HomeMy WebLinkAboutH - NWX PH-1 CCRsAfter recording return to:
NWX, LLC
P.O. Box 4082
Bozeman, MT 59772
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR NORTHWEST CROSSING SUBDIVISION
PHASE 1 RESIDENTIAL DEVELOPMENT
(GOVERNING RESTRICTED LOTS 1 THROUGH 15)
Declaration of CC&Rs and Reservations of Easements
Northwest Crossing Subdivision Phase 1 Residential
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This Declaration of Covenants, Conditions, and Restrictions and Reservation of
Easements for Northwest Crossing Subdivision Phase 1 Residential Development
(“Declaration”) is made this ____ day of , 2022 by NWX, LLC, a Montana limited
liability company (“Declarant”).
WHEREAS, Declarant is the owner of the real property described in Exhibit A
(“Property”). Declarant intends to develop the Property as the Northwest Crossing Subdivision,
a master planned community of the City of Bozeman, Montana, part of which (specifically the
Project, as defined further herein) shall be developed in accordance with the provisions set forth
herein.
NOW, THEREFORE, Declarant hereby declares that all the real property in the Project
shall be developed in accordance with a common scheme and general plan and subject to the
following declarations, limitations, easements, restrictions, covenants, and conditions which are
imposed as equitable servitudes pursuant to a general plan for the development of the Property
for the purpose of enhancing and protecting the value, desirability and attractiveness of the
Project as a first-class residential development within the Property. These restrictions,
covenants, conditions and easements shall run with the Project and be binding on Declarant and
its successors and assigns, and on all parties having or acquiring any right, title or interest in or
to the Project or any part thereof, and their respective heirs, successors and assigns, and shall
inure to the benefit of each Owner thereof.
ARTICLE I DEFINITIONS
The terms in this Declaration and the exhibits to this Declaration shall generally be given
their natural, commonly accepted definitions except as otherwise specified. Capitalized terms
shall be defined as set forth below:
1.1 “Northwest Crossing Residential Architectural Committee (NWXRAC)” shall
be the committee described in Section 6.3.
1.2 “Articles” shall mean and refer to the Articles of Incorporation of the
Association, as amended from time to time.
1.3 “Assessment” shall mean that portion of the cost of maintaining, improving,
repairing, operating and managing the Project, the Property and the Community, which is to be
paid by each Owner as determined by the Association, and shall include regular and special
assessments, and each Owner’s share of Common Expenses.
1.4 “Association” shall mean and refer to the Northwest Crossing Residential
Owners Association, a Montana non-profit mutual benefit corporation, the Members of which
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Northwest Crossing Subdivision Phase 1 Residential
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shall be the Owners of Lots in the Project.
1.5 “Board” or “Board of Directors” shall mean and refer to the governing body of
the Association.
1.6 “Bylaws” shall mean and refer to the Bylaws of the Association, as amended from
time to
time.
1.7 “Committee” or “NWXRAC” shall mean and refer to the Northwest Crossing
Residential Architectural Committee.
1.8 “Common Open Space” shall mean and refer to the portions of the Project and
all improvements thereon designated from time to time in this Declaration or in any
supplemental declaration, which is to be owned by the Association or which is actually owned
by the Association. Common Open Spaces within the Project are identified on the subdivision
plats.
1.9 “Common Expenses” means and includes the actual and estimated expenses of
operating the Common Open Space (and pursuing, implementing, and executing the intent,
purposes, business and affairs of the Association) and any reasonable reserve for such purposes
as found and determined appropriate by the Board, and all sums designated Common Expenses
by or pursuant to this Declaration, the Articles, Bylaws or Rules. Common Expenses shall also
include costs and reserves (if appropriate) incurred by the Association in connection with
maintaining the Project, and any areas at or adjacent to the Project that the Association is
otherwise required to maintain as required by City of Bozeman, Montana, or any other
governmental agency with jurisdiction thereof. Common Expenses shall also include any
obligations of the Association, and the Association’s share, of any costs or expenses incurred in
regard to shared development costs and expenses, other shared expenses of the Project and the
Commercial Development, defined below, and the Association’s share of Community
Management and Promotion. Funds to pay all Common Expenses may be collected as part of
Assessments, as provided herein. Common Expenses include street lighting, maintenance and
upkeep of the water features and wetlands of the Project, landscaping and maintaining the
Common Open Spaces, landscaping and maintaining the streets and medians (including snow
removal), maintenance and upkeep of any facilities or improvements in the Common Open
Spaces, if any, and all expenses associated with utilities and water for the Common Open
Spaces, except for any such facilities or infrastructure maintained by the City of Bozeman.
1.10 “Commercial Development” or “Commercial Lots” shall mean that portion of
the Property that is being developed for commercial or multi-family use, as more specifically
described on Exhibit A, which is not part of the Residential Development Project of the Property
subject to this Declaration and is neither Lots, Units nor Common Open Space under in this
Declaration. The Commercial Development includes the NWX Neighborhood Commercial
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Northwest Crossing Subdivision Phase 1 Residential
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Center.
1.11 “Community” for the purpose of this Declaration means the Northwest Crossing
Subdivision master planned community, development and neighborhood as a whole, including
the Residential Project Development, the Commercial Development Multi-Family and
Neighborhood Commercial Center, parks, wetlands, trails and pedestrian systems, services and
amenities, business, social and recreational opportunities, located within the Property and the
surrounding area, and the associated community character and community lifestyle, known as
“Northwest Crossing” or “NWX”, Bozeman, Montana.
1.12 “Declarant” shall mean and refer to NWX, LLC a Montana Limited Liability
Company qualified to do business in the State of Montana, and any successor or assign that
expressly assumes the rights and duties of the Declarant hereunder in a recorded written
document.
1.13 “Declaration” shall mean and refer to this Declaration of Covenants, Conditions
and Restrictions and Reservation of Easements for Northwest Crossing Subdivision Residential
Development, as amended or supplemented from time to time.
1.14 “Design Regulations and Guidelines” shall mean and refer to the Design
Regulations and Guidelines attached as Exhibit B, as amended from time to time by the
Declarant or the Committee.
1.15 “Development Period” shall mean and refer to the period of time during which
the Declarant is entitled to exercise Development Rights and Special Declarant Rights. The
Development Period commenced at the time the final plat for the first phase was filed and shall
terminate on the later of the following to occur: (a) all of the initial Lots in the Project, as may
be amended during the Development Period, are sold from Declarant to third parties; or (b)
twenty-five years from the date the final plat for the first phase was filed. Alternatively,
Declarant may deliver written notice to the Association that Declarant is voluntarily
relinquishing its Development Rights and Special Declarant Rights under this Declaration at
any time, in part of all of the Project, at Declarant’s sole discretion.
1.16 “Development Rights” shall mean and refer to the rights reserved to the
Declarant as further set forth in Article XIII, including but not limited to the rights to (a) submit
additional property to be subject to the Declaration; (b) create or amend Lots and Common
Open Space; (c) subdivide Lots or convert Lots into Common Open Space; (d) amend the
Design Regulations and Guidelines;(e) withdraw or remove property from this Declaration.
Development Rights may be exercised in all or any portion of the Project at any time within the
Development Period.
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Northwest Crossing Subdivision Phase 1 Residential
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1.17 “Initial Phase” shall mean the Final Plat of Northwest Crossing Subdivision,
Phase 1, located in Gallatin County, Montana, according to the official plat thereof on file and
of record in the office of the County Clerk and Recorder of Gallatin County, Montana.
1.18 “Lot” shall mean each of the Restricted Lots 1-15 of the Northwest Crossing
Subdivision, Phase 1, as may be amended, annexed or withdrawn by the Declarant pursuant to
this Declaration. As used herein, the term “Lot” shall not include Common Open Spaces, the
Commercial Lots, or other tracts which are designated on the Plat Maps.
1.19 “Member” shall mean and refer to a person entitled to membership in the
Association as provided herein, and “Membership” shall refer to such entitlement.
1.20 “Owner” or “Owners” shall mean and refer to the record Owner, whether one or
more Persons, of fee simple title to any Lot which is a part of the Project, but excluding those
Persons having an interest merely as security for the performance of an obligation. If a Lot is
sold under a contract of sale and the contract is recorded, the purchaser, rather than the fee
owner, shall be considered the “Owner” from and after the date the Association receives written
recorded notice of the contract.
1.21 “Person” means a natural person, a corporation, a partnership, a trust, or other legal
entity.
1.22 “Project” shall mean and refer to the part of the Property subject hereto
(Restricted Lots 1 through 15 and the Common Open Space) as modified from time to time, and
all of the improvements thereon.
1.23 “Project Documents” shall mean and refer to the basic organizational and
governance documents of the Association, including the Articles of Incorporation, Bylaws, and
this Declaration.
1.24 “Public Park” shall mean and refer to those areas identified on the subdivision
plat(s) as Public Parks which have or will be dedicated to and maintained by the City of
Bozeman for the use and enjoyment of the general public.
1.25 “Residential Lot”. A legally subdivided parcel of a Lot for single-family
residential use, as may be created in the future development phases of the Project.
1.26 “Rules” shall mean and refer to the rules adopted from time to time by the
Association pursuant to Article V.
1.27 “Special Declarant Rights” shall mean and refer to the rights of Declarant
described in Article XII.
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1.28 Sub-Association. Sub-Association means an incorporated property owners
association, including any condominium association but not including the Association, within
the Project. Any governing documents of a Sub-Association are subject to the approval of the
Declarant during the Development Period, and thereafter by the Association.
1.29 “Unit” or “Residential Unit” shall mean and refer to any single-household
residential dwelling unit and related improvements constructed upon a Residential Lot,
including a condominium or townhome unit under the Montana Unit Ownership Act.
ARTICLE II
DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, CREATION OF
PROPERTY RIGHTS, FUTURE DEVELOPMENT
2.1 Description of Project/Future Development. The Project subject to this
Declaration is part of Phase 1 development of a portion of the Northwest Crossing Subdivision
consisting initially of the Restricted Lots 1-15 of the Property as shown on Exhibit A, the
Common Open Spaces and Public Park, the creek and wetlands, and all improvements thereon.
The Project is intended to be developed in phases. It is contemplated that the Lots, subject to
any annexation or withdrawal of real property as permitted herein, and subject to the
requirements of the Project documents and state and local subdivision law, regulation and review
requirements, will be further subdivided into Residential Lots and related Common Open Spaces
and improvements in future phases. Declarant reserves the right to make changes to future
phases of the Project and, while Declarant intends and expects to complete the Project as
described in the Plan, nothing herein creates an obligation on the Declarant to develop future
phases.
2.2 Application of Declaration to the Project. All of the Project shall be held, sold,
used 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
title to the real property subjected to this Declaration. This Declaration shall be binding on all
parties having any right, title, or interest in the Property or any part thereof, their heirs,
successors, successors-in-title, and assigns, and shall inure to the benefit of each owner thereof.
2.3 Easements; Dedication of Common Open Space. Each Lot shall have appurtenant
to it as the dominant tenement an easement over all and all Common Open Space Lots and
Common Open Spaces for ingress, egress, use and enjoyment, and for the construction,
maintenance, operation and use of utilities, subject to the rights and easements in favor of
Declarant as provided herein, and to the following provisions:
A. The right of the Association to discipline Members and to suspend the
voting rights of a Member for any period during which any Assessment against his Lot remains
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unpaid, and for any infraction of the Articles, Bylaws, this Declaration or the Rules, in
accordance with the provisions of this Declaration.
B. The right of the Association to dedicate, or transfer all or any part of the
Common Open Space to any public agency, authority, or utility for such purposes and subject
to such conditions as may be agreed to by Board of Directors shall be subordinate to the rights
of the Members of the Association, and no such dedication, or transfer shall be effective unless
an instrument signed or approved by two-thirds of the voting power of the Association.
C. The right of the Association to grant easements under, in, upon, across,
over, above or through any portion of the Common Open Space for reasonable purposes, as
approved by the Board, which are beneficial to the Association or the Project or the development
of it.
D. Easements for work and activities necessary to complete construction,
development and marketing of the Project, including all parcels annexed or to be annexed, as
more particularly described in section 2.7.
The foregoing easements are granted and reserved subject to the condition that their use
and enjoyment shall not unreasonably interfere with the use, occupancy or enjoyment of all or
any material part of the Lot servient to them or to which they are appurtenant.
2.4 Easements to Accompany Conveyance of Lot. Easements that benefit or burden
any Lot shall be appurtenant to that Lot and shall automatically accompany the conveyance of
such Lot, even though the description in the instrument of conveyance may refer only to the fee
title to the Lot.
2.5 Delegation of Use. Any Owner may delegate, in accordance with the Rules, his
or her right of enjoyment to the Common Open Space to the members of his or her household,
guests, tenants, or contract purchasers, who occupy such Owner’s Lot.
2.6 Conveyance of Common Open Space to Association; Reservations of Easements.
On or before conveyance of title to the last Lot in a particular phase of the Project, Declarant
shall convey the Common Open Space in that phase to the Association to be held for the benefit
of the Members of the Association and Public. Whenever any Common Open Space is conveyed
by Declarant to the Association, an easement is automatically reserved (whether or not expressed
in the conveyance document) over, under and through such Common Open Space for the benefit
of remaining portions of the Project that have not yet been conveyed, for ingress, egress, access
and all utilities and similar appurtenances, and for the construction, marketing and sale of Lots
and/or improvements on such remaining portions of the Annexed Property. Use of such portions
of the Project shall be subject to the obligation to pay an equitable share of regular and special
Assessments as provided in Article IV.
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Northwest Crossing Subdivision Phase 1 Residential
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2.7 Owners’ Rights and Easements for Utilities. The rights and duties of the Owners
of Lots within the Project with respect to sewer, drainage, water, irrigation water, electric, gas,
television and telephone equipment, cables and lines (collectively “utility facilities”) shall be as
follows:
A. Whenever utility facilities are installed within the Project, which utility
facilities or any portion thereof lie in or upon a Lot or Lots owned by other than the Owner of a
Lot served by said utility facilities, the Owners of any Lots served by such utility facilities shall
have the right of reasonable access for themselves or for utility companies or providers to repair,
to replace and generally maintain said utility facilities as and when the same may be necessary,
due to failure or inability of the Board to take timely action to make such repairs or perform such
maintenance.
B. Whenever utility facilities are installed within the Project which serve
more than one Lot, the Owner of each Lot served by said utility facilities shall be entitled to the
full use and enjoyment of such portions of said utility facilities as service his Lot.
C. In the event of a dispute between Owners with respect to the repair or
rebuilding of said utility facilities, or with respect to the sharing of the cost thereof, then, upon
written request of one (1) Owner addressed to the other Owner(s), the matter shall be submitted
first to the Board for mediation, and thereafter, if the dispute remains unresolved, to binding
arbitration pursuant to the rules of the American Arbitration Association.
2.8 Annexation of Additional Property. Declarant reserves the right from time to time
to add additional property (“Annexed Property”) to the Project. This right is irrevocable.
Declarant shall not be required to add such additional lands to the Project and Declarant may
add a portion or all thereof at Declarant’s discretion. Declarant reserves an easement through
the Common Open Space herein described for access, ingress and egress, and for utility and
service lines, and the hookup to existing access and utility and service lines. The manner of
subjecting the Annexed Property to this Declaration shall be accomplished by the filing of record
in the office of the County Clerk and Recorder for Gallatin County an amendment to the legal
description of the lands covered by this Declaration. Any Annexed Property shall be deemed
annexed to the Project and made subject to the Declaration and the jurisdiction of the
Association, and shall be held, sold, leased, transferred, occupied and conveyed subject to the
terms, provisions, covenants, conditions, restrictions, reservations and easements of this
Declaration. The right of unilateral annexation provided for in this paragraph constitutes a
covenant running with the land, and is as such enforceable by any successor or assignee of
Declarant who acquires any part of the Annexed Property, and who assumes the role of
Declarant.
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2.9 Party Walls:
A. General Rules of Law to Apply: Each wall (or fence) that is built as part
of original construction, is located on the boundary line with an adjacent Lot and either is used
in common with the adjacent Lot or abuts against a similar wall on the adjacent Lot shall
constitute a party wall. To the extent not inconsistent with this section, the general rules of law
regarding party walls and liability for property damage due to negligence or willful acts or
omissions shall apply thereto.
B. Sharing of Repair and Maintenance: The cost of reasonable repairs and
maintenance of a party wall shall be shared by the Owners who make use of the wall in
proportion to such use.
C. Destruction by Fire or Other Casualty: If a party wall is destroyed or
damaged by fire or other casualty, any Owner who has used the wall may restore it, and if the
other Owners thereafter make use of the wall, they shall contribute to the cost of restoration
thereof in proportion to such use; provided, however, that the Owner or Owners whose negligent
act or omission proximately caused the damage or destruction shall ultimately be responsible
for such restoration.
D. Weatherproofing: Notwithstanding any other provisions of this Article,
an Owner who by his negligent or willful act causes the party wall to be exposed to the elements
shall bear the whole cost of furnishing the necessary protection against such elements.
E. Right to Contribution Runs with Land: The right of any Owner to
contribution from any other Owner under this section shall be appurtenant to the land and shall
pass to such Owner’s successors in title.
F. Arbitration: In the event of any dispute arising concerning a party wall,
or concerning the provisions of this section, upon written request of one Owner addressed to the
other Owner, the matter shall be submitted first to the Board of Directors for mediation, and
thereafter, if the dispute remains unresolved, to binding arbitration pursuant to the rules of the
American Arbitration Association.
G. Easement for Maintenance. Each owner who shares a party wall with
another owner shall have an easement on the other owners’ property for the sole purpose of
access to perform maintenance or repairs to the party wall with such rights only to be exercised
upon reasonable notice to the other party and only to the minimum extent necessary to perform
such maintenance or repair.
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Northwest Crossing Subdivision Phase 1 Residential
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2.10 Easements for Maintenance, Improvement, Repair, Relocation, and
Replacement. Declarant, the Association, designees of any of the foregoing and all public or
private utilities shall have such easements over, under, across, and through the Project, including
all Lots and Common Open Spaces, as may be necessary to exercise any rights or fulfill any
responsibilities, including those of installation, maintenance, repair, reconstruction,
replacement, improvement, or relocation, which they or any of them are required or permitted
to perform under this Declaration. These easements include, without limitation, the right of
Declarant and the Association to obtain access at all times to any meters, controls, valves, pipes,
utility mains, lines, utility facilities, conduits, and other improvements and equipment with
respect to the private utilities located on or to which access may be gained through any Lot.
Except in an emergency situation, such entry onto a Lot shall only be during reasonable hours
and after notice to the Owner.
2.11 Drainage Easements. An easement over and under each Lot as the servient
tenement is reserved by Declarant in favor of each other Lot and the Association for the purpose
of allowing the Association’s agents the right, but not the obligation, to enter the Lot to maintain
that portion of any storm drainage system located thereon. No Owner or occupant shall commit
any act that would interfere with the operation of any drainage system (including drainage
swales) installed on the Owner’s Lot. The Owner shall maintain the system free of debris and
other obstacles at all times. Reciprocal appurtenant easements between each Lot and the
Common Open Space and between adjoining Lots are reserved for the flow of water in the storm
drainage system.
2.12 Other Easements. The Common Open Space and each Lot are subject to all
easements, dedications, and rights of way granted or reserved in, on, over and under the Project
as shown on the public records, including as reflected on any Plat Map for the Project, and as
otherwise provided or contemplated in this Declaration.
2.13 Rights of Entry and Use. The Lots and Common Open Space shall be subject to
the following rights of entry and use:
A. The right, but not the obligation, of the Association’s agents to enter any
Lot to cure any violation of this Declaration, the Articles, Bylaws or Rules and Regulations,
provided that the Owner has received notice of the violation (except in the case of an emergency)
and the Owner has failed to cure the violation or take steps necessary to cure the violation within
thirty (30) days after the finding of a violation by the Association;
B. The easements described in this Article II;
C. The right of the Association’s agents to enter any Lot to perform
maintenance to
the extent described herein; and
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D. The rights and easements of the Declarant during the Development Period
as described in herein.
2.14 Partition of Common Open Space. Unless approved in writing by Declarant, prior
to the end of the Development Period, there shall be no subdivision or partition of the Common
Open Space, nor shall any Owner seek any partition or subdivision thereof. Nothing herein shall
be construed to prohibit partition of a joint tenancy or co-tenancy in any Lot or Residential Lot.
2.15 No Subdivision of Lots. No Lot shall be subdivided, partitioned, aggregated, or
be subject to a boundary line adjustment without the prior written consent of the Declarant
during the Development Period and thereafter the Association. No Sub-Association shall be
created, and no amendment of any governing document of any Sub-Association shall be
effective without the prior written consent of the Declarant during the Declarant Control period
and thereafter the Association.
2.16 No View Rights. This Declaration is not intended and shall not in any way confer
or grant (or be construed to confer or grant) to any Lot or Residential Unit or the Owner thereof
any right to the maintenance of any view, viewscape or scenic corridor or area. Each Owner, by
acceptance of a deed to his or her Lot, acknowledges and agrees that no representations or
warranties have been made concerning any view, present or future, that may be enjoyed from
all or any portion of the Project or such Owner’s Lot or Unit, and that the same may change
and/or be affected or obstructed by construction or installation of improvements, structures,
fences, walls and/or landscaping by Declarant or other owners of property within or outside the
Project and/or the growth of trees, landscaping and/or vegetation within or outside the Project.
This Declaration does not contain any provisions intended to protect the view from any Lot or
Unit or any other portion of the Project.
2.17 All Easements Part of Common Plan. Whenever any easements are reserved or
created herein, such easements shall constitute equitable servitudes for the mutual benefit of all
property in the Project and the Property, as applicable, even if only certain Lots are specifically
mentioned as subject to or benefiting from a particular easement, and when easements referred
to herein are subsequently created or reserved by deeds or conveyances, such easements are to
be considered to be part of the common plan created by this Declaration for the benefit of all
property Owners within the Project and Property.
2.18 Additional Easements for Other Projects. Declarant hereby reserves unto itself
(with the right to designate or assign to others) the following easements in connection with any
improvements, facilities, or developments constructed or to be constructed by Declarant, its
affiliates, or its designees in connection with or for the benefit of the Commercial Development,
any other projects, whether or not such improvements, facilities, projects or developments are
part of the Property.
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A. A perpetual, nonexclusive easement for installation, utilization, tapping,
tying into, extending, and enlarging all utility mains or facilities located in the Project, including
connections to water, storm and sanitary sewer mains or related facilities within the Project.
Declarant, its affiliate, or its designee or assign, as applicable, will pay all costs of such
utilization, tapping, tying into, extending, and enlarging, and to the extent possible, will restore
all areas thereby disturbed to substantially their condition immediately prior to commencement
of such activities. All expenses of maintenance, repair, replacement, and resurfacing of such
utility mains or facilities shall be shared by the Association and the owners of the other projects
utilizing such utility mains or facilities on a proportionate and equitable basis based on the use
of such utility mains or facilities.
B. A perpetual, nonexclusive easement located as determined by Declarant
in, over, and upon the Lots and Common Open Spaces (but not over any Buildings or other
buildings or structures on a Lot) and any roadways or driveways within the Project for the
purposes of ingress and egress to and from the other projects. Declarant or its designee or assign
exercising such easement right, as applicable, shall be responsible for any physical damage
caused to the Lots or the Common Open Spaces as a result of vehicular traffic connected with
the development of other projects by Declarant or its designee or assign. If the easement is
exercised for permanent access to other projects and the Association maintains roadways used
for such access, then the owners of such other projects shall enter into a reasonable agreement
with the Association to share the cost of maintenance, repair, or improvement of any access
roadway serving such other projects.
ARTICLE III
ASSOCIATION ADMINISTRATION,
MEMBERSHIP AND VOTING RIGHTS
3.1 Association to Own and Manage Common Open Spaces. The Association shall
own and manage the Common Open Space in accordance with the provisions of this
Declaration, the Articles, Bylaws and Rules. Declarant shall provide Common Open Space
noxious weed control, litter removal and implementation of the “Riparian Management Plan”
(Exhibit C) until the Association accepts maintenance responsibility.
3.2 Membership. The Owner of a Lot shall automatically upon becoming the Owner
of same, be a Member of the Association, and shall remain a Member thereof until such time as
his ownership ceases for any reason, and consents to such membership in the Association.
Membership shall be appurtenant to and may not be separated from ownership of a Lot.
Membership shall be held in accordance with this Declaration, the Articles, Bylaws and Rules.
Declarant shall be a Member of the Association for all Lots owned by Declarant.
3.3 Transferred Membership. Membership in the Association shall not be
transferred, encumbered, pledged, or alienated in any way, except upon the sale or transfer of
the Lot to which it is appurtenant, and then only to the purchaser, in the case of a sale, or to a
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Mortgagee that has foreclosed or received a deed in lieu of foreclosure, in the case of an
encumbrance. On any transfer of title of an Owner’s Lot, Membership shall automatically pass
with such transfer. A Mortgagee shall not have Membership rights until it obtains title to the Lot
through foreclosure or deed in lieu thereof. Any attempt to make a prohibited transfer is void.
No Member may resign his Membership. On receipt of notice of a transfer, the Association shall
record the transfer on its books.
3.4 Membership Voting Rights. Member voting rights shall be as set forth in the
Bylaws.
3.5 Association Operation. The Association shall be governed and operated by a
Board of Directors consistent with this Declaration and the Association’s Articles of
Incorporation and Bylaws. Declarant shall have the right to appoint all members of the Board of
Directors until such time as the Development Period terminates or Declarant voluntarily
relinquishes control at an earlier date as provided herein. After the Development Period,
Declarant shall transition the governance of the Association via the Board of Directors to the
other Owners who shall elect the Board in the manner provided in the Bylaws.
3.6 Commercial Lots. The Commercial Lots, as defined herein, are not subject to
this Declaration, and the owners of such Commercial Lots shall not be Members of the
Association by reason of ownership of the Commercial Lots, and shall not be entitled to vote,
nor shall they be subject to assessment under Article X of this Declaration. The owners of the
Commercial Lots shall not be subject to the restrictions contained in this Declaration, except as
otherwise specifically provided herein.
ARTICLE IV
MAINTENANCE AND ASSESSMENTS
4.1 Creation of the Lien and Personal Obligation of Assessments. Subject to the
exception for Declarant as provided in Section 4.7, each Owner of any Lot by acceptance of a
deed or conveyance thereto, whether or not it shall be so expressed in such deed or conveyance,
covenants and agrees:
(1) to pay to the Association regular and special Assessments, to be
established and collected as hereinafter provided; and
(2) to allow the Association to enforce any Assessment lien established
hereunder by non-judicial proceedings under a power of sale or by any other means authorized
by law.
The regular and special Assessments, together with interest, late charges, collection
costs, and reasonable attorneys’ fees, shall be a charge on the land and shall be a continuing lien
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upon the property against which each such Assessment is made, the lien to become effective
upon recordation of a notice of delinquent Assessment. Each such Assessment, together with
interest, late charges, collection costs, and reasonable attorneys’ fees, shall also be the personal
obligation (joint and several) of each Person who was the Owner of such property at the time
when the Assessment fell due. No Owner of a Lot may exempt himself from liability for his
contribution towards the Common Expenses by waiver of the use or enjoyment of any of the
Common Open Spaces or by the abandonment of his Lot.
The interest of any Owner in the amounts paid pursuant to any Assessment upon the
transfer of ownership shall pass to the new Owner. Upon the termination of these covenants for
any reason, any amounts remaining from the collection of such Assessments after paying all
amounts properly charged against such Assessments shall be distributed to the then Owners on
the same pro rata basis on which the Assessments were collected.
4.2 Purpose of Assessments. The Assessments levied by the Association shall be
used to pay Common Expenses, to promote the economic interests, recreation, health, safety
and welfare of Owners in the Project, and to enable the Association to perform its obligations
hereunder.
4.3 Assessments:
A. Regular Assessments: The Board shall annually establish and levy
regular Assessments in an amount that the Board estimates will be sufficient to raise the funds
needed to pay Common Expenses and perform the duties of the Association during each fiscal
year. The regular Assessments shall include a portion for reserves in such amounts as the Board
in its discretion considers appropriate to meet the costs of the future repair, replacement or
additions to the major improvements and fixtures that the Association is obligated to maintain
and repair. Reserve funds shall be deposited in a separate account and the signatures of at least
two (2) Persons, who shall either be Members of the Board or one officer who is not a Member
of the Board and one Member of the Board, shall be required to withdraw monies from the
reserve account. Except to the limited extent otherwise provided herein, reserve funds may not
be expended for any purpose other than repairing, restoring, maintaining or replacing the major
components that the Association is obligated to maintain without the consent of Owners holding
a majority of the voting power either at a duly held meeting or by written ballot.
B. Special Assessments: The Board may at any time levy a special
assessment in order to raise funds for unexpected operating or other costs, insufficient operating
or reserve funds, or such other purposes as the Board in its discretion considers appropriate.
Special Assessments shall be allocated among the Lots in the same manner as regular
Assessments, except in the case of an Assessment levied by the Board against a Member to
reimburse the Association for costs incurred in bringing the Member and Member’s Lot into
compliance with provisions of the Project Documents.
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C. Capital Contribution. Upon closing of purchase of each Residential Lot
or Residential Unit, the new Owner will pay a one-time fee of $1,000 for each Residential Lot
or Unit purchased, payable to the Northwest Crossing Residential Owners Association capital
contribution fund. These funds are intended to fund future maintenance and capital improvement
items within the Project and its open spaces, parks and streets.
D. Community Association Management. Upon closing of purchase of each
Residential Lot or Residential Unit, and annually thereafter together with and in addition to
other Regular Assessments, the Owner shall pay a set amount for each Residential Lot or Unit
for payment of the Northwest Crossing Residential Owners Association’s share of the
Community Association Manager. Initially the annual community association fee is $300 per
Residential Lot or Unit. The community association fee amount is subject to periodic adjustment
by the CAM.
4.4 Restrictions on Increases in Regular and Special Assessments. The Board may
not impose a regular Assessment on any Lot which is more than twenty percent (20%) greater
than the regular Assessment for the immediate preceding fiscal year, or levy a special
Assessment to defray the cost of any action or undertaking on behalf of the Association which
in the aggregate exceeds ten percent (10%) of the budgeted gross expenses of the Association
for that fiscal year, without the vote or written assent of Members casting a majority of the votes
at a meeting of the Association at which a quorum is present. Any meeting of the Association
for purposes of complying with this section 4.4 shall be conducted in accordance with the
Montana Non-Profit Corporation Act. The Board may increase regular Assessments by more
than twenty percent (20%) over the regular Assessment for the immediate preceding fiscal year
only if the Board has complied with the provisions set forth in the Bylaws and this Declaration.
Notwithstanding the foregoing, the Board, without Membership approval, may increase
regular Assessments or levy special Assessments necessary for an emergency situation. For
purposes of this section, an emergency situation is one of the following:
(1) an extraordinary expense required by an order of a court;
(2) an extraordinary expense necessary to repair or maintain the Project or
any part of it for which the Association is responsible where a threat to personal safety on the
Project is discovered; or
(3) an extraordinary expense necessary to repair or maintain the Project or
any part of it for which the Association is responsible that could not have been reasonably
foreseen by the Board in preparing and distributing the pro forma operating budget, provided,
however that prior to the imposition or collection of the Assessment, the Board shall pass a
resolution containing written findings as to the necessity of the extraordinary expense involved
and why the expense was not or could not have been reasonably foreseen in the budgeting
process and the resolution shall be distributed to the Members with the notice off the
Assessment.
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The Association shall provide by first-class mail or electronic means if permitted via the
Bylaws and the Montana Nonprofit Corporations Act notice to Owners of any increase in the
regular or special Assessments of the Association not less than thirty (30) nor more than sixty
(60) days prior to the increased Assessment becoming due.
4.5 Notice and Quorum for Action Authorized Under Section 4.4. Any action
authorized under section 4.4, which requires a vote of the Membership, shall be taken at a
meeting called for that purpose, written notice of which shall be sent to all Members not less
than ten (10) nor more than sixty (60) days in advance of the meeting, specifying the place, day
and hour of the meeting and, in the case of a special meeting, the nature of the business to be
undertaken. The action may also be taken without a meeting pursuant to the provisions of the
Bylaws.
4.6 Division of Assessments. All Assessments, both regular and special, shall be
levied equally among the Lots. Regular Assessments shall be collected on a monthly basis unless
the Board directs otherwise. Special Assessments may be collected in one payment or
periodically as the Board shall direct.
4.7 Date of Commencement of Regular Assessment; Due Dates. The regular
Assessments provided for herein shall commence as to each Lot in the Initial Phase on the first
day of the month following the conveyance from Declarant of the Lot to an Owner in the Initial
Phase. In subsequent phases, the regular Assessments against each Lot in each phase shall
commence on the first day of the month following the conveyance from Declarant of the Lot to
an Owner in such phase. However, in no case shall any Lot owned by the Declarant be subject
to any assessment, whether Regular Assessment or Special Assessment, at any time while owned
by Declarant. As Lots in each phase become subject to Assessments, the Board shall determine
whether the amount of regular Assessments payable by all Owners will change and, if so, the
amount of such change, and the Board shall then send out revised Assessment notices as
appropriate. Subject to the provisions of section 4.3, the Board of Directors shall use its best
efforts to fix the amount of the regular Assessments against each Lot and send written notice
thereof to every Owner at least forty-five (45) days in advance of each fiscal year, provided that
failure to comply with the foregoing shall not affect the validity of any Assessment levied by
the Board. The due dates shall be established by the Board of Directors. The Association shall,
upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the
Association stating whether the Assessments on a specified Lot have been paid. Such a
certificate shall be conclusive evidence of such payment.
4.8 Effect of Nonpayment of Assessments. Any Assessment not paid within fifteen
(15) days after the due date shall be delinquent, shall bear interest at the rate of ten percent (10%)
per annum from thirty (30) days after the due date until paid, and shall incur a late payment
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penalty in an amount to be set by the Board from time to time, such interest and penalties not to
exceed the maximum permitted under Montana law.
4.9 Transfer of Lot, by Sale or Foreclosure. Sale, transfer or foreclosure of any Lot
shall not affect the Assessment lien. If a Lot is transferred, both the grantee and the grantor shall
remain liable to the Association for all unpaid Assessments against the Lot through and
including the date of the transfer. The grantee shall be entitled to a statement from the
Association, dated as of the date of transfer, setting forth the amount of the unpaid Assessments
against the Lot to be transferred and the Lot shall not be subject to a lien for unpaid Assessments
in excess of the amount set forth in the statement; provided, however, the grantee shall be liable
for any Assessments that become due after the date of the transfer.
4.10 Priorities; Enforcement; Remedies.
(a) If an Owner fails to pay an Assessment when due, the Association has the
right, and option, to bring legal action against the Owner to enforce collection of the unpaid and
past-due Assessment or may impose a lien on the Lot owned by Owner, or both. Suit to recover
a money judgment for unpaid Assessments and attorney’s fees shall be maintainable without
foreclosing or waiving the lien securing the same. Before the Association may place a lien upon
a Lot, the Association shall notify the Owner in writing by certified mail of the fee and penalty
procedures of the Association, provide an itemized statement of the charges owed by the Owner,
including the principal owed, any late charges, and the method of collection, any attorneys’ fees,
and the collection practices used by the Association, including the right of the Association to the
reasonable costs of collection. The Association may record a notice of delinquent Assessment
and establish a lien against the Lot of the delinquent Owner prior and superior to all other liens
except (1) all taxes, bonds, Assessments and other levies which, by law, would be superior
thereto, and (2) the prior lien or charge of any Mortgage of record (meaning any recorded
Mortgage or deed of trust with first priority over other Mortgages or deeds of trust) made in
good faith and for value. The notice of delinquent Assessment shall state the amount of the
Assessment, collection costs, attorney’s fees, late charges and interest, a description of the Lot
against which the Assessment and other sums are levied, the name of the record owner, and the
name and address of the trustee authorized by the Association to enforce the lien by sale. The
notice shall be signed by any officer of the Association or any management agent retained by
the Association and shall be mailed in the manner required under Montana law to all record
owners of the Lot no later than 10 days after recordation.
(b) After the expiration of thirty (30) days following the recordation of the
lien, an Assessment lien may be enforced in any manner permitted by law, including sale by the
court or sale by the trustee designated in the notice of delinquent Assessment. Any sale by the
trustee shall be conducted in accordance with the provisions of Montana law applicable to the
exercise of powers of sale in Mortgages and deeds of trust, or in any other manner permitted by
law. Nothing herein shall preclude the Association from bringing an action directly against an
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Owner for breach of the personal obligation to pay Assessments.
(c) The Association, acting on behalf of the Owners, shall have the power to
bid for the Lot at a foreclosure sale, and to acquire and hold, lease, mortgage and convey the
same.
(d) The Board may temporarily suspend the voting rights of a Member who
is in default in payment of any Assessment, after notice and hearing, as provided in the Bylaws.
(e) To the extent allowed under Montana law, the Association may file a lien
against a Lot for fines and penalties for violation of restrictions, as well as monetary penalties
imposed by the Association to reimburse the Association for costs incurred for repair of damage
to Common Open Space or facilities for which the Owner, or guests or tenants of an Owner,
were responsible.
(f) The Association is not empowered to cause a forfeiture or abridgement
of an Owner’s right to the full use and enjoyment of his Lot on account of the failure by the
Owner to comply with provisions of the Project Documents or Rules, except by judgment of a
court or a decision arising out of binding arbitration or on account of a foreclosure or sale under
power of sale for failure of the Owner to pay Assessments duly levied by the Association.
(g) Each Owner waives, to the maximum extent permitted by law, the benefit
of any Montana homestead or exemption laws in effect when any Assessment or installment
becomes delinquent or a lien is imposed.
4.11 Unallocated Taxes. In the event that any taxes are assessed against the Common
Open Space, or the personal property of the Association, rather than against the Lots, said taxes
shall be included in the Assessments made under the provisions of section 4.1 and, if necessary,
a special Assessment may be levied against the Lots in an amount equal to said taxes, to be paid
in two (2) installments, thirty (30) days prior to the due date of each tax installment.
ARTICLE V
DUTIES AND POWERS OF THE ASSOCIATION
5.1 Duties. In addition to the duties enumerated in the Articles and Bylaws, or
elsewhere provided for in this Declaration, and without limiting the generality thereof, the
Association, acting through its Board of Directors, shall perform the following duties:
A. Maintenance: The Association shall maintain and repair the Common
Open Space, all improvements and landscaping thereon, all mitigation areas, and all property
owned by the Association, including but not limited to the landscaping, riparian areas, irrigation
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wells located in Common Open Space, and water features contained within the Common Open
Space and owned by the Association. The Association shall also pay all Common Expenses, as
defined herein which will include but not be limited to trail maintenance, Common Open Space
maintenance, irrigation water for Common Open Spaces, maintenance of the storm water
facilities outside of public right of way, snow removal on streets, and trails, and arrange for the
maintenance of all areas for which Common Expenses are payable (but not for any streets,
driveways or parking areas within any Residential Lot which shall be the sole responsibility of
the owners of such lots) and for the Association’s proportionate share of reimbursement of
reasonable expenses of the joint Community Association Manager with the Commercial
Development Association. In all instances, all facilities and improvements which are required
to be installed pursuant to the final plat approvals by the City of Bozeman must be maintained
in good condition in accordance with Section 38.38 of the Bozeman Municipal Code. The
Association is responsible for maintaining the groundwater dewatering system for the Property
in accordance with the long-term Dewatering Plan and instructions attached hereto as Exhibit
D.
The responsibility of the Association for maintenance and repair described above
shall not extend to repairs or replacements arising out of or caused by the willful or negligent
act or omission of any Owner, or his guest, tenant, invitee or pet. Any such repairs or
replacements not covered by insurance carried by the Association shall be made by the
responsible Owner, provided the Board approves the Person or entity actually making the repairs
and the method of repair. If the responsible Owner fails to take the necessary steps to make the
repairs within a reasonable time under the circumstances, the Association shall cause the repairs
to be made and charge the cost thereof to the responsible Owner, which costs shall bear interest
at the rate of ten percent (10%) per annum (but no greater than the maximum rate allowed by
law) until paid in full. If such repair is covered by the insurance carried by the Association, the
Association shall be responsible for making the repairs, and the responsible Owner shall pay any
deductible pursuant to the insurance policy. If the Owner fails to make such payment, then the
Association may make such payment and shall charge the responsible Owner, which charge
shall bear interest at the rate of ten percent (10%) per annum (but no greater than the maximum
rate allowed by law) until paid in full. If the Owner disputes the charge, the Owner shall be
entitled to a notice and a hearing as provided in the Bylaws before the charge may be collected.
B. Owners shall be responsible for keeping their Lots in good maintenance
and repair. If the responsible Owner fails to take the necessary steps to keep its Lot in good
repair and well maintained, make the repairs within a reasonable time under the circumstances,
but no more than 90 days, the Association shall cause the repairs to be made and charge the cost
thereof to the responsible Owner, which costs shall bear interest at the rate of ten percent (10%)
per annum (but no greater than the maximum rate allowed by law) until paid in full. If such
repair is covered by the insurance carried by the Association, the Association shall be
responsible for making the repairs, and the responsible Owner shall pay any deductible pursuant
to the insurance policy. If the Owner fails to make such payment, then the Association may make
such payment and shall charge the responsible Owner, which charge shall bear interest at the
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rate of ten percent (10%) per annum (but no greater than the maximum rate allowed by law)
until paid in full. Insurance: The Association shall obtain and maintain such policy or policies
of insurance as are required by section 9.1 of this Declaration.
C. Discharge of Liens: The Association shall discharge by payment, if
necessary, any lien against the Common Open Space and charge the cost thereof to the Member
or Members responsible for the existence of the lien after notice and hearing as provided in the
Declaration.
D. Assessments: The Association shall fix, levy, collect and enforce
Assessments as set forth in Article IV hereof.
E. Payment of Expenses and Taxes: The Association shall pay all expenses
and obligations incurred by the Association in the conduct of its business including, without
limitation, all licenses, taxes, assessments and governmental charges levied or imposed upon, or
which are or may become a lien against, the property of the Association.
F. Enforcement: The Association shall be responsible for the enforcement
of this Declaration, the Articles, Bylaws and Rules. In the event an Owner fails to comply with
any Project Documents, the Association has the right to enter upon such Owner’s Lot, remedy
the lack of compliance and assess the costs incurred by the Association to such Owner.
G. Operation of Common Open Space: The Association shall maintain and
operate the Common Open Space of the Project in accordance with all applicable municipal,
state, and federal laws, statutes and ordinances, as the case may be. The Association shall also,
as a separate and distinct responsibility, exert reasonable efforts to endeavor to ensure that third
parties (including Owners and their guests) utilize the Common Open Space in accordance with
the aforementioned regulations. The Association shall, when it becomes aware of any violation
of the aforementioned regulations, endeavor to expeditiously correct such violations.
H. Inspection and Maintenance Guidelines: The Board shall adopt
inspection and maintenance guidelines for the periodic inspection and maintenance of the
Common Open Space improvements and landscaping and any other improvements outside the
Common Open Space which the Association has the responsibility to maintain. The Board
periodically and at least once every two years shall review and update the inspection and
maintenance guidelines. The Board shall take all appropriate steps to implement and comply
with the inspection and maintenance guidelines.
I. Preparation of Financial Documents: The Board shall cause the
preparation of budgets and financial statements as required by the Bylaws.
5.2 Powers. In addition to the powers enumerated in the Articles and Bylaws, or
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elsewhere provided for herein, and without limiting the generality thereof, the Association shall
have the following powers:
A. Utility Service: The Association shall have the authority (but not the
obligation) to obtain, for the benefit of all of the Owners, all utilities and utility services
including, without limitation, water, sewer, gas, electric service, refuse collection and cable
access television.
B. Easements: The Association shall have the right to grant easements under,
in, upon, across, over, above or through any portion of the Common Open Space for reasonable
purposes, as approved by the Board, which are beneficial to the Association, the Project, the
Property, or the development of same.
C. Community Association Manager. Together with the Northwest Crossing
Commercial Owners Association, the Association shall jointly designate a Community
Association Manager (“CAM”). The function of the CAM is to support and enhance a sense of
community for residents of the Community and promote a thriving Neighborhood Commercial
Center for the benefit of the Community as a whole. The CAM may provide media and
marketing for the Community, create and maintain a website and social media accounts and
content for the Community, produce marketing video productions and other advertisements for
the Community; promote and organize Community events and activities in the Neighborhood
Commercial Center and other public areas of the Property, which may include art shows, holiday
and social events, concerts, farmers markets, etc. The Association shall collect the designated
assessment amount from each Residential Lot and Unit Owner, as provided in Article IV, for
payment to the CAM. The CAM will initially be the Declarant, or designee of the Declarant,
until the Association and Commercial Association jointly designate a successor professional
CAM. In addition to the CAM assessments, the CAM shall be reimbursed by the Associations,
proportionately relative to each Association’s respective share of the CAM assessment. The
CAM shall not use the CAM assessment, or seek reimbursement, for expenses, to market the
sale of Lots. The CAM is permitted to include in Community promotion materials, weblinks or
other contact information directing to separate websites or information about sale of Lots.
D. Managers and Agents: In addition to the Community Manager, the
Association may employ other manager(s) or other Persons and contract with independent
contractors or managing agents to perform all or any part of the required or voluntary duties and
responsibilities of the Association, except for the responsibility to levy fines, impose discipline,
hold hearings, file suit, record or foreclose liens, or make capital expenditures.
E. Adoption of Rules: The Board shall have the right to adopt, promulgate
and enforce reasonable rules and regulations (“Rules”), not in conflict or inconsistent with this
Declaration relating to the Project and all aspects thereof including, without limitation, the
operation, maintenance, use and enjoyment of the Project, the Common Open Spaces and
individual Lots. It is the intent of this section that the Board have broad discretion with respect
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to the Rules and that the Board’s authority in this regard be construed liberally in order to
effectuate the objectives of the Board with respect to the Rules. In general, the objectives of the
Board should be to promote and enhance the Project, its attractiveness and economic viability,
and provide for the orderly operation, maintenance, repair and upkeep of the Project, including
procedures relating to the conduct of Association business. Written copies of such Rules and
any schedule of fines and penalties adopted by the Board shall be furnished to Owners. Anything
contained herein to the contrary notwithstanding, until all of the initial Lots in the Project are
transferred by Declarant to third parties, the adoption or amendment of any Rules shall require
the consent of Declarant.
F. Access: For the purpose of performing construction, maintenance or
emergency repair for the benefit of the Common Open Space or the Owners in common and/or
to perform maintenance work which the Lot Owner has failed to perform as provided herein,
the Association’s agents or employees shall have the right, after reasonable notice to the Owner
thereof, to enter any Lot at reasonable hours and at any necessary time in the event of an
emergency. Such entry shall be made with as little inconvenience to the Owner as practicable
and, except as otherwise provided herein, any damage caused thereby shall be repaired by the
Board at the expense of the Association.
G. Assessments, Liens, Penalties, and Fines: The Board shall have the power
to levy and collect Assessments in accordance with the provisions of Article IV hereof. The
Association may impose fines or take disciplinary action against any Owner for failure to pay
Assessments or for violation of any provision of the Project Documents and the unrecorded
Rules adopted by the Board or the Association. Penalties may include but are not limited to
fines, temporary suspension of voting rights, rights to the use of recreational facilities (except
those open to members of the public), if any, or other appropriate discipline, provided the
Member is given notice and a hearing as provided in the Bylaws before the imposition of any
fine or disciplinary action. The Board shall have the power to adopt a schedule of reasonable
fines and penalties for violations of the terms of this Declaration, and for violations of any Rules
adopted pursuant to section 5.2D. The penalties prescribed may include suspension of all rights
and privileges of Membership; provided, however, that suspension for failure to pay
Assessments shall be for a maximum period of thirty (30) days, renewable by the Board for an
additional thirty (30) day period or periods until paid; and provided further that suspension for
infraction of Rules or violation of this Declaration, other than for failure to pay Assessments,
shall be limited to a maximum period of thirty (30) days per infraction or violation, and shall be
imposed only after a hearing before the Board. The Board may extend said period for an
additional period or periods in the case of a continuing infraction or violation, and no hearing
need be held for such extension. Written copies of Rules and the schedule of penalties shall be
furnished to Owners. The Board shall assess fines and penalties and shall enforce such
Assessments as appropriate under applicable law.
H. Enforcement: The Board shall have the power to enforce this Declaration,
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the Articles, Bylaws and Rules.
I. Acquisition and Disposition of Property: The Board shall have the power
to acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain,
convey, sell, lease, transfer, or otherwise dispose of real or personal property in connection with
the affairs of the Association. Except to the extent authorized herein, any transfer of fee title to
Association property shall be by document signed or approved by two-thirds (2/3) of the total
voting power of the Members of the Association.
J. Contracts: The Board shall have the power to contract for goods and/or
services for the Project including Common Open Spaces subject to limitations set forth in the
Bylaws, or elsewhere herein.
K. Delegation: The Association, the Board, and the officers of the
Association shall have the power to delegate their authority and powers to committees,
officers or employees of the Association, or to a manager employed by the Association,
provided that the Board shall not delegate its responsibility:
(1) To make expenditures for capital additions or improvements
chargeable against the reserve funds;
(2) To conduct hearings concerning compliance by an Owner or his
tenant, lessee, guest or invitee with the Declaration, Bylaws or Rules promulgated by the Board;
(3) To make a decision to levy monetary fines, impose special
Assessments against individual Lots, temporarily suspend an Owner’s rights as a Member of
the Association or otherwise impose discipline;
(4) To make a decision to levy regular or special Assessments; and
(5) To make a decision to bring suit, record a claim of lien or institute
Foreclosure proceedings for default in payment of Assessments.
L. Appointment of Trustee: The Association, or the Board acting on behalf
of the Association, has the power to appoint or designate a trustee to enforce Assessment liens
by sale as provided in section 4.10.
M. Litigation/Arbitration: Subject to the terms and provisions of Article X,
the Association shall have the power to institute, defend, settle or intervene in litigation,
arbitration, mediation or administrative proceedings in matters pertaining to (A) enforcement of
the Project Documents, (B) damage to the Common Open Spaces, (C) damage to the separate
interests which the Association is obligated to maintain or repair, or (D) damage to the separate
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interests which arises out of or is integrally related to damage to the Common Open Spaces or
separate interests that the Association is obligated to maintain or repair.
N. Other Powers: In addition to the powers contained herein, the Board may
exercise the powers granted to a nonprofit mutual benefit corporation under Montana law.
ARTICLE VI
ARCHITECTURAL
CONTROL
6.1 Lots Subject to Architectural Controls. All Lots and Units are subject to
architectural review to determine compliance with the Design Regulations and Guidelines, the
Declaration and the other Project Documents. No structure shall be placed, erected, or installed
upon any Lot, and no improvements (including staking, clearing, excavation, grading and other
site work, exterior alteration of existing improvements, and planting or removal of landscaping
materials) shall take place except in compliance with this Declaration and approval of the
Northwest Crossing Architectural Committee (NWXRAC) (“Committee”); provided, however,
that homes constructed by and for Declarant do not require Committee approval. Plans and
specifications showing the nature, kind, shape, color, size, materials, and location of all
proposed structures and improvements shall be submitted to the Committee for review in
accordance with the Design Regulations and Guidelines.
6.2 Purpose of Architectural Controls and Committee. The purpose and intent of this
Article VI and the Design Regulations and Guidelines (Exhibit B) is to empower the Declarant
to preserve property values within the Project. Until the end of the Development Period, the
Declarant shall act as the NWXRAC, but may delegate that authority to the Association and a
separately created Committee. A copy of the Design Regulations and Guidelines are attached,
but owners should check with the NWXRAC for any updated versions. To the extent any
building or landscape design provisions in this Declaration conflict with the Design Regulations
and Guidelines, the Design Regulations and Guidelines shall control.
6.3 Modifications to Existing Improvements. Any Owner may remodel, paint or
redecorate the interior of structures on his or her Unit without approval. Modifications to the
exterior of a structure (and the interior of screened porches, patios, and similar portions of a
structure visible from outside the structure on a Residential Lot) shall be subject to review by
the NWXRAC. No approval shall be required to repaint the exterior of a structure in accordance
with the originally approved color scheme or to repair or rebuild in accordance with originally
approved plans and specifications.
ARTICLE VII
USE RESTRICTIONS
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In addition to all of the covenants, conditions and restrictions contained herein, the use
of the Project and Lots are subject to the following:
7.1 Use of Lot. Lots in Phase 1 of the Project are intended for further development,
including further subdivision into Residential Lots. Use of Lots shall at all times be in
compliance with the conditions of approval of the Project by City of Bozeman, Montana, and
any applicable regulations of the City of Bozeman, including the Unified Development
Ordinance. The use of any Residential Lot or Residential Unit shall be limited to and subject to
such uses that are in compliance with this Declaration, the Articles, Bylaws and Rules, and the
terms of the Design Regulations and Guidelines, the Rules and any approved governing
documents of a Sub-association, as the same may be duly amended or supplemented.
7.2 Nuisances. No noxious, illegal, or seriously offensive (to a reasonable Person)
activities shall be carried on upon any Lot, or in any part of the Project, nor shall anything be
done thereon which may be or may become a serious annoyance or a nuisance to or which may
in any way interfere with the quiet enjoyment of each of the Owners or his respective Lot.
7.3 Parking on Public Streets. Parking on public streets within the Project is subject
to the provisions of Chapter 34 of the Bozeman Municipal Code, as may be amended from time
to time.
7.4 Parking in Common Open Spaces. Parking of vehicles (recreational,
transportation or otherwise) shall be allowed on the Common Open Space only in designated
areas and in compliance with the Rules and this Declaration.
7.5 Commercial Activity. No business, professional or commercial activity shall be
conducted on any Lot, except for Declarant’s activities in connection with development of the
Project and marketing and sales of the Lots as provided or contemplated herein. Nothing in this
section is intended to restrict or prohibit Owners from using portions of their homes or units for
home offices and related purposes such as operations of personal computers, the internet and
similar equipment and facilities, so long as such activities do not materially increase the
volume of vehicular traffic into the Project, are conducted within the home or unit, and there
are no signs or other indications of home-based business activities occurring on the premises.
7.6 Storage. The parking and/or storage of any machinery, equipment, trailer, boats,
recreational vehicles (including boats, snowmobiles, campers, rafts, and ATV’s) or other
personal property is not permitted on any residential property. This is to include public streets,
private driveways, side yards, front yards, back yards, alleyways, parks or Common Open Space,
except in compliance with the Rules and this Declaration.
7.7 Signs. No signs shall be displayed to the public view on any Lot or on any portion
of the Project except such signs as are allowed by the Rules and this Declaration. This provision
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shall not apply to Declarant.
7.8 Animals. No animals, pets or insects of any kind shall be raised, bred, or kept on
any Lot or in the Common Open Space except that no more than three (3) usual and ordinary
household pets such as dogs or cats provided they are not kept, bred, or maintained for any
commercial purposes, and are kept under reasonable control at all times. No dangerous or
poisonous animals, pets or insects of any kind shall be allowed in the Project. No pets shall be
allowed in the Common Open Space except as may be permitted by Rules which shall include,
without limitation, the requirement that such pets be maintained under control. After making a
reasonable attempt to notify the Owner, the Board may cause any pet found within the Common
Open Space in violation of the Rules or this Declaration to be removed to a pound or animal
shelter under the jurisdiction of the city or county, by calling the appropriate authorities,
whereupon the Owner may, upon payment of all expenses connected therewith, repossess the
pet. Owners shall prevent their pets from soiling the Common Open Space or other’s property
and shall promptly clean up any mess left by their pets. Owners shall be fully responsible for
any damage caused by their pets.
7.9 Garbage and Refuse Disposal. All rubbish, trash and garbage shall be regularly
removed from the Lots and shall not be allowed to accumulate thereon. Trash, garbage and other
waste must be kept in appropriate containers. All equipment for the storage or disposal of such
materials shall be kept in a clean and sanitary condition, and shall be stored in the garage on in
an enclosed storage area screened from view of neighboring Lots, Common Open Spaces and
streets. Trash containers may be left out for collection at dusk on the day prior to trash collection
and must be returned to storage in the garage or other designated storage area by dusk on the
day of collection. No toxic or hazardous materials shall be disposed of within the Project by
dumping in the garbage containers or down the drains, or otherwise.
7.10 Antennas. Small antennas (not exceeding two feet in height) may be authorized
on Lots for purposes of transmitting or receiving radio, video, television and related signals.
Antennas must be hidden from view and require prior Committee approval.
7.11 Power Equipment and Car Maintenance. No offensive power equipment, hobby
shops, or recreational vehicle, truck, car, motorcycle or boat maintenance (other than emergency
work) or similar maintenance shall be conducted or stored outside of a garage. The Association
shall have sole discretion in determining what constitutes “offensive” under this Section 7.11;
provided however, the Association recognizes that the reasonable use of lawnmowers, string
trimmers, power washers and other power tools that are operated in the normal course of
conducting maintenance and repair of the grounds and structures on a Lot at reasonable hours
are not offensive. All hazardous waste shall be disposed of properly by each Owner.
7.12 Liability of Owners for Damage to Common Open Space. The Owner of each
Lot shall be liable to the Association for all damage to the Common Open Space
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improvements (including landscaping) caused by such Owner, his agents, employees, guests,
invitees or pets, except for that portion of damage covered by insurance carried by the
Association. The responsible Owner shall be charged with the cost of repairing such damage
(including interest thereon) as described in section 5.1A.
7.13 Leasing of Lots. Owners may rent or lease their Residential Unit to others for
residential purposes, except as may be prohibited in this Declaration or governing documents of
any Sub-Association. No Owner shall be permitted to lease his Unit for any period less than one
hundred eighty (180) days. Any lease shall be in writing and shall be subject in all respects to
the provisions of the Declaration, the Bylaws and the Rules, and any failure of the tenant to
comply with the foregoing shall be a default under the lease, regardless of whether the lease so
provides. In the event of such a default, the Owner immediately shall take all action to cure the
default including, if necessary, eviction of the tenant. All Owners leasing their Lots shall
promptly notify the Secretary of the Association in writing of the names of all tenants and
Members of tenant’s household occupying such Lot and of the address and telephone number
where the tenant and such Owner can be reached. Owners remain fully responsible for any
Lessee’s non-compliance with the Declaration, Bylaws and Rules. Leasing a Unit as a short-
term rental such as VRBO and Airbnb is prohibited.
7.14 Commonly Metered Utilities. The Board may establish restrictions regarding the
individual use of any utility on a common meter, if any, and may impose reasonable charges for
the individual use thereof.
7.15 Activities Causing Increase in Insurance Rates. Nothing shall be done or kept on
any Lot or in any improvements constructed thereon, or in the Common Open Space, which will
increase any applicable rate of insurance or which will result in the cancellation of insurance on
any Lot or any part of the Common Open Space, or which would be in violation of any law.
7.16 Temporary Structures. No structure, facility or appurtenance of a temporary
character shall be placed upon any Lot except in accordance with the Rules.
7.17 Owner’s Right and Obligation to Maintain and Repair. Each Owner shall, at his
sole cost and expense, maintain and repair his Unit and Lot and all improvements and lawn and
landscaping thereon, including snow removal, keeping the same in good condition. In the event
an Owner of any Lot shall fail to so maintain his Lot, the Association’s agents may, after notice
and a hearing as provided in the Bylaws, enter the Lot and perform the necessary maintenance.
The cost of such maintenance shall immediately be paid to the Association by the Owner of such
Lot, together with interest at the rate of twelve percent (12%) per annum (but not to exceed the
maximum interest rate authorized by law) from the date the cost was incurred by the Association
until the date the cost is paid by the Owner.
7.18 Timeshare and Fractional Ownership Prohibition. No Lot, Residential Lot or
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Residential Unit, or any portion thereof in the Project shall be leased, subleased, occupied,
rented, let, sublet, or used for or in connection with any time sharing or fractional agreement,
plan, program or arrangement, including, without limitation, any so called “vacation license,”
“travel club,’’ “extended vacation,” or other membership or time interval ownership
arrangement. This section shall not be construed to limit the personal use of any Lot or any
portion thereof in the Project by any Owner or his or her social or familial guests.
7.19 High Groundwater Note. Owners are hereby informed that areas of high
groundwater and outside shallow flooding areas may exist within the Project.
It is recommended that Owners consult with a qualified Consulting Professional
Engineer licensed in the State of Montana prior to initiating construction of their building(s) in
order to determine if groundwater could impact the planned structure and what mitigation
actions might be taken.
ARTICLE VIII
PROJECT DEVELOPMENT REQUIREMENTS
In addition to the Design Regulations and Guidelines and the architectural review
process, the following requirements must be met for the development of any Residential Lot.
8.1 Driveways. All driveways and parking areas shall be surfaced in concrete.
8.2 Driveway Swale Prohibitions. No Lot owner shall fill or obstruct the natural flow
of any borrow ditch or drainage swale with the exception of the materials placed for the location
of the driveway culvert. No borrow ditches may be filled.
8.3 Kennels. In general, kennels are discouraged in favor of the “invisible fence”
system. A kennel shall not exceed 200 square feet. Kennels or dog runs must be placed within
the area allowable for side or rear yard fencing. Kennels shall be integrated into the dwelling
(attached) to avoid isolation and to provide as much aesthetic appeal as possible. Kennels shall
not be higher than six (6’) feet in height and must be built using the same building materials as
privacy screening. Black or dark bronze chain link kennels may be allowed if they are screened
in a manner approved by the Committee. Kennels must be kept clean and free from obnoxious
odors or undue barking dogs. All kennels and dog runs must be approved by the Committee.
8.4 Fences. One of the primary goals of the Project is to create an atmosphere that is
open and friendly. However, fencing consistent with the Design Regulations and Guidelines
may be approved by the Committee. To the extent applicable, allowed fencing dimensions and
styles shall be compatible with those adopted in the Design Regulations and Guidelines for the
Project.
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8.5 Privacy Screening. Privacy screens will be allowed but must be constructed of
wood siding, brick, or stone, and they shall be an integrated part of the main building. Privacy
screening shall not extend into more than 1/3 of the required setback on the front or sides, nor
more than 1/3 of the setback on the rear elevation, nor be more than 1/3 the width of the structure
on the front (street) or rear elevation, nor 2/3 the length on the side elevations, unless a greater
setback is required to comply with Section 38.21.060 of the Bozeman Municipal Code. Plans
for privacy screening must be submitted and approved by the Committee.
8.6 Satellite Dishes. Only smaller dishes of the latest technology (not exceeding two
feet in diameter) will be allowed. Such dishes must be hidden from view and shall require
Committee approval.
8.7 Exterior Lighting. All exterior lighting of the Project, and on a Lot or Residential
Unit will be subject to Committee approval.
8.8 Seasonal Lighting. Seasonal lighting is permitted for illumination during the time
period between Thanksgiving and January 31. Seasonal lights may be installed between
November 15 and January 15. Should extreme weather conditions become a factor in removal
of seasonal lights within the designated time frame, it shall be in the sole discretion of the
Reviewer to grant an extension of the allowable time period for removal. Seasonal lighting and
electrical cords shall be located to respect driveway snowplowing operations and sidewalk snow
removal operations. Cords shall never be located over public sidewalks.
8.9 Utilities. All utilities including, but not limited to, natural gas, electricity,
telephone and cable T.V. shall be located underground.
8.10 No Storage Sheds. Storage needs should be anticipated in the planning stage and
will be required to be an integral part of the design of the garage so that all storage is within the
garage or attached structure.
8.11 Temporary Structures. No temporary structures, trailers, campers, motor homes,
tents, shacks, or similar structures shall be used as a residence on any Lot.
8.12 Solid Waste Containers. All solid waste containers must be stored out of view
except during reasonable periods prior to and after pick-up, and only on day of pick-up.
8.13 Recreational Vehicles. Recreational vehicles and boats may not be stored or
parked at any location within the Project except within a fully enclosed garage or designated
area approved by the Association so as not to be visible from the Common Open Space or from
any other Lot within the Project.
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ARTICLE IX
INSURANCE; DAMAGE OR DESTRUCTION; CONDEMNATION
9.1 Insurance. The Association shall obtain and maintain the following insurance:
(1) A hazard policy insuring all improvements, equipment, and fixtures
owned by the Association, unless the Board determines, in its sole discretion, that such insurance
is not necessary;
(2) a comprehensive general liability policy insuring the Association, its
agents, the Owners and their respective household Members, against liability incident to the
ownership or use of the Common Open Space or any other Association owned or maintained
real or personal property (in occurrence version form if obtainable); the amount of general
liability insurance which the Association shall carry at all times shall be not less than the
minimum amounts required by Montana law;
(3) workers’ compensation insurance to the extent required by law (or such
greater amount as the Board deems necessary); the Association shall obtain a Certificate of
Insurance naming it as an additional insured in regard to workers’ compensation claims from
any independent contractor who performs any service for the Association, if the receipt of such
a certificate is practicable;
(4) Fidelity bonds or insurance covering officers, directors, and employees
that have access to any Association funds;
(5) Officers and directors liability insurance, to the extent deemed
appropriate by the Board in its discretion;
(6) Flood insurance if the Project is located in an area designated by an
appropriate governmental agency as a special flood hazard area; and
(7) Such other insurance as the Board in its discretion considers necessary or
advisable.
Each Owner appoints the Association or any insurance trustee designated by the
Association to act on behalf of the Owners in connection with all insurance matters arising from
any insurance policy maintained by the Association, including without limitation, representing
the Owners in any proceeding, negotiation, settlement or agreement. Any insurance maintained
by the Association shall contain “waiver of subrogation” as to the Association and its officers,
directors and Members, the Owners and occupants of the Lots (including Declarant) and
Mortgagees, and cross-liability and severability of interest coverage insuring each insured
against liability to each other insured. The Association shall periodically (and not less than once
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every three years) review all insurance policies maintained by the Association to determine the
adequacy of the coverage and to adjust the policies accordingly.
All individually owned insurance shall contain a waiver of subrogation as to the
Association and its officers, directors and Members, the Owners and occupants of the Lots and
Mortgagees, and all Members are deemed to have waived subrogation rights as to the
Association and/or other Members, whether or not their policies so provide.
Each Owner shall be responsible for obtaining, maintaining and paying for such
insurance as the Owner may deem reasonably necessary with respect to fire, casualty and
liability involving such Owner’s Lot and all improvements and property thereon. All such
individually carried insurance shall contain a waiver of subrogation by the carrier as to the other
Owners, the Association, Declarant, and the Mortgagees of such Lot.
The Association shall make available to Members upon request copies of the
Association’s policies to enable Members to insure their Lots without duplicating insurance
carried by the Association.
The Association, and its directors and officers, shall have no liability to any Owner or
Mortgagee if, after a good faith effort, it is unable to obtain the insurance required hereunder,
because the insurance is no longer available or, if available, can be obtained only at a cost that
the Board in its sole discretion determines is unreasonable under the circumstances, or the
Members fail to approve any Assessment increase needed to fund the insurance premiums. In
such event, the Board immediately shall notify each Member and any Mortgagee entitled to
notice that the insurance will not be obtained or renewed.
9.2 Damage or Destruction. If any improvements or landscaping on any Lot are
damaged or destroyed by fire or other casualty, the Owner of such Lot may repair or reconstruct
the improvement only in accordance with the plans and specifications approved by the
Association or its representative as provided herein including but not limited to approval by the
Committee. In the event that such an Owner elects not to rebuild any structures, said Owner
shall be responsible for promptly removing from the Lot any and all debris, including any
portion of a structure which may remain standing after partial damage or destruction, and the
Owner shall landscape the Lot in the manner approved by the Committee and the Association.
If an Owner fails to pay the cost of required demolition or re-landscaping, the Association may
elect to pay for the uninsured portion of the cost and shall have the right to assess the Owner for
the cost thereof and to enforce the Assessment as provided in this Declaration.
If Common Open Space improvements are damaged or destroyed by fire or other
casualty, the improvements shall be repaired or reconstructed substantially in accordance with
the original as-built plans and specifications, modified as may be required by applicable building
codes and regulations in force at the time of such repair or reconstruction, and subject to such
alterations or upgrades as may be approved by the NWXAC, unless either of the following
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occurs: (1) the cost of repair or reconstruction is more than fifty percent (50%) of the current
replacement cost of all Common Open Space improvements, available insurance proceeds are
not sufficient to pay for at least eighty-five percent (85%) of the cost of such repairs or
reconstruction, and three-fourths (3/4) of the total voting power of the Association vote against
such repair and reconstruction; or (2) available insurance proceeds are not sufficient to
substantially repair or reconstruct the improvements within a reasonable time as determined by
the Board, a special Assessment levied to supplement the insurance fails to receive the requisite
approval (if such approval is required) as provided in section 4.4, and the Board, without the
requirement of approval by the Owners, is unable to supplement the insurance by borrowing on
behalf of the Association sufficient monies to enable the improvements to be substantially
repaired or reconstructed within a reasonable time.
If the Common Open Space improvement is not repaired or reconstructed in accordance
with the foregoing, all available insurance proceeds shall be disbursed among all Owners and
their respective Mortgagees in the same proportion that the Owners are assessed, subject to the
rights of the Owners’ Mortgagees, after first applying the proceeds to the cost of mitigating
hazardous conditions on the Project, making provision for the continuance of public liability
insurance to protect the interests of the Owners until the property can be sold, and complying
with all other applicable requirements of governmental agencies.
9.3 Condemnation. If all or any part of a Lot (except the Common Open Space) is
taken by eminent domain, the award shall be disbursed to the Owner of the Lot, subject to the
rights of the Owner’s Mortgagees. If the taking renders the Lot uninhabitable, the Owner shall
be divested of any further interest in the Project, including Membership in the Association, and
the interest of the remaining Owners shall be adjusted accordingly. If all or any part of the
Common Open Space is taken by eminent domain, the proceeds of condemnation shall be used
to restore or replace the portion of the Common Open Space affected by condemnation, if
restoration or replacement is possible, and any remaining funds, after payment of any and all
fees and expenses incurred by the Association relating to such condemnation, shall be
distributed among the Owners in the same proportion as such Owners are assessed. The
Association shall represent the Owners in any condemnation proceedings or in negotiations,
settlements and agreements with the condemning authority for acquisition of the Common Open
Space or part thereof.
ARTICLE X
GENERAL PROVISIONS
10.1 Enforcement. Subject to the provisions and requirements of Article X, the
Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity,
all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed
by the provisions of this Declaration, the Articles and the Bylaws, and in such action shall be
entitled to recover reasonable attorneys’ fees as are ordered by the Court. The Association has
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the right to record a Notice of Violation against the Lot of an Owner who is not in compliance
with the provisions of the Project Documents. Failure by the Association or by any Owner to
enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the
right to do so thereafter.
10.2 Invalidity of Any Provision. Should any provision or portion hereof be declared
invalid or in conflict with any law of the jurisdiction where this Project is situated, the validity
of all other provisions and portions hereof shall remain unaffected and in full force and effect.
10.3 Term. The covenants and restrictions of this Declaration shall run with and bind
the Project, and shall inure to the benefit of and shall be enforceable by the Association or the
Owner of any property subject to this Declaration, their respective legal representatives, heirs,
successors and assigns, for a term of thirty (30) years from the date this Declaration is recorded,
after which time they shall be automatically extended for successive periods of ten (10) years,
unless an instrument in writing, signed by a majority of the then Owners of the Lots, has been
recorded within the year preceding the beginning of each successive period of ten (10) years,
agreeing to change said covenants and restrictions in whole or in part, or to terminate the same;
provided, however, that the Declaration may not be terminated until such time as the City of
Bozeman releases the Project from the obligation to maintain the Common Open Spaces and
other facilities installed pursuant to the final plat approvals.
10.4 Amendments. During the Development Period, the Declarant may amend this
Declaration without the consent of the Owners or the Association as further provided in Article
XVIII below. After the Development Period, this Declaration may be amended only by the
affirmative vote (in person or by proxy) or written consent of Members representing a majority
of the total voting power of the Association, unless another percentage is specified herein;
provided, however, that the Declaration may not be amended in any manner which would place
it out of compliance with Article 38.38 of the Bozeman Municipal Code, as may be amended
from time to time. Any amendment must be certified in a writing executed and acknowledged
by the Association President or Vice President and recorded in the Gallatin County Clerk &
Recorder’s Office. No amendment shall adversely affect the rights of the holder of any Mortgage
of record prior to the recordation of such amendment.
10.5 Limitation of Restrictions on Declarant. Declarant is undertaking the work of
construction of improvements upon the Project. The completion of that work and the sale of said
Lots are essential to the establishment and welfare of the Project as a residential community. In
order that said work may be completed and said Project be established as a fully occupied
residential community as rapidly as possible, nothing in this Declaration shall be understood or
construed to:
A. Prevent Declarant, its contractors, or subcontractors from doing on the
Project or any Lot, whatever is reasonably necessary or advisable in connection with the
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completion of said work; or
B. Prevent Declarant or its representatives from erecting, constructing and
maintaining on the Project (except upon Lots owned by others), such structures as may be
reasonable and necessary for developing said Project as a residential community and disposing
of the same by sale, including a sales office and design center; or Prevent Declarant from
conducting on the Project (except upon Lots owned by others) its business of completing said
work and of establishing a plan of residential ownership and of disposing of the Lots and units
by sale; or
C. Prevent Declarant from maintaining or displaying such signs, pennants
and flags(s) on the Project (except upon Lots owned by others) as may be necessary for the sale,
lease or disposition thereof, or
D. Subject Declarant to the architectural control provisions of Article VI for
the construction of any improvement on the Project.
E. Prevent Declarant from exercising the following rights: Declarant
reserves and shall have the right and easement, both while Declarant is still the Owner of Lots
in the Project and thereafter, to enter upon the Project, and all portions thereof, for purposes of
inspecting and correcting any alleged defect in the design or construction of improvements in
the Project.
The foregoing rights of Declarant shall, except as provided in Section 10.5.F, terminate
upon the sale by Declarant of all Lots in the Project. Until such time, said rights shall constitute
easements reserved by Declarant for the benefit of Declarant and any Lots or property owned
by Declarant within the Project.
So long as Declarant, or its successors and assigns, owns one or more of the Lots
described herein, Declarant, or its successors and assigns, shall be subject to the provisions of
this Declaration. Declarant shall make reasonable efforts to avoid disturbing the use and
enjoyment of Lots and the Common Open Space by their Owners, while completing any work
necessary to said Lots or Common Open Space.
10.6 Termination of Any Responsibility of Declarant. In the event Declarant shall
convey all of its rights, title and interest in and to the Project to any successor Person or entity,
then and in such event, Declarant shall be relieved of the performance of any further duty or
obligation hereunder, and such successor Person or entity shall be obligated to perform all such
duties and obligations of the Declarant.
10.7 Owners’ Compliance. Each Owner, tenant or occupant of a Lot shall comply with
the provisions of this Declaration, and (to the extent they are not in conflict with the Declaration)
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the Articles, Bylaws and Rules, and the decisions and resolutions of the Association or the
Board, as lawfully amended from time to time. Failure to comply with any such provisions,
decisions, or resolutions shall be grounds for an action (1) to recover sums due, (2) for damages,
(3) for injunctive relief, (4) for costs and attorney fees, or (5) any combination of the foregoing.
In the event of a violation of the Project Documents, the Association may record a Notice
of Violation against the Lot of the non-complying Owner. Upon recording a Notice of Violation,
the Association shall have complete discretion in deciding whether, when and how to proceed
with enforcement, and any delay after recording a Notice of Violation shall not give rise to a
defense of waiver or estoppel in favor of a noncomplying Owner. The Association may take
action to enforce compliance against a subsequent Owner who acquires a Lot with a recorded
Notice of Violation. The right of the Association to record a Notice of Violation shall be in
addition to all other rights and remedies the Association may have at law or under the Project
Documents. All agreements and determinations lawfully made by the Association in accordance
with the voting percentages established in this Declaration, or in the Articles or the Bylaws,
shall be deemed to be binding on all Owners, their successors and assigns.
10.8 Notice. Any notice permitted or required by the Declaration, Articles or Bylaws,
whether or not such section requiring the notice so states, may be delivered personally, by mail,
or by electronic means if such electronic means and methods are in accordance with the Montana
Nonprofit Corporation Act. If delivery is by mail, it shall be deemed to have been delivered
seventy-two (72) hours after a copy of the same has been deposited in the United States mail,
first class or registered, postage prepaid, addressed to the person to be notified at the current
address given by such person to the Secretary of the Board or addressed to the Lot of such person
if no address has been given to the Secretary.
10.9 No Discrimination. No Owner shall, either directly or indirectly, forbid or restrict
the conveyance, encumbrance, leasing, or mortgaging, or occupancy of his Lot to any person of
a specified race, sex, adulthood, marital status, color, religion, ancestry, physical handicap,
sexual orientation, or national origin.
10.10 Alternative Dispute Resolution. Alternative dispute resolution procedures shall
be applicable and implemented as provided in Article XI hereof.
10.11 Number; Gender. The singular and plural number and the masculine, feminine
and neuter gender shall each include the other where the context requires.
10.12 Captions. The captions and headings herein are for convenience only and shall
not be used to limit or expand the terms or provisions hereof.
10.13 Exhibits. All Exhibits are deemed incorporated herein by reference as though set
forth in
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full.
10.14 Compliance with FHA, VA, FHLMC or FNMA Requirements. If Declarant
chooses a
financing program that involves Mortgage insurance issued by a government agency such as the
FHA or VA, or involves first Mortgage sales to an agency such as FHLMC or FNMA, the
Association, the Board and each Owner shall take reasonable steps to satisfy the requirements
of such program and/or agency including, without limitation, initiating and completing
amendments to the Project Documents.
10.15 Power of Attorney. Each Owner hereby appoints the Declarant as his or her
attorney-in- fact, and grants the Declarant all necessary authority so that the Declarant may file
any amendment authorized by the process described herein.
ARTICLE XI
ENFORCEMENT
11.1 Priority and Defined Terms. The terms and provisions of this Article shall have
priority over and supersede any inconsistent terms or provisions contained in any other Articles
or portions of this Declaration. The defined (initially capitalized) terms contained in this Article
shall be in addition to defined terms set forth in Article I hereof.
11.2 Enforcement and Non-waiver. The Declarant, Association or any Owner shall
have a right of action against any Owner, and any Owner shall have a right of action against the
Association, to enforce by proceedings at law or in equity, all restrictions, conditions, covenants
and reservations, now or hereafter imposed by the provisions of the Project Documents or any
amendment thereto, including the right to prevent the violation of such restrictions, conditions,
covenants, or reservations and the right to recover damages or other dues for such violation
except that Owners shall not have any right of enforcement concerning liens for Assessments.
The Association shall have the exclusive right to the enforcement of provisions relating to
architectural control and the Rules, unless the Association refuses or is unable to effectuate such
enforcement, in which case any Owner who otherwise has standing shall have the right to
undertake such enforcement. Failure of the Association, Declarant or any Owner to enforce any
covenants or restrictions herein contained shall in no event be deemed a waiver of the right to
do so thereafter.
ARTICLE XII
SPECIAL DECLARANT RIGHTS
Declarant reserves the following Declarant Rights during the Development Period
(“Special Declarant Rights”), which may be exercised, where applicable, anywhere within the
Project:
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A. To complete any improvements indicated on plat maps or development
plans filed with the Declaration or otherwise a part of the preliminary plat approval granted by
the City of Bozeman as may be amended from time to time;
B. To maintain sales offices, management offices, signs advertising on the
Project as set forth in section 13.3;
C. To use easements through the Common Open Space for the purpose of
making improvements within the Project;
D. To merge or consolidate the Association with another common interest
community of the same form of ownership or make it subject to a master association;
E. To operate a resale or rental office on site after all the Lots have been
developed, sold and completed; and
F. To exercise any rights granted to the Declarant by these Covenants.
12.1 Transfer of Special Declarant Rights.
A. Assignment. Declarant may assign any Special Declarant Rights,
Development Rights, or other special rights and obligations of Declarant set forth in this
Declaration or the Bylaws to any affiliate of Declarant, or Declarant may allow any affiliate of
Declarant to exercise such rights on behalf of Declarant. The method of exercising such rights
shall be subject to the agreement of the parties thereto, which shall not require recordation in
the public records of the Office of the Clerk and Recorder of Gallatin County.
B. Transfer. Any or all Special Declarant Rights identified in this section,
Development Rights, or any of the other special rights and obligations of Declarant set
forth in this
Declaration or the Bylaws may be transferred in whole or in part to other Persons, provided that
the transfer shall not reduce an obligation nor enlarge a right beyond that which Declarant has
under this Declaration or the Bylaws. No such transfer shall be effective unless it is in a written
instrument signed by Declarant and duly recorded as a public record in the Office of the Clerk
and Recorder of Gallatin County.
12.2 Models, Sales Offices and Management Offices. During the Development
Period, Declarant may maintain and carry on upon any Lot owned by Declarant or any portion
of the Common Open Space such facilities and activities as, in the sole opinion of the Declarant,
may be reasonably required, convenient, or incidental to the sale of Lots and construction of
Units on the Lots, including, but not limited to, business offices, signs, model units, marketing
trails, and sales offices. Declarant shall have easements for access to and use of such facilities.
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Northwest Crossing Subdivision Phase 1 Residential
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Declarant’s unilateral right to use the Common Open Space for purposes stated in this section
shall not be exclusive and shall not unreasonably interfere with use of such Common Open Space
by Owners unless leased pursuant to a lease agreement with the Association providing for
payment of reasonable rent.
12.3 Construction of Improvements. Declarant and its employees, agents and
designees shall also have a right and easement during the Development Period over and upon
all of the Common Open Space for the purpose of making, constructing and installing such
improvements to the Common Open Space as it deems appropriate in its sole discretion.
12.4 Other Covenants Prohibited. During the Development Period, no Person shall
record any declaration of covenants, conditions and restrictions, or similar instrument affecting
any portion of the Project without Declarant’s review and written consent. Any attempted
recordation without such consent shall result in such instrument being void and of no force and
effect unless subsequently approved by written consent signed by Declarant and recorded as a
public record in the Office of the Clerk and Recorder of Gallatin County.
12.5 Master Planned Community. Each Owner, by accepting title to a Lot and
becoming an Owner, and each other Person, by acquiring any interest in the Lots, acknowledges
awareness that the Project is a master planned community, the development of which is likely
to extend over many years, and agrees not to protest or otherwise object to changes in any
conceptual or master plan for the Project or the Property.
12.6 Equal Treatment. So long as Declarant owns any property described in Exhibit
A, the Association shall not, without prior written consent of Declarant, adopt any policy, rule
or procedure that amends or eliminates any of the rights reserved to the Declarant.
12.7 Right to Use Common Open Space for Special Events. As long as Declarant owns
any property within the Project, Declarant shall have the right to use all Common Open Space,
including any recreational facilities, for up to eight days each year to sponsor special events for
charitable, philanthropic, political or marketing purposes as determined by Declarant in its sole
discretion. Any such event shall be subject to the following conditions.
A. The availability of the facilities at the time a request is submitted to the
Association;
B. Declarant shall pay all costs and expenses incurred and shall indemnify the
Association against any loss or damage resulting from the special event; and
C. Declarant shall return the facilities and personal property owned by the
Association and used in conjunction with the special event to the Association in the same
condition as existed prior to the special events.
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Northwest Crossing Subdivision Phase 1 Residential
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Declarant shall have the right to assign the rights contained in this section 13.8 to charitable
organizations or foundations selected by Declarant. Declarant’s right to use the Common Open
Space for special events shall be enforceable by injunction, by any other remedy in law or equity,
and by the terms of this Declaration.
ARTICLE XIII
AMENDMENT, ANNEXATION, AND WITHDRAWAL
13.1 Amendment by Declarant. During the Development Period, Declarant may from
time to time unilaterally amend this Declaration for any purpose including but not limited to
amendment: (i) necessary to bring any provision in compliance with any applicable governmental
statutes, necessary governmental registrations, rule, regulation, or judicial determination; (ii)
necessary to enable any reputable title insurance company to issue title insurance coverage on the
Lots; (iii) required by an institutional or governmental lender or purchaser or mortgage loans,
including, for example, the Federal National Mortgage Association or Federal Home Loan
Mortgage Corporation, to enable such lender or purchaser to make or purchase mortgage loans on
the Lots; (iv) necessary to enable any governmental agency or reputable private insurance
company to insure mortgage loans on the Lots or to insure the Project or any portion thereof,
including any individual Lot; (v) necessary to allow the Association to obtain insurance
contemplated by this Declaration, including without limitation, property or liability insurance, at
a reasonable price and on reasonable terms; (vi) otherwise necessary to satisfy the requirements of
any governmental or quasi-governmental agency; (vii) necessitated in conjunction with the
development of the Commercial Development of the Property.
13.2 Amendment by Owners. This Declaration may be amended by: (a) the affirmative
vote or written consent, or any combination thereof, of a majority of the voting interests of the
Members entitled to vote; and (b) the written consent of the Declarant, so long as it owns at least
one Lot. To be effective, any amendment must be recorded with the office of the Clerk and
Recorder of Gallatin County, Montana. No amendment may remove, revoke, or modify any right
or privilege of the Declarant without the written consent of the Declarant.
13.3 Owner Authority. If an Owner consents to any amendment of this Declaration, it
will be conclusively presumed that such Owner has the authority to consent, and no contrary
provision in any mortgage or contract between the Owner and a third party will affect the validity
of such amendment.
13.4 Withdrawal. During the Development Period. Declarant may from time to time
unilaterally amend this Declaration for the purpose of removing property then owned by Declarant
or its affiliates from the coverage of this Declaration. Any property removed from this Declaration
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Northwest Crossing Subdivision Phase 1 Residential
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shall be subject to whatever easements, if any, are reasonably necessary for access to or operation
of the Subdivision and each Lot. Any amendment pursuant to this paragraph shall not require the
consent of the Owners or the Board of Directors.
13.5 Plat Amendment. During the Development Period, Declarant may unilaterally
amend the plat of the Project without the additional consent of any Owner or the Board of
Directors; provided, however, that nothing in this paragraph allows Declarant to replat the property
underlying any building or structure (i.e., change a boundary line or platted easement under a
building or structure) without the consent of the Owner of such building or structure.
13.6 Merger or Consolidation. During the Development Period, Declarant may merge
or consolidate the Association with a property owners association of the same form of ownership,
or with the Commercial Development owners’ association. Upon written request from Declarant
during the Development Period, the Board of Directors and each Lot Owner shall execute such
documents and take such actions as shall reasonably be requested by Declarant to approve and
effect any such merger or consolidation.
13.7 Agreement Regarding Amendments. The Lot Owners, the Association, lien
holders, mortgagees, and all others acquiring any interest in or lien on the Lots, the Common Open
Space, or any other portion of the Subdivision shall be bound by the rights of Declarant to amend
and supplement this Declaration and the plat of the Property as set forth in this Declaration,
including, without limitation, in connection with any annexation of Annexed Property or removal
of property from this Declaration, and their consent to such amendments and supplements is
implied and agreed to by the acceptance or acquisition of any interest in or lien on the Lots, the
Common Open Space, or any other portion of the Subdivision. Declarant is hereby appointed the
Lot Owners', the Association's, lien holders', and mortgagees' agent and attorney-in-fact to execute
and record such amendments, supplements, and related documents.
ARTICLE XIV
REQUIREMENTS OF CITY OF BOZEMAN
The following conditions have been imposed on the Project by the City of Bozeman, and
shall not be amended or revoked without the consent of the Owner in accordance with the
amendment procedures of this Declaration, and the City Commission.
14.1 Noxious Weeds. The control of noxious weeds by the Association on those areas
for which the Association is responsible and the control of noxious weeds by individual Owners
on their respective Lots shall be as required by the Montana Noxious Weed Control Act (§ 7-22-
2101, MCA through § 7-22-2153, MCA as amended) and the rules, regulations and management
Declaration of CC&Rs and Reservations of Easements
Northwest Crossing Subdivision Phase 1 Residential
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plans of the Gallatin County Weed District. Both unimproved and improved Lots shall be managed
for noxious weeds. In the event an Owner does not control the noxious weeds after 10 days' notice
from the Association, the Association may cause the noxious weeds to be controlled. The cost and
expense associated with such weed management shall be assessed to the Lot and such Assessment
may become a lien if not paid within thirty (30) days of the mailing of such Assessment. The
Association is responsible for control of state and county declared noxious weeds in the
Community parks, open spaces, Community areas, trails, and roadways. Nothing herein shall
require or obligate the Gallatin County Weed District to undertake any management or
enforcement on behalf of the Association or Owners that is not otherwise required by law of the
Gallatin County Weed District Management Plan.
14.2 Agricultural Use of Neighboring Properties. Property Owners of the Subdivision
are informed that nearby uses may be agricultural. Property Owners accept and are aware that
standard agricultural and farming practices can result in smoke, dust, animal odors, flies and
machinery noise. Standard agricultural practices feature the use of heavy equipment, burning,
chemical sprays and the use of machinery early in the morning and sometimes late into the evening.
All fences bordering agricultural lands must be maintained by the landowners in accordance with
MCA Title 70 Chapter 16 Part 2, Title 81 Chapter 4 Part 1, or other relevant state law
[SIGNATURE PAGE FOLLOWS]
Declaration of CC&Rs and Reservations of Easements
Northwest Crossing Subdivision Phase 1 Residential
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IN WITNESS WHEREOF, Declarant has executed this Declaration this day of
, 2022.
DECLARANT:
NWX, LLC
By:
Bryan Klein, Manager
STATE OF Montana )
:ss
COUNTY OF Gallatin )
This instrument was acknowledged before me on , by Bryan Klein as
the managing member of NWX, LLC, a Montana limited liability company. IN WITNESS
WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first
above written.
________________________
Notary Signature
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Northwest Crossing Subdivision Phase 1 Residential
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EXHIBIT A
Legal Descriptions
“Property” “Residential Project”
“Commercial Development”
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Northwest Crossing Subdivision Phase 1 Residential
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EXHIBIT B
Design Regulations and Guidelines
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Northwest Crossing Subdivision Phase 1 Residential
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EXHIBIT C
Riparian Management Plan
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Northwest Crossing Subdivision Phase 1 Residential
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Exhibit D
Dewatering Plan