HomeMy WebLinkAbout008 Appendix G - CCRs
Return Recorded Document to:
West University, LLC
109 E. Oak Street
Bozeman, MT 59715
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
FOR
AAKER 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 Aaker
Subdivision and to establish the Aaker Property Owners Association, Board of Directors,
Committees and Design Review Committee.
The Aaker Subdivision is a 95.41 acre Subdivision located just west of Montana State
University and minutes from downtown Bozeman. Aaker is envisioned to be an active
multiple use development with commercial, residential and mixed-use neighborhoods
together with Public Parks, network of trails, a dog park, pond, playground and picnic
area and other amenities to allow owners an area they can live, work and play, all within
a walkable distance. It is the intent of this Declaration of Covenants, Conditions and
Restrictions (“Declaration”) to create a coherent plan for a mixed use, active community
which incorporates a variety of uses and amenities in order to create an inclusive and
diverse neighborhood.
The Developer intends to develop Aaker in phases, adding in Additional Property and
uses over time. The initial phase will be for multi-family residential use. Additional land,
uses and amenities will be added through additional phases.
The Developer intends by the recording of this Declaration, to create a general plan of
development for Aaker Subdivision. More specifically, the Declaration defines how
buildings and property within Aaker Subdivision are to be used, designed, landscaped
and maintained. Unless otherwise noted, the Declaration applies to all lots within Aaker
Subdivision.
This Declaration also provides for the overall development, administration, maintenance
and preservation of the real property now and hereinafter compromising Aaker
Subdivision, and the establishment of the Aaker Property Owners Association (the
AAssociation@) to own, operate and/or maintain various 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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DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS AND BYLAWS
FOR THE AAKER SUBDIVISION
This Declaration is made on the date hereinafter set forth by West University, LLC of
109 E. Oak Street, Bozeman, MT 59715, hereinafter referred to as ”Declarant”.
WITNESSETH:
WHEREAS, Declarant is the owner of certain real property in the City of Bozeman,
County of Gallatin, State of Montana, which is more particularly described on Exhibit
A, incorporated herein as if fully set forth. Such real property shall be referred to as
“Property”.
WHEREAS, Declarant desires to subject the Property to certain Covenants, conditions
and restrictions in order to provide for the orderly development and use, design and
maintenance of the Property.
NOW, THEREFORE, Declarant hereby declares that the Property described above shall
be held, sold and conveyed subject to the following easements, restrictions, Covenants
and conditions, which are for the purpose of protecting the value and desirability of,
and which shall run with the real property and be binding on all parties having any
right, title or interest in the real property or any part thereof, their heirs, successors and
assigns and shall inure to the benefit of each owner thereof.
ARTICLE I. DEFINITIONS
1. “Aaker Covenants” or “Covenants” or “Declaration” shall refer to this
document.
2. “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 D, attached hereto and incorporated herein as if fully set forth By incorporating
Exhibit D, the Declarant is under no obligation to develop Future Phases nor is the
Declarant limited to adding only the Additional Property shown on Exhibit D.
Declarant may add any land to the Subdivision, regardless of whether shown on Exhibit
D or not.
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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 Aaker 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 and/or
maintained by the Association for the common use and benefit of the Owners. The
“Common Areas” include but shall not be limited to common Open Spaces as
delineated on the Plat, common sidewalks, storm water facilities, detention/retention
ponds, common sprinkler systems, common landscaping of boulevards and certain
public streets, common signage and other common use areas as shown on the Plat of
Aaker Subdivision as recorded in the records of the Gallatin County Clerk and
Recorder’s Office in Gallatin County, Montana. Exhibit E attached hereto, depicts all
Common Areas that the Association is responsible for mowing, snow removal and
other maintenance.
Common sidewalks/walkways do not include sidewalks/walkways within
private lots or along public right-of-way fronting private Lots. Common Area
sprinklers do not include sprinkler system(s) within individual Lots. Common Areas
do not include Public Parks, which shall be owned and maintained by the City of
Bozeman. The Association is responsible for replacement of dead trees within City
right of ways but shall not be responsible for tree maintenance.
10. ”Common Area Expenses” are the actual and estimated expenses incurred or
anticipated to be incurred by the Association for the maintenance, repair and
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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 (for irrigation lines, pumps and lighting etc.), snow removal from
common sidewalks within the Association, landscaping, tree replacement, management
of Open Space, insurance and real estate taxes. Lot Owners shall be responsible for
snow removal and maintenance of interior private streets and parking lots located
within a Lot unless the Association agrees to maintain the same in writing.
11. “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 the anticipated future phases as shown on Exhibit D, have been
conveyed to third parties by Declarant; (ii) Ten (10) 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 West University Subdivision has reached 80% sold to third parties, the
Conversion Date will not occur until 80% of all future phases as shown on Exhibit D are
80% sold, ten (10) years have passed from the first conveyance, or the written election of
Declarant, whichever occurs first.
12. ”Declarant” shall mean the developer of the Aaker Subdivision, namely West
University, LLC, and its successors and assigns.
13. “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 Guideline Manual and conditionally approves or
rejects the same.
14. “Design Guideline Manual” shall mean the Aaker Design Guideline
Manual adopted by the DRC or Declarant as set forth herein, as amended or modified
from time to time.
15. ”Governing Documents” is a collective term referring to this Declaration and
any Applicable Supplemental Declarations or Amendments, the Bylaws, the Design
Guideline 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
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development for the Property, a framework of affirmative and negative Covenants,
easements and restrictions which govern the Property. Within that frame work, the
Board and Owners have the ability to respond to unforeseen problems and changes in
circumstances, desires, trends and technology which inevitably will affect West
University Subdivision, its Owners and residents through Rules and Regulations
promulgated by the Board or through amendments to the Governing Documents.
16. “Improvement” shall mean every Structure or Improvement of any kind,
including, but not limited to housing, landscaping, patios, decks, fences and walls
(including retaining walls), driveways, sidewalks, fixtures, storage shelters, pools, hot
tubs, playground equipment and other products of construction efforts (including
exterior painting, alterations and reconstruction).
17. ”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
West University Subdivision and (b) designated as the Declarant for residential, mixed
or commercial use. The term “Lot” does not include any portion of the Public Parks or
other Common Areas.
18. ”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 West University.
19. “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.
20. ”Owner” shall mean and refer to the record owner, whether one or more Persons
or entities, of a fee simple title to any Lot or Unit which is part of the Property. The term
Owner shall also include the purchaser under a Contract for Deed.
21. ”Person” shall mean a natural person, a corporation, a partnership, a trustee or
any other legal entity.
22. “Plat” shall mean the Plat of Aaker Subdivision, recorded on ____________,
202__ 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.
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23. ”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.
24. “Public Parks” shall mean all land and interest therein which, has or will be
conveyed to the City of Bozeman, including but not limited to all lands identified on the
Plat as Public Parks. Public Parks will be dedicated to the City and shall be maintained
by the City of Bozeman. The Association may, at its Option, provide additional
maintenance for the Public Parks, at its expense, if it feels that the City is not adequately
maintaining the Public Parks or for special events, but such additional
maintenance shall not create any ongoing requirement or obligation of the Association
to provide maintenance.
25. “Rules and Regulations” shall mean the Rules and Regulations adopted by the
Association from time to time.
26. “Special Assessments” shall mean any special charges established pursuant to
the terms of Article VII.
27. “Specific Assessment” shall mean the charges imposed upon some, but less than
all Lots, for services rendered or expenses incurred pursuant to Article VII.
28. “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.
29. ”Subdivision” or “Aaker” shall refer to the Property, all as further depicted on
the Plat.
30. “Turnover Meeting” shall mean the meeting of the Owners called by Declarant
to turn over control of the Association to the Members.
31. “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. The anticipated Additional
Property is shown as “Future Phase” on the attached Exhibit D, however, the land
shown on Exhibit D as Future Phases shall not create an obligation nor limit the
Declarant’s rights to add Additional Property in any way.
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
West University Subdivision all or any part of any Additional Property (not then
constituting a part of West University 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 West University 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 Aaker
Subdivision.
Only the land described in Exhibit “A” and the Additional Property as annexed in from
time to time as provided for in this section shall be deemed subject to this Declaration.
Nothing herein or in any amendment hereto shall be deemed to be a representation,
warranty or commitment that the Declarant will annex 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 ninety (90) days after the annexation, recompute the budget
for the Association based on the additional Lots, Common Areas and Common
Expenses and other similar matters 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 ninety (90) 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 ninety (90) days after the annexation or with
the next occurring Annual Assessment, whichever is sooner. To the extent that any
adjustment results in a 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 with the amount of additional land. 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, revoked or amended without the prior
mutual written consent of the Bozeman City Commission and Lot Owners in
accordance with the amendment procedures set forth under Article XIII, Section 8
herein. 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 as required. 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 Mont. Code Ann. 670, Chapter 16, Part 2
and Title 81, Chapter 4, Part 1 and all other applicable state laws.
4. Any Covenant which is required as a condition of the preliminary Plat
approval and required by the Bozeman 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
Bozeman 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.
10. Lot Owners must pay a pro-rata share of the cost of any Common Area
Expenses with any assessment charged by the Association becoming a lien
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on the Lot if not timely paid, as further set forth under Article VII, Section
4.
11. Membership in the Association is automatic and mandatory for each Lot
Owner, and any subsequent Lot Owner.
12. The permission of the Bozeman City Commission is required before the
Association may be dissolved or boundaries altered.
13. No property may be removed from the Association without their prior
approval of the Bozeman City Commission.
14. Condominiums must be assigned street addresses in compliance with
Chapter 10, Article 7 of the Bozeman Municipal Code.
15. In the event the Association or successor organization established to own
and maintain Common Areas and facilities, must at any time fail to
maintain the Common Areas or facilities in reasonable order and
condition in accordance with the approved plan, the City may cause
written notice to be served upon the Association or such organization or
upon the Owners of property in the development. The written notice
must set forth the manner in which the Common Areas or facilities have
failed to be maintained in reasonable condition. In addition, the notice
must include the demand that the deficiencies noted be cured within 30
days thereafter and must state the date and place of a public meeting to
be held within 14 days of the notice. At the time of public meeting, the
City Commission may modify the terms of the original notice as to
deficiencies and may extend the time within which the same may be
cured. If the deficiencies set forth in the original notice or modifications
are not cured within the time set, the City may enter upon such common
facilities and maintain the same for a period of one year, in order to
preserve the taxable values of properties within the development and to
prevent the common facilities from becoming a public nuisance. Such
entry and maintenance must not vest in the public any right to use the
common facilities not dedicated to public use. Before the one-year period
expires, the commission must, upon its own initiative or upon written
request of the organization theretofore responsible for maintenance, call
a public meeting and give notice of such meeting to the organization
responsible for maintenance or the property owners' of the development.
At the meeting, the Association, or the organization responsible for
maintenance and/or the residents of the development may show cause
why maintenance by the City should not be continued for a succeeding
year. If the City Commission determines that it is not necessary for the
City to continue such maintenance, the City must cease such
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maintenance at the time established by the City Commission. Otherwise,
the City must continue maintenance for the next succeeding year subject
to a similar meeting and determination at the end of each year thereafter.
a. The cost of maintenance by the City must be a lien against the
common facilities of the development and the private properties within
the development. The City Commission must have the right to make
assessments against properties in the development on the same basis
that the organization responsible for maintenance of the facilities could
make such assessments. Any unpaid assessment must be a lien against
the property responsible for the same, enforceable the same as a
mortgage against such property. The City may further foreclose its lien
on the common facility by certifying the same to the county treasurer for
collection as in the case of collection of general property taxes.
b. Should the Association request that the City assume permanent
responsibility for maintenance of facilities, all facilities must be brought
to City standards prior to the City assuming responsibility. The
assumption of responsibility must be by action of the City Commission
and all costs to bring facilities to City standards must be the
responsibility of the Association. The City may create special financing
mechanisms so that those properties within the area affected by the
property owners' Association continue to bear the costs of maintenance
c. The City must assume permanent responsibility for maintenance of
public areas and facilities when a dedicated funding mechanism is
adopted.
16. If the property owners' Association fails to install or maintain
Improvements according to approved plans, the City may, at its option,
complete construction of Improvements and/or maintain Improvements
in compliance with section 38.220.320 and division 38.270 of the
Bozeman Municipal Code. The City's representative, contractors and
engineers have the right to enter upon the property and perform such
work, and the property owners' Association must permit and secure any
additional permission required to enable them to do so. The City will
bill the property owners' Association for any costs associated with the
installation or maintenance of Improvements.
17. The Association may adjust assessments to meet changed needs.
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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
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 Aaker 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.
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ARTICLE VI. PROPERTY OWNERS= ASSOCIATION, MEMBERSHIP AND
VOTING RIGHTS
1. Formation.
The Declarant hereby establishes the Aaker Property Owner's Association, which
shall be a Montana non-profit corporation, for the purpose of promoting, developing,
maintaining and operating Aaker. All Lot Owners shall be Members of the Association.
This Association shall be called The Aaker 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
all Owners in Aaker. 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 Aaker.
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.
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(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
Common Maintenance Areas and to such maintenance as 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, mixed use or commercial neighborhoods.
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
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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.
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 Aaker Subdivision; to enforce these Covenants; to
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collect assessments; to set annual and/or special meetings; and to act in any other
matters set forth herein or which may serve West University, including but not limited
to:
a. The Association shall accept title to land from time to time conveyed to
it. The Association may also acquire and accept title to any other property,
real, personal or mixed.
b. All maintenance and/or Improvement of Common Areas.
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. If Public Parks are not immediately dedicated to the City, the
Association shall maintain or provide for the maintenance of the Public
Parks until such time as the Public Parks are dedicated to the City of
Bozeman for the Public Parks. Further, the Association may, at its sole
discretion, provide maintenance of the Public Parks for special events or if
the City does not maintain the Public Parks to the Association’s standards;
however, such additional maintenance shall not create an obligation or
requirement for the Association to maintain the Public Parks in the future.
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 herein 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 herein and all limitations, Covenant conditions and
restrictions herein and all Rules and Regulations.
g. The Association shall have the power to assess the Aaker 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
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more particularly set forth in this Document. Notice to each Owner’s
assessments shall be mailed to the Owners’ address on record.
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.
i. 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 Aaker Subdivision
Covenants, or to enforce by mandatory injunction or otherwise all of the
provisions herein.
j. In fulfilling any of its duties under the Aaker Subdivision Covenants and
to the extent necessary by the failure of the Owners of private areas, or in
exercising any of its rights in relation to Common Areas. The Association
shall have the power and authority:
(1) To contact and pay for, or otherwise provide for, construction,
maintenance and repair of all Common Areas 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 Aaker 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 Aaker Subdivision, any property located within
Aaker Subdivision, or the Owners; and
(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 Common Areas 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.
k. 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.
l. 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 West University 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.
m. 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 Public
Parks, or upon any personal property belonging to the Association.
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n. The Owners, Declarant and Association are hereby prohibited and
precluded from engaging in any activity that would impact any
downstream water user facilities.
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.
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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.
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. The Association reserves the right to adjust assessments to meet changed
needs. 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
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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
property including, without limitation, the Common 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, 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 West University 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;
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(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
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
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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 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
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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 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
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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 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. Expense. 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.
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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.
(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.
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(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 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.
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ARTICLE VIII: COMMON AREAS
1. General
The Common Areas shall be reserved in perpetuity as Common Areas and
shall be open to the public. The public, as well as each Owner shall have the right to
use and enjoy the Common Areas. The Association shall be fully responsible for all
liability insurance, taxes and assessments of the Common Areas. 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 of the Public Parks shall
transfer to the City of Bozeman. Ownership and control of other 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.
2. Private Roadway Maintenance and Snow Removal
The maintenance and snow removal of private roadways and parking areas
within the interior of each Lot shall be the responsibility of each individual Lot
Owner.
The Association shall be responsible for snow removal and maintenance from
common sidewalks as shown on Exhibit E and the cost of the same will be assessed to
all Lot Owners regardless of whether the sidewalks are used to access their Lot or not.
Signs within Common Areas will be placed and designed as approved by the
Association in conformance with the City of Bozeman regulations. All Lots are
responsible for snow removal and maintenance of their private driveway, parking lots
and sidewalks located within their individual Lots.
3. Title to Common Areas.
Should titled Common Areas exist, Declarant shall cause fee simple title to the
Common Areas, if any, 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.
4. Right of Way Maintenance.
The Association shall enter into an annual contract with a certified landscape
nursery Person for upkeep and maintenance of the Common Areas and rights of way
and boulevards.
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Maintenance duties to be performed will consist of spring and fall clean-up,
routine landscaping, mowing, lawn patching, sprinkler system maintenance, care and
replacement of dead trees and/or shrubs, sprinkler blow outs, etc. The City of Bozeman
shall be responsible for tree maintenance on public rights of way and public boulevards.
A Weed Control Program will be developed that conforms to the requirements
of the City of Bozeman, Gallatin County Board supervision and NRCS for maintenance
of Common Open Space and Common Areas. Records shall be maintained in
accordance with State of Montana Pesticide Act Administrative Rule 4.10.207.
Sidewalks must be cleared within 24 hours after the end of snowfall event per
Bozeman Ordinance 1529. The Association will be responsible for clearing snow on
common sidewalks. Leaf removal will be provided by a landscape contractor or handy
man as retained by the Association.
5. Animal Control in Common Areas
Except as may otherwise be provided in the dog park, pets shall be leashed at
all times while in the Public Parks and Common Areas and residents, the public and
Lot Owners must clean up after their pets.
ARTICLE IX: EASEMENTS
1. Generally. Easements for irrigation ditches, streets, trails, 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 streets, 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.
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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.
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
West University and future annexation of Additional Property.
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 Aaker 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.
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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 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.
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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.
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.
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2. Design and Construction
The DRC may, with the approval of the Board, adopt, amend, modify or revise
Design Guideline Manual; provided, however, that Declarant may adopt, amend,
modify and revise the Design Guideline 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 Guideline Manual. No
amendments, modifications, or revisions to the Design Guideline 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 Guideline Manual and any other information deemed necessary by the DRC
for the performance of its function pursuant to the procedure outlined in the Design
Guideline 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 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.
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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 Guideline 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
Guideline 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
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 Guideline Manual.
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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.
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 the Design Guideline, 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. Aaker Subdivision, Phase 1.
The use of Lots in Aaker Phase 1 shall comply with the uses allowed under the
Zoning on the Property which is currently Residential Emphasis Mixed Use (REMU)
and shall be used and maintained in compliance with this zoning designation, the
Declaration, the Articles, Bylaws and any rules promulgated by the Association.
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Owners are hereby notified that REMU Zoning Districts are subject to certain
restrictions as to the amount of Gross Building Area (as defined under the City Code
relating to REMU zoning) allowed for commercial and residential uses. Toward that
end, the Association shall be responsible for tracking the amount of Gross Building
Area within the Subdivision being utilized as commercial use and the amount of
Gross Building Area being utilized for residential use. In doing so, the Association
shall use the form attached as Exhibit F to track the same in the Subdivision. This
information shall be available for Owners to review upon request. The Lot Owners
and not the Association shall be responsible for maintaining the appropriate Gross
Building Areas of residential and commercial uses as required under the REMU.
2. Animals/Pets.
Common domestic pets are allowed, subject to the following restrictions:
No more than two (2) dogs or two (2) cats or one (1) dog and one (1) cat 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 Aaker 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 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.
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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 West University except for short
term parking for up to two (2) 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.
No clotheslines are allowed. Hot tubs and firepits shall not be allowed. Patios
and decks shall be kept in a clean and uncluttered fashion, with only standard
patio furniture allowed. Owners must keep their Property including yards, patios
and decks 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. 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
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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.
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 West University 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
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insurance or which would be in violation of any law. No waste will be permitted on
the Common Areas.
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 Aaker 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 Guideline 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 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 cooling 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.
Excepting only the Declarant, 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.
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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.
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
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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 LOCATED. 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
Aaker Subdivision Covenants may be delegated, transferred, assigned, conveyed or
released by the Declarant to the Association and the Association shall 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
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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 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
45
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 and Hearings.
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.
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
46
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 West University 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. 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.
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10. Notices; Documents; Delivery.
Any notice or other document permitted or required by West University
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.
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
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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 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___.
West University, LLC
By:____________________________
Barry Brown, Member
49
STATE OF MONTANA )
: ss
County of Gallatin )
On this ________ day of ____________________202___, before me a Notary Public
in and for the State of Montana, personally appeared BARRY BROWN known to me to
be a Member of West University, LLC, and acknowledged to me that he executed the
same on behalf of the limited liability company pursuant to the power and authority
vested in him.
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:____________
50
EXHIBIT A
LEGAL DESCRIPTION
Block 1 Park; Block 1, Lot 1; Block 2, Lot 2; Block 3, Lot 1; and Block 3,
Lot 2 of West University Subdivision, Phase 1 to the City of Bozeman,
Gallatin County, Montana, according to the official Plat thereof on file
and of record in the office of the Gallatin County Clerk and Recorder,
Gallatin County, Montana.
TOGETHER WITH any additional real Property annexed in the
future as provided herein.
51
EXHIBIT B
COMMON AREA AND FACILITY MAINTENANCE PLAN
TBD
52
EXHIBIT C
STORMWATER FACILITIES MAINTENANCE PLAN
TBD
53
EXHIBIT D
FUTURE ADDITIONAL PROPERTY
54
EXHIBIT E
COMMON AREAS, SNOW REMOVAL AND
MAINTENANCE OBLIGATIONS
55
EXHIBIT F
REMU ZONED BUILDING AREA TRACKING FORM