
necessary inquiries and due diligence, and that Owner takes the Lot(s) “As Is”, without any express or
implied warranty from Declarant.
[End of Text]
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IN WITNESS WHEREOF, the undersigned has duly executed this Declaration effective as of the
date first set forth above.
DECLARANT:
The Cottonwood Project, LLC,
a Delaware limited liability company
Casey Lynch, Member
STATE OF )
) ss.
County of )
On this ____ day of _______________, 2020, before me, a Notary Public in and for said State,
personally appeared Casey Lynch, known or identified to me to be a member of The Cottonwood Project,
LLC, a Delaware limited liability company, the member or one of the members who subscribed said
limited liability company name to the foregoing instrument, and acknowledged to me that he executed the
same in said limited liability company name.
Notary Public for the State of
Residing at
My Commission expires: