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HomeMy WebLinkAboutC and R doc DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR EASTLAKE PROFFESIONAL CENTER DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND BYLAWS FOR EASTLAKE PROFFESIONAL CENTER SUBDIVISION This Declaration,made on the date hereinafter set forth by the Declarant, EASTLAKE PROFFESIONAL CENTER , LLC, hereinafter referred to as "Declarant". WITNESSETH: WHEREAS, Declarant is the owner of certain property in the County of Gallatin, State of Montana, which is more particularly described as: Lots 1-4 of .as shown on the official plat thereof on file and of record with the Gallatin County Clerk and Recorder's Office. (Plat ). ("Property"). NOW, THEREFORE, Declarant hereby declares that the Property described above shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with the real property and be binding on all parties having any right, title or interest in the real property or any part thereof, their heirs, successors and assigns and shall inure to the benefit of each owner thereof. ARTICLE I. DEFINITIONS 1. "Architectural Design Guidelines" shall mean those guidelines established and adopted by the Declarant and/or the Board of Directors of the Association to establish the architectural and landscape design standards for buildings, structures, improvements and landscaping and to control the development of the Lots within the Property. The Architectural Guidelines shall contain minimum standards for the architectural design and construction of all buildings and structures within the Property, the landscaping of all Lots within the Property and other guidelines as the Declarant or the Board, it its judgment, deems appropriate. The Architectural Guidelines may be requested at any time by contacting the Association. 2. "Design Review Panel" or"DRP" shall mean the EASTLAKE PROFFESIONAL CENTER Design Review Panel as established and set forth herein, and shall initially be the Declarant. 3. "Association" shall mean and refer to EASTLAKE PROFFESIONAL CENTER Owners Association, a Montana Non-Profit Corporation, its successors and assigns. 4. "Board" or"Board of Directors" shall mean the elected or appointed Board of Directors of the Association. 5. "Bylaws" shall mean the Bylaws promulgated by the Association. 6. "Common Areas " shall include but not be limited to common walkways (but excluding walkways to individual businesses on each lot), sidewalks, irrigation well and sprinkler system (but excluding sprinkler systems on individual Lots), bike racks, benches, streets/access drives,parking lots, snow storage areas, refuse areas and required receptacles, drainage easements, storm water facilities, common lighting, landscaping, monument or directional signage and other common use areas as shown on the Plat for EASTLAKE PROFFESIONAL CENTER Subdivision first filing as recorded in the records of the Gallatin County Clerk and Recorder's Office in Gallatin County, Montana. 7. "Common Area Expense" the actual and estimated expenses incurred or anticipated to be incurred by the Association for the maintenance, repair and replacement of the Common Areas and/or the general benefit of all Owners including any reasonable reserve as the Board may find necessary and appropriate pursuant to the Governing Documents. Common Area Expenses shall include but not be limited to expenses relating to the maintenance, repair and/or replacement of common streets, storm water facility maintenance (as described in Exhibit A), access drives, snow plowing,parking lots and sidewalks, garbage, electrical bills, landscaping, mowing, insurance, trash bins, refuse areas and real estate taxes for Common Areas. 8. "Declarant" shall mean the developer of EASTLAKE PROFFESIONAL CENTER Subdivision, namely EASTLAKE PROFFESIONAL CENTER, LLC and its successors and assigns. 9. "Governing Documents" is a collective term referring to this Declaration and any applicable Supplemental Declarations,the Bylaws,the Design Guidelines and any rules and regulations promulgated by the Association all as may be amended. The Governing Documents establish, as part of the general plan of development for the Property, a framework of affirmative and negative covenants, easements and restrictions which govern the property. Within that frame work, the Board and Members have the ability to respond to unforeseen problems and changes in circumstances, desires, trends and technology which inevitably will affect EASTLAKE PROFFESIONAL CENTER and its Owners through rules and regulations promulgated by the Board or through amendments to the Governing Documents. 10. "Lot" shall mean and refer to the individual Lots shown upon any recorded subdivision plat of the Property and originally referring to Plat, on file and of record with the Gallatin County Clerk and Recorder's Office, Gallatin County, Montana, and as it may be amended. 11. "Manager" shall mean the Board, Manager or Management Company, or any other Person or group retained or appointed by the Association for the purpose of conducting the day to day operations of EASTLAKE PROFFESIONAL CENTER . 12. "Member" shall mean and refer to each Lot Owner including the Declarant while Declarant owns Lots. Membership in the Association shall be appurtenant to and may not be separated from ownership of a Lot. 13. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any Lot which is part of the Property. The term Owner shall also include the purchaser under a Contract for Deed. 14. "Person" shall mean a natural person, a corporation, a partnership, a trustee or any other legal entity. 15. "Property" shall mean and refer io that certain real property hereinbefore described. 16. "Structure" shall mean anything built or placed on, or above, ground level excluding ground level features such as streets,off street parking areas, driveways, sidewalks, pathways or low-profile patio or entrance slabs contiguous to structures. 17. "Subdivision" or"EASTLAKE PROFFESIONAL CENTER Subdivision" shall refer to the Property. ARTICLE II. CITY OF BOZEMAN REQUIRED COVENANTS 1. The Association shall be responsible for the control of noxious weeds on the Common Areas. Landowners are responsible for noxious weed control on their own individual lots as stated in the Montana Code Annotated §7-22-2116. 2. Lot owners are informed that adjacent uses may be agricultural. Lot owners accept and are aware that standard agricultural and farming practices can result in smoke, dust, animal odors, noise, flies, and machinery noises. Standard agricultural practice features the use of heavy equipment, burning, chemical sprays, and the use of machinery early in the morning and late into the evening. 3. The Association shall be responsible for maintenance of interior subdivision roads, parking lots and Common Areas, open space, pathways, landscaping of open areas outside of Lots and storm water facilities. The Association shall be responsible for maintaining the storm water facilities in accordance with the document titled "Inspection and Maintenance for Stormwater Management Facilities", attached hereto as Exhibit A. 4. All fences bordering agricultural lands shall be maintained by the Association, in accordance with state law. 5. Membership in the Association shall be mandatory for each Lot. Each Lot Owner shall be required to pay such fees as the board of directors of the association deem appropriate for real estate taxes, insurance and the maintenance of the Common Areas and. Each Owner is responsible for all maintenance, repairs, replacement, security and insurance for fire, all risk, theft,perils and liability insurance on their Lots, structures and improvements. 6. The Association shall be responsible for liability insurance and real estate taxes on the Common Areas in an amount to be determined by the board of directors of the Association. 7. Title to the Common Areas within the subdivision shall vest in the Association and be maintained and controlled by the Board of the Association. The Association shall be responsible for the operation and maintenance of parking areas and Common Areas within the subdivision once 80% of the Lots are sold, or until Declarant transfers ownership of the same to the Association, whichever occurs first. The Association shall be responsible for acquiring and maintaining appropriate liability insurance on the same. 8. Any covenant which is included herein as a condition of the preliminary plat approval and required by the City of Bozeman shall not be amended or revoked without the mutual consent of the owners, in accordance with the amendment procedures in the Declaration, and the City Commission. ARTICLE III. BINDING EFFECT AND ENFORCEMENT All Property described above shall be owned, conveyed, and used subject to all provisions of this Declaration which shall run with the title to such Property. This Declaration shall be binding upon all persons having any right, title or interest in any portion of the Property, their heirs, successors, successors in title and assigns. This Declaration shall be enforceable by the Declarant, the Association, any Owner and their respective legal representatives, heirs, successors and assigns perpetually from the date this Declaration was recorded in the public records. ARTICLE IV. GOVERNING DOCUMENTS The Governing Documents create a general plan of development for EASTLAKE PROFFESIONAL CENTER which may be supplemented by additional covenants, restrictions and easements. In addition, the property is subject to any zoning or other land use regulations promulgated by the City of Bozeman. All provisions of the Governing Document shall apply to all Owners and to all occupants of the Lots as well as the respective customers, tenants, guests and business invitees unless otherwise noted. Any lease on a Lot shall provide that the lessee and all occupants of the leased Lot shall be bound by the terms of the Governing Documents. The Property is subject to existing easements, covenants, Bylaws, teens, conditions, obligations, disclosures, reservations, restrictions, dedications and conditions shown and delineated in the plats, site plans, and other documents filed or recorded with the Clerk and Recorder of Gallatin County, Montana, or the State of Montana, and subject to applicable zoning ordinances and land use restrictions, if any, laws and regulations of the state of Montana and the United States of America, and also subject to taxes, assessments, and charges levied by Gallatin County, improvement districts, sewer and water districts, fire districts and any other district or taxing authority, if any. ARTICLE V. OWNERS' ASSOCIATION, MEMBERSHIP AND VOTING RIGHTS 1. Formation & Assessment The Owners hereby establish a Property Owner's Association, which shall be a Montana non-profit corporation, for the purpose of promoting, developing and operating EASTLAKE PROFFESIONAL CENTER. All Lot Owners shall be Members of the Association. This Association shall be called EASTLAKE PROFFESIONAL CENTER Owners Association ("Association"). The Association shall adopt Bylaws for the administration of the Association. The Bylaws, as adopted and as properly amended, shall be binding upon 1 Owner's in the Subdivision. Every Owner of a Lot shall be a Member of the Association and membership is automatic and mandatory for Owners. Each Lot shall be entitled to one vote on any Association business. Multiple Owners of a single Lot have one collective vote. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment. Membership shall transfer with the sale of a Lot to the new Owner. Each Lot Owner shall be responsible for advising the Association of his or her acquisition of ownership, of his or her mailing address, and of any change in the same. 2. Function. The function of the Association shall include but not be limited to the following: (a) Adopt bylaws for the governance of the Association; (b) Make provisions for the general management and/or repairs and maintenance of the Common Areas; (c) Levy assessments as provided for in this Declaration and the Bylaws; (d) Adopt and implement a policy for the affairs of the Association and Subdivision; (e) Represent the interests of the Owners in matters concerning the Owners Association; (f) Enter into contracts or hire personnel for the management of the affairs of the Association and the maintenance and repair of the Common Areas; (g) Be responsible for the perpetual maintenance of the Common Areas and to the extent such maintenance is required; and (h) Be responsible for the upkeep, maintenance, repair, refurbishing and remodeling of the Common Areas including the parking lot, lands, grounds, landscaping, shrubbery, and trees (which includes control of noxious weeds). 3. Voting Interest. Unless a Lot Owner's vote is expressly excluded in a particular matter by this Declaration, each Lot shall have one (1) vote on all matters to be decided by the Association. If a Lot is owned by more than one Person, such Persons shall appoint a representative to cast the vote for that Lot. Except as otherwise provided in this Declaration, or the Bylaws, a majority of the votes present at any meeting or by proxy shall be sufficient to act on matters brought before the Association. Meetings of the Association shall only be conducted when a quorum is present, as defined in the Association Bylaws. 4. Failure to Comply. Each Lot Owner shall comply strictly with the provisions of the Governing Documents and the decisions and resolutions of the Association adopted pursuant thereto as the same may be lawfully amended from time to time. Failure to comply with any of the same shall be grounds for a lien, for an action to recover sums due, for damages or injunctive relief or any combination of the above and for reimbursement of all costs, including attorney fees incurred which action shall be maintainable by the Manager in the name of the Association, on behalf of the Lot Owner, or in the proper case by an aggrieved Lot Owner. 5. Board of Directors The term "Board of Directors" or"Board" shall mean the Declarant until 100% of the Lots have conveyed to third party buyers or until Declarant appoints three Members to serve, whichever shall occur first. Thereafter the Board shall consist of at least three Lot Owners who shall be elected at the annual meeting by a simple majority of the Members of the Association. That Board shall be elected for a term set by a simple majority of the Members but not less than one year and no longer than three. Each director shall serve until replaced by their successor. Any vacancy in the Board occurring before the next annual meeting of the Members shall be filled by appointment by the remaining Directors. 6. Power of Association The Association, acting through its Board of Directors, shall have the power and authority to take such actions as shall be necessary or reasonable to care for, protect and maintain the Common Areas, easements, parking lot, roads, storm water facilities (in accordance with Exhibit A), common utilities and other assets that are shared in common by all lot owners; to enforce these Covenants; to collect assessments; to set annual and/or special meetings; and to act in any other matters set forth herein or which may serve the EASTLAKE PROFFESIONAL CENTER . ARTICLE VI: COVENANT FOR MAINTENANCE ASSESSMENT 1. Creation of the Lien for Personal Obligation of Assessments The Owner of any Lot by acceptance of a contract of sale or a deed therefore, whether or not it shall be so expressed in such deed or contract, is deemed to covenant and agree to pay to the Association(a) annual assessments or charges; and (b) special assessments for capital improvements, such assessments to be established and collected as provided in the Bylaws. The annual and special assessments, together with interest, costs and reasonable attorney's fees, shall be a charge on the Lot and shall be a continuing lien upon the Lot against which each assessment is made. Each such assessment, together with interest, costs and reasonable attorney's fees, shall also be the personal obligation of the Person who was the Owner of such property at the time the assessment fell due. The Association has the authority to impose reasonable charges for interest and penalties for overdue payments. The Association Board of Directors must first obtain the approval of a majority of the Association membership before: a) making any assessment for a capital improvement costing in excess of $5,000.00; b) mortgaging, encumbering or otherwise disposing of any Property of the Association in excess of$5,000.00 2. Assessments -Purposes, Procedures The Association shall levy assessments upon the Lot Owners in the following manner and for the following reasons: a) Assessments shall be made as a part of the regular business of the Association at any regular or special meeting thereof as provided in the Bylaws of the Association. Notice of the assessment, amount thereof, and the purpose for which it is made whether regular or special, including an annual budget for expenditures and operations, shall be served on all Lot Owners affected by delivering a copy of the same to the Lot Owner personally or by mailing a copy of the notice to the Owners at their addresses of record at least ten (10) days prior to the date for such meeting. b) Assessments shall be made for the repair, replacement, general maintenance, management and administration of common elements, fees, costs and expenses of the Manager, taxes for common areas, if any, to establish a reserve fund and for the Lot Owners percentage share of any special improvement district assessments. Assessments shall be based on percentages per Lot set forth herein. c) Each Owner shall be assessed for Association expenses including but not limited to insurance, taxes, Common Area Expenses, the expenses of any properly created special improvement districts (SIDS) affecting the Property, including, but not limited to lighting districts, street maintenance and tree maintenance. Such assessments, and assessments for Common Expenses, shall be collected and paid according to the terms and under the procedures more particularly set forth in the Bylaws. Lots 1-4 of the Subdivision shall each be responsible for their pro-rata share of expenses based upon square footage of each Lot compared to the total square footage of all Lots. The amounts of assessments described above, and any other assessments allowed by the Bylaws, this Declaration and by the State of Montana, shall be fixed by the Board of Directors. Notice of each Owners' assessments shall be mailed to the Owner at his or her address of record. d) Common Expenses and profits, if any, of the Subdivision shall be charged to and distributed among the Lot Owners per Lot. e) An initial assessment of$250.00 for each Lot shall be collected at the initial transfer of each Lot from the Declarant to a third party. At the time the Association holds its first meeting, or at any duly noticed meeting thereafter, a reserve account will be set up to which any unused initial assessments shall then be deposited. Thereafter, a yearly assessment shall be made for the reserve account in an amount determined by the Association but in no event shall it be less than 10% of the annual budget. The reserve funds shall be for the maintenance, repair, replacement, and administration of the Common Elements. The Declarant shall not be required to pay any amounts toward the reserve fund for any Lot owned by Declarant until the Lot is developed. f) The Association, acting through the Board or the Manager, shall have the authority to levy fines against Lots for any violation of the covenants set forth herein or for any violation of the rules and regulations duly adopted by the Board. Violations caused by a tenant shall be assessed against the Lot and shall be the responsibility of the Lot Owner. For each violation, the Owner may be fined according to the following fine schedule: First Offense: $ 50.00 Second Offense: $100.00 Third Offense &more: $150.00 The fine schedule may be amended by the Board at any duly called meeting provided it is thereafter approved by at least seventy-five percent (75%) of the Lots. All fines shall be considered final and shall be considered an assessment and a lien against the Lot unless the Lot Owner makes a written appeal to the Board within five (5)business days of receiving the fine and the Board subsequently overturns such fine. The Board shall have thirty (30) days to meet and render its decision regarding the fine, which decision shall be final. All fines may be collected by the Association in the same manner as an assessment as set forth herein. All fines not paid within thirty (30) days shall accrue interest at the then maximum current legal rate of interest per annum on the amount of the fine from the due date thereof. 3. Payment of Assessments (a) Due Date Delinquency. All assessments shall be due thirty (30) days from the date of mailing such assessment following the meeting at which time assessments are levied by the Association, and may be payable in one annual payment, quarterly or monthly installments, at the option of the Lot Owner. The amount assessed against each Lot shall be the personal and individual obligations of the Lot Owner. No Lot Owner shall be exempt from liability for any assessment by waiver of the use of enjoyment of any of the Common Areas or by abandonment of the Lot. All assessments which are not paid within thirty (30) days from the date they are due and payable become delinquent and are subject to interest at the highest rate allowed by law. (b) Collection. The Association or Manager shall have the responsibility of taking prompt action to collect any unpaid assessment which becomes delinquent. In the event of delinquency in the payment of the assessment, the Lot Owner shall be obligated to pay interest at the then current legal rate of interest per annum on the amount of the assessment from the due date thereof, together with all expenses, including attorney fees incurred, together with such interest and late charges as are provided in the Bylaws of the Association. Suit to recover a money judgment for unpaid Common Expenses and Limited Expenses may be maintainable without foreclosing or waiving the lien securing the same. Unpaid assessments, together with attorney fees, interest and costs shall also be a personal obligation of the Lot Owner at the time the assessment becomes due and a purchaser may be held jointly or severally liable for past due payments. 4. Liens and Foreclosure. All sums assessed but unpaid for assessment chargeable to any Lot shall constitute a lien on such Lot. To evidence such lien, the Association shall prepare a written notice of lien assessment setting forth the amount of such unpaid indebtedness, the amount of accrued interest and late charges thereof, and the naive of the Lot Owner and a description of the Lot. Such notice shall be signed and verified by one of the officers of the Association or by the Manager, or his or her authorized agent, and shall be recorded in the office of the Clerk and Recorder of Gallatin County, Montana. Such lien shall attach from the date of recording such notice. Such lien may be enforced by the foreclosure of the defaulting Owner's Lot by the Association in like manner as foreclosure of a mortgage on real property. In any foreclosure, the Lot Owner shall be required to pay a reasonable rental for the Lot if so provided in the Bylaws, and the Plaintiff in such foreclosure action shall be entitled to the appointment of a receiver to collect the same. Suit to recover a money judgment for unpaid assessments shall be maintainable without foreclosure or waiving the lien securing the same. In any such proceeding the Lot Owner may be required to pay the costs, expenses and attorney's fees incurred in filing a lien, and in the event of foreclosure proceedings, additional costs, expenses, and attorney's fees incurred. 5. Bidding at Foreclosure Sale. The Association shall have the power to bid on the Lot at a foreclosure or other legal sale, and to acquire and hold, lease, mortgage, vote the votes appurtenant to, convey, or otherwise deal with the same. Any lien holder holding a lien on a Lot may pay, but shall not be required to pay, any unpaid assessment payable with respect to any such Lot and upon such payment such lien holder shall have a lien on said Lot for the amounts paid of the same priority as the lien of the lien holder's encumbrance without the necessity of having to file a notice or claim of such lien. 6. Priority of Lien. To the extent permitted by Montana law or other applicable law, any lien of the Association for assessments becoming payable on or after the date of recordation of the first mortgage, shall be subordinate to the first mortgage on the Lot. To the extent permitted by Montana law or other applicable laws, such a lien for assessments shall not be affected by any sale or transfer of a Lot, except that a sale or transfer of a Lot pursuant to a foreclosure of a first mortgage shall extinguish a subordinate lien for Lot assessments which become payable prior to such sale or transfer. To the extent permitted by Montana law or other applicable law, any such sale or transfer pursuant to a foreclosure shall not relieve the purchaser or transferee of a Lot from liability for, nor the Lot sold or transferred from the lien of, any assessment charges thereafter become due. 7. Mortgages and Unpaid Dues. Any first mortgagee who obtains title to a Lot pursuant to the remedies in the mortgage or through foreclosure will not be liable for more than twelve (12) months of the Lot's unpaid regularly budgeted dues or charges accrued before acquisition of the title to the Lot by the Mortgagee. If the Association's lien priority includes costs of collecting unpaid dues, the lender will be liable for any fees or costs related to the collection of the unpaid dues. 8. Rate of Assessment. Both annual and special assessments must be made upon the pro-rata share of each Lot based upon the percentage of each Lot's square feet to the total square footage of all Lots, so larger Lots will pay a larger amount of the assessment and smaller Lots will pay a smaller amount. This is meant to reflect the potential impact that each Lot will have on the common elements, as a larger Lot will presumably have more employees and customers than a smaller Lot will, and should pay for the cost of maintaining the common elements proportionately. 9. Insurance. The Association, acting by and through the Board of Directors, shall obtain, purchase, and maintain, all of the insurance policies specified and required in this Section. Neither the Association, Board of Directors, nor the Declarant, however, shall be liable for failure to obtain any coverages required by this Section, or for any loss or damage resulting from such failure, if such failure is due to the unavailability of such coverages, or if such coverages are so available only at a demonstrably unreasonable first. Premiums. The Association shall pay premiums for insurance policies as a Common Area Expense and shall include the cost as part of the Association's assessment. Policy Requirements—Generally. Each required policy must provide that: (i) Named Insured. The named insured is the Association for itself and as agent for the Lot Owners without naming them. Each Owner is an insured Person under the policy with respect to liability arising out of such Owner's membership in the Association; The policies may contain a reasonable deductible. In the event of an insured loss, the deductible shall be treated as an Association expense. However, if the board reasonably determines, after notice and an opportunity to be heard, that the loss is the result of the negligence or willful misconduct of one or more Owners, their guests, Invitees, or lessees, then the Board may assess the full amount of such deductible against such Owner(s) and their Lots as Specific Assessment. The Association shall arrange for an annual review of the sufficiency of its insurance coverage by one or more qualified Persons, at least one of whom must be familiar with insurable replacement costs in Gallatin County, Montana area. All Association policies shall provide for a certificate of insurance to be furnished to the Association. Recognition of Insurance Trustee. Each policy shall provide for the recognition of any insurance trust agreement made by the Board. If the Board designates an Insurance Trustee, all payments under policies subject to the insurance trust agreement shall be paid to the Insurance Trustee, and all policies and endorsements thereon shall be deposited with the Insurance Trustee. Waiver of Subrogation: The insurer waives any right to claim by way of subrogation against the Declarant, the Association, the Board of Directors, or the Owners, and their respective agents, tenants, invitees, employees and guests. (iv) Right to Cure: Such policy shall not be substantially modified or suspended due to the act or omission of any Owner (including his invitees, agents, and employees) or of any member(acting within the scope of his authority for the Association), officer or employee of the Board of Directors, without a prior demand in writing that the Board of Directors cure the defect and neither shall have so cured such defect within sixty (60) days after such demand. (v) Notice of Cancellation. Such policy may not be canceled or substantially modified(including cancellation for nonpayment of premium)without at least thirty (30) days prior written notice to the Board of Directors. (vi) Required Coverages. The Association acting through its Board or its duly authorized agent, shall obtain and continue in effect the following types of insurance as a Common Area Expense, if reasonably available: (i) Blanket property, insurance on the Common Areas covering the full replacement cost of all insured improvements, if any, under current building ordinances and codes, to the extent that Association has assumed responsibility in the event of a casualty; (ii) Commercial general liability insurance on the Common Areas insuring the Association and its Members for damage or injury caused by the negligence of the Association or any of its Members, employees, agents, or contractors while acting on its behalf. If generally available at reasonable cost, such coverage (including primary and any umbrella coverage) shall have a limit of at least One Million Dollars ($1,000,000.00) per occurrence with respect to bodily injury, personal injury, and property damage; provided, should additional coverage and higher limits be available at reasonable cost which a reasonably prudent person would obtain, the Association shall obtain such addition coverages or limits; (iii) Workers compensation insurance and employer's liability insurance, if and to the extent required by law. (iv) Directors' and officers' liability coverage; (v) Commercial crime insurance, including Fidelity insurance covering all Persons responsible for handling Association funds in an amount determined in the Board's best business judgment. Fidelity insurance policies shall contain a waiver of all defenses based upon the exclusion of Persons serving without compensation; and (vi) Such additional insurance as the Board, in its best business judgment, determines advisable. ARTICLE VII: COMMON AREAS 1. General. All Common Areas, as depicted on the final plat shall be reserved in perpetuity as Common Areas. Each Owner shall have the right to use and enjoy the common areas and facilities, if any. The Association shall be fully responsible for all liability insurance, taxes, assessments and maintenance of all Common Areas and facilities. The Association shall assess each Lot Owner their proportionate share of these expenses, based upon the formula set forth herein for all other assessments. Ownership and control of common areas shall transfer to the Association when eighty percent (80%) of the lots have sold or when Declarant transfers ownership of the same, whichever occurs first. At such time as ownership is transferred, the Association is obligated to accept the same. 2. Road Maintenance and Snow Removal. The maintenance and snow removal of the parking lots, streets, and common sidewalks shall be the responsibility of the Association. The cost of the same will be assessed to the Lot Owners as set forth herein. Street and parking signs will be placed and designed as approved by the Association and in conformance with City of Bozeman regulations. 3. Landscaping. Landscaping of the Common Areas shall be the responsibility of the Association. Individual Lot landscaping shall be the responsibility of each Lot Owner and shall meet all requirements set forth in the Architectural Design Guidelines for Landscaping. Lot Owners shall submit landscape plans to the ARC for their review and approval. The Lot Owners shall be responsible for the installation and care of the lawns, drip irrigation systems and landscaping on their Lot and for the care, maintenance and replacement of trees and shrubbery located on their Lot. However, if a Lot Owner fails to adequately water, control weeds, fertilize or mow the grass on their Lot, the Association may do so and charge the cost thereof to the Lot Owner. The Board of Directors of an Association may elect to take over the care and maintenance of yard areas such as mowing, fertilizing and the like with the request and approval of seventy-five percent (75%) of the votes of the Lot Owners in the Association. When a building is constructed on a Lot, the lawn and landscaping, after submittal and approval of plans by the ARC, shall be installed by the Lot Owner no later than the next planting season after the receipt of a Certificate of Occupancy for a building. If a Lot is not cleared of weeds and if the Owner fails to do so after notice from the Association, the weeds may be cleared and controlled by the Association and the cost and expense associated with such weed maintenance shall be assessed to the Lot Owner and such assessment may become a lien if not paid within thirty (30) days of the mailing of such assessment. ARTICLE VIII: EASEMENTS 1. Generally. Easements for roads, parking lots, drainage, storm water facilities, electricity, telephone, lighting,water, sewer, cable television, Internet, fiber optic, and any other service or utility shall be, and hereby are, granted and reserved as shown on the Plat. Such easements shall not interfere with and shall be subject and servient to any and all buildings subsequently erected in such areas, the easements herein provided for shall by-pass such buildings. All utilities, pipes, wires, and service lines shall be buried. All road or access area easements as shown on the Plat shall include a corresponding easement for drainage, electricity, telephone, lighting, and all other utilities along or under such roads. Easement areas may be landscaped so as to enhance their appearance so long as the landscaping does not interfere with the use of the easement. No utility service line or facility shall be installed or replaced without the prior approval of the Association. All easement areas must be restored, at the expense of the utility or service entity doing such work, to as near the condition as existed previous to such work as possible. In the discretion of the Association, a bond may be required of the utility, installer or service entity to insure compliance with this provision. 2. Easements in Common Areas. The Declarant grants to each Owner a nonexclusive right and easement of use, access, and enjoyment in and to the Common Area, including but not limited to the parking lot,which is appurtenant to each Lot, subject to: (a) The Governing Documents and any other applicable covenants; (b) The right of the Board to adopt rules regulating the use and enjoyment of the Common Area, including rules limiting the hours of use and number of guests who may use the Common Area; (c) Any Owner may extend his or her right of use and enjoyment to the members of his or her family, lessees, and social invitees, as applicable, object to reasonable regulation by the Board. Any Owner who leases his or her Lot shall be deemed to have assigned all such rights to the lessee of such Lot for the period of the lease; (d) Inspecting, maintaining, repairing and replacing the utilities, infrastructure and other improvements; and (e) Access to read utility meters. 3. Declarant's Easement. Declarant also reserves for itself the non-exclusive right and power to grant and record such specific easements as may be necessary, in the sole discretion of Declarant, in connection with the orderly development of the subdivision, including but not limited to easements for ingress, egress,parking, and utilities shall be granted to the Declarant, its successors or assigns for the purpose of developing the subdivision. The Declarant hereby reserves for itself and on behalf of its successors and assigns, an easement over the Common Area for the purposes of enjoyment, use, access, and development of the subdivision. This easement includes, but is not limited to, a right of ingress and egress over the Common Area for construction of roads and for connecting and installing infrastructure and utilities on such property. The Declarant reserves for itself and its successors and assigns non- exclusive easements and rights of way for ingress, egress and utilities along with the right, during and for any purpose concerning the construction of any Lot and the finishing of any structure therein, to use, access, and to upon the general Common Areas for access, deliveries, and the placement or temporary parking of vehicles, materials, and equipment. 4. Easements for Maintenance. Emergency and Enforcement. The Declarant grants to the Association easements over the Property as necessary to enable the Association to fulfill its maintenance responsibilities including but not limited to storm water facility maintenance. The Association shall also have the right, but not the obligation, to enter upon any Lot for emergency, security, and safety reasons, to perform maintenance and to inspect for the purpose of ensuring compliance with and enforce the Governing Documents. Such right may be exercised by any member of the Board and its duly authorized agents and assignees, and all emergency personnel in the performance of their duties. Except in an emergency, entry shall only be during reasonable hours and after notice to the Owner. 5. Ingress and Egress. A non-exclusive easement shall exist in favor of each Lot Owner and occupant, their respective guests, tenants, licensees and invitees for pedestrian traffic over, through, and across sidewalks, streets, paths, walks, and other portions of the Common Areas as from time to time may be intended and designated for such purpose and use, and for vehicular and pedestrian traffic over, through, and across such portion of the Cominon Areas including but not limited to streets and parking lots as from time to time may be paved or intended for such purposes, and for purposes of ingress and egress to the public ways. ARTICLE IX: ARCHITECTURAL REVIEIW 1. Architectural Design Review in General. No parking lots, construction, building, structure, sidewalks, reconstruction, alteration, remodeling, landscaping, fence, wall, or other improvement shall be placed, constructed, erected, repaired, restored, reconstructed, altered, remodeled, added to, or maintained on any lot until building drawings, plans, and specifications (which must have been prepared by a licensed architect for any construction, reconstruction, alteration or remodeling), and such other information as the Architectural Review Committee may reasonably require, including without being limited to, colors, building materials, and models, have been submitted to, and approved by, a majority of the Architectural Review Committee in writing; nor may the same be commenced until the Architectural Review Committee shall have issued a permit allowing for such improvements. In addition to obtaining a written approval from the Association, the Owners must also make application for a building permit from the City of Bozeman and receive a signed building permit before construction of any improvements on the Lot. The Association's written approval of plans and a stamp of approval on the final plans must be attached to all City of Bozeman building permit applications. In addition to building plans, prior to the construction of any structure on any Lot within the Property, the Owner shall submit a landscaping plan to the Association. The landscaping plan shall substantially comply with those landscape requirements set forth in the Architectural Design Guidelines and shall be approved, in writing, by the Association before any plan is implemented. Further, each Lot must meet the Architectural Design and Landscape requirements set forth in the EASTLAKE PROFFESIONAL CENTER covenants. 2. Creation—Membership. There is hereby created an Architectural Review Committee which is herein referred to as the "Architectural Review Committee", or"ARC"which shall be the Declarant until one hundred percent(100%) of the Lots are sold or until Declarant appoints three persons to serve until such time as the Association appoints new persons, whichever shall occur first. After that point,the Committee shall consist of three (3)persons, appointed by a majority of the Owners. Architectural Review Committee members shall serve staggered three-year terns. 3. Selection. If no successor is appointed by a majority of the Owners on or before the expiration of an individual member's term, the Architectural Member shall be deemed to have been re- appointed for another tern. On the death or resignation of an individual member, a replacement shall be selected by the remaining members of the Architectural Review Committee to fill out the unexpired term. 4. Purpose. The Architectural Review Committee may make such reasonable rules and Bylaws, and adopt such procedures, as it deems necessary to carry out its functions, which rules, by-laws, and procedures may not be inconsistent with the provisions of these covenants. 5. Liability. The Architectural Review Committee, or the individual members thereof, may not be held liable by any person for any damages which may result from Architectural Review Committee action taken pursuant to these covenants, including, but not by way of limitation, damages which may result from correction, amendment, change or rejection of plans, the issuance, suspension or enforcement of building permits or any delays associated with such action on the part of the Architectural Review Committee. 6. Commencement of Work. The Owner or Occupant shall begin work within one (1) year of receipt of written approval and diligently proceed toward completion of all approved excavation, construction, refinishing and alterations. If work is not so commenced approval shall be deemed revoked unless the Architectural Review Committee, pursuant to written request made and received prior to the expiration of said one year period, extends the period of time within which work must be commenced. 7. Completion Time. All construction on or in the Premises shall be diligently prosecuted to completion and shall, in any event, be completed within twelve (12) months of commencement unless specific written extension is granted by the Architectural Review Committee. No construction material shall, at any time, be placed or stored so as to impede, obstruct or interfere with pedestrian or vehicular traffic and no construction materials shall be placed or stored on Lots for a period of more than thirty (30) days following substantial completion of construction as shall be determined by the Architectural Review Committee. 8. Authority to Approve. The Architectural Review Committee shall have the authority to reject the materials, designs and colors submitted with plans, or the plans themselves, if they are not compatible, or are inappropriate, with the rest of the Subdivision. 9. Variances. The Architectural Review Committee shall have the authority to grant variances to the building locations, minimum square footage, and where, in its discretion, it believes the same to be appropriate and necessary and where the same will not be injurious to the rest of the subdivision. 10. Substantial Compliance. All improvements, construction, reconstruction, alterations, remodeling or any activity requiring the approval of the Architectural Review Committee must be completed in substantial compliance with the plans and specifications initially approved by the Architectural Review Committee and for which permits have been issued. ARTICLE X: USE RESTRICTIONS l. Types of Business. Any type of commercial use allowed under City of Bozeman Zoning shall be allowed on the Lots, except: (a) Gas stations; (b) Car washes; (c) Marijuana/Cannabis dispensaries or grow operations; (d) Auto sales and/or auto repair; and (e) "Adult"businesses. 2. No Hunting. No hunting of, shooting at or harassing of birds, animals, or any wildlife will be permitted. Skunks, gophers, and rodents may be trapped, however, poison may not be used. 3. Pets.No livestock, poultry, or other animals, except dogs are permitted on the Lots. All dogs shall be strictly controlled by their Owners so as not to annoy or interfere with use of the Lots by other Owners and to prevent any interference or harassment of wild animals in the subdivision or on surrounding or adjacent properties. Dogs shall be accompanied by their Owners and on a leash at all times, when outside. Owners shall pick up any pet waste immediately. 4. Utility Lines. City sewer and water lines, power, natural gas, cable television, and telephone primary service lines are provided to each Lot. However, each Lot Owner is responsible for the costs of connecting to the main utility lines to his or her improvements from the primary line near his or her Lot, including any additions to the primary line that may be required by location of the improvements on the Lot. All utility lines shall be underground. Private utilities are the responsibility of the Lot Owner. 5. Signage. All signage on individual Lots are subject to the Bozeman Unified Development Code and approval by the Association. Except as otherwise provided herein, no signs shall be erected on the exterior or any Lot, except signs which identify the Owner of the property or"for sale" signs on a Lot being sold. Also, the Declarant and/or Association may place signs at any entrance(s) to the subdivision to identify the subdivision and/or neighborhood. 6. Lot Maintenance. Each Owner is required to maintain their Lot, whether developed or undeveloped, in a neat and orderly fashion and shall not allow debris to accumulate on the Lot. This shall include mowing and removing noxious weeds. This shall also include during any period of construction, occupancy, or remodeling. All refuse, trash, and construction rubble (including concrete) shall be removed from the Lot in a timely manner and shall be disposed of properly. 7. Building Maintenance. Each Owner is required to maintain any structure on the Owner's Lot in a neat and orderly fashion. This includes but is not limited to repainting, re-staining, reroofing and other similar maintenance and upkeep. 8. Noise. Each Owner shall be responsible for maintaining the peace and calm of the neighborhood and a business-like environment. Each Owner, whether present at the time of a disturbance or not, is responsible for the conduct of themselves and their guests, invitees, tenants, and lessees. It is a violation of these Covenants to allow noise to emit beyond the Owner's Lot at a level that disturbs one or more persons. Each Owner is also responsible for the conduct of themselves and their guests, invitees, licensees, tenants, and lessees when utilizing the Common Areas. 9. Municipal Regulations.All land use regulations and all other laws, rules and regulations of any government or agency under whose jurisdiction the land lies are considered to be part of these Covenants and enforceable hereunder; and all of the Owners of said lands shall be bound by such land use regulations and other laws, rules and regulations. In the event there is a conflict between the Covenants and the applicable land use regulations and other laws, rules, and regulations, the most restrictive shall control. 10. Storage of Equipment/Inoperable Vehicles/Recreational Vehicles. No Lot or parking area shall be used for the storage or any inoperable vehicle, and no Lot or parking area shall be used to store machinery, equipment, or recreational vehicles. No Lot or parking area shall be used for storage of any articles, equipment, or other personal property. Storage of materials, supplies, equipment, tools, or trade items outside of a building is expressly prohibited. No recreational vehicles, including but not limited to travel trailers, motor homes, campers, ATV's, dirt bikes, four wheelers, snowmobiles, boats,jet skis, etc., are allowed to be stored in the parking lot or upon a Lot. 11. Offensive Activity. No noxious or offensive activity shall be carried on upon any portion of the above described Property, nor shall anything be done thereon which may be, or may become, an annoyance to the neighborhood. No fireworks of any kind may be brought into, discharged, or stored on any Lot. Any violation of City ordinances, zoning or other regulations shall be a violation of these covenants and can be enforced by the Association or individual Lot Owners. 12. Parking. Parking spaces within the parking lot shall not be assigned. Parking shall be limited to the parking lot. All parking shall be in compliance with the Bozeman Unified Development Code. The Board of Association may enact reasonable restrictions on the use of parking areas for the overall benefit of the Association and its members including restrictions or prohibitions on the type of activity and use including, but not limited to, special sales events, merchandise display stands or tables and signs. The Board or Association may charge reasonable fees for the disproportionate use by Owners or their guests, invitees, licensees, tenants, and lessees of the parking lot. 13. Hazardous Materials. No hazardous materials may be stored or disposed of on any lot or common area. 14. Common Areas. There shall be no obstruction of the Common Area nor shall anything be stored in or on the general Common Area without the prior written consent of the Association. Nothing shall be done or kept on the Common Areas which will increase the rate of insurance on the building or contents thereof, without the prior written consent of the Association. 15. Nuisance.No nuisances shall be allowed upon the property nor shall any use or practice be allowed which is a source of annoyance to Lot Owners or which interferes with the peaceful possession and proper use of the Property by its residents which shall include, but not be limited to, barking dogs. No immoral, improper, offensive, or unlawful use shall be made of the property nor any part thereof, and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereof shall be observed. 16. Garbage. The Association shall provide a common garbage receptacle for the Owner's use Each Lot Owner shall be responsible for taking their garbage and recycling to the common garbage receptacle. Individual garbage service shall not be utilized. Only standard business garbage and recycling shall be placed in the common garbage receptacle. Construction material and unusually large amounts of garbage shall be taken to the City or County dump collection sites by the Lot Owner. Furthermore, no junk, garbage, trash, equipment,parts, metals, lumber, debris, or other waste shall be allowed on the sidewalk, entrance, yard or driveway for any Lot, or in any of the limited or general Common Areas. 17. Snow removal. Lot Owners at their own expense, shall be responsible for removing snow and ice from the sidewalks and walkways on their individual Lots and shall comply with all City regulations and ordinances governing the same. ARTICLE XI: RIGHTS RESERVED BY THE DECLARANT 1. Additional Covenants and Easements. The Declarant may subject any portion of the Property to additional Covenants and easements including Covenants obligating the Association to maintain and insure such Property. Such additional Covenants and easements may be set forth either in a Supplemental Declaration subjecting such property to this Declaration or in a separate Supplemental Declaration referencing property previously subject to this Declaration. If the property is owned by someone other than the Declarant, then the consent of the Owners shall be necessary and shall be evidenced by their execution of the Supplemental Declaration. Any such Supplemental Declaration may supplement, create exceptions to or otherwise modify the terms of this Declaration as it applies to the subject property in order to reflect different character and intended uses of subject property. 2. Right to Develop. The Declarant and its employees, agents and designees shall have a right of access and use of an easement over and upon all of the Common Areas for the purpose of making, constructing and installing such improvements to the Common Areas as it deems appropriate in its sole discretion. 3. Right to Transfer or Assign Declarant's Rights. Any or all of the special rights and obligations of the Declarant set forth in this Declaration may be transferred in whole or in part to other Persons; provided, the transfer shall not reduce an obligation nor enlarge a right beyond that which the Declarant has under this Declaration or any Supplement or Amendment. No such transfer or assignment shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the public records. ARTICLE XII: GENERAL PROVISIONS 1. Effects of Covenants on Mortgage. A breach of any of the foregoing provisions, conditions, restrictions or covenants shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value on any Lot, or portion of any Lot, and any improvements thereon, but said provisions, conditions, restrictions and covenants shall be binding upon and effective against any Owner there of whose title thereto was acquired by foreclosure, trustee sale or otherwise. 2. Enforcement. These covenants may be enforced by their Association or by any Lot Owner. Enforcement of these covenants shall be by procedure of law or in equity against any person or persons violating or attempting to violate any covenants, and the legal proceedings may be either to restrain the violation of the covenants or to recover damages, or both. Each person who has been found by a court of competent jurisdiction to have violated one or more of these covenants shall be liable for all reasonable attorney's fees and costs incurred in connection with the litigation. 3. General Provisions. In the event of any violation or threatened violation of these covenants, the Association or any owner may enforce these covenants by legal proceedings in a court of law or equity, including the seeking of injunctive relief and damages. In association with such legal proceedings or as a separate remedy, the Owners Association may enter upon the property in question and remove, remedy or abate the violation or threatened violation after first having given notice and a reasonable opportunity for the owner to take action to comply with these covenants as set forth below. 4. Notice of Violation. Notice, as required above shall be in writing and shall be served on the person or entity concerned, and shall specify the violation or threatened violation, identify the property, demand compliance with the terms and conditions of these covenants and shall state the action which will be taken if the violation or threatened violation is not abated, remedied or satisfied. If such notice cannot be personally served after a reasonable effort to locate the person or entity to be served, service may be had by posting notice by certified mail, return receipt requested, to the last known address or address of record of the owner. Such notice must further provide for a period of at least fifteen (15) days (except in cases where more expeditious action may be required to protect property, persons, wildlife or the environment) from the date of personal service of such notice, or thirty (30) days from the date of posting and mailing of the same, within which abatement, entry or commencement of litigation, as provided above, can be commenced. 5. Costs of Enforcement. Actual costs, expenses and reasonable attorney's fees connected with enforcing, correcting, remedying, abating, preventing or removing any violation or threatened violation of these covenants incurred either through litigation, entry or self-help shall constitute a claim by the party initiating such action against the owner of the property which is the subject of such violation or threatened violation. The party making such claim may bring suit for enforcement of these covenants and file a lien against the subject property in the amount of and for the collection of the claim by filing a verified statement of the lien with the office of the Clerk and Recorder of Gallatin County, Montana. Such lien statement must set forth the names of the claimant, and the owner of record of the property against which the lien is claimed, a description of the property, the amount of the claim, the date of the claim and a brief statement of the manner in which the costs and expenses constituting the claim were incurred. Once filed, the lien shall remain on record as a claim against the property until the validity of the claim is determined by a court of law. Once a claim has been determined valid by a court of law, any such judgment may be foreclosed upon in the manner provided for the law for foreclosures with a right of redemption. 6. Subdivision. No Lot may be further subdivided. 7. Severability. Invalidation of any of these covenants by a judgment or a court order shall in no way affect any of the other provisions, but they shall remain in full force and effect. 8. Amendment. The covenants and restrictions of this Declaration shall run with and bind the land in perpetuity. This Declaration may be amended by an instrument signed by the Owners of not less than seventy-five percent (75%) of the lots,each lot being entitled to one (1) vote. The Declarant, at its discretion, will retain control of EASTLAKE PROFFESIONAL CENTER Owners Association and until one hundred percent(100%) of the lots are sold. The Declarant specifically reserves the right to amend these covenants as necessary or to the sale of any Lot to a third party. Certain provisions herein may not be amended. Specifically, any covenant which is included herein as a condition of the preliminary plat approval and required by the City of Bozeman may not be amended or revoked without the mutual consent of the owners in accordance with the amendment procedures in these covenants and the governing body of the City of Bozeman. 9. Dispute resolution. In an effort to resolve disputes among Owners in the Association, all such disputes shall first be submitted to mediation in Gallatin County, Montana. The parties to the dispute shall mutually agree upon a mediator. If the parties cannot agree upon a mediator, one shall be chosen for them by the Association. 10. Compliance. All applicable Zoning provisions, Ordinances and Uniform Building Codes, and other applicable codes or regulation, including any review or approval of site plans by local Fire District if applicable, must be met with respect to each Lot. 11. Anti-waiver. No failure to exercise and no delay in exercising any right,power, or privilege under this Declaration shall be a waiver thereof. No waiver of a breach of any provision will be deemed a waiver of any preceding breach of the same or any other provision. No extension of time of performance of any obligations or other acts will be deemed to be an extension of time of performance of any other obligations or any other acts. 12. Attorney's Fees/Costs. Except as otherwise specifically provided herein, if any suit or other proceeding for the interpretation or enforcement of this Declaration occurs, the prevailing party shall be entitled to recover its reasonable costs and expenses incurred including, without limitation, reasonable attorneys' fees. 13. Headings. The headings used herein are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extend to intent of this document or any provision hereto. 14. Binding Effect. Except as provided herein, each of the covenants, conditions, restrictions, regulations and reservations set forth herein shall continue to be binding upon the Owner, and each of its assigns and successors in interest, and upon each of them and on all parties or persons claiming under it on them,perpetually, from the day and year that this declaration is accepted and filed among the records of the Clerk and Recorder of Gallatin County IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunto set its hand and seal the day_ of 754�6 2022. EASTLAKE ROFESSIONAL ENTER, LLC By: Randy Scully, Member STATE OF MONTANA) ss County of Gallatin ) On this day of 2022, before me a Notary Public in and for the State of Montana, personally appeark R dy Scully, known to me to be a Member of EASTLAKE PROFFESIONAL CENTER , LLC, and acknowledged to me that they executed the same on behalf of the limited liability company pursuant to the power and authority vested in them. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above writt iWal.- L- t V-V-.0 SUSAN L. DES JARDINS y,DES� � NOTARY PUBLIC for the State of Montana Notary Public for the State of Montana Residing at *: AL.: s Residing at a1 N'A , �e Bozeman, Montana 9TFOF�ao � My Commission Expires August 01, 2 My Commission Expires oi,U Z