HomeMy WebLinkAbout25_Declaration for Urban Farm
Return Recorded Document to:
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DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
FOR
URBAN + FARM SUBDIVISION
BOZEMAN, MONTANA
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INTRODUCTION
It is the general intent of this document to establish the legal authority for and to identify
the covenants, conditions and restrictions that pertain to the real property within Urban
+ Farm Subdivision and to establish Urban + Farm Property Owners Association, Board
of Directors, Committees and Design Review Committee.
The Urban + Farm Subdivision is envisioned to be a unique multiple use development
with commercial, residential and mixed-use neighborhoods together with open space,
parks, and commercial farms. It is the intent of this Declaration of Covenants, Conditions
and Restrictions (“Declaration”) to create a coherent plan for a connected community and
living experience. In order to enhance the value, desirability and attractiveness of the
development, the Declarant’s goal at Urban + Farm Subdivision is to create a sustainable
and unique environment in which to live, work and play.
The Developer intends to develop Urban + Farm in phases, adding in additional property
over time. The initial phase will be residential only. Additional land, uses and amenities
will be added through additional phases.
The Developer, as the owner of the real property described herein intends by the
recording of this Declaration, to create a general plan of development for Urban + Farm
Subdivision. More specifically, the Declaration defines how buildings and property
within Urban + Farm Subdivision are to be used, designed, landscaped and maintained.
Unless otherwise noted, the Declaration applies to all lots within Urban + Farm
Subdivision. This Declaration provides for the overall development, administration,
maintenance and preservation of the real property now and hereinafter compromising
Urban + Farm Subdivision, and the establishment of the Urban + Farm Property Owners
Association (the AAssociation@), a Montana Non-Profit Corporation comprised of all
owners of property in Urban + Farm Subdivision to own, operate and/or maintain various
common areas and community improvements and to administer and enforce this
Declaration and other governing documents referred to in this Declaration. In addition,
the Declaration established committees and subcommittees to address specific
specialized issues, such as Design Review Committees, or to address neighborhood
specific issues such as residential, mixed use and commercial neighborhood committees.
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URBAN + FARM’S VISION AND VALUES
Urban + Farm was developed with the ideal Bozeman lifestyle in mind, with a complete
community offering mixed housing types, commercial services and recreational
opportunities. Urban + Farm encourages the use of the common areas by its members
by providing a safe area to enjoy while at the same time maintaining property values
and a harmonious mix of neighborhoods through the guidelines established by these
covenants. The covenants help to ensure that property owners will be good neighbors
to ensure that the unique attributes of Urban + Farm will be preserved and enhanced for
the enjoyment of the community.
The Board of Directors of Urban + Farm shall strive to provide effective and efficient
management of Urban + Farm, with an emphasis on the preservation of property values
through enforcement of these covenants, creation of reasonable rules to ensure the
enjoyment of the property by all Owners and a high standard of maintenance of the
common areas. The board shall make decisions based on fairness, objectivity, integrity,
common sense, cooperation, the good of the community as a whole and neighborliness
while also ensuring the maintenance of property values and the safety of its
membership. Meetings of the board and of the membership shall encourage
collaboration and diverse viewpoints.
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DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS AND BYLAWS
FOR THE URBAN + FARM SUBDIVISION
This Declaration, made on the date hereinafter set forth by Laurel Parkway, LLC,
hereinafter referred to as ”Declarant”.
WITNESSETH:
WHEREAS, Declarant is the owner of certain property in the City of Bozeman, County
of Gallatin, State of Montana, which is more particularly described on Exhibit A.
NOW, THEREFORE, Declarant hereby declares that the Property described above shall
be held, sold and conveyed subject to the following easements, restrictions, covenants
and conditions, which are for the purpose of protecting the value and desirability of,
and which shall run with the real property and be binding on all parties having any
right, title or interest in the real property or any part thereof, their heirs, successors and
assigns and shall inure to the benefit of each owner thereof.
ARTICLE I. DEFINITIONS
1. “Additional Property” shall mean any additional property annexed to the
Subdivision and made subject to the terms of this Declaration and may also be called
“Future Phases”. The anticipated Additional Property/Future Phases are depicted on
Exhibit ___, attached hereto and incorporated herein as if fully set forth By
incorporating Exhibit ___, the Declarant is under no obligation to develop Future
Phases nor is the Declarant limited to adding only the Additional Property shown on
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Exhibit ___. Declarant may add any land to the Subdivision, regardless of whether
shown on Exhibit ___ or not.
2. “Alleys” mean the streets within the Subdivision designed as “Alley” on the Plat.
3. “Annual Assessments” shall mean Base Assessments, Reserve Account
Assessments, and any Specific Assessments which may be levied by the Association in
each of its fiscal years pursuant.
4. ”Association“ shall mean and refer to the Urban + Farm Property Owners
Association, Inc., a Montana Non-Profit Corporation, its successors and assigns.
5. “Base Assessments” shall mean the assessments imposed upon all Lots for
services rendered or expenses incurred by the Association.
6. ”Board” or “Board of Directors” shall mean the elected or appointed Board of
Directors of the Association.
7. ”Bylaws” shall mean the Bylaws promulgated by the Association.
8. “City” shall mean the City of Bozeman, Montana.
9. ”Common Areas” shall mean those portions of the Property owned or leased by
the Association for the common use and benefit of the Owners. The “Common
Areas” include but shall not be limited to common open space, trails, storm water
facilities, common landscaping, common signage and other common use areas as
shown on the Plat, but specifically excludes Lots of the Urban + Farm Subdivision as
recorded in the records of the Gallatin County Clerk and Recorder’s Office in Gallatin
County, Montana.
10. ”Common Area Expenses” are the actual and estimated expenses incurred or
anticipated to be incurred by the Association for the maintenance, repair and
replacement of the Common Areas and/or the general benefit of all Owners including
any reasonable reserve as the Board may find necessary and appropriate pursuant to
the Governing Documents. Common Area Expenses shall include but not be limited to
expenses relating to the maintenance, repair and/or replacement of the Common Areas,
such as electrical bills, (such as pumps and lighting), landscaping, insurance and
real estate taxes.
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11. “Common Maintenance Areas” shall mean the Common Areas, and shall also
mean any areas that are not owned by the Association but which the Association is
responsible for maintaining or that is within public rights-of-way or located on adjacent
property that the Association is required to maintain pursuant to the terms of this
Declaration, or which the Board deems necessary, desirable or appropriate for the
Association to maintain for the common benefit of the Owners, including (but not
limited to) the Parks.
12. “Conversion Date” shall be the date upon which the control of the Association is
turned over to the Owners. Such date shall be the date which is the earlier of (i) the
date at which eighty percent (80%) of the total Lots anticipated to be created within the
Subdivision, including future phases, have been conveyed to third parties by Declarant;
(ii) Fifteen (15) years after conveyance of the first Lot to a third party; or (iii) upon
written election of Declarant. For clarity, even if a specific phase of Urban + Farm
Subdivision has reached 80% sold to third parties, the Conversion Date will not occur
Until 80% of all future phases are 80% sold, 15 years have passed from the first
conveyance, or the written election of Declarant, whichever occurs first.
13. ”Declarant” shall mean the developer of the Urban + Farm Subdivision,
namely Laurel Parkway, LLC, and its successors and assigns.
14. “Design Review Committee” or “DRC” shall mean the Design Review
Committee established in this Declaration and shall mean the committee of at least
three members who review improvement proposals for conformance to the provisions
of these covenants and the Design Guidelines Manual and conditionally approves or
rejects the same.
15. “Design Guidelines Manual” shall mean the Urban + Farm Design Guidelines
Manual adopted by the DRC or Declarant as set forth herein, as amended or
modified from time to time.
16. ”Governing Documents” is a collective term referring to this Declaration and
any Applicable Supplemental Declarations or Amendments, the Bylaws, the Design
Guidelines Manual and any previously recorded covenants affecting the Property as
well as any rules and regulations promulgated by the Association all as may be
amended. The Governing Documents establish, as part of the general plan of
development for the Property, a framework of affirmative and negative covenants,
easements and restrictions which govern the Property. Within that frame work, the
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Board and Owners have the ability to respond to unforeseen problems and changes in
circumstances, desires, trends and technology which inevitably will affect Urban + Farm
Subdivision, its Owners and residents through rules and regulations promulgated by
the Board or through amendments to the Governing Documents.
17. “Improvement” shall mean every structure or improvement of any kind,
including, but not limited to landscaping, patios, decks, fences and walls (including
retaining walls), driveways, sidewalks, fixtures, storage shelters, pools, hot tubs, athletic
facilities and other products of construction efforts (including exterior painting,
alterations and reconstruction).
18. ”Lot” shall mean and refer to only that land so divided into a lot, tract, parcel or
condominium unit that is (a) described in Exhibit “A” or hereafter annexed into the
Urban + Farm Subdivision and (b) designated as the Declarant for residential, mixed or
commercial use. The term Lot does not include any portion of the Parks or other
Common Areas.
19. ”Manager” shall mean the Board, Manager or Management Company, or any
other Person or group retained or appointed by the Association for the purpose of
conducting the day-to-day operations of Urban + Farm.
20. “Member” shall mean and refer to each Lot Owner shall also include the
Declarant. Membership in the Association shall be appurtenant to and may not be
separated from ownership of a Lot.
21. ”Owner” shall mean and refer to the record owner, whether one or more persons
or entities, of a fee simple title to any Lot which is part of the Property. The term Owner
shall also include the purchaser under a Contract for Deed.
22. “Parks” shall mean all land and interest therein which, has or may be conveyed
to the Association or City of Bozeman, including but not limited to all lands identified
on the plat as open space, trails, park, private open space or private parks, and
detention ponds as delineated on the final plat of Urban + Farm Subdivision. Parks
may be dedicated to the City but shall be maintained by the Association. Open
space, including the detention/retention ponds, shall remain in the ownership and
control of the Association. Parks shall be maintained and improved consistent with the
provisions of these covenants governing maintenance and improvement of parks.
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23. ”Person” shall mean a natural person, a corporation, a partnership, a trustee or
any other legal entity.
24. “Plat” shall mean the plat of Urban + Farm Subdivision, recorded on
____________, 2022 as Document Number ____________ in the official records of
Gallatin County, Montana, and any additional phases and plans that may be annexed to
the Subdivision as Additional Property.
25. ”Property” shall mean and refer to that certain real property Described on
Exhibit A and shall include Additional Property once formally annexed in as set forth
herein.
26. “Rules and Regulations” shall mean the rules and regulations adopted by the
Association from time to time.
27. “Special Assessments” shall mean any special charges established pursuant to
the terms of Article VII.
28. “Specific Assessment” shall mean the charges imposed upon some, but less than
all Lots, for services rendered or expenses incurred pursuant to Article VII.
29. “Structure” shall mean anything built or placed on, or above, ground level
excluding ground level features such as streets, driveways, sidewalks, pathways or
low-profile patio or entrance slabs contiguous to structures.
30. ”Subdivision” or “Urban + Farm” shall refer to the Property, all as further
depicted on the Plat.
31. “Turnover Meeting” shall mean the meeting of the Owners called by Declarant
to turn over control of the Association to the members.
32. “Unit” shall mean any attached or detached residential dwelling intended for
occupancy by a single family, including (but not limited to) a detached single family
home, an apartment located within a multi-family building, an attached townhouse and
a condominium unit.
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ARTICLE II. ANNEXATION.
1. Annexation. The Property described in Exhibit “A” attached hereto shall be held,
sold, conveyed, leased, encumbered, occupied and improved subject to this Declaration.
The Property described in Exhibit A may be supplemented and/or amended by
Declarant to annex in Additional Property. Additional property and Common Areas
may be annexed to the Property by Declarant at any time, provided however, that all of
such Additional Property and Property Owners may be subject to different Covenants.
The Additional Property included in any such annexation shall thereby become a part
of the Subdivision and bound by the terms of this Declaration, or as amended, and
Declarant and the Association shall have and shall accept and exercise administration of
this Declaration with respect to such Additional Property.
2. Supplemental Declaration. The Declarant may, pursuant to the following
provisions of the section, from time to time and in Declarant’s sole discretion, annex to
Urban + Farm Subdivision all or any part of any Additional Property (not then
constituting a part of Urban + Farm Subdivision) owned by Declarant at the time of
such development.
The development of such Additional Property shall be effectuated by Declarant
recording a supplemental declaration describing the land to be developed; set forth
special or specific assessments setting forth such additional limitations, restrictions,
covenants and conditions as are applicable to such Additional Property; and declaring
the Additional Property is to be held, sold, conveyed, encumbered, leased,
occupied and improved subject to the Urban + Farm Subdivision Covenants and
any other matters deemed relevant to Declarant.
Upon the recording of the Supplemental Declaration, the Additional Property shall
become a part of the Urban + Farm Subdivision.
Only the land described in Exhibit “A” and that specifically developed as provided for
in this section shall be deemed subject to the Urban + Farm Subdivision covenants,
whether or not shown on any subdivision map filed by Declarant or described or
referred to in any document executed or recorded by Declarant. Northing herein
or in any amendment hereto shall be deemed to be a representation, warranty or
commitment that the Declarant will commit or subject to the Urban + Farm
Subdivision covenants any land Declarant may now own or hereafter acquire except
that land described in Exhibit “A” and attached thereto.
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3. Assessments. When Additional Property is annexed to the Subdivision the
Association shall, within sixty (60) days after the annexation, recompute the budget for
the Association based on the additional Lots, Common Areas, Common Expenses and
Common Maintenance Areas and recompute all applicable assessments for each Lot.
Newly annexed Lots shall be subject to assessment from the time of annexation of the
Lots to the Subdivision, unless the Lots are owned by Declarant, which are generally
exempt from assessments as set forth herein.
The Association shall send notice of any applicable assessment to the Owners of newly
annexed Lots not later than sixty (60) days after the annexation or with the next
occurring Annual Assessment, whichever is sooner. Assessments shall be due and
payable on or before a date set forth in the notice, which shall be not less than thirty (30)
days after the date the notice is mailed to the new Owners or at such other time or times
as the Association may specify in the notice in accordance with this Declaration or the
Bylaws. If Additional Property is annexed to the Subdivision during the Association’s
fiscal year, the Association shall send notice of the recomputed assessment and any
additional assessments owed to the Owners of the Lots which were within the
Subdivision prior to the annexation, and the Association shall collect such recomputed
additional assessments from such Owners. Notice of the adjustment in the assessments
shall be sent to such Owners not later than sixty (60) days after the annexation or with
the next occurring Annual Assessment, whichever is sooner. To the extent that any
adjustment results in an credit with respect to assessments payable by an Owner, such
credit shall be applied toward the next occurring payment or payments of the
applicable assessment.
4. No Limitation. There is no limitation on the number of Lots which Declarant may
create or annex to the Subdivision. Similarly, there is no limitation on the right of
Declarant to annex Common Areas. Upon annexation, additional Lots so annexed into
the Subdivision shall be entitled to voting rights and all other rights and obligations of
membership in the Association.
5. No Additional Consent. The Declarant has the right and authority to annex
Additional Property at any time. No consent of the Board, Association or any Owner or
any other party except the record owner of the Additional Property being annexed shall
be necessary to affect any annexation made pursuant to this Section.
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ARTICLE III. CITY REQUIRED COVENANTS.
The following Covenants may not be repealed or amended without the prior written
consent of the Bozeman City Commission. The City of Bozeman is a party to the
Covenants in this Section and may enforce their terms.
1. All county declared noxious weeds will be controlled by either Owners or
the Association. Owners shall control noxious weeds in their Lots and the
Association shall control noxious weeds in the Common Areas.
2. Lot owners and residences of the subdivision are informed that adjacent
uses may be agricultural. Lot owners accept and are aware that standard
agricultural and farming practices can result in dust, animal odors and
noise, smoke, flies, and machinery noise. Standard agricultural practices
feature the use of heavy equipment, chemical sprays and the use of
machinery early in the morning and sometimes late into the evening.
3. All fences bordering agricultural lands must be maintained by the
landowners in accordance with state law.
4. Any covenant which is required as a condition of the preliminary plat
approval and required by the city commission may not be amended or
revoked without the mutual consent of the owners in accordance with the
amendment procedures in the covenants, and the city commission.
5. A Common Area and facility maintenance plan is attached hereto as
Exhibit B.
6. Open Space shown on the approved final plan or plat shall not be used
for the construction of any structures not shown on the final plan.
7. Stormwater facilities maintenance plan is attached hereto as Exhibit C as
required by chapter 40 article 4 BMC.
8. Common Areas and facilities are hereby perpetually reserved as Common
Areas and facilities as noted on the Plat.
9. The Association is responsible for liability insurance, any applicable tax
assessments and the maintenance of any Common Areas or facilities.
ARTICLE IV. BINDING EFFECT AND ENFORCEMENT
All Property described above shall be owned, conveyed and used subject to all
provisions of this Declaration which shall run with the title to such Property. These
Covenants shall be binding upon all persons having any right, title or interest in any
portion of the Property, their heirs, successors, successors in title and assigns. These
Covenants shall be enforceable by the Declarant, the Association, any Owner and their
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respective legal representatives, heirs, successors and assigns perpetually from the date
these Covenants are recorded with the Gallatin County Clerk and Recorder’s Office.
ARTICLE V. GOVERNING DOCUMENTS
The Governing Documents (as defined in Article I (a)) create a general plan of
development for Urban + Farm which may be supplemented by existing and additional
covenants, restrictions and easements and by annexing in Additional Property.
Nothing in this section shall preclude any other recorded covenants applicable to any
portion of the Property from containing additional restrictions or provisions which are
more restrictive than the provisions of these Covenants.
All provisions of the Governing Document shall apply to all Owners and to all
occupants of the Lots as well as the respective tenants, guests and invitees unless
otherwise noted. Any lease on a Lot shall provide that the Lessee and all occupants of
the leased Lot shall be bound by the terms of the Governing Documents, and any
leasing Lot Owner shall provide full and complete copies of the Governing Documents,
and any amendments thereto to any Tenant.
The Property is subject to existing easements, terms, conditions, obligations,
disclosures, reservations, restrictions, dedications and conditions shown and delineated
on the Plat and other documents filed or recorded with the Clerk and Recorder of
Gallatin County, Montana, or the State of Montana, and subject to applicable zoning
ordinances and land use restrictions, if any, laws and regulations of the City, Gallatin
County, State of Montana and the United States of America, and also subject to taxes,
assessments, and charges levied by the City, Gallatin County, improvement districts,
sewer and water districts, fire districts and any other district or taxing authority, if any.
ARTICLE VI. PROPERTY OWNERS= ASSOCIATION, MEMBERSHIP AND
VOTING RIGHTS
1. Formation.
The Declarant hereby establishes a Property Owner's Association, which shall be
a Montana non-profit corporation, for the purpose of promoting, developing and
operating Urban + Farm. All Lot Owners shall be Members of the Association. This
Association shall be called The Urban + Farm Property Owners Association, Inc.
(“Association”). The Association shall adopt Bylaws for the administration of the
Association. The Bylaws, as adopted and as properly amended, shall be binding upon
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all Owners in Urban + Farm. Every Owner of a Lot shall be a Member of the
Association and membership is automatic and mandatory for Owners. Each Lot shall be
entitled to one vote on any Association business. If a Lot is subjected to a
condominium regime, each condominium unit shall be considered a “Lot” for voting
and assessment purposes. Multiple Owners of a single Lot have one collective vote.
Membership shall be appurtenant to and may not be separated from ownership of any
Lot within Urban + Farm. Membership shall transfer with the sale of a Lot to the new
Owner. Each Lot Owner shall be responsible for advising the Association of his or her
acquisition of ownership, of his or her mailing address, and of any change in the same.
2. Suspension.
All voting rights of an Owner shall be suspended during any period in which
such Owner is delinquent in the payment of any assessment duly established pursuant
to this Declaration or is otherwise in default under the Governing Documents. The
Board may also suspend an Owner’s rights to use the Common Areas during such
period of default.
3. Function.
The function of the Association shall include but not be limited to the following:
(a) Adopt bylaws for the governance of the Association.
(b) Make provisions for the general management and/or repairs and maintenance
of the Common Areas.
(c) Levy assessments as provided for in this Declaration and the Bylaws.
(d) Adopt and implement a policy for the affairs of the Association and
Subdivision.
(e) Represent the interests of the Owners in matters concerning the Association.
(f) Enter into contracts or hire personnel for the management of the affairs of the
Association.
(g) Be responsible for the perpetual maintenance of the Common Areas and to
the extent such maintenance is required; and
(h) Be responsible for the upkeep, maintenance, repair, refurbishing and
remodeling of the Common Areas including the lands, grounds, landscaping,
shrubbery, and trees (which includes control of noxious weeds).
(i) Create Committees, consisting of Owners, Board Members or other persons
appointed by the Board to focus on specific tasks, such as DRC or on specific
areas such as residential or commercial neighborhoods.
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4. Voting Interest.
Each Lot shall have one (1) vote on all matters to be decided by the Association.
If a Lot is owned by more than one Person, such Persons shall appoint a representative
to cast the vote for that Lot. Except as otherwise provided in this Declaration, or the
Bylaws, a majority of the votes present at any meeting or by proxy shall be sufficient to
act on matters brought before the Association. Meetings of the Association shall only be
conducted when a quorum is present, as defined in the Association Bylaws.
5. Failure to Comply.
Each Lot Owner shall comply strictly with the provisions of the Governing
Documents and the decisions and resolutions of the Association adopted pursuant
thereto as the same may be lawfully amended from time to time. Failure to comply
with any of the same shall be grounds for a lien, for an action to recover sums due, for
damages or injunctive relief or any combination of the above and for reimbursement of
all costs, including attorney fees incurred which action may be maintainable by the
Association or the Manager in the name of the Association, on behalf of the Lot Owner,
or in the proper case by an aggrieved Lot Owner.
6. Board of Directors
The term ABoard of Directors@ or ABoard@ shall mean the Declarant until The
Conversion Date or until Declarant voluntarily turns over control of the Association to
the Owners, whichever shall occur first. Thereafter the Board shall consist of at least
three Lot Owners who shall be elected at the annual meeting by a simple majority of the
Members of the Association. That Board shall be elected for a term set by a simple
majority of the membership but not less than one year and no longer than three. To the
extent possible, terms should be staggered. Each director shall serve until replaced by
his or her successor. Any vacancy in the Board occurring before the next annual
meeting of the Members shall be filled by appointment by the remaining Board of
Directors. The Directors shall act by majority vote. If the remaining Board of Directors
are unable to come to a decision as to who should fill the vacancy, a special meeting of
the Members shall be called and the Members shall appoint a member to fill the
vacancy.
7. Officers
The Board of Directors shall serve as officers that shall be designated by a simple
majority of the members at the annual meeting unless and until a majority of the
members vote to have officers elected separate and apart from the Directors.
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8. Duties.
The duties of each of the officers shall be as follows:
A. President. The President shall preside over all meetings of the Association.
He or she shall call the membership together whenever necessary. The President
shall be the general administrative and executive officer of the Association, and
shall perform such duties as may be specified and exercise such powers as may
be delegated to the officer of President by the Board of Directors.
B. Vice-President. The Vice-President shall exercise the powers of the President
in the absence of the President.
C. Secretary. The Secretary shall give notice of all meetings of the Association
and shall keep a record of the proceedings of the meetings of the Association.
The Secretary shall be authorized to sign on behalf of the Association, all records,
documents and instruments when such are authorized to be signed by the
Association.
D. Treasurer. The Treasurer shall keep and maintain adequate and correct
accounts of the accounts, properties, and business of the Association, including
accounts of its assets, liabilities, receipts, disbursements, gains and losses of the
Association. The Treasurer shall prepare and report such periodic accountings
as shall be required by the Association.
9. Power of Association
The Association, acting through its Board of Directors, shall have the power
and authority to take such actions as shall be necessary or reasonable to care for,
protect, improve and maintain the Urban + Farm Subdivision; to enforce these
Covenants; to collect assessments; to set annual and/or special meetings; and to act in
any other matters set forth herein or which may serve Urban + Farm, including but not
limited to:
a. The Association shall accept title to all common open space and other land
from time to time conveyed to it. The Association may also acquire and
accept title to any other property, real, personal or mixed.
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b. All maintenance and/or improvement of Common Areas and Common
Maintenance Areas and the installation of landscaping improvements,
trail/bike path improvements and maintenance and upkeep of the public
parks and trails approved by the City of Bozeman in conjunction with Urban
+ Farm Subdivision.
All common open spaces identified on the final plat of Urban + Farm
Subdivision are included in the Parks. These lands are available for the
enjoyment and use of the residents, guests and public visiting Urban + Farm
Subdivision.
c. The Association shall pay all real property taxes and assessments levied
upon the Common Areas. The Association shall establish Homeowners or
lot owners’ dues.
d. The Association shall maintain or provide for the maintenance of the
Parks until such time as the City of Bozeman assumes the obligations for the
Parks.
e. The Association may obtain and maintain in force such insurance policies,
as the Board may deem appropriate.
f. The Association shall have all powers set forth in Urban + Farm
Subdivision Covenants including, without limitation, the power to levy
assessments, to make contracts and to acquire and dispose of property, and
shall take such action, whether or not expressly authorized by Urban + Farm
Subdivision Covenants, limitations, covenant conditions and restrictions of
Urban + Farm Subdivision Covenants, rules and the Committee rules.
g. The Association shall have the power to assess the Urban + Farm
Subdivision Owners for the general common expenses, which shall include
the expenses of any properly created special improvement districts, street
maintenance and tree maintenance, weed control. Such assessments shall be
collected and paid according to the terms and under the procedures more
particularly set forth in this Document. Notice to each Owner’s assessments
shall be mailed to the owners’ address on record.
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h. The Association shall have the power and authority at any time and from
time to time and without liability to any Owner for trespass, damage or
otherwise, to enter upon any Lot, for the purpose of maintaining and
repairing any lot, if for any reason the Owner fails to maintain and repair the
lot as required by the Covenants or for the purpose of removing any
improvement constructed, reconstructed, refinished, altered or maintained
upon such area in violation of these Covenants. The Association shall also
have the power and authority from time to time in its own behalf, or in the
name and behalf of any Owner or Owners who consent thereto, to
commence and maintain actions and suits to restrain and enjoin any breach
or threatened breach of Urban + Farm Subdivision Covenants, or to enforce
by mandatory injunction or otherwise all of the provisions of the Urban +
Farm Subdivision, Covenants.
i. In fulfilling any of its duties under the Urban + Farm Subdivision
Covenants, including its duties for the maintenance, repair, operating or
administration of the Parks, and to the extent necessary by the failure of the
Owners of private areas, or in exercising any of its rights to construction
improvements of other work upon any Parks, the Association shall have the
power and authority:
(1) To contact and pay for, or otherwise provide for, construction,
maintenance and repair of all improvements upon Parks on such
terms and conditions as the Association, shall deem appropriate
and to pay and discharge all liens arising out of any work;
(2) To obtain, maintain and pay for such insurance policies or bonds as
the Board may deem to be appropriate for the protection or benefit
of Urban + Farm Subdivision the Association, the members
of the Board, the members of the Committee, or the Owners;
(3) To contract and pay for, or otherwise provide for, such utility
services including, but without limitation, water, sewer, trash,
electrical, telephone and gas services as may from time to time be
required.
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(4) To contract and pay for, or otherwise provide for the services of
architects, engineers, attorneys and certified public accounts or
such other professional or nonprofessional services as the Board
may deem necessary;
(5) To contract and pay for, or otherwise provide for, fire, police and
such other protection services as the Board deems necessary for the
benefit of Urban + Farm Subdivision, any property located within
Urban + Farm Subdivision, or the Owners;
(6) To contract and pay for, or otherwise provide for, such materials,
supplies, furniture, equipment and labor to the extent the Board
deems necessary, and to pay and discharge any and all liens placed
upon any Parks on account of any work done or performed by the
Association in the fulfillment of any of its obligations and duties of
maintenance, repair, operation or administration.
j. The Board shall be required to grant and convey to any third parties
easements or rights-of-way in, on, over or under any Common Areas
without payment to the Association when requested by Declarant.
k. The Board may from time to time employ the services of a manager to
manage the affairs of the Association. The Board may delegate to the
manager any of its powers under the Urban + Farm Subdivision restrictions,
provided, however, the Board cannot delegate to such manager the power to
execute any contract binding on the Association for a sum in excess of
$1,000.00; nor for the performance of any work or services which work or
services are not to be completed within 60 days; nor the power to sell,
convey, mortgage or encumber any property of the Association.
l. The Board shall have the right to pay, compromise or contest any or all
taxes and assessments levied against all or any part of the Parks, or upon any
personal property belonging to the Association.
m. The Owners, Declarant and Association are hereby prohibited and
precluded from engaging in any activity that would impact any downstream
water user facilities.
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Enforcement of these covenants by Declarant, DRC, Board, Owner or any party having
standing, shall include for the party seeking enforcement and prevailing in such
enforcement, an award of costs, fees and reasonable attorney’s fees.
ARTICLE VII: COVENANT FOR ASSESSMENTS
1. Creation of the Lien for Personal Obligation of Assessments
The Owner of any Lot by acceptance of a contract of sale or a deed therefore,
whether or not it shall be so expressed in such deed or contract, is deemed to covenant
and agree to pay to the Association (a) annual assessments or charges; and (b) special
assessments for capital improvements, such assessments to be established and collected
as provided in the Bylaws. Further, each initial Owner of a Lot (excluding Declarant)
shall pay an initial assessment as set forth in 2(e) below. The annual and special
assessments, together with interest, costs and reasonable attorney=s fees, shall be a
charge on the Lot and shall be a continuing lien upon the Lot against which each
assessment is made. Each such assessment, together with interest, costs and reasonable
attorney=s fees, shall also be the personal obligation of the Person who was the Owner
of such property at the time the assessment fell due. Failure of the Board to fix
assessment amounts or rates or to deliver or mail each Owner an assessment notice
shall not be deemed a waiver, modification or release of any Owner from the obligation
to pay assessments. In such event, each Owner shall continue to pay Annual
Assessments on the basis of the last year for which an assessment was made, if any,
until a new budget becomes effective and a new assessment is levied pursuant thereto.
Any such budget may include as an expense item any shortfall in amounts previously
collected. No Owner may exempt himself from liability for assessments by non-use of
the Common Areas, abandonment of his or her Lot, or any other means. The obligation
to pay assessments is a separate and independent covenant on the part of each Owner.
No diminution or abatement of assessments or set-off shall be claimed or allowed for
any alleged failure of the Association or Board to take some action or perform some
function required of it, or for inconvenience or discomfort arising from the making of
repairs or improvements, or from any other action it takes.
The Association has the authority to impose reasonable charges for interests and
penalties for overdue payments. Except for the initial assessment, the Association
Board of Directors must first obtain the approval of a majority of the membership
interests before:
a. making any assessment for a capital improvement costing in excess of
$10,000.00.
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b. mortgaging, encumbering or otherwise disposing of any Property of the
Association in excess of $5,000.00
2. Assessments - Purposes, Procedures
The Association shall levy assessments upon the Lot Owners in the following
manner and for the following reasons:
a. Generally. Assessments shall be made as a part of the regular business of the
Association at any regular or special meeting thereof as provided in the Bylaws of the
Association. Notice of the assessment, amount thereof, and the purpose for which it is
made whether regular or special, including an annual budget for expenditures and
operations, shall be served on all Lot Owners affected by delivering a copy of the same
to the Lot Owner personally, by email (if the Owner has provided the Association an
email address) or mailing a copy of the notice to the Owners at their addresses of record
at least ten (10) days prior to the date for such meeting.
b. Annual Assessment. Assessments shall be made for the repair, replacement,
general maintenance, management and administration of Common Areas, fees, costs
and expenses of the Manager, insurance, costs and expenses of the Association, taxes for
Common Areas to establish a reserve fund and for the Lot Owners’ percentage share of
any special improvement district assessments and other matters as the Board deems
appropriate (collectively “Annual Assessment”). Assessments shall be on a per Lot
basis and shall be equal per Lot, regardless of the size of the Lot.
As part of the Annual Assessment, each Owner shall be assessed for Association
expenses including but not limited to insurance, taxes, Common Area Expenses, the
expenses of any properly created special improvement districts (SIDs) affecting the
Property. Such assessments, and assessments for Common Area Expenses and
Common Area Maintenance shall be collected and paid according to the terms and
under the procedures more particularly set forth in the Governing Documents. The
amounts of assessments described above, and any other assessments allowed by the
Bylaws, this Declaration and by the State of Montana, shall be fixed by the Board of
Directors. Notice of each Owners= assessments shall be mailed to the Owner at his or
her address or email (if the Owner has provided the Association an email address) of
record.
As a part of any Annual Assessment the Board shall obtain from Owners
contributions for a reserve account (the “Reserve Account”) established for all items of
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property including, without limitation, the Common Areas, Common Maintenance
Areas which will normally require major maintenance, repair or replacement, in whole
or in part, in more than one (1) and less than thirty (30) years, for exterior painting and
for other items, whether or not included within the definition of Common Areas or
Common Maintenance Areas, if the Association has responsibility to maintain;
provided, however, that the Reserve Account need not include items that could
reasonably be funded from Base Assessments or Specific Assessments or other funds or
accounts of the Association, or items for which the Owners (and not the Association) are
responsible for maintenance, repair and replacement under the terms of the Governing
Documents.
c. Specific Assessments. The Association shall have the authority to levy
assessments to satisfy the expenses of undertaking a particular project or effort that
benefit some, but less than all, of the Lots (such assessments, “Specific Assessments”).
Specific Assessments shall be allocated equally against the Owners of those Lots that
benefit from the project, effort or other specific undertaking by the Association. More
particularly, as neighborhoods within the Urban + Farm Subdivision develop, each may
have unique needs or amenities that other neighborhoods do not. For example, the
commercial neighborhood will have different amenities and expenses, such as parking
lot maintenance than a residential neighborhood with single family residences will
have. The Board may create Committees to address neighborhoods specific items,
including recommendations on specific assessments for a neighborhood.
d. Special Assessments. In addition to the Base Assessments authorized above,
the Board may levy “Special Assessments” against an Owner or all Owners in the
following manner for the following purposes:
(i) To correct a deficit in the operating budget, by vote of a majority of the
Board;
(ii) To collect additional amounts necessary to make repairs or renovations
to the Common Areas or Common Maintenance Areas if sufficient funds are not
available from the operating budget or Reserve Account, by vote of a majority of the
Board; and
(iii) To make capital acquisitions, additions or improvements, by vote of
Owners holding at least sixty percent (60%) of the voting rights of the Association.
e. Initial Assessment. An initial assessment for each Lot shall be collected at the
initial transfer of each Lot from the Declarant to a third party (“Initial Owner”). At the
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time the Association holds its first meeting, or at any duly noticed meeting thereafter, a
reserve account will be set up to which any unused initial assessments shall then be
deposited. Thereafter, a yearly assessment shall be made for the reserve account in an
amount determined by the Association but in no event shall it be less than 10% of the
annual budget. The reserve funds shall be for the maintenance, repair, replacement and
administration of the Common Elements. The Declarant shall not be required to pay
any amounts toward the reserve fund for any Lot owned by Declarant until the date
that 80% of all Lots have been sold.
f. Fines. The Association, acting through the Board or the Manager, shall have
the authority to levy fines against Lots for any violation of the covenants set forth
herein or for any violation of the rules and regulations duly adopted by the Board.
Violations caused by a tenant shall be assessed against the Lot and shall be the
responsibility of the Lot Owner. For each violation, the Owner may be fined according
to the following fine schedule:
First Offense: $ 50.00
Second Offense: $100.00
Third Offense & more: $150.00
The fine schedule may be amended by the Board at any duly called meeting provided it
is thereafter approved by at least eighty percent (80%) of the Lots. All fines shall be
considered final and shall be considered an assessment and a lien against the Lot unless
the Lot Owner makes a written appeal to the Board within five (5) business days of
receiving the fine and the Board subsequently overturns such fine. The Board shall
have thirty days to meet and render its decision regarding the fine, which decision shall
be final. All fines may be collected by the Association in the same manner as an
assessment as set forth herein, including but not limited to liens. All fines not paid
within thirty (30) days shall accrue interest at the then maximum current legal rate of
interest per annum on the amount of the fine from the due date thereof.
g. Exemption from Payment of Assessments. Any Lot owned by Declarant is
exempt from the payment of Base Assessments, Specific Assessments, Reserve Account
Assessments, Special Assessments and Reimbursement Assessments. Any Lot owned
by a Builder is exempt from the payment of Base Assessments, Specific Assessments,
Reserve Account Assessments, Special Assessments and Reimbursement Assessments
for a period of one (1) year after such Lot was conveyed by Declarant to the Builder;
provided, however, that Declarant shall have the right, in its sole discretion, to extend a
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Builder’s assessment exemption period for an additional year by sending written notice
thereof to the Association.
3. Payment of Assessments
a. Due Date Delinquency. All assessments shall be due thirty (30) days from the
date of mailing or emailing such assessment following the meeting at which time
assessments are levied by the Association, and may be payable in one annual payment,
quarterly or monthly installments, at the option of the Lot Owner. The amount
assessed against each Lot shall be the personal and individual obligations of the Lot
Owner. No Lot Owner shall be exempt from liability for any assessment by waiver of
the use of enjoyment of any of the Common Areas or by abandonment of the Lot. All
assessments which are not paid within thirty (30) days from the date they are due and
payable become delinquent and are subject to interest at the highest rate allowed by
law.
b. Collection. The Association or Manager shall have the responsibility of taking
prompt action to collect any unpaid assessment which becomes delinquent. In the
event of delinquency in the payment of the assessment, the Lot Owner shall be
obligated to pay interest at the then current legal rate of interest per annum on the
amount of the assessment from the due date thereof, together with all expenses,
including attorney fees incurred, together with such interest and late charges as are
provided in the Bylaws of the Association. Suit to recover a money judgment for
unpaid Common Area Expenses may be maintainable without foreclosing or waiving
the lien securing the same. Unpaid assessments, together with attorney fees, interest
and costs shall also be a personal obligation of the Lot Owner at the time the assessment
becomes due and a purchaser may be held jointly or severally liable for past due
payments.
4. Liens and Foreclosure.
All sums assessed but unpaid for any assessment chargeable to any Lot shall
constitute a lien on such Lot. To evidence such lien, the Association shall prepare a
written notice of lien assessment setting forth the amount of such unpaid indebtedness,
the amount of accrued interest as of the date of the notice, the rate that interest will
continue to accrue, late charges thereof, and the name of the Lot Owner and a
description of the Lot. Such notice shall be signed and verified by one of the officers of
the Association or by the Manager, or his or her authorized agent, and shall be recorded
in the office of the Clerk and Recorder of Gallatin County, Montana. Such lien shall
attach from the date of recording such notice. Such lien may be enforced by the
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foreclosure of the defaulting Owner’s Lot by the Association in like manner as
foreclosure of a mortgage on real property. In any foreclosure, the Lot Owner shall be
required to pay a reasonable rental for the Lot and the Plaintiff in such foreclosure
action shall be entitled to the appointment of a receiver to collect the same. Suit to
recover a money judgment for unpaid assessments shall be maintainable without
foreclosure or waiving the lien securing the same. In any such proceeding the Lot
Owner may be required to pay the costs, expenses and attorney’s fees incurred in filing
a lien, and in the event of foreclosure proceedings, additional costs, expenses and
attorney’s fees incurred.
5. Bidding at Foreclosure Sale.
The Association shall have the power to bid (by credit bid or otherwise) on the
Lot at a foreclosure or other legal sale, and to acquire and hold, lease, mortgage, vote
the votes appurtenant to, convey or otherwise deal with the same. Any lienholder
holding a lien on a Lot may pay, but shall not be required to pay, any unpaid
assessment payable with respect to any such Lot and upon such payment such
lienholder shall have a lien on said Lot for the amounts paid of the same priority as the
lien of the lienholder’s encumbrance without the necessity of having to file a notice or
claim of such lien.
6. Priority of Lien
To the extent permitted by Montana law or other applicable law, any lien of the
Association for assessments becoming payable on or after the date of recordation of the
first mortgage, shall be subordinate to the first mortgage on the Lot. To the extent
permitted by Montana law or other applicable laws, such a lien for assessments shall
not be affected by any sale or transfer of a Lot, except that a sale or transfer of a Lot
pursuant to a foreclosure of a first mortgage shall extinguish a subordinate lien for Lot
assessments which become payable prior to such sale or transfer. To the extent
permitted by Montana law or other applicable law, any such sale or transfer pursuant to
a foreclosure shall not relieve the purchaser or transferee of a Lot from liability for, nor
the Lot sold or transferred from the lien of, any assessment charges thereafter become
due.
7. Mortgages and Unpaid Dues.
Any first mortgagee who obtains title to a Lot pursuant to the remedies in the
mortgage or through foreclosure will not be liable for more than 12 months of the Lot’s
unpaid regularly budgeted dues or charges accrued before acquisition of the title to the
Lot by the Mortgagee. If the Association’s lien priority includes costs of collecting
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unpaid dues, the lender will be liable for any fees or costs related to the collection of the
unpaid dues.
8. Uniform Rate of Assessment
Both annual and special assessments must be fixed at a uniform rate for all
deeded Lots or Lots. Assessments must be made upon the pro-rata share of each lot or
Lot based upon the total assessment cost divided by the total number of Lots.
9. Insurance
The Association, acting by and through the Board of Directors, shall obtain,
purchase, and maintain, all of the insurance policies specified and required in this
Section. Neither the Association, Board of Directors, nor the Declarant, however, shall
be liable for failure to obtain any coverages required by this Section, or for any loss or
damage resulting from such failure, if such failure is due to the unavailability of such
coverages, or if such coverages are so available only at a demonstrably unreasonable
cost.
a. Premises. The Association shall pay premiums for the below listed insurance
policies as a Common Area Expense and shall include the cost as part of the
Association’s assessment.
b. Policy Requirements – Generally. Each required policy must provide that:
(i) Named Insured. The named insured is the Association for itself and as
agent for the Lot Owners without naming them. Each Owner is an
insured Person under the policy with respect to liability arising out of
such Owner's membership in the Association. The policies may contain a
reasonable deductible. In the event of an insured loss, the deductible shall
be treated as an Association expense. However, if the Board reasonably
determines, after notice and an opportunity to be heard, that the loss is the
result of the negligence or willful misconduct of one or more Owners,
their guests, Invitees, or lessees, then the Board may assess the full
amount of such deductible against such Owner(s) and their Lots as
Specific Assessment.
(ii) Review. The Association shall arrange for an annual review of the
sufficiency of its insurance coverage by one or more qualified Persons, at
least one of whom must be familiar with insurable replacement costs in
Gallatin County, Montana area. All Association policies shall provide for
a certificate of insurance to be furnished to the Association.
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(iii) Recognition of Insurance Trustee. Each policy shall provide for the
recognition of any insurance trust agreement made by the Board. If the
Board designates an Insurance Trustee, all payments under policies
subject to the insurance trust agreement shall be paid to the Insurance
Trustee, and all policies and endorsements thereon shall be deposited
with the Insurance Trustee.
(iv) Waiver of Subrogation. The insurer waives any right to claim by way of
subrogation against the Declarant, the Association, the Board of Directors,
or the Owners, and their respective agents, employees, guests, and, in the
case of the Owners, the members of their households.
(v) Right to Cure: Such policy shall not be substantially modified or
suspended due to the act or omission of any Owner (including his
invitees, agents, and employees) or of any member (acting within the
scope of his authority for the Association), officer or employee of the
Board of Directors, without a prior demand in writing that the Board of
Directors cure the defect and neither shall have so cured such defect
within 60 days after such demand.
(vi) Notice of Cancellation. Such policy may not be canceled or substantially
modified (including cancellation for nonpayment of premium) without at
least 30 days' prior written notice to the Board of Directors.
(vii) Required Coverages. The Association acting through its Board or its duly
authorized agent, shall obtain and continue in effect the following types of
insurance as a Common Area Expense, if reasonably available:
(i) Blanket property insurance on the Common Areas covering the full
replacement cost of all insured improvements, if any, under current
building ordinances and codes, to the extent that Association has
assumed responsibility in the event of a casualty.
(ii) Commercial general liability insurance on the Common Areas
insuring the Association and its Members for damage or injury
caused by the negligence of the Association or any of its Members,
employees, agents, or contractors while acting on its behalf. If
generally available at reasonable cost, such coverage (including
primary and any umbrella coverage) shall have a limit of at least
One Million Dollars ($1,000,000.00) per occurrence with respect to
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bodily injury, personal injury, and property damage; provided,
should additional coverage and higher limits be available at
reasonable cost which a reasonably prudent person would obtain,
the Association shall obtain such addition coverages or limits;
(iii) Workers compensation insurance and employer’s liability
insurance, if and to the extent required by law.
(iv) Directors and officer’s liability coverage.
(v) Commercial crime insurance, including Fidelity insurance covering
all Persons responsible for handling Association funds in an
amount determined in the Board’s best business judgment. Fidelity
insurance policies shall contain a waiver of all defenses based upon
the exclusion of Persons serving without compensation; and
(vi) Such additional insurance as the Board, in its best business
judgment, determines advisable, including but not limited to flood
or earthquake insurance.
ARTICLE VIII: COMMON AREAS
1. General
All Common Areas, including but not limited to those depicted on the final plat
as Open Space or trails shall be reserved in perpetuity as Common Areas. Each Owner
shall have the right to use and enjoy the Common Areas and facilities, if any. The
Association shall be fully responsible for all liability insurance, taxes, assessments and
maintenance of all Common Areas and facilities. The Association shall assess each Lot
Owner their proportionate share of these expenses based upon the formula set forth
herein for all other assessments. Ownership and control of Common Areas shall
transfer to the Association upon the Conversion Date or when Declarant transfers
ownership of the same to the Association by Deed, whichever occurs first. At such time
as ownership is transferred, the Association is obligated to accept the same. The
Association shall be responsible for landscaping the Common Areas and maintaining
the same.
2. Alleys maintenance and snow removal
The maintenance and snow removal of alleys shall be the responsibility of the
Association. The cost of the same will be assessed to all Lot Owners regardless of
whether the alleys are used to access their Lot or not. The Association shall
maintain the trail system. Signs within Common Areas will be placed and designed as
approved by the Association. All Lots are responsible for snow removal and
maintenance of their driveway and sidewalks on their Lots.
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3. Title to Common Areas.
Declarant shall cause fee simple title to the Common Areas to be conveyed to the
Association, free and clear of monetary liens, no later than the date of the Turnover
Meeting, and the Association shall unconditionally accept fee title to the Common Areas
from Declarant on such date.
ARTICLE IX: EASEMENTS
1. Generally. Easements for trails, roads, drainage, electricity, telephone, lighting,
water, sewer, fiber optic and any other service or utility shall be, and hereby are,
granted and reserved as shown on the Plat. Such easements shall not interfere with and
shall be subject and servient to any and all buildings subsequently erected in such areas,
the easements herein provided for shall by-pass such buildings. All utilities, pipes,
wires and service lines shall be buried. All road or access area easements as shown on
the Plat shall include a corresponding easement for drainage, electricity, telephone and
all other utilities along or under such roads.
These easements shall be for the benefit of all Lot Owners.
Easement areas may be landscaped so as to enhance their appearance so long as
the landscaping does not interfere with the use of the easement.
No utility service line or facility shall be installed or replaced without the prior
approval of the Association. All easement areas must be restored, at the expense of the
utility or service entity doing such work, to as near the condition as existed previous to
such work as possible. In the discretion of the Association, a bond may be required of
the utility, installer or service entity to insure compliance with this provision.
2. Easements in Common Areas. The Declarant grants to each Owner a perpetual,
nonexclusive right and easement of use, access, and enjoyment in and to the Common
Area, subject to the restrictions and limitations set forth elsewhere in this Declaration,
which is appurtenant to each Lot, subject to:
a. The Governing Documents and any other applicable covenants.
b. The right of the Board to adopt rules regulating the use and enjoyment of
the Common Area, including rules limiting the hours of use and number
of guests who may use the Common Area.
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c. Any Owner may extend his or her right of use and enjoyment to the
members of his or her family, lessees, and social invitees, as applicable,
subject to reasonable regulation by the Board. Any Owner who leases his
or her Lot shall be deemed to have assigned all such rights to the lessee of
such Lot for the period of the lease.
d. Inspecting, maintaining, repairing and replacing the utilities,
infrastructure and other improvements.
e. Access to read utility meters.
3. Declarant’s Easement. Declarant also reserves for itself the non-exclusive
right and power to grant and record such specific easements as may be necessary, in the
sole discretion of Declarant, in connection with the orderly development of Urban
Farm.
The Declarant hereby reserves for itself and on behalf of its duly authorized agents,
successors and assigns, a perpetual nonexclusive easement over the Common Areas for
the purposes of enjoyment, use, access, and development of Urban + Farm and adjacent
to or near the Property, whether or not such Property is made subject to this
Declaration. This easement includes, but is not limited to, a right of ingress and egress
over the Common Areas for construction and use of roads, sidewalks and walking
paths and for connecting and installing infrastructure and utilities.
4. Special Declarant Easements. Declarant also reserves for itself and its
duly authorized agents, successors and assigns, perpetual, non-exclusive easements
on, over and across the Common Areas for purposes of (a) constructing and
maintaining such facilities and activities as Declarant, in its sole discretion, deems
necessary or convenient to the sale of Lots and Units, including, but not limited to,
business offices, signs, model units and sale offices; (b) constructing and maintaining
Common Areas, including any structures thereon; and (c) storing materials and making
such other use thereof as Declarant, in its sole discretion, deems necessary or
convenient to the construction of improvements and other structures on the Property or
Additional Property (provided that no such storage or other use shall reasonably
interfere with access to, or the use, occupancy and enjoyment of, any Lot). Declarant
shall also have easements for access to and use of the Common Areas for such facilities
at no charge.
5. Easements for Maintenance, Emergency and Enforcement. The Declarant
grants to the Association easements over the Property and Additional Property as
necessary to enable the Association to fulfill its maintenance responsibilities under this
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Declaration. The Association shall also have the right, but not the obligation, to enter
upon any Lot for emergency, security, and safety reasons, to perform maintenance and
to inspect for the purpose of ensuring compliance with and enforce the terms of this
Declaration and any other Governing Documents. Such right may be exercised by any
member of the Board and its duly authorized agents and assignees, and all emergency
personnel in the performance of their duties. Except in an emergency situation, entry
onto a Lot shall only be during reasonable hours and after notice to the Owner.
6. Ingress and Egress. A non-exclusive easement shall exist in favor of each
Owner and occupant, their respective guests, tenants. Licensees and invitees for
pedestrian traffic over, through and across sidewalks, streets, paths, walks, and other
portions of the common elements as from time to time may be intended and designated
for such purpose and use, and for vehicular and pedestrian traffic over, through and
across such portion of the Common Areas as from time to time may be paved or
intended for such purposes, and for purposes of ingress and egress to the public ways.
7. Plat Easements. The Property shall be subject to all easements delineated
on the Plat.
ARTICLE X: DESIGN REVIEW COMMITTEE AND BUILDING REQUIREMENTS.
1. Design Review Committee.
a. A Committee to be known as the Design Review Committee (the “DRC”) shall
be established consisting of the not less than three (3) members or more than five (5)
members, except that the DRC may, at the option of Declarant, consist of as few as one
(1) member (which may be Declarant) for so long as Declarant owns any Lot within the
Subdivision. Each member of the DRC shall serve for a one (1) year term, except that
the member(s) of the DRC approved by Declarant may serve until Declarant no longer
owns any Lot within the Subdivision.
b. The members of the DRC shall be appointed, terminated and/or replaced by
Declarant or so long as Declarant owns any Lot within the Subdivision. Thereafter, the
Board shall appoint the members of the DRC. Members of the DRC may be terminated
and/or replaced by the Board, with or without cause, except that the Board may not
terminate any member of the DRC appointed by Declarant so long as Declarant owns
any Lot within the Subdivision.
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c. Declarant shall have the right to voluntarily relinquish control of the DRC to
the Board during the period in which Declarant owns any Lot within the Subdivision, in
which event Declarant’s right to appoint, terminate and replace members of the DRC
shall terminate.
d. The purpose of the DRC is to enforce the landscaping and architectural
standards of the community and to approve or disapprove plans for any and all
Improvements proposed on the Lots.
e. The DRC shall act by simple majority vote, and shall have the authority to
delegate its duties and to retain the services of a professional engineer, architect,
designer, inspector or other person to assist in the performance of its duties.
2. Design and Construction
The DRC may, with the approval of the Board, adopt, amend, modify or revise
Design Guidelines Manual; provided, however, that Declarant may adopt, amend,
modify and revise the Design Guidelines Manual without the consent of anyone so long
as Declarant owns any Lot within the Subdivision. Neither Declarant nor the DRC,
however, shall have an obligation to adopt Design Guidelines Manual. No
amendments, modifications, or revisions to the Design Guidelines Manual shall affect
any prior DRC approval.
3. Scope of DRC Review.
No Improvements may be undertaken, constructed, altered, added onto or
replaced upon any portion of the Property without the prior written consent of the
DRC.
4. Submission of Plans.
Before the initiation of construction of any improvement upon any Lot, the
Owner thereof shall first submit to the DRC a complete set of plans and specifications
for the proposed improvements in accordance with the procedures outlined in the
Design Guidelines Manual and any other information deemed necessary by the DRC
for the performance of its function pursuant to the procedure outlined in the Design
Guidelines Manual.
5. Non-conforming Structures.
If there shall be a material deviation from the DRC approved plans in the
complete improvements, such improvements shall be in violation of this Article to the
same extent as if erected without prior approval of the DRC. The DRC, the Association
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or any Owner may maintain an action at law or in equity for the removal or correction
of the non-conforming structure and, if successful, shall recover from the Owner in
violation all costs, expenses and fees incurred in the prosecution thereof.
6. Immunity of DRC Members.
No individual member of the DRC shall have any personal liability to any Owner
or any other person for the acts or omissions of the DRC if such acts or omissions were
committed in good faith and without malice. The Association shall defend any action
brought against the DRC or any member thereof arising from acts or omissions of the
DRC committed in good faith and without malice.
7. Limited Review.
Any review and approval made by the DRC is limited to compliance with the
intent of the architectural standards of the neighborhood as may from time to time be
established by the Board and/or the Design Guidelines Manual. The review and
approval made by the DRC is not to be construed as superseding, replacing, or
modifying any review, approval, or permit required by any local, state or federal
jurisdiction agencies. It is the applicant’s responsibility to obtain and comply with any
permits that may be required by any local, state or federal jurisdictional agency.
8. Declarant Exempt: Construction by Declarant.
Declarant is exempt from the requirements of this Article. All construction by
Declarant establishes the standards for the DRC and is deemed to meet any Design
Guidelines Manual of the Association and is automatically deemed to be approved by
the DRC without any need for Declarant to submit plans for review.
9. City Permits Required.
Owners must make application for any required permits from the City or other
governing bodies before construction of any improvements on the Lots.
10. Commencement of Work.
The Owner or Occupant shall begin work within one (1) year of receipt of written
approval from the DRC and diligently proceed toward completion of all approved
excavation, construction, refinishing and alterations.
11. Completion Time.
All construction on or in the Premises shall be diligently prosecuted to
completion and shall, in any event, be completed within twenty-four (24) months of
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commencement unless specific written extension is granted by the DRC. No
construction material shall, at any time, be placed or stored so as to impede, obstruct or
interfere with pedestrian or vehicular traffic and no construction materials shall be
placed or stored on lots for a period of more than thirty (30) days following substantial
completion of construction as shall be determined by the DRC.
12. Authority to Approve.
The DRC shall have the authority to reject the materials, designs and colors
submitted with plans, or the plans themselves, if they are not compatible, or are
inappropriate, with the Design Guidelines Manual.
13. Variances.
The DRC shall have the authority to grant variances where, in its discretion, it
believes the same to be appropriate and necessary and where the same will not be
injurious to the rest of the subdivision.
14. Substantial Compliance.
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All improvements, construction, reconstruction, alterations, remodeling
or
any activity requiring the approval of the DRC must be completed in substantial
compliance with the plans and specifications submitted by the DRC.
15. Appeal.
After an Owner has exhausted its appeal process with the DRC as
described in
6.1 of the Design Guidelines, any final decision of the DRC may be appealed, in
writing,
To the Board of Directors. Any such appeal must be submitted in writing to the
Board
of Directors within fourteen (14) days after the date of the final decision of the
DRC.
The written appeal shall include the final decision of the DRC and specify the
appealing
Member’s grounds for appeal, including the specific regulation at issue, any
Information that was not properly considered and any procedural error by the
DRC. If
the appeal is in relation to a variance request, the appealing Owner shall provide
the
extenuating circumstances or unique situation specific to that Owner that would
support a variance. The Board of Directors shall notify the Owner and the DRC of
when the Board will be considering the Owner’s appeal and the Owner may attend
the
Board’s meeting and may present a short argument in support of the Owner’s
request.
A DRC member may also attend and present a short argument in support of its
Decision. The decision of the Board with respect to the appeal shall be final and
determinative. The Board may adopt additional rules and promulgate additional
procedures and grounds for appeals.
ARTICLE XI: USE RESTRICTIONS
1. Urban + Farm, Phase 1, Single-Family Residential Use Only.
Lots in Urban + Farm Phase 1 shall be used for purposes of constructing and
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maintaining a single-family residential house, and for no other purposes, and be
used
and maintained in compliance with this Declaration, the Articles, Bylaws and any
rules
promulgated by the Association. No residence or building erected on a Lot which
is the
subject of this Declaration shall be used for any commercial endeavor, day care, or
other
business type activity. In home offices are allowed as long as no employees
outside of
the immediate family are employed and no additional traffic (pedestrian or
vehicular) is
created.
2. Animals/Pets.
Common domestic pets are allowed, subject to the following restrictions:
No
more than two (2) dogs and two (2) cats per Lot shall be allowed. No chickens, bees
or
bunnies shall be allowed. The proper control of pets is important to the integrity
and
well-being of the Urban + Farm Subdivision community. No breeding of animals
shall
be allowed. All applicable laws of the City regarding pets must be adhered to as
well
and all pets shall be under the immediate control and supervision of their owners.
No
chained or tied dogs are allowed. Any dog that continually barks will be
considered a
nuisance. The Board may adopt additional rules regarding pets. No pets shall be
allowed to run at large, or off an Owner’s Lot, and shall at all times be under good
voice
control, leashed or contained on its Lot. All pets’ feces must be picked up and
properly
disposed of by its owner immediately. For violation of this covenant the Board
shall
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have the power and authority to levy escalating fines, which fines, not paid shall
become a personal obligation and a lien on the Lot of the Owner violating the rules
or
failing to pay fines. The Board may require removal of the pet for multiple
offenses.
Enforcement of the rules, fines and the lien imposed if a fine is not paid, may be
enforced by an action filed in a Court of jurisdiction in and for the County of
Gallatin,
Montana.
3. Short Term Leasing.
Nothing shall prohibit a Lot Owner from leasing or renting such Owner’s
Lot to third persons or holding it out for lease or rental or entering into an
agreement or contract with others for the lease or rental of the Lot or a portion
(bedroom) thereof for residential use, regardless of the length of the lease term, so
long as any rental conforms with Zoning Regulations and City rules and
registration requirements.
4. Storage of Equipment/Inoperable Vehicles/Recreational Vehicles.
No Lot, alleyway or roadway shall be used for the storage of any inoperable
vehicle, and no Lot, alleyway or roadway shall be used to store recreational
vehicles, machinery or equipment. No Lot, alleyway or roadway shall be used for
storage of any articles, vehicles, equipment, or other personal property of any
quantity in excess of the immediate needs and personal use of the Owner or the
occupants thereof as the case may be. Storage of materials, supplies, equipment,
bikes, vehicles, tools or trade items is expressly prohibited unless completely
enclosed in the residence=s garage or storage area. Any maintenance or repair of
vehicles or other machinery or equipment must take place entirely within the
enclosed garage of an Owner. No recreational vehicles, including but not limited
to travel trailers, motor homes, campers, ATV’s, dirt bikes, four wheelers,
snowmobiles, boats, jet skis, etc., are allowed to be stored on roadways or on any
Lot or any other area within Urban + Farm except for short term parking for up to
twelve (12) hours for immediate loading and unloading unless they are fully
enclosed in a garage or appropriately screened on the Lot.
5. Patios and Miscellaneous Items.
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No clotheslines are allowed. Hot tubs and firepits shall be allowed approval
so
long as they are appropriately screened and approved by the DRC. Patios and
decks
shall be kept in a clean and uncluttered fashion, with only standard patio furniture
allowed. Lot Owners must keep their property including yards and houses in a
neat
clean, and orderly fashion. Toys, tools, play structures and other items shall be
stored
away out of sight when not in use and shall not be allowed to accumulate on the
Property or Lot when not in immediate use. Outdoor athletic and recreational
facilities
such as basketball hoops, swing sets and sport courts of a permanent nature shall
not be
placed on any Lot in the Subdivision between the street and the front of a Unit;
placement of these facilities of a permanent nature elsewhere on the Lot must be
approved in advance by the DRC. Temporary facilities including outdoor athletic
and
recreational facilities may be placed on any Lot, provided that such facilities are
removed from view when not in use but not later than at the end of each day.
Basketball hoops may remain in view even when not in use so long as they are well
maintained. Temporary facilities including outdoor athletic and recreational
facilities
such as basketball hoops, hockey goals, etc. shall not be placed on any street within
the
Subdivision.
6. Offensive Activity.
No noxious or offensive activity shall be carried on upon any portion of the
above-described Property, nor shall anything be done thereon which may be, or
may
become, an annoyance to the neighborhood. No fireworks of any kind may be
brought
into, discharged or stored on any lot except for personal use only on the Fourth of
July
and the first of January in accordance with all City regulations and laws.
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Any violation of County ordinances, zoning or other regulations shall be a
violation of these covenants and can be enforced by the Association or individual
Lot Owners.
7. 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 screened
from view of neighboring Lots, Common Areas and streets except for reasonable
periods prior to and after pickup and only on day of pickup. No toxic or
hazardous materials shall be disposed of within Urban + Farm by dumping in the
garbage containers or down the drains, or otherwise.
8. No Improvements or Fill Material. No Owner may place or construct any
Improvements over the utility easements located on his or her Lot (as shown on the
Plat or any separate easement agreement or dedication now existing or hereafter
granted pursuant to the terms of this Declaration), or fill or alter the drainage
swales or any other storm water facilities located on his or her Lot.
9. Hazardous Materials.
No hazardous materials may be stored or disposed of on any lot or common
area.
10. Common Areas.
There shall be no obstruction of the Common Area nor shall anything be
stored in or on the general Common Area without the prior written consent of the
Association. Nothing shall be done or kept on the Common Areas which will
increase the rate of insurance on the building or contents thereof, without the prior
written consent of the Association. No Owner shall permit anything to be done or
kept in the Owner’s Lot or in the Common Areas which will result in the
cancellation of insurance or which would be in violation of any law. No waste will
be permitted on the Common Areas.
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11. Nuisance.
No nuisances shall be allowed upon the Property, nor shall any use or
practice be allowed which is a source of annoyance to Lot Owners or which
interferes with the peaceful possession and proper use of the Property by its
residents which shall include, but not be limited to, barking dogs. No immoral,
improper, offensive or unlawful use shall be made of the Property nor any part
thereof, and all valid laws, zoning ordinances and regulations of all governmental
bodies having jurisdiction thereof shall be observed.
12. Timeshare and Fractional Ownership Prohibition.
No Lot or Lots or any portion thereof in Urban + Farm 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. The term “time
sharing” as used herein shall be deemed to include, but shall not be limited to, any
agreement, plan, program, or arrangement under which the right to use, occupy or
possess the Lot, or any portion thereof, rotates among various Persons, either
corporate, partnership, individual or otherwise, on a periodically recurring basis
for value exchanged, whether monetary or like kind use privileges, according to a
fixed or floating interval or period of time. 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.
13. Storage Sheds.
Storage sheds may be allowed if approved by the DRC. Sheds must
integrate with the design of the main structure and be a similar quality of exterior
finish as the primary structure. See Design Guidelines for specific requirements.
14. Snow and Ice Removal.
Lot Owners at their own expense, shall be responsible for removing snow
and ice from their driveways, sidewalks and walkways adjacent to or located on
their individual lots and shall comply with all City snow removal regulations and
ordinances governing the same.
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15. Antennas, Satellite Dishes and Air Conditioning Units.
Antennas and satellite dishes shall be allowed for purposes of transmitting
and receiving radio, video, TV and related signals as allowed by the DRC, but must
be inconspicuous and attached to the residence. No Ham radio or other large or
free-standing antennas are allowed. Air conditioning units may be free-standing
but must be immediately adjacent to the building and appropriately screened as
determined by the DRC.
16. Solar Panels.
Solar panels are allowed on roofs only. No free-standing panels are
allowed.
All solar panels must be approved by the DRC prior to installation. The DRC may
adopt additional rules and regulations governing the installation, safety, placement
and
screening of a Solar Energy Panel. For purposes of this Section, “Solar Energy
Panel”
means a panel devise or system or combination of panel devises or systems that
relies
on direct sunlight as an energy source including a panel devise or system or
combination of panel devises or systems that collects sunlight for use in the heating
or
colling of a structure or building, the heating or pumping of water, and the
generation
of electricity.
17. Window Treatments.
Aluminum foil, reflective film, newspapers or similar treatments shall
not be
placed on windows or glass doors.
18. Water and Sewer Systems.
No individual water supply system or sewage disposal system shall be
permitted on any Lot, including but not limited to water wells, cesspools or septic
tanks. All water and sewer shall be provided by the City.
19. Rezoning Restrictions.
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No Owner may apply to the local zoning authority to rezone single
family Lots to any classification allowing commercial, institutional or other non-
residential use. Multi-family and commercial Lots may be rezoned after 25 years
from the conveyance of the first Lot in the Subdivision however, the Board and
DRC must approve the rezoning. This restriction shall not apply to Declarant or to
rezoning of Additional Land prior to the beginning of construction.
ARTICLE XII: RIGHTS RESERVED BY THE DECLARANT
1. Additional Covenants and Easements.
The Declarant may subject any portion of the Property or Additional
Property to additional Covenants and easements including Covenants obligating
the Association to maintain and insure such Property. Such additional Covenants
and easements may be set forth either in a Supplemental Declaration subjecting
Additional Property to this Declaration or in a separate Supplemental Declaration
or Amendment referencing property previously subject to this Declaration. If the
property is owned by someone other than the Declarant, then the consent of the
additional Owners shall be necessary and shall be evidenced by their execution of
the Supplemental Declaration. Any such Supplemental Declaration may
supplement, create exceptions to or otherwise modify the terms of this Declaration
as it applies to the Additional Property in order to reflect different character and
intended uses of Additional Property.
2. Marketing and Sales Activity.
The Declarant may maintain and carry on upon portions of the Common
Area such facilities and activities, as in the sole opinion of the Declarant, may be
reasonably required, convenient or incidental to the construction or sale of Lots
and homes including but not limited to business and construction offices (within
Units or in free standing trailers), signs, banners and flags, model units and Lots
and sales offices (within Units or in free standing trailers), subject to compliance
with governmental ordinances. Declarant shall also have easements for access to
and use of the Common Areas for such facilities at no charge. The Declarant shall
have easements for access to and use of such facilities.
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3. Right to Develop.
The Declarant and its employees, agents and designees shall have a right of
access and use of an easement over and upon all of the Common Areas for the
purpose of making, constructing and installing such improvements to the Common
Areas as it deems appropriate in its sole discretion.
4. Control of and Changes in Development Plan.
Every Owner, by acceptance of the deed to their Lot, acknowledges that the
Subdivision is a multi-phased master planned community, the development of
which is likely to extend over many years, and that changes in the master plan will
likely occur as the development of the Subdivision proceeds. EACH OWNER
WAIVES THE RIGHT TO PROTEST, CHALLENGE OR OTHERWISE OBJECT TO
CHANGES MADE OR PROPOSED BY DECLARANT IN THE DEVELOPMENT
PLAN FOR THE SUBDIVISION OR IN THE USES, DENSITY, BUILDING
RESTRICTIONS, OR USE RESTRICTIONS APPLICABLE TO THE PROPERTY
BEYOND THE BOUNDARIES OF THAT SHOWN ON THE RECORDED
SUBDIVISION PLAT FOR THE PHASE WITHIN WHICH SUCH OWNER’S LOT
IS LCOATED. The right and limitations set forth in this Section shall continue in
effect until Declarant no longer owns any Lot within the Subdivision.
5. Right to Transfer or Assign Declarant Rights.
Any or all of Declarant’s special rights and obligations set forth in this
Declaration nor any other Governing Documents may be transferred in whole or in
part by Declarant by written instrument executed and acknowledged by Declarant
and recorded in the real property records for Gallatin County, Montana. The
foregoing sentence shall not preclude Declarant from permitting other persons to
exercise, on a one time or limited basis, any right reserved to Declarant in this
Declaration where Declarant does not intend to transfer such right in its entirety,
and in such case it shall not be necessary to record any written assignment unless
necessary to evidence Declarant’s consent to such exercise.
6. Declarant’s Rights.
Any and all of the rights and powers vested in the Declarant pursuant to the
Urban + Farm Subdivision Covenants may be delegated, transferred, assigned,
conveyed or released by the Declarant to the Association and the Association shall
43
accept the same effective upon the recording by the Declarant of a notice of such
delegation, transfer, assignment, conveyance or release.
7. Declarant Amendments.
In addition to specific amendment rights granted elsewhere in this
Declaration, the Declarant reserves the right to unilaterally amend this Declaration
for any purpose until conveyance of the first Lot in the Subdivision to a person
other than Declarant. Thereafter, Declarant may unilaterally amend this
Declaration if such amendment is necessary to (a) bring this Declaration into
compliance with any provision of law, including (but not limited to) regulatory
amendments; (b) correct scriveners’ or clerical errors; (c) add Additional Property;
or (d) remove part of the Property from the Subdivision. Declarant shall also have
the right to unilaterally amend this Declaration for any other purpose prior to the
Conversion Date provided that the amendment has no material adverse effect
upon the rights of any Owner, unless such Owner consents to such change in
writing.
ARTICLE XIII: GENERAL PROVISIONS
1. Effects of Covenants on Mortgage.
A breach of any of the foregoing provisions, conditions, restrictions or
covenants shall not defeat or render invalid the lien of any mortgage or deed of
trust made in good faith and for value on any Lot, or portion of any lot, and any
improvements thereon, but said provisions, conditions, restrictions and covenants
shall be binding upon and effective against any Owner there of whose title thereto
was acquired by foreclosure, trustee sale or otherwise.
2. Incorporation by Reference.
In any conveyance of the lands covered hereby, it shall be sufficient to insert
a provision therein to the effect that the conveyance is subject to the restrictions
and covenants contained in this document, without setting forth such restrictions
and covenants verbatim or in substance in such conveyance.
3. Enforcement.
These covenants may be enforced by their Association or by any Lot Owner.
Enforcement of these covenants shall be by procedure of law or in equity against
44
any person or persons violating or attempting to violate any covenants, and the
legal proceedings may be either to restrain the violation of the covenants or to
recover damages, or both. Each person who has been found by a court of
competent jurisdiction to have violated one or more of these covenants shall be
liable for all reasonable attorney=s fees and costs incurred in connection with the
litigation.
4. General Provisions.
In the event of any violation or threatened violation of these covenants, the
Association or any owner may enforce these covenants by legal proceedings in a
court of law or equity, including the seeking of injunctive relief and damages. In
association with such legal proceedings or as a separate remedy, the Owners
Association may enter upon the property in question and remove, remedy or abate
the violation or threatened violation after first having given notice and a
reasonable opportunity for the owner to take action to comply with these
covenants as set forth below.
5. Notice of Violation.
Notice, as required above shall be in writing and shall be served on the
person or entity concerned, and shall specify the violation or threatened violation,
identify the property, demand compliance with the terms and conditions of these
covenants and shall state the action which will be taken if the violation or
threatened violation is not abated, remedied or satisfied. If such notice cannot be
personally served after a reasonable effort to locate the person or entity to be
served, service may be had by posting notice by certified mail, return receipt
requested, to the last known address or address of record of the owner. Such
notice must further provide for a period of at least fifteen (15) days (except in cases
where more expeditious action may be required to protect property, persons,
wildlife or the environment) from the date of personal service of such notice, or
thirty (30) days from the date of posting and mailing of the same, within which
abatement, entry or commencement of litigation, as provided above, can be
commenced. An aggrieved Lot Owner may make a written appeal to the Board
within ten (10) calendar days of receipt of the notice setting forth the Lot Owner’s
grievance and requested action from the Board, along with facts and evidence
supporting the Lot Owner’s position. The Board may set a hearing to receive
further information from all necessary parties if the Board determines it necessary.
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The Board shall have thirty (30) days from receipt of the appeal to render a
decision, which decision shall be final.
6. Costs of Enforcement.
Actual costs, expenses and reasonable attorney's fees connected with
enforcing, correcting, remedying, abating, preventing or removing any violation or
threatened violation of these covenants incurred either through litigation, entry or
self-help shall constitute a claim by the party initiating such action against the
owner of the property which is the subject of such violation or threatened violation.
The party making such claim may bring suit for enforcement of these covenants
and file a lien against the subject property in the amount of and for the collection of
the claim by filing a verified statement of the lien with the office of the Clerk and
Recorder of Gallatin County, Montana. Such lien statement must set forth the
names of the claimant, and the owner of record of the property against which the
lien is claimed, a description of the property, the amount of the claim, the date of
the claim and a brief statement of the manner in which the costs and expenses
constituting the claim were incurred. Once filed, the lien shall remain on record as
a claim against the property until the validity of the claim is determined by a court
of law. Once a claim has been determined valid by a court of law, any such
judgment may be foreclosed upon in the manner provided for the law for
foreclosures with a right of redemption.
7. Severability.
Invalidation of any of these covenants by a judgment or a court order shall
in no way affect any of the other provisions, but they shall remain in full force and
effect.
8. Amendment.
The covenants and restrictions of this Declaration shall run with and bind
the land in perpetuity. This Declaration may be amended by an instrument signed
by the Owners of not less than eighty percent (80%) of the lots, each lot being
entitled to one (1) vote except that each condominium Lot shall be entitled to one
vote. The Declarant, at its discretion, will retain control of Urban + Farm
Subdivision Property Owners Association and until the Conversion Date.
Declarant specifically reserves the right to amend these covenants as necessary to
reflect the subsequent Additional Property at such time as they are completed.
46
This shall include, but not be limited to the right to amend the definition section as
it relates to the commercial, mixed use, residential and Common Areas. Certain
provisions herein may not be amended. Specifically, County, fire and any
covenant which is included herein as a condition of the preliminary plat approval
and required by the County Commission may not be amended or revoked without
the mutual consent of the owners in accordance with the amendment procedures in
these covenants and the governing body of Gallatin County. Any Amendment that
changes a Declarant’s right must be approved by Declarant.
9. Constructive Acceptance.
Every person or entity who now or hereafter owns, occupies or acquires any
right, title or interest in or to any portion of the Property is and shall be
conclusively deemed to have consented and agreed to every covenant, condition
and restriction contained herein, whether or not any reference to this Declaration is
contained in the instrument by which such person acquired an interest in the
Property.
10. Notices; Documents; Delivery.
Any notice or other document permitted or required by Urban + Farm
Covenants shall be delivered either personally or by mail. If delivery is made by
mail, it shall be deemed to have been delivered twenty-four (24) hours after a copy
of same has been deposited in the United States mail, certified mail, return receipt
requested, postage prepaid, addressed as follows: If to the Association or the
Project Architect, at the registered office for the Association. If to an Owner, to the
address provided to the Association by the Owner. If no address is provided, then
to the last known address of the Lot Owner.
11. Board Liability. No member of the Association Board of Directors shall
be liable to any person or entity for the entry, self-help or abatement of a violation
or threatened violation of these covenants and all owners or lessees of real
Property shall be deemed to have waived any and all rights or claims to or for
damages for any loss or injury resulting from action taken to these covenants.
Exception to the above shall exist for loss, injury or damage for intentionally
wrongful acts.
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12. Dispute Resolution.
In an effort to resolve disputes among Property Owners in the Association,
all such disputes shall first be submitted to mediation in Gallatin County, Montana.
The parties to the dispute shall mutually agree upon a mediator. If the parties
cannot agree upon a mediator, one shall be chosen for them by the Association. If
mediation is unsuccessful, either party may bring the matter before a Court of
applicable jurisdiction in Gallatin County, Montana.
13. Compliance.
All applicable Zoning provisions, Ordinances and Uniform Building Codes,
and other applicable codes or regulation, including any review or approval of site
plans by local Fire District if applicable, must be met with respect to each Lot.
14. Anti-waiver.
No failure to exercise and no delay in exercising any right, power or
privilege under this Declaration shall be a waiver thereof. No waiver of a breach of
any provision will be deemed a waiver of any preceding breach of the same or any
other provision. No extension of time of performance of any obligations or other
acts will be deemed to be n extension of time of performance of any other
obligations or any other acts.
15. Attorney=s Fees/costs.
Except as otherwise specifically provided herein, if any suit or other
proceeding for the interpretation or enforcement of the Covenants occurs, the
prevailing party shall be entitled to recover its reasonable costs and expenses
incurred including, without limitation, reasonable attorney’s fees.
16. Headings.
The headings used herein are inserted for convenience only and are in no
way intended to describe, interpret, define or limit the scope, extend to intent of
this document or any provision hereto.
17. Binding Effect.
Except as provided herein, each of the covenants, conditions, restrictions,
regulations and reservations set forth herein shall continue to be binding upon the
Owner, and each of its assigns and successors in interest, and upon each of them
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and on all parties or persons claiming under it on them, perpetually, from the day
and year that this declaration is accepted and filed among the records of the Clerk
and Recorder of Gallatin County.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has
hereunto set its hand and seal the ___________day of ______________ 202___.
Laurel Parkway, LLC
By:____________________________
Its:____________________________
STATE OF MONTANA )
: ss
County of Gallatin )
On this ________ day of ____________________2022, before me a Notary Public
in and for the State of Montana, personally appeared __________________known to
me to be the ___________________ of Laurel Parkway, LLC, and acknowledged to
me that he/she executed the same on behalf of the limited liability company
pursuant to the power and authority vested in him/her.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________
_______________________________
Notary Public for the State of Montana
Residing at ______________________
My commission expires:___________
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Exhibit A
Lot R2A of Norton East Ranch Subdivision, Phase 4 to the City of
Bozeman, Gallatin County, Montana, according to the official plat
thereof on file and of record in the County Clerk and Recorder of
Gallatin County, Montana. (Plat Reference: J-668)
TOGETHER WITH any additional real property annexed in the
future as provided herein.
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EXHIBIT B
COMMON AREA AND FACILITY MAINTENANCE PLAN
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EXHIBIT C
STORMWATER FACILITIES MAINTENANCE PLAN