HomeMy WebLinkAbout009 - Appendix G.2 CCRs CommericalAfter recording return to:
SRX LLC
PO Box 4082
Bozeman, MT 59772
Attn: Parker Lange
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR SOUTH RANGE CROSSING
COMMERCIAL DEVELOPMENT
(GOVERNING COMMERCIAL BLOCK 1 LOTS 1-8)
This Declaration of Covenants, Conditions, and Restrictions and Reservation of Easements
for South Range Crossing Subdivision Block 1 Lots 1-8 Commercial Development
(“Declaration”) is made this ____ day of , 2023 by SRX LLC, a Montana limited
liability company (the "Declarant" as further defined in Section 2.6 of this Declaration).
WHEREAS Declarant is the owner of the real property described in Exhibit A (the
“Property”) known as the South Range Crossing Subdivision Block 1, Lots 1-8, a described on
Exhibit A as the Commercial Development, shall be held, conveyed, mortgaged, encumbered,
leased, rented, used, occupied, sold, and improved subject to the declarations, limitations, covenants,
conditions, restrictions, and easements contained in this Declaration, all of which are imposed as
equitable servitudes pursuant to the master plan for the development of the South Range Crossing
Subdivision Commercial/Multi Family Development and the Property.
NOW THEREFORE, Declarant hereby declares that the Commercial Development shall be
subject to all of the limitations, covenants, conditions, restrictions and easements of this Declaration.
ARTICLE 1 – PURPOSE AND OWNERSHIP
1.1 The purpose of this Declaration is to establish a general plan or scheme of
development and use of the Commercial Development and the Property, which is intended to
maintain or enhance the character and value of such property.
1.2 The provisions of this Declaration are intended to be covenants that run with the
land in accordance with the provisions of Sections 70-17-201 through 72-17-203 of the Montana
Code Annotated, and any successor statutes of similar effect, and are binding upon Declarant and
its successors and assigns, the Association, and all parties having or acquiring any right, title, or
interest in or to any part of the Commercial Development.
1.3 The Commercial Development that is subject to this Declaration is located in
Bozeman, Gallatin County, Montana, and is solely owned by the Declarant as of the date of this
Declaration.
1.4 For purposes of this Declaration, the term "Owner" shall mean any person or entity
which is the record owner of fee simple title of any Lot, including buyers under a contract for deed,
but excluding any entity or person who holds such interest as security for the payment of an
obligation, other than a contract seller, mortgagee, beneficiary or other security holder in actual
possession of a Lot. If more than one person or entity is the record owner of a Lot and/or if any
Lot contains multiple units, then such co-owners and/or unit owners shall be treated as a single
Owner with respect to the rights and liabilities associated with such Lot. The term "Owners"
means more than one Owner, as provided herein.
ARTICLE 2 – DEFINITIONS
2.1 Annexed Property has the meaning given in Section 6.4.
2.2 Association means all of the Owners acting as a group and in accordance with this
Declaration, also referred to as the South Range Crossing Commercial Owners Association, and
any successor thereto. The Association will be formed before any properties in the Commercial
Development are sold.
2.3 Board means the Board of Directors of the Association as more particularly
described in Section 3.2.
2.4 Common Expenses has the meaning given in Sections 3.2 and 5.3.
2.5 Community for the purpose of this Declaration means the South Range Crossing
Subdivision master planned community, development and neighborhood as a whole, including the
Residential Development and Common Open Spaces, the Commercial Development and
Neighborhood Commercial Center, parks, trails and pedestrian systems, services and amenities,
business, social and recreational opportunities, located within the Property and the surrounding
area, and the associated community character and community lifestyle, known as “South Range
Crossing” or “SRX”, Bozeman, Montana.
2.6 Declarant means SRX LLC, a Montana limited liability company, and its
successors and assigns. Both successors and assigns to the Declarants rights hereunder shall
always be deemed to be included within the term "Declarant," whenever and however such term is
used in the Declaration. No party other than SRX LLC, shall exercise the rights and privileges of
the Declarant unless such party receives from the then-existing Declarant and records in the office
of the Clerk and Recorder of Gallatin County, Montana, a written instrument expressing assigning
such declarant’s rights and privileges.
2.7 Declarant Control Period means the period of time commencing with the
recording of this Declaration with the office of the Clerk and Recorder of Gallatin County,
Montana, and ending on the earlier of (i) when the Declarant determines, in an instrument recorded
with the office of the Clerk and Recorder of Gallatin County, Montana, that all of the Lots
(including any Lots which may ultimately be annexed into and become part of the Commercial
Development) have been sold or conveyed to persons or entities other than Declarant or its
affiliates, or (ii) any earlier date on which Declarant, in its discretion, records an instrument with
the office of the Clerk and Recorder of Gallatin County, Montana, specifying that the Declarant
Control Period has ended.
2.8 Building Design Guidelines shall mean and refer to the South Range Crossing
Commercial Design Guidelines, including the design standards, required review process and fees,
as amended from time to time by the Declarant, the Board of Directors, or the Architectural
Review Committee. The current version of the Building Design Guidelines is attached as Exhibit
B.
2.9 Lot shall mean the Commercial Lots 1-8 of Block 1 the South Range Crossing
Subdivision, as may be later amended, annexed or withdrawn by the Declarant, pursuant to this
Declaration. As used herein, the term “Lot” shall not include Common Open Spaces, lots within
the Residential Development, or other tracts which are designated on the plat for the Property.
2.10 Owner or Owners has the meaning given in Section 1.4.
2.11 Percentage of Interest means each Owner's percentage share of Common Expenses
based on the Owner’s percentage of ownership interest in the Commercial Development. The
Percentage of Interest may change in the event of annexation of additional real property or Lots or
withdrawal of real property of Lots owned by Declarant pursuant to Sections 6.4 and 6.5,
respectively.
2.12 Property means all of the real property located in Gallatin County, Montana, and
described on Exhibit A, known as the South Range Crossing Subdivision Block, Lots 1-8 along
with any property subsequently annexed or otherwise subjected to this Declaration, including the
Residential Development, Commercial Development, Common Open Space Property and
Stormwater Lots.
2.13 Residential Development shall mean and refer to the part of the Property more
particularly described on Exhibit A. The Residential Development and associated Common Open
Spaces is not part of the Commercial Development subject to this Declaration.
2.14 Rules and Regulations means the specific rules, regulations, and policies that may
be adopted by the Board of Directors from time to time for the governance, operations and
management of the Commercial Development and the Property.
ARTICLE 3 – PROPERTY OWNERS ASSOCIATION AND ASSESSMENTS
3.1 Membership. Each Owner in the Commercial Development shall, by acceptance of
a deed or conveyance to such Lot or any portion thereof, automatically become a member of the
Association and shall remain a member for the period of the Owner's ownership of a Lot. For
purposes of membership in the Association, all co-owners and/or unit owners of a Lot shall be
treated as a single Owner as described in Section 1.4. Membership in the Association may not be
transferred separately from the fee simple title to a Lot or any portion thereof. Upon becoming an
Owner, the Owner shall furnish to the Association a copy of the recorded instrument vesting that
person with the interest required to make such person a member of the Association. Each such
member at the same time shall give a single name and address to which notices to such member
may be sent, as well as an e-mail address and telephone number by which that person can be
contacted. In the event of any change in the facts reported in the original written notice, including
any change of ownership, the member shall give a new written notice to the Association containing
all of the information required to be contained in the original notice. As against any member of the
Association, and any person claiming by, through, or under such member, the Association may, but
shall not be obligated to, rely, for any and all purposes, on the information reflected in the most
recent written notice furnished with respect to such member. In no event will the Association have
any obligation to investigate into the address or contact information of any member.
3.1.1 Function of the Association. The function of the Association shall be to:
3.1.1.1 Elect the Board of Directors as provided herein.
3.1.1.2 Approve any changes to this Declaration as provided herein.
3.1.2 Voting. In any matter to be determined by the members of the Association,
each Owner shall be entitled to cast one vote for each Lot owned. Any Owner shall be
entitled to provide his proxy, for all purposes, to another Owner. If a Lot has more than one
owner, the owners of that Lot shall nominate in writing a single person to cast their vote
and in no event shall the vote with respect to any Lot exceed the total of one (1) vote per
Lot as herein provided. Such written nomination shall be signed by all co-owners of the
Lot. In the absence of a written nomination signed by all co-owners of the Lot, no voting
by that Owner shall be permitted. Unless expressly provided otherwise herein, all actions
of the Association shall be by majority vote.
3.2 Board of Directors. The Association shall be governed by a Board of Directors as
provided herein.
3.2.1 Composition of Board. The Board of Directors shall consist of three Lot
Owners members. So long as Declarant owns at least one Lot, it shall select one member of
the Board of Directors in its sole discretion. The remaining members of the Board of
Directors shall be elected by a majority vote of the Owners. All directors must be Owners
or an agent or representative of an Owner.
3.2.2 Function of Board. It shall be the function of the Board to:
3.2.2.1 Make provisions for the general management, repairs, and
maintenance of the Common Open Spaces, and any other provisions for the benefit
of the Association.
3.2.2.2 Levy and collect assessments as provided for herein.
3.2.2.3 Enter into contracts to hire personnel for the management of the
affairs of the Association and Common Expenses as deemed necessary in the sole
discretion of the Board.
3.2.2.4 Enter into contracts and negotiate and accept easements for the
benefit of the Association.
3.2.2.5 Manage the affairs of, and take action for, the Association, except
where the vote of the Lot Owners or consent of the Declarant is specifically required
by this Declaration or applicable law.
3.2.2.6 In addition to the Building Design Guidelines, it is intended that the
Board of Directors may make, amend, and repeal Rules and Regulations from time
to time that apply to the Commercial Development, Lots, Lot Owners, and their
tenants, employees, customers, licensees, guests and invitees on the Property. Such
Rules and Regulations may govern use of the Lots, the personal conduct of the Lot
Owners and anyone entering the Property, and may govern construction and design
criteria and aesthetic standards so as to further the use, enjoyment, and aesthetics of
the Commercial Development for the Lot Owners. Such Rules and Regulations may
also establish enforcement mechanisms, including penalties for violation thereof.
Following adoption, amendment, or repeal of any Rules and Regulations, the Board
of Directors shall provide Lot Owners with notice thereof. Copies of all such Rules
and Regulations shall be furnished to all Lot Owners upon request. Notwithstanding
anything to the contrary herein, the Board of Directors shall not adopt any rules or
regulations that adversely affect the Declarant without the Declarant's prior written
consent.
3.2.3 Operation of Board.
3.2.3.1 During the Development Period, Association decisions and action
shall be made by Declarant. Thereafter, Association decisions shall be made by the
Board of Directors.
3.2.3.2 Unless expressly provided otherwise herein, all decisions and action
of the Board of the Directors shall be by majority vote.
3.2.4 Assessments and Collection. Each Owner, by accepting deed to or contract
for deed for a Lot within the Commercial Development, whether or not
specially so expressed in said conveying instrument, shall be deemed to
covenant, agree, and shall be bound to pay assessments established pursuant
to the provisions of this Declaration, which will include regular annual
assessments and special assessments for general Association operating
funds, capital improvements, maintenance (including snow removal),
repairs, improvements, weed control, reserve fund, insurance, and other
expenses of the Commercial Development and Property which the Board of
Directors deems are of common use and benefit to each Lot Owner
("Common Expenses") or are required under Section 3.2.5 or 5.3.
Assessments, whether special or regular, shall be set by a resolution of the
Board of Directors and may be collected on a monthly, quarterly, or yearly
basis, together with interest, costs, and reasonable attorneys' fees incurred in
the enforcement of the provisions of this article.
3.2.5 Other Common Expenses. Common Expenses shall also include costs and
reserves (if appropriate) incurred by the Association in connection with
maintaining areas outside of the Commercial Development as may be
required by the City of Bozeman, Montana, or any other governmental
agency with jurisdiction. Common Expenses shall also include any
obligations of the Association, and the Association’s share, of any costs or
expenses incurred in regard to shared development costs and expenses, or
other shared expenses of the Property and by Agreement with the Residential
Development. Such expenses may include street lighting, maintenance and
upkeep of the water features and wetlands of the Project, shared expenses of
landscaping and maintaining the Commercial Development, landscaping and
maintaining the streets and medians (including snow removal), maintenance
and upkeep of any shared facilities or improvements, if any, and all expenses
associated with utilities and water infrastructure, except for any such
facilities or infrastructure maintained by the City of Bozeman.
3.2.6 Community Association Manager. Together with the South Range
Crossing Residential Owners Association, the Association shall jointly
designate a Community Association Manager (“CAM”). The function of the
CAM is to support and enhance a sense of community for residents of the
Community and promote a thriving Neighborhood Commercial Center for
the benefit of the Community as a whole. The CAM may provide media and
marketing for the Community, maintain a website and social media accounts
and content for the Community, produce marketing video productions and
other advertisements for the Community; promote and organize Community
events and activities in the Neighborhood Commercial Center and other
public areas of the Property, which may include art shows, holiday and
social events, concerts, farmers markets, etc. The Association shall collect
the designated assessment amount from each Lot Owner as herein provided
for payment to the CAM. The CAM will initially be the Declarant, or
designee of the Declarant, until the Association and Residential Association
jointly designate a successor professional CAM. In addition to the CAM
assessments, the CAM shall be reimbursed by the Associations,
proportionately relative to each Association’s respective share of the CAM
assessment. The CAM shall not use the CAM assessment, or seek
reimbursement, for expenses to market the sale of Lots. The CAM is
permitted to include in Community promotion materials, weblinks or other
contact information that directs to separate websites or information about
sale of Lots.
3.2.7 Regular and Special Assessments. The Board of Directors shall be entitled
to levy annual regular assessments and special assessments in order to cover Common
Expenses.
3.2.8 Allocation of Assessments. Except as otherwise provided, assessments for
Common Expenses shall be allocated among the Lots based on the Lots’ respective
Percentage of Interest. However, the Association may, in its sole discretion, create a
different assessment format for Common Expenses from time to time, provided that such
assessments be equitable and in proportion to and not exceeding the benefits derived from
the improvements by the Lot.
3.2.9 Specific Assessments.
(a) The Board shall have the power to specifically assess Association
expenses against Lots receiving benefits, items, or services not provided to
all Lots within the Commercial Development that are incurred for the benefit
of or related to only some Lots, as determined by the Board in good faith.
All such assessments shall be “Specific Assessments.”
(b) Any Lot Owner or group of Lot Owners may request that the
Association provide a higher level of service or special services for the
benefit of such Lot(s), upon the affirmative vote, written consent, or a
combination thereof, of a majority of affected Owners requesting the service.
In such event, the Association, in the Board’s sole discretion, may provide
for the requested services. The cost of such services, if provided, shall be
assessed against the Lots making the request, as determined by the Board in
good faith, as a Specific Assessment on such Lot(s).
(c) Community Association Management. Upon issuance of a certificate
of occupancy for any building on a Commercial Lot and annually thereafter,
the Lot Owner shall pay an annual assessment amount based on gross square
footage of such building(s), for payment of the South Range Crossing
Commercial Owners Association’s share of the Community Association
Manager. The initial annual community association assessment is calculated
based on the rate of $0.25 per square foot. The annual assessment rate
amount is subject to periodic adjustment by the CAM.
3.2.10 Assessment Period. The Board of Directors shall fix the amount of the
regular annual assessment against each Lot annually, by resolution, at the time and manner
deemed appropriate by the Board of Directors. Special and specific assessments shall be
levied by resolution of the Board of Directors at the time and in the manner deemed
appropriate by the Board of Directors. An assessment period shall consist of a calendar
year.
Upon an Owner purchasing a Lot, liability for regular, special and specific
assessments shall be prorated on a daily basis to the extent of the number of days remaining
from date of purchase in any assessment period. Said proration shall be based on a 365 day
year.
3.2.11 Assessment Due Date. Written notice of any assessment shall be sent to
every Owner subject thereto. Such notice shall include a due date for the payment of the
applicable assessment, which date shall be no less than ten (10) business days after the date
the notice is sent.
3.2.12 Lien. Assessments as provided herein shall be a charge on each Owner's Lot
and shall be a continuing lien against said Lot. Said assessment, together with any interest,
costs, and reasonable attorneys' fees incurred in collection of the same, shall also be a
personal and individual obligation and debt of the Lot Owner thereof. The lien of the
assessments provided for herein shall be subordinate to the lien of any first mortgage, deed
of trust or trust indenture. The sale or transfer of any Lot shall not affect the assessment
lien whether such lien arises prior to such sale or transfer, or thereafter becomes due.
However, the sale or transfer of any Lot pursuant to foreclosure proceedings of such first
mortgage, deed of trust or trust indenture, or any proceeding in lieu thereof, shall extinguish
the lien of such assessments as to payments which become due prior to such sale or transfer,
but shall not relieve such Lot from liability for any assessments thereafter accruing or
becoming due or from the lien thereof.
3.2.13 Nonpayment/Remedies. Any assessment not paid by the applicable due
date established in the notice shall bear interest from the due date at a rate equal to the
lesser of 10% per annum or the maximum annual percentage interest rate allowed under
Montana law. On behalf of the Association, the Board of Directors may bring suit to
recover a money judgment for unpaid assessments without foreclosing or waiving the lien
securing the same. In addition to the amount of the assessment and any interest thereon, in
the event of any such suit or collection activities, the Association shall be entitled to all
attorneys' fees and costs incurred. No owner may exempt himself, herself, or itself from
liability for assessments by waiver of the use or enjoyment of any Common Open Spaces or
by abandonment of such Owner's Lot.
3.2.14 Restrictions on Increases in Regular and Special Assessments. The Board
may not impose a regular Assessment on any Lot which is more than twenty percent (20%)
greater than the regular Assessment for the immediate preceding fiscal year, or levy a
special Assessment to defray the cost of any action or undertaking on behalf of the
Association which in the aggregate exceeds ten percent (10%) of the budgeted gross
expenses of the Association for that fiscal year, without the vote or written assent of
Members casting a majority of the votes at a meeting of the Association at which a quorum
is present. Any meeting of the Association for purposes of complying with this Section
shall be conducted in accordance with the Montana Non-Profit Corporation Act. The Board
may increase regular Assessments by more than twenty percent (20%) over the regular
Assessment for the immediate preceding fiscal year only if the Board has complied with the
provisions set forth in the Bylaws and this Declaration.
Notwithstanding the foregoing, the Board, without Membership approval, may
increase regular Assessments or levy special Assessments necessary for an emergency
situation. For purposes of this Section, an emergency situation is one of the following:
(1) an extraordinary expense required by an order of a court;
(2) an extraordinary expense necessary to repair or maintain the Property or any part
of it for which the Association is responsible where a threat to personal safety on
the Property is discovered; or
(3) an extraordinary expense necessary to repair or maintain the Property or any part
of it for which the Association is responsible that could not have been
reasonably foreseen by the Board in preparing and distributing the pro forma
operating budget, provided, however that prior to the imposition or collection of
the Assessment, the Board shall pass a resolution containing written findings as
to the necessity of the extraordinary expense involved and why the expense was
not or could not have been reasonably foreseen in the budgeting process and the
resolution shall be distributed to the Members with the notice off the
Assessment.
The Association shall provide by first-class mail or electronic means if permitted via
the Bylaws and the Montana Nonprofit Corporations Act notice to Owners of any increase
in the regular or special Assessments of the Association not less than thirty (30) nor more
than Sixty (60) days prior to the increased Assessment becoming due.
3.3 Meetings. The manner and time for holding meetings of the Board and/or
Association shall be at the time, place, and manner as published by the Board. The Board of
Directors, however, is authorized to act by resolution or written consent and there is no obligation
that Board or Association meetings be held.
ARTICLE 4 – RESTRICTIONS
4.1 Use Restrictions.
4.1.1 Lots shall be used only for such commercial and multi-family use in
compliance with the conditions of approval of the Commercial Development by City of
Bozeman, Montana, the approved Master Plan for the Property, and any zoning or
applicable regulations of the City of Bozeman, including the Unified Development
Ordinance. The use of any Lot shall be further limited and subject to compliance with and
restrictions, limitations or requirements shown or listed on any recorded plat map for the
Property, this Declaration, the Building Design Guidelines, the Rules and Regulations, and
any other approved governing documents of the Property, the Project or the Association, as
the same may be duly amended or supplemented. The Declarant, during the Declarant
Control Period, and the Board of Directors thereafter, shall retain the power to disapprove
any use that does not meet such requirements or fit the intent of the Commercial
Development.
4.1.2 No unlawful activity shall be carried on upon any Lot or upon the Common
Open Spaces, nor shall anything be done by any Owner (agents, employees, tenants,
customers, guests, or invitees of any Owner) which may be or become an annoyance or a
nuisance to the Lot Owners. No Owner shall do or permit anything to be done or keep or
permit to be kept on such Owner's Lot that will increase the rate of insurance premiums for
the Commercial Development without the written approval of the Board of Directors. Each
Owner who causes such an increase shall pay to the Association the increased cost of
insurance premiums resulting from any activity or the maintenance of any such condition,
even if approved by the Board of Directors.
4.2 Architectural and Building Restrictions.
4.2.1 Architectural Review Committee (“ARC”).
During the Declarant Control Period, the Architectural Review Committee ("ARC") shall
consist of the Declarant OR an ARC reviewer may be hired who is a qualified professional
that has experience with commercial and multi-family development in the City of Bozeman
and is familiar with the City of Bozeman UDC. Fees from each submittal will be used to
hire this reviewer. The ARC shall be guided by the then current SRX Commercial/ Multi-
Family Building Design Guidelines
4.3 City of Bozeman Required Covenants.
4.3.1 The following conditions have been imposed on the Project by the City of
Bozeman, and shall not be amended or revoked without the consent of the Owner in
accordance with the amendment procedures of this Declaration, and the City Commission:
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4.3.2 Any covenant, which is included herein as a condition of plat approval and
required by the City of Bozeman, may not be amended or revoked except in accordance
with the amendment procedures in these covenants and consent of the City of Bozeman.
4.4 Maintenance and Upkeep. Each Owner shall, at such Owner's cost and expense,
maintain and keep in good repair, and in safe condition, such Owner's Lot, and all building,
improvement, or site maintenance within Lot boundaries (including the storage and disposal or all
garbage and/or refuse) shall be the sole responsibility of the individual Owners. No Owner,
through act or omission, shall impair any easement on the Property.
ARTICLE 5 – EASEMENTS
5.1 Easements for Maintenance, Improvement, Repair, Relocation, and
Replacement. Declarant, the Association, designees of any of the foregoing and all public or
private utilities shall have such easements over, under, across, and through the Commercial
Development, including all Lots, as may be necessary to exercise any rights or fulfill any
responsibilities, including those of installation, maintenance, repair, reconstruction, replacement,
improvement, or relocation, which they or any of them are required or permitted to perform under
this Declaration. These easements include, without limitation, the right of Declarant and the
Association to obtain access at all times to any meters, controls, valves, pipes, utility mains, lines,
utility facilities, conduits, and other improvements and equipment with respect to the private
utilities located on or to which access may be gained through any Lot. Except in an emergency
situation, such entry onto a Lot shall only be during reasonable hours and after notice to the Owner.
5.2 Drainage Easements. An easement over and under each Lot as the servient
tenement is reserved by Declarant in favor of each other Lot and the Association for the purpose of
allowing the Association's agents the right, but not the obligation, to enter the Lot to maintain that
portion of any storm drainage system located thereon. No Owner or occupant shall commit any act
that would interfere with the operation of any drainage system (including drainage swales) installed
on the Owner's Lot. The Owner shall maintain the system free of debris and other obstacles at all
times. Reciprocal appurtenant easements between each Lot and between adjoining Lots are
reserved for the flow of water in the storm drainage system.
5.3 Additional Easements for Other Projects. Declarant hereby reserves unto
itself(with the right to designate or assign to others) and to the Residential Development and
Common Open Spaces the following easements in connection with any improvements, facilities, or
developments constructed or to be constructed by Declarant, its affiliates, or its designees in
connection with or for the benefit of the Property or other projects, whether or not such
improvements, facilities, or developments are made part of the Commercial Development or the
Property.
5.3.1 A perpetual, nonexclusive easement for installation, utilization, tapping,
tying into, extending, and enlarging all utility mains or facilities located in the Commercial
Development, including connections to water, storm and sanitary sewer mains or related
facilities within the Commercial Development. Declarant, its affiliate, or its designee or
assign, as applicable, will pay all costs of such utilization, tapping, tying into, extending,
and enlarging, and to the extent possible, will restore all areas thereby disturbed to
substantially their condition immediately prior to commencement of such activities. All
expenses of maintenance, repair, replacement, and resurfacing of such utility mains or
facilities shall be shared by the Association and the owners of the other projects utilizing
such utility mains or facilities on a proportionate and equitable basis based on the use of
such utility mains or facilities.
5.3.2 A perpetual, nonexclusive easement located as determined by Declarant in,
over, and upon the Lots (but not over any buildings or other buildings or structures on a
Lot) and any roadways or driveways within the Commercial Development for the purposes
of ingress and egress to and from and Residential Development, Common Open Space or
other projects. Declarant or its designee or assign exercising such easement right, as
applicable, shall be responsible for any physical damage caused to the Lots or the Common
Open Spaces as a result of vehicular traffic connected with the development of other
projects by Declarant or its designee or assign. If the easement is exercised for permanent
access to other projects and the Association maintains roadways used for such access, then
the owners of such other projects shall enter into a reasonable agreement with the
Association to share the cost of maintenance, repair, or improvement of any access roadway
serving such other projects.
5.4 Declarant Right to Relocate and Add Roadways. Declarant reserves unto itself
the right to relocate, modify, improve, remove, and add roadways, driveways and access within the
Commercial Development provided such changes to roadways will not unreasonably interfere with
or restrict the use of any buildings situated upon a Lot or the conduct of business upon any Lot.
5.5 Emergency, Security, and Maintenance Easement. Public safety and other
appropriate persons designated by the Board of Directors shall have the right, but not the
obligation, to enter upon the Property, including any Lot, for emergency, security, and safety
reasons, or to perform maintenance, repair, improvement, or reconstruction as provided herein, or
to inspect for the purpose of ensuring compliance with this Declaration. This right may be
exercised, without limitation, by police officers, firemen, ambulance personnel, security officers
and similar 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 Lot Owner.
This right of entry shall include the right of the Association, or its designees, to enter upon any Lot
to cure any condition which may increase the possibility of a fire or other hazard in the event a Lot
Owner fails or refuses to cure the condition within a reasonable time after request.
5.6 Specific Written Easements. Declarant may, in its sole discretion without the
necessity of consent by any interested party, prepare and record a subsequent instrument to
specifically define by legal description the easements created by or in accordance with this
Declaration. The easements provided for herein shall in no way adversely affect any other
recorded easement on the Property, except as expressly permitted herein. Nothing in this Section
shall be construed to require the Declarant to prepare and record any subsequent instrument.
5.7 Other Easements. The Lots are subject to all easements, dedications, and rights of
way granted or reserved in, on, over and under the Property as shown on the public records,
including as reflected on any recorded plat map for the Property, and as otherwise provided or
contemplated in this Declaration.
5.8 Amendment or Repeal. The easements and other rights reserved or granted to
Declarant in this Article may not be modified, amended, or repealed without Declarant's prior
written consent. Any attempted or purported modification, amendment, or repeal without
Declarant's prior written consent shall be void and have no effect.
ARTICLE 6 – AMENDMENT, ANNEXATION, AND WITHDRAWAL
6.1 Amendment by Declarant. During the Declarant Control Period, Declarant may
from time to time unilaterally amend this Declaration for any purpose, provided the amendment has
no material adverse effect on the right of any Owner (or the consent of any such Owner is
obtained). Notwithstanding the foregoing, during the Declarant Control Period, Declarant may
unilaterally amend this Declaration if such amendment is (i) necessary to bring any provision in
compliance with any applicable governmental statutes, necessary governmental registrations, rule,
regulation, or judicial determination; (ii) necessary to enable any reputable title insurance company
to issue title insurance coverage on the Lots; (iii) required by an institutional or governmental
lender or purchaser or mortgage loans, including, for example, the Federal National Mortgage
Association or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to
make or purchase mortgage loans on the Lots or units thereon; (iv) necessary to enable any
governmental agency or reputable private insurance company to insure mortgage loans on the Lots
or to insure the Property or any portion thereof, including any individual Lot; (v) necessary to
allow the Association to obtain insurance contemplated by this Declaration, including without
limitation, property or liability insurance, at a reasonable price and on reasonable terms; or (vi)
otherwise necessary to satisfy the requirements of any governmental or quasi-governmental
agency.
6.2 Amendment by Owners. This Declaration may be amended by (a) the affirmative
vote or written consent, or any combination thereof, of at least sixty seven percent (67%) of the
Owners, and (b) the written consent of the Declarant so long as it owns at least one Lot.
6.3 Restriction on Amendment. Notwithstanding any other provision in this
Declaration, the percentage of voting interest necessary to amend a specific clause pursuant to
Section 6.2 shall not be less than the prescribed percentage required for action to be taken under
that clause. To be effective, any amendment must be recorded with the office of the Clerk and
Recorder of Gallatin County, Montana. If an Owner consents to any amendment of this
Declaration, it will be conclusively presumed that such Owner has the authority to consent, and no
contrary provision in any mortgage or contract between the Owner and a third party will affect the
validity of such amendment. No amendment may remove, revoke, or modify any right or privilege
of the Declarant without the written consent of the Declarant.
6.4 Annexation. During the Declarant Control Period, Declarant may from time to
time unilaterally (a) annex any other property into the Commercial Development, and/or add Lots
to the Commercial Development, or (b) subject other property or Lots to the provisions of this
Declaration (collectively, the "Annexed Property"). Annexation or addition of property and Lots
shall not require the consent of the Owners or the Board of Directors. Each additional tract of
property or Lot shall have one (1) vote in connection with Owner and Association voting.
6.5 Withdrawal. During the Declarant Control Period, Declarant may from time to
time unilaterally amend this Declaration for the purpose of removing property then owned by
Declarant or its affiliates from the coverage of this Declaration. Any property removed from this
Declaration shall be and remain subject to whatever easements, if any, are reasonably necessary for
access to or operation of the Commercial Development and each Lot. Any amendment pursuant to
this Section shall not require the consent of the Owners or the Board of Directors.
6.6 Plat Amendment. During the Declarant Control Period, Declarant may unilaterally
amend the plat of the Commercial Development without the additional consent of any Owner or the
Board of Directors; provided, however, that nothing in this Section allows Declarant to replat the
property underlying any building or structure (i.e., change a boundary line or platted easement
under a building or structure) without the consent of the Owner of such building or structure.
6.7 Merger or Consolidation. During the Declarant Control Period, Declarant may
merge or consolidate the Association with a property owners association of the same form of
ownership, or restructure the Association as a sub association of a master association for the
Property. Upon written request from Declarant during the Declarant Control Period, the Board of
Directors and each Lot Owner shall execute such documents and take such actions as shall
reasonably be requested by Declarant to approve and effect any such merger, consolidation or
restructure.
6.8 Agreement Regarding Amendments. The Lot Owners, the Association, lien
holders, mortgagees, and all others acquiring any interest in or lien on the Lots, any Common Open
Spaces, or any other portion of the Commercial Development shall be bound by the rights of
Declarant to amend and supplement this Declaration and the plat of the Property as set forth in this
Declaration, including, without limitation, in connection with any annexation of Annexed Property
or removal of property from this Declaration, and their consent to such amendments and
supplements is implied and agreed to by the acceptance or acquisition of any interest in or lien on
the Lots, the Common Open Spaces, or any other portion of the Commercial Development.
Declarant is hereby appointed the Lot Owners', the Association's, lien holders', and mortgagees'
agent and attorney-in-fact to execute and record such amendments, supplements, and related
documents.
ARTICLE 7 – ASSIGNMENT
Any or all of the rights and powers granted or reserved to Declarant in this Declaration or
by law, including the power to approve or disapprove any act, use, or proposed action, or any other
matter or thing, may be assigned by Declarant to any other entity or to the Association. Any such
assignment or transfer shall be made by appropriate instrument in writing and duly recorded in the
office of the Clerk and Recorder of Gallatin County, Montana.
ARTICLE 8 – INSURANCE
9.1 Association Insurance. The Association shall obtain and continue in effect the
following types of insurance, the premiums for which shall be apportioned among the Lot Owners
in accordance with their Percentage in Interest:
9.1.1 Directors and Officers Insurance. Unless otherwise determined by the
Board of Directors, a directors and officers liability and fidelity insurance policy with a
limit of not less than $1,000,000 (or such higher limit as may be determined by the Board of
Directors) to insure against liability for actions taken by individuals in their capacity as
officers or directors of the Association.
9.1.2 General Liability Insurance. Commercial general liability insurance on an
occurrence form covering bodily injury, including death, and property damage with a limit
of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate and including
coverage for personal injury, products and completed operations and contractual liability.
Such insurance shall cover and indemnify the Association, the Board of Directors, and each
director, officer, and employee of the foregoing against liability for all tort claims arising
out of or relating to the Association's ownership, operation, use, and maintenance of the
Common Open Spaces; and such policy shall name the Declarant as an additional insured
during the Declarant Control Period. Such policy also may include, where available, the
Lot Owners as additional insureds; provided, however, that such insurance is not intended
to contribute to or be in lieu of any individual Lot Owner's liability policies required to be
carried by each Lot Owner as stipulated below and under which each Lot Owner's liability
insurance shall be primary for each respective Lot Owner.
9.2 Owner Insurance. Each Owner shall be responsible for procuring and maintaining
insurance coverage deemed appropriate by that Owner with respect to that Owner's real and/or
personal property and liability. The Association shall have no obligation and shall not procure or
maintain any insurance coverage covering the real and/or personal property and liability of a Lot
Owner or that Owner's family members, guests, or invitees.
ARTICLE 9 – ENFORCEMENT
10.1 Interested Parties. Any Owner, the Association through its Board of Directors,
and/or the Declarant during the Declarant Control Period shall have the option and right to enforce,
by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations and
charges now or hereafter imposed by the provisions of this Declaration. The method of
enforcement may include proceedings to enjoin the violation, to recover damages, or both. Failure
by an Owner, the Association, and/or the Declarant to enforce any such provision shall in no event
be deemed a waiver of the right to do so thereafter.
ARTICLE 10 – MISCELLANEOUS
11.1 Severability. Invalidation of any one of these covenants or restrictions shall in no
way affect any other provisions which shall remain in full force and effect.
11.2 Benefit. Except as otherwise provided herein, this Declaration shall be binding
upon and shall inure to the benefit of Declarant, the Association, and each Lot Owner, and the
heirs, estates, personal representatives, successors, and assigns of each.
11.3 Warranties. Declarant does not make any, and expressly disclaims all, warranties
or representations concerning the Property, the Lots, the Declaration, or deeds of conveyance
except as specifically set forth therein and no one may rely upon such warranty or representation
not so specifically expressed therein.
11.4 Taxation. Each Lot shall be considered a separate parcel of real property and shall
be separately assessed and taxed.
11.5 Notices. All notices required or permitted to be given or delivered under this
Declaration shall be deemed to have been given or delivered when either: (a) deposited in the
certified United States mail, postage pre-paid to the addresses provided in Section 3.1, rejection or
refusal to accept or inability to deliver due to changed address of which no notice was given shall
be deemed receipt; or (b) delivered personally to a director of the Association, Declarant, or a Lot
Owner.
11.6 Gender. Whenever any reference herein is made to one gender, the same shall
include a reference to any and all genders where the same would be appropriate; similarly,
whenever reference is made herein to the singular, a reference shall also be included to the plural
where the same would be appropriate and vice versa.
11.7 Conflicts. In the event that there is any conflict or inconsistency between or among
the provisions of Montana law, this Declaration, and any Rules and Regulations promulgated
hereunder, the provisions of Montana law, the Declaration, and the Rules and Regulations (in that
order) shall prevail.
11.8 Limitation of Liability. Notwithstanding anything to the contrary contained in this
Declaration, any liability or claims against the Declarant shall, except in connection with any
express written warranty of Declarant, be strictly limited to Declarant's then-existing interest in the
Property, and in no event shall any recovery or judgment be sought against any of Declarant's other
assets (if any) or against any of Declarant's or its affiliates' owners, managers, members, partners
(or their constituent members or partners), or any manager, director, officer, employee, or
shareholder of any of the foregoing. Further, in no event shall any claimant be entitled to seek or
obtain any special, consequential, indirect, treble (or other multiplier), or punitive damages.
11.9 Governing Law. This Declaration shall be governed and interpreted in accordance
with the laws of the State of Montana.
11.10 No Subdivision of Lots. No Lot shall be subdivided, partitioned, aggregated, or be
subject to a boundary line adjustment without the prior written consent of the Declarant during the
Development Period and thereafter the Association. No private covenants and no Condominium
Association shall be created, and no amendment of any governing document of any Condominium
Association shall be effective without the prior written consent of the Declarant during the
Declarant Control period, and thereafter the Association. Nothing in this Section shall be construed
to restrict or limit the Declarant's right to partition, aggregate, or subdivide any existing Lot,
subject to the approval of the Bozeman City Commission.
11.11 Attorneys' Fees. In the event that any action or proceeding is brought for the
enforcement of this Declaration or as the result of any alleged breach, the prevailing party or
parties shall be entitled to be paid all associated costs, including reasonable attorneys' fees by the
losing party or parties. In addition, the prevailing party or parties shall be entitled to recover all
fees, costs, and expenses incurred in connection with such action or proceeding, including without
limitation, any post-judgment fees, costs or expenses incurred on any appeal or in collection of any
judgment, and any judgment or decree rendered shall include the same in the award.
11.12 Noxious Weeds. The control of noxious weeds by the Association on those areas
for which the Association is responsible and the control of noxious weeds by individual Owners on
their respective Lots shall be as required by the Montana Noxious Weed Control Act (§ 7-22-2101,
MCA through § 7-22-2153, MCA as amended) and the rules, regulations and management plans of
the Gallatin County Weed District. Both unimproved and improved Lots shall be managed for
noxious weeds. In the event an Owner does not control the noxious weeds after 10 days' notice
from the Association, the Association may cause the noxious weeds to be controlled. The cost and
expense associated with such weed management shall be assessed to the Lot and such assessment
may become a lien if not paid within thirty (30) days of the mailing of such assessment. The
Association is responsible for control of state and county declared noxious weeds in the
Community parks, open spaces, Community areas, trails, and roadways. Nothing herein shall
require or obligate the Gallatin County Weed District to undertake any management or
enforcement on behalf of the Association or Owners that is not otherwise required by law of the
Gallatin County Weed District Management Plan.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Declarant has executed this Declaration this day of
, 2022.
DECLARANT:
SRX LLC
By:
Bryan Klein, Its Managing Member
STATE OF Montana )
:ss
COUNTY OF Gallatin )
This instrument was acknowledged before me on by Bryan Klein as the
managing member of SRX LLC, a Montana limited liability company. IN WITNESS
WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first
above written.
Notary Public for the State of
My commission expires:
EXHIBIT A
Legal Descriptions of “Property”
“Residential Development” and
“Commercial Development”
NOTE: To be updated with final plat descriptions.
“Property”
South Range Crossing Subdivision being Lot 1 of Block 1 of Yellowstone Theological Institute
Minor Subdivision No. 494 Located in the Northwest and Southwest ¼ of Section 24, Township 2
South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana
“Residential Development” – Block 2-8
Block 2 Lots 1-3; Block 3 Lots 1-24; Block 4 Lot 1; Block 5 Lots 1-4; Block 6 Lots 1-2; Block 7
Lots 1-35; Block 8 Lots 1-2 as shown on the Final Plat for South Range Crossing Subdivision,
Bozeman, Gallatin County, Montana recorded as document number ______________in the records
of the Gallatin County Clerk and Recorder.
Park and Open Space as shown on the Final Plat for South Range Crossing Subdivision, Bozeman,
Gallatin County, Montana recorded as document number ______________in the records of the
Gallatin County Clerk and Recorder.
“Commercial Development” – Block 1
Lots 1-8 of Block 1 as shown on the Final Plat for South Range Crossing Subdivision, Bozeman,
Gallatin County, Montana recorded as document number ______________in the records of the
Gallatin County Clerk and Recorder.
After recording return to:
Providence Development Company LLC
529 East Main Street Bozeman, MT 59715
Attn: Parker Lange
EXHIBIT B
Building Design Guidelines