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HomeMy WebLinkAbout007 - Appendix G - CCRsAfter Recording Return Original to: Lucas H. Forcella Crowley Fleck PLLP P.O. Box 2529 Billings, MT 59103 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR TURNROW MASTER DEVELOPMENT This Declaration of Covenants, Conditions, and Restrictions for Turnrow Master Development (these “Master Declaration”) is made this _____ day of __________, 2023, by Virga Venture II, LLC (“Declarant”), a Montana limited liability company, of PO Box 1070, Bozeman, MT 59771 . RECITALS: A. Declarant owns the real property described on Exhibit A attached hereto and incorporated herein by reference (together with all improvements from time to time constructed thereon, the “Property.”). B. Declarant is sub-dividing the Property in phases to create a development known as Turnrow Master Development (the “Development”) on the Property, which Development is contemplated to include both residential and commercial properties. C. Declarant intends that the Development include several subordinate portions (each, a “Sub-Development”): 500+ single-family homes; multi-family buildings containing 500+ apartments, approximately 5 acres of affordable housing; approximately 7 acres of mixed use commercial space (potentially including retail store, condominiums, and/or hotels); and open/recreational spaces. D. The Development is expected to be built in phases, and the development of the Development may continue for many years following the recording of this Master Declaration. E. At the conclusion of development, each Lot shall be contained within one and only one of the several Sub-Developments. F. Declarant intends by this Master Declaration to impose upon the Property mutually beneficial covenants, conditions, and restrictions under a general plan of improvement for the benefit DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 2 of all Owners and occupants of real property in the Development that will become subject to this Master Declaration. NOW, THEREFORE, Declarant hereby declares that the Property shall be held, sold, mortgaged, encumbered, used, occupied, improved and conveyed subject to the following covenants, conditions, and restrictions which are for the purpose of protecting the value and desirability of, and which shall run with, the Property and which shall be binding on all parties having any right, title or interest in the Property and their heirs and assigns, and shall inure to the benefit of each owner thereof. I. DEFINITIONS 1.1 “Articles of Incorporation” or “Articles” means the Articles of Incorporation of the Association as filed with the Montana Secretary of State and any amendments and restatements thereto from time to time. 1.2 “Assessments” means the assessments contemplated by Article 6, being Common Assessments, Default Assessments, and Special Assessments, and any other assessments as may be later established by the Board. 1.3 “Association” means the Turnrow Master Association, a Montana nonprofit corporation, and its successors and assigns. 1.4 “Board of Directors” or “Board” means the duly elected and qualified members of the Board of Directors of the Association. 1.5 “Bylaws” means the Bylaws of the Association adopted by the Association and any amendments and restatements thereto from time to time. 1.6 “Governing Documents” means this Master Declaration, Bylaws, Articles, and resolutions of the Board, all as amended from time to time. 1.7 “Master Declaration” means this Declaration of Covenants, Conditions, and Restrictions for Turnrow Master Development, as it may from time to time be amended or supplemented. 1.8 “Declarant Control Period” means the period beginning on the date this Master Declaration are first recorded in the office of the Clerk and Recorder of Gallatin County, Montana, and ending on the earlier of: (i) that date on which all Lots have been sold by Declarant or (ii) that date on which Declarant voluntarily terminates such period by a writing expressly so noting. At the end of the Declarant Control Period, Declarant shall record in the office of the Clerk and Recorder of Gallatin County, Montana written notice of the end of the Declarant Control Period. 1.9 “Facility” means any real estate, structure or appurtenance thereto within the Development or that serves the Development (a) that is owned by the Association, (b) the common areas, the roadways, and any other areas that by the terms of this Declaration, any written notice from the Declarant to the Association, or other applicable covenants, contract, or agreement with the County, are or become the responsibility of the Association to maintain, or (c) during the Declarant Control Period, that is part of the Development and either (i) is designated by Declarant as a Facility by executing an instrument and filing the same in the records of the Association, or (ii) is indicated for similar use on a plat, for the use or benefit of one or more Member, licensee, invitee or member of the general public. 1.10 “Lot” shall mean a unit of land designated as a lot on the plat or plats of the Property, or any portion thereof, filed with the Clerk and Recorder of Gallatin County, Montana. DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 3 1.11 “Members” shall mean the members of the Association. 1.12 “Owner” shall mean any person or entity which, for any Lot, is the record owner of: a. a fee simple interest; b. an estate for life, whether measured by the life of the estate holder or by the life of a third party; c. a vested remainder interest following an estate for life; but excluding any entity or person who holds such interest as security for the payment of an obligation. 1.13 “Property” shall mean the real property described in Recital A above, together with such additional property as is subjected to this Master Declaration from time to time in accordance with the provisions of this Master Declaration. 1.14 “Common Expenses” means and includes the actual and estimated expenses of operating the Common Open Space (and pursuing, implementing, and executing the intent, purposes, business and affairs of the Association) and any reasonable reserve for such purposes as found and determined appropriate by the Board, and all sums designated Common Expenses by or pursuant to this Declaration, the Articles, Bylaws or Rules. Common Expenses shall also include costs and reserves (if appropriate) incurred by the Association in connection with maintaining the Project as required by this Declaration or the City of Bozeman, and any areas at or adjacent to the Project that the Association is otherwise required to maintain as required by City of Bozeman, Montana, or any other governmental agency with jurisdiction thereof. Common Expenses shall also include any obligations of the Association, including administrative expenses of the Association and the Association’s share, of any costs or expenses incurred in regard to shared development costs and expenses, other shared expenses of the Project and the Commercial Development, defined below, and the Association’s share of Community Management and Promotion. Funds to pay all Common Expenses may be collected as part of Assessments, as provided herein. Common Expenses include, but are not limited to, weed management, street lighting, maintenance and upkeep of the water features and wetlands of the Project, landscaping and maintaining the Common Open Spaces, landscaping and maintaining the streets and medians (including snow removal), maintenance and upkeep of any facilities or improvements in the Common Open Spaces, if any, and all expenses associated with utilities and water for the Common Open Spaces, except for any such facilities or infrastructure maintained by the City of Bozeman or a Sub-Association. II. PERSONS BOUND BY THE COVENANTS AND RESTRICTIONS All persons, corporations, partnerships, associations or other entities who shall hereafter acquire any interest in and to the Property or any part thereof, shall be taken and held to agree and covenant with the Owners of the Property and with their heirs, devisees, trustees, successors and assigns, to conform to and observe the covenants and restrictions stated in this Master Declaration. III. REAL ESTATE TO WHICH COVENANTS APPLY This Master Declaration shall apply to the Property. DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 4 IV. RESTRICTIVE COVENANTS 4.1 Vision. The Property is located in a residential area of the City of Bozeman, in Gallatin County, Montana. Each Sub-Development within the Property shall participate in the management of the Association through such sub-development’s respective property owners’ association. Each Sub-Development shall, and shall cause each Owner to, comply with and meet the design guidelines, conditions, covenants, and restrictions contained in this Master Declaration as well as the City of Bozeman Code and Gallatin County Zoning Regulations as they may change from time to time. 4.2 Agricultural Land Use. Owners and tenants of the Property are informed that nearby uses may be agricultural. Owners accept and are aware that standard agricultural and farming practices can result in smoke, dust, animal odors, flies, and machinery noise. Standard agricultural practices feature the use of heavy equipment, burning, chemical sprays, and the use of machinery early in the morning and sometimes late into the evening. 4.3 Statutory Protections. Owners are hereby notified that Montana law provides specific protections in regard to liability and nuisance claims for agricultural operations and irrigators. Those specific protections include, but are not limited to Mont. Code Ann. §§ 85-7- 2211, 85-7-2212, and 27-30-101. 4.4 Fences. Fences bordering agricultural lands shall be maintained by Owners, in accordance with state law. 4.5 Construction. All structures built in the Property shall be constructed in accordance with most recent editions of applicable building related codes adopted by the State of Montana Building Codes Bureau, including seismic standards for structures as determined by the State Building Codes Bureau for the area of the Property in accordance with the latest adopted version of the International Building Code. 4.6 Artificial Feeding. The artificial feeding of all wildlife and big game is prohibited within the Property, including providing any food, garbage, or other attractant. 4.7 Garbage. All garbage shall be stored in animal-proof containers or be made unavailable to animals. 4.8 No Nuisances. No noxious or offensive activities shall be carried on, nor shall anything be done on any Lot which may become an annoyance or nuisance to other Owners of Lots within the Property. 4.9 Structure Maintenance. Each Owner shall cause to be maintained any and all structures on the Owner’s Lot, including painting and repairing the structures, and shall maintain the grounds of the Lot to preclude weeds, underbrush, and other unsightly or unnatural growth and conditions. No Owner shall permit refuse piles or other unsightly objects to accumulate or remain on the Owner’s Lot. DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 5 4.10 No Hunting. The taking of any wildlife species within the Property is prohibited. No hunting of, shooting at or harassing of birds, animals or any wildlife are permitted. No discharge of any rifle, shotgun, pistol, or other firearm is permitted at any time within the Property. 4.11 No Subdividing. No Lot shall be subdivided, or split in any way or manner whatsoever, and no Lot boundary lines shall be adjusted or vacated except as follows: (i) by Declarant or with Declarant’s written consent during the Declarant Control Period, or (ii) by or with the written consent of the Association after the Declarant Control Period. 4.12 Pets. Pets shall be controlled by each Owner, and not allowed to roam at large. Pets are only permitted to be off-leash in specific designated areas. 4.13 Landscaping Damage. Owners acknowledge that wildlife damage to landscaping and other property may occur. Owners shall accept the risk and shall not file claims against any governing body for such damages. 4.14 Addresses. All addresses in the Development shall be assigned by the Gallatin County GIS Department. 4.15 Driveways. Each driveway access point must be at least seventy-five (75) feet from the nearest public road intersection. 4.16 Manufactured, Modular, or Mobile Homes. The placement of a mobile home, modular home, or manufactured home on the Property is prohibited, except that the Declarant may, during the Declarant Control Period, permit the temporary placement and use of mobile homes, modular homes, or manufactured homes in connection with the development of the Property. 4.17 Noxious Weeds. The control of noxious weeds by the Association on those areas for which the Association is responsible and the control of noxious weeds by Owners on their respective Lots is the responsibility of the Owner whether the Lot is improved or unimproved, and shall be as set forth and specified under the Montana Noxious Weed Control Act (Mont. Code Ann. §§ 7-22-2101 through 7-22-2153) and the rules and regulations of the Gallatin County Weed Control District. 4.18 Fire Flow Requirements. All new structures must meet the fire flow requirements as outlined in the adopted edition of the International Fire Code as adopted by the City of Bozeman, unless alternative provisions are approved by the City of Bozeman. 4.19 Open Space Fuel Management Plan. An open space fuel management plan shall be submitted by the Declarant and approved by the City of Bozeman. 4.20 Water Removal. No water may be removed from any irrigation ditch, canal, or other water conveyance facility without a water right, permit, or written water lease agreement with the appropriate water users and/or water conveyance facility’s authorized representatives. DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 6 4.21 Water Discharge. Unless there is written consent from the appropriate water users and/or water conveyance facility’s authorized representatives, post development storm water, snowmelt runoff, water from dewatering practices, or other water originating from within the boundaries of the subdivision shall not discharge into or otherwise be directed into any irrigation ditch, canal, pipeline, or other water conveyance facility. 4.22 Trash and Debris. The Association shall cause to be removed any trash or debris that originated from within the Property and has accumulated in the water conveyance facilities passing through the property by no later than May 1st of each year. If the Association fails to remove the trash or debris as described above, the water users and/or water conveyance facility’s authorized representatives may cause the trash or debris to be removed and bill the Association for such efforts. During the Declarant Control Period, such requirements shall be the responsibility of the Declarant, after which period all such requirements shall be the sole responsibility of the Association. 4.23 Access, Maintenance, and Repair Rights. Owners are hereby notified of the water users, water conveyance facility’s authorized representatives, and/or their designee’s right to access the property to maintain and repair the water conveyance facility (this includes, but is not limited to, placement of excavated material, removal of vegetation and debris along the water conveyance facility); to install, repair, and or adjust head gates and other diversion structures; and to carry out other normal means of repair and maintenance related to the ditch/canal. 4.24 Non-interference with water conveyance facilities. To assure non-interference with water conveyance facilities, no livestock grazing shall take place, nor shall any new structures (other than structures for the maintenance and operation of the water conveyance facility), fences, landscaping (other than grass), or roads, may be installed or erected within the water conveyance facility non-interference setback except where agreed to in writing by the water users and/or water conveyance facilities authorized representatives. 4.25 Written Permission and Notice. Neither the Association nor any Owners shall undertake any activity that would result in the interference or obstruction in the transmission of water in the water conveyance facility. Before any maintenance, improvements, or modifications are performed on any water conveyance facility, written permission must be obtained from the water users and/or water conveyance facility’s authorized representatives prior to commencing such work. Upon completion of maintenance, improvements, or modifications to any water conveyance facility, the person responsible for such work shall provide written notice to the water users and/or water conveyance facility’s authorized representatives and allow them an opportunity to inspect such work. 4.26 Open Space. Open space shown on the approved final plan or in the approved plat application must not be used for the construction of any structures not shown on the final plan. 4.27 Stormwater Maintenance Plan. A stormwater maintenance plan shall be submitted by the Declarant and approved by the City of Bozeman. See Appendix A for more information on the proposed maintenance plan. DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 7 4.28 Limitation on Amendment or Revocation. Any covenant which is included in this Master Declaration as a condition of preliminary plat approval and required by the City of Bozeman may not be amended or revoked without both (a) the consent of the Declarant or Association pursuant to Section 6.3 of this Master Declaration, and (b) the consent of the governing body of the City of Bozeman. V. MASTER ASSOCIATION 5.1 Establishment and Purpose. The Declarant shall establish an Association which shall (i) hold, manage, and maintain property for the common benefit of some or all of the Members, licensees, invitees and members of the general public; (ii) administer and enforce the covenants, conditions, restrictions, reservations and easements created by this Master Declaration; (iii) collect and enforce the Assessments, charges, and liens imposed pursuant hereto; and (iv) act for all other purposes set forth in the Governing Documents. Moreover, the Association may provide for the care and maintenance of other areas of the Property if the Board, in its sole and exclusive discretion, deems such care and maintenance to be necessary or desirable. 5.2 Rights and Powers. The Association is authorized to and has the power to adopt, amend and enforce rules and regulations applicable to the Property (“Rules and Regulations”) and, when authority is conferred upon the Association, any other property managed by the Association, and to implement the provisions of the Governing Documents, including, but not limited to, Rules and Regulations: to (i) prevent or reduce fire hazards; (ii) prevent disorder and disturbances of the peace; (iii) regulate pedestrian and vehicular traffic; (iv) regulate household animals, the environment and environmental practices; (v) regulate signs; (vi) regulate any use of any and all common areas; (vii) promote the general health, safety and welfare of persons within the Property; and (viii) protect and preserve property and property rights. 5.3 Rights and Obligations as to Sub-Associations. The Association may, with the consent of the Declarant, accept and assume any rights and obligations of Declarant in relation to Sub-Associations. In addition, the Association may enter into separate management agreements with Sub-Associations in relation to (i) the foregoing rights and obligations, (ii) providing design and architectural review services, and (iii) assessment collection and administration, and covenant and lien enforcement services. Assignment, assumption and management agreements entered into pursuant to this Section 5.3 may be for mutually agreeable compensation, as determined by the Association, the other parties thereto, and during the Declarant Control Period, the Declarant. During the Declarant Control Period, any management agreement may be terminated by the Association only upon obtaining the consent of the Declarant. 5.4 Mandatory Property Maintenance Function; Additional Discretionary Property Management Function. The Association shall have the obligation, right, and authority to provide or cause another party to provide for the care, operation, management, maintenance, repair and replacement of any or all Facilities. Moreover, the Association may provide for the care and maintenance of other areas of the Property if the Board, in its sole and exclusive discretion, deems such care and maintenance to be necessary or desirable. Such care and maintenance may include, without limitation: DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 8 a. removal of snow from and application of sand and salt to roadways and other common areas; b. operation, management, maintenance, repair, and replacement of structures; c. maintenance of all landscaping and other flora, parks, lakes, and structures; d. maintenance of all open space tracts dedicated to the Association e. maintenance of all pedestrian pathways in parks that serve as front entrances for lots. f. maintenance of all ponds, streams and/or wetlands which serve as part of the drainage and storm water retention systems (including underground detention systems in open space lots) for the Property, including, without limitation, any retaining walls, bulkheads or dams (earthen or otherwise) retaining water therein, and any fountains, lighting, pumps, conduits, and similar equipment installed therein or used in connection therewith; g. maintenance of any property and facilities owned by the Declarant and made available, on a temporary or permanent basis, for the primary use and enjoyment of the Association and its Members, such property and facilities to be identified by written notice from the Declarant to the Association and to remain a part of the Facilities and be maintained by the Association until such time as Declarant revokes such privilege of use and enjoyment by written notice to the Association; and 5.5 Common Areas. All common areas, including but not limited to those depicted on the final plat as open space shall be reserved in perpetuity as Common Areas and shall be open to each owner within The Association. The Association shall be fully responsible for all liability insurance, taxes, assessments and maintenance of all common area and facilities in perpetuity. The Association shall assess each lot owner their proportionate share of these expenses based upon the formula set forth. Ownership and control of Common Areas shall transfer to the association upon the conversion date or when Declarant transfers ownership of the same to the Association by Deed, whichever occurs first. The Association shall be responsible for landscaping, stormwater maintenance (including underground detention facilities) in the Common Areas and maintaining the same. 5.6 Maintenance by City. In the event the Association fails to maintain the Facilities in reasonable order and, the City of Bozeman may cause written notice to be served upon the Association, setting forth: (i) the manner in which the Facilities have failed to be maintained in reasonable condition; (ii) a demand that the deficiencies noted be cured within 30 days thereafter; and (iii) 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 of Bozeman may enter upon such Facilities and maintain the same for a period of one year, in order to preserve the taxable values of properties within the Property and to prevent the Facilities from becoming a public nuisance. Such entry and maintenance shall not vest in the public any right to use the Facilities not dedicated to public use. Before the one-year period expires, the city commission must, upon its own initiative or upon written request of the Association, call a public meeting and give notice of such meeting to the Association. At the meeting, the Association and/or the Members may show cause why maintenance by the City of Bozeman should not be continued for a succeeding year. If the city commission determines that DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 9 it is not necessary for the City of Bozeman to continue such maintenance, the City of Bozeman shall cease such maintenance at the time established by the city commission. Otherwise the City of Bozeman shall continue maintenance for the next succeeding year subject to a similar meeting and determination at the end of each year thereafter. The cost of maintenance conducted by the City of Bozeman pursuant to this section, if any: must be a lien against the Facilities, the Property, and any portion thereof; and may be assessed by the city commission on the same basis that the Association could make such assessments. Any unpaid assessment shall be a lien against the property responsible for the same, enforceable the same as a mortgage against such property. The City of Bozeman may further foreclose its lien on the Facilities by certifying the same to the county treasurer for collection as in the case of collection of general property taxes. Should the Association request that the City of Bozeman assume permanent responsibility for maintenance of Facilities, all Facilities must be brought to city standards prior to the City of Bozeman 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 Association continue to bear the costs of maintenance. The city shall assume permanent responsibility for maintenance of Facilities if and when a dedicated funding mechanism is adopted. 5.7 Solid Waste Collection and Disposal Function. The Association may provide a designated location or locations for the disposal of all solid waste in the Property and to the extent such locations are provided, will contract with a carrier authorized and regulated by the Montana Public Service Commission or other governmental entity for its removal. The Association may also provide a designated location or locations for the disposal of recyclables and contract with a company for its removal. 5.8 Other Functions. The Association may undertake and perform other functions as the Board deems reasonable or necessary to carry out the provisions of this Master Declaration. 5.9 Use and Charges for Use of Facilities or Functions. The Association may establish charges for use of Facilities to assist the Association in offsetting the costs and expenses of the Association, including, but not limited to, depreciation, capital expenses and reserves. The Association may also establish charges on a regular or irregular basis for providing any service as required or permitted by any of its functions to any Member, licensee, invitee or member of the general public to assist the Association in offsetting the costs and expenses of the Association, including, but not limited to, depreciation, capital expenses and reserves. All charges established under this Section 5.7 shall be reasonable and shall be uniformly applied, except such charges may differentiate between reasonable categories of Members, licensees, invitees, or members of the general public, but shall not unreasonably differentiate between members of the general public. Each Member, licensee, invitee and member of the general public shall be obligated to and shall pay any such charges for such services. No such charges shall be imposed to the extent that they compromise the tax-exempt status of the Association under the Internal Revenue Code. The Association may impose access restrictions, which restrictions shall be reasonable and shall be uniformly applied, except such restrictions may differentiate between reasonable categories of Members, licensees, invitees, and portions of the Property, or members of the general public, but shall not unreasonably differentiate between members of the general DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 10 public. Declarant reserves the right to relocate any of the roadways without the consent of the Members during the Declarant Control Period, provided that if such relocation unreasonably interferes with the use and access to a Lot, the consent of the Owner of such Lot shall be required. 5.10 Taxes. The Association shall timely pay or cause to be paid all ad valorem real estate taxes, special improvement and other assessments (ordinary and extraordinary), ad valorem personal property taxes, and all other taxes, duties, charges, fees and payments required to be made to any governmental or quasi-governmental entity which shall be imposed, assessed or levied upon, or arise in connection with Facilities or the Association’s functions. 5.11 Right to Acquire, Dispose of, and Improve Facilities. The Association may acquire (by gift, purchase, lease, trade or any other method), own, operate, build, manage, maintain, rent, sell, develop, encumber, abandon, dispose and otherwise deal in and with real and personal property of every kind and character, tangible and intangible, wherever located, and interests of every sort therein; except that the Association may not convey a Facility that is owned by the Association without the affirmative vote of the Members and, during the Declarant Control Period, the consent of the Declarant. The Association may cause additional improvements to be made as part of the real property it owns or Facilities, including the construction of any capital asset, in whole or in part, for the benefit of some or all of the Members, and their licensees and invitees, subject to the restrictions set forth herein. The Association may grant easements, leases, licenses and concessions through or over the real property owned by the Association and the Facilities, including, but not limited to, easements, rights-of-way, leases, licenses and concessions to suppliers of utilities serving the Property, for the purpose of accommodating minor encroachments onto the Facilities or for other purposes that do not unreasonably interfere with the use and enjoyment of the real property owned by the Association and the Facilities. 5.12 Records. The Association shall maintain its records in accordance with applicable law and the Bylaws. 5.13 Rights of Association. The Association shall have and may exercise any right or privilege given to it expressly by the Governing Documents or reasonably implied from or reasonably necessary to effectuate any such right or privilege. Except as otherwise specifically provided in the Governing Documents or by law, all rights and powers of the Association may be exercised by the Board. The powers and rights of the Association include, but are not limited to the right to: a. adopt and amend the Bylaws by a majority vote of the Board, with such consents as are required pursuant to the Bylaws. b. make capital expenditures, incur liabilities, enter into contracts and agreements, and provide services and functions as are necessary to effect the business of the Association, including, but not limited to hiring and discharging managing agents and other employees, agents, and independent contractors. c. enter into agreements with adjacent property owners for the use of certain Roadways and/or Facilities and address their proportionate share of the costs for such use. DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 11 d. perform any Function set forth in this Master Declaration by, through or under contractual agreements, licenses, or other arrangements with any governmental, quasi-governmental, private entity or any non-profit organization, as may be necessary or desirable. e. adopt and amend budgets for revenues, expenditures and reserves and levy and collect Assessments from Members. f. pay the expenses of the Association, and provide for the use and disposition of the insurance proceeds in the event of loss or damage. g. purchase insurance policies, to protect the property of the Association against casualty, loss and to protect the Association, officers, directors, and staff (when acting in their official capacity) from liability. h. provide for the indemnification of the Association’s officers, directors and staff. i. borrow funds in order to pay for any expenditure or outlay authorized by the Governing Documents, including, but not limited to, funds borrowed from Declarant or an affiliate thereof, and to execute all such instruments evidencing such indebtedness as may be necessary or advisable; and assign its right to future income, including the right to receive Assessments, as security for any borrowed funds. j. obtain and pay for legal, accounting and other professional and expert services. k. deal with agencies, officers, boards, commissions, departments, and other governmental bodies on a local, state and federal basis to carry out the powers, duties and responsibilities herein. l. institute, defend or intervene in litigation, arbitration, mediation, or an administrative proceeding in its own name on behalf of itself on matters affecting the Property or take such action as it deems necessary to enforce the Governing Documents. m. in its discretion, appoint persons to supervise and control the business of the Association and delegate certain powers, duties and responsibilities to such persons. n. exercise all the powers that may be exercised by a Montana nonprofit corporation under the Act. 5.14 Conflicts among Governing Documents. In the event that there is any conflict or inconsistency between or among the provisions of Montana law, this Master Declaration, the Articles, the Bylaws, the Rules and Regulations and any Sub-Association declaration or other governing documents or rules, the conflict or inconsistency shall be resolved by applying the documents in the following priority order: the provisions of Montana law, this Master Declaration, the Articles, the Bylaws, the Rules and Regulations, any Sub-Association declaration or other governing documents or rules. In the event there is a conflict between this Master Declaration and any supplemental Master Declaration, the supplemental Master Declaration shall control. In the event of a conflict between or among Supplemental Master Declaration, the Supplemental Master Declaration recorded last in time in the public record shall control. VI. ASSESSMENTS, ASSOCIATION EXPENSES, OTHER AMOUNTS, LIEN FOR SUMS DUE; ENFORCEMENT 6.1 Personal Obligation for Assessments and Other Amounts. Each Member shall pay to the Association, and be liable for, all Assessments, charges, fines, penalties or other amounts, DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 12 to be levied, fixed, established and collected as set forth in the Governing Documents. Each Member’s obligation as to Assessments shall be as set forth in this Article 6. Each Owner, by accepting a deed or recording a notice of purchaser’s interest for a contract for deed for any portion of the Property, is deemed to covenant and agree to be liable for and pay the Assessments. a. Failure of the Board to set assessment rates or to deliver or mail each Member an assessment notice shall not be deemed a waiver, modification, or a release of any Member from the obligation to pay these Assessments or the effectiveness of the lien in relation to the Assessments. In such event, each Member shall continue to pay their respective Assessments on the same basis as during the last year for which an Assessment was made, if any, until a new budget becomes effective and new Assessments are levied pursuant thereto. Any such budget may include as an expense item any shortfall in amounts previously collected. b. No Member shall be exempt from liability for any Assessments or any other obligation under the Governing Documents by non-use of or abandonment of a Lot or any other reason. The obligation to pay Assessments is a separate and independent covenant on the part of each Member in relation to a Lot. 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 the Association or Board takes. c. Neither Declarant nor any affiliate thereof is obligated to pay Assessments on any Lot it owns. During the Declarant Control Period, Declarant may, but is not obligated to, voluntarily subsidize the Association’s budget by contribution, advance, loan, or in any manner the Declarant, in its sole discretion chooses. Any such voluntary subsidy shall be conspicuously disclosed as a line item in the budget and shall be made known to the Members. Such voluntary subsidy in any year shall under no circumstance obligate the Declarant to continue to provide a subsidy in future years, unless otherwise provided in a written agreement between the Association and the Declarant. d. The Declarant may designate, in a written notice to the Board, any builder exempt from the obligation to pay Assessments in connection with specific Lots owned by such builder, until sold to third parties, or such prior date established in the relevant designation. Common areas owned by the Association shall be exempt from payment of Assessments. 6.2 Verification of Assessments Due. Upon written request, the Association shall furnish to a Member, lending institution, or title or mortgage company written verification of the amount of such Assessments owing and whether the Member has paid such Assessment. 6.3 Purpose of Assessments and Other Amounts. The Assessments levied and any charge, fine, penalty or other amount collected by the Association shall be used exclusively to pay expenses and other obligations the Association may incur in performing any actions permitted or required under the Governing Documents, including, but not limited to, operating expenses (inclusive of the overall general administration of the Association), the costs of constructing or purchasing Facilities and performing Functions, the cost of all insurance premiums and applicable deductibles for insurance required or permitted under this Master Declaration, repayment of debt and debt service, providing security for third party obligations as provided in the Governing Documents, maintenance of the roads within the Property, and all DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 13 other Association expenses deemed to be necessary or desirable by the Board. The Association may invest any funds allocated to reserves in a reasonable and prudent manner. Unless expressly required by a Governing Document, the Association will not refund or credit to any Member any excess funds (including reserves) collected by the Association. 6.4 Types of Assessments. The Association may levy, and each Member, as applicable, shall be obligated to and shall pay, as applicable: Common Assessments; Default Assessments; and Special Assessments as levied by the Association, as defined herein. a. Common Assessments. The Association may levy “Common Assessments” on an annual basis to cover budgeted expenses. Any Common Assessment shall require the affirmative vote of a simple majority of the Board. Common Assessments levies shall be sent to the addresses on file with the Association for Members, or in the absence of an address on file with the Association, the publicly available address for such persons on file with the Gallatin County Treasurer. Payment of each Common Assessment shall become due and payable as set forth by the Board in the notice for such assessment. b. Default Assessments. Notwithstanding anything to the contrary contained herein, if any expense of the Association is caused by (i) the negligence or misconduct of a Member or a Member’s family member, employee, agent, licensee or invitee, or (ii) a violation of any covenant or condition of a Governing Document by a Member or a Member’s family member, employee, agent, licensee or invitee, the Association may, if it deems necessary or advisable, levy an assessment against such Member. Any such assessment levied by the Association, and each fine, penalty, fee, or other charge imposed upon a Member for the Member’s violation of any covenant or condition of any Governing Document, are each referred to herein as a “Default Assessment.” c. Special Assessments. The Association may levy “Special Assessments” from time to time to cover unbudgeted expenses or expenses in excess of those budgeted. These include but are not limited to, things such as upgrades and repairs boulevards strips, common open space areas, pathways, lighting, stormwater facilities and irrigation facilities in common areas, and private street maintenance. Any Special Assessment shall require the affirmative vote of a two thirds super-majority of the Board. Special Assessments shall be payable in such manner and at such times as determined by the Board, and may be payable in installments extending beyond the fiscal year in which the Special Assessment is approved. 6.5 Time for Payments; Effect of Non-payment of Sums Due Association; Lien and Remedies of the Association. a. The amount of any Assessment, charge, fine, penalty or other amount payable by any Member shall become due and payable as specified in the Governing Documents. b. Any Assessment, charge, fine, penalty, or other amount not paid within sixty (60) days after the due date shall be delinquent, shall incur a late payment penalty and bear interest in an amount to be set by the Board from time to time, not to exceed the maximum permitted by applicable law, from the date due and payable until paid and the Member shall be obligated to pay all lien fees, legal fees, paralegal fees, and recording fees (as applicable). c. The Association shall have a lien on each Lot for any Assessment levied against the Lot, and for any other amounts due hereunder in relation to such Lot. DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 14 d. In the event an Owner fails to pay sums due the Association within sixty (60) days of the due date, the Association may (i) bring an action at law to collect the lien or foreclose the lien against the real property in the same manner as a mortgage on real property, (ii) although not necessary in order to foreclose the lien, record notice of the Association’s lien against the property being assessed, (iii) institute an action for a money judgment, (iv) send the debt to collections, (v) apply any deposits held by the Association to the amount due, and (vi) exercise any other remedy at law or equity. Each Assessment or other charge, together with interest and penalties thereon and all costs and expenses incurred by the Association to collect such Assessment, charge, fine, penalty or other amount, including reasonable attorneys’ fees, paralegal fees, and disbursements, may be recovered by suit for a money judgment by the Association without foreclosing or waving any lien securing the same or may be recovered in any foreclosure. e. The recording of this Master Declaration constitutes record notice and perfection of a lien of the Association on all Lots. No further recordation or filing of any claim of any lien is required. The Association may, in its discretion, record or file an additional notice of that lien in the public record at the election of the Association. The priority of the lien of the Association shall be determined pursuant to Section 6.7, below, and shall not be dependent upon the recording or filing date of any notice of lien recorded or filed in the Public Record, and shall be binding upon the Owner and its successors. The Association shall have the power to bid (which may be a bid on credit, up to and including the amount secured by the lien) for the Lot at a foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. During the period a Lot is owned by the Association following foreclosure, (i) no right to vote shall be exercised on behalf of the Lot, (ii) no Assessment shall be assessed or levied on the Lot, and (iii) each other Lot shall be charged, in addition to its usual Assessments, its equal pro rata share of the Assessments that would have been charged to or payable by such Lot had it not been acquired by the Association. f. The sale or transfer of any Lot shall not affect the assessment lien or relieve such Site from the lien for any subsequent assessments. Any Assessments or other costs unpaid as a result of a foreclosure shall be deemed to be an expense of the Association collectible from all Owners subject to Assessment under this Declaration, including, without limitation, the acquirer at foreclosure, its successors, assigns and transferees. 6.6 Priority and Non-subordination of the Lien. The lien under this Article 6 shall be superior to all other liens, except the liens of all taxes, bonds, assessments and other liens and levies which by law in effect from time to time would be superior. 6.7 Liability of Members, Purchasers and Encumbrancers. The amount of any Assessment, charge, fine, penalty or other amount payable under this Article 6 payable by any Member shall be a joint and several obligation to the Association of such Member and such Member’s heirs, estates, devisees, personal representatives, successors and assigns. A person acquiring fee simple title to a Lot shall be jointly and severally liable with the former owner of the Lot for all such amounts which had accrued and were payable at the time of the acquisition of the title or interest by such person, without prejudice to such person’s right to recover any such amounts paid from the former Owner. DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 15 VII. CERTAIN RIGHTS OF DECLARANT AND ASSOCIATION 7.1 Duties. In addition to the duties enumerated in the Articles and Bylaws, or elsewhere provided for in this Declaration, and without limiting the generality thereof, the Association, acting through its Board of Directors, shall perform the following duties: a. Maintenance: The Association shall maintain and repair the Common Open Space, all improvements and landscaping thereon, all mitigation areas, and all property owned by the Association, including but not limited to the landscaping, riparian areas, irrigation wells located in Common Open Space, and water features contained within the Common Open Space and owned by the Association. The Association shall also pay all Common Expenses, as defined herein which will include but not be limited to weed management, trail maintenance, Common Open Space maintenance, irrigation water for Common Open Spaces, maintenance of the storm water facilities outside of public right of way, snow removal on streets, and trails, and arrange for the maintenance of all areas for which Common Expenses are payable (but not for any streets, driveways or parking areas within any Residential Lot which shall be the sole responsibility of the Owners of such lots) and for the Association’s proportionate share of reimbursement of reasonable expenses of the joint Community Association Manager with the Commercial Development Association. In all instances, all facilities and improvements which are required to be installed pursuant to the final plat approvals by the City of Bozeman must be maintained in good condition in accordance with Section 38.38 of the Bozeman Municipal Code. The Association is responsible for maintaining the groundwater dewatering system for the Property in accordance with the long-term Dewatering Plan and instructions attached hereto as Appendix A. The responsibility of the Association for maintenance and repair described above shall not extend to repairs or replacements arising out of or caused by the willful or negligent act or omission of any Owner, or an Owner’s guest, tenant, invitee or pet. Any such repairs or replacements not covered by insurance carried by the Association shall be made by the responsible Owner, provided the Board approves the Person or entity actually making the repairs and the method of repair. If the responsible Owner fails to take the necessary steps to make the repairs within a reasonable time under the circumstances, the Association shall cause the repairs to be made and charge the cost thereof to the responsible Owner, which costs shall bear interest at the rate of ten percent (10%) per annum (but no greater than the maximum rate allowed by law) until paid in full. If such repair is covered by the insurance carried by the Association, the Association shall be responsible for making the repairs, and the responsible Owner shall pay any deductible pursuant to the insurance policy. If the Owner fails to make such payment, then the Association may make such payment and shall charge the responsible Owner, which charge shall bear interest at the rate of ten percent (10%) per annum (but no greater than the maximum rate allowed by law) until paid in full. If the Owner disputes the charge, the Owner shall be entitled to a DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 16 notice and a hearing as provided in the Bylaws before the charge may be collected. b. Owners shall be responsible for keeping their Lots in good maintenance and repair. If the responsible Owner fails to take the necessary steps to keep its Lot in good repair and well maintained, make the repairs within a reasonable time under the circumstances, but no more than 90 days after written notice from the Association, the Association shall cause the repairs to be made and charge the cost thereof to the responsible Owner, which costs shall bear interest at the rate of ten percent (10%) per annum (but no greater than the maximum rate allowed by law) until paid in full. If such repair is covered by the insurance carried by the Association, the Association shall be responsible for making the repairs, and the responsible Owner shall pay any deductible pursuant to the insurance policy. If the Owner fails to make such payment, then the Association may make such payment and shall charge the responsible Owner, which charge shall bear interest at the rate of ten percent (10%) per annum (but no greater than the maximum rate allowed by law) until paid in full. c. Insurance: The Association shall obtain and maintain such policy or policies of insurance as are required by section 9.1 of this Declaration. d. Discharge of Liens: The Association shall discharge by payment, if necessary, any lien against the Common Open Space and charge the cost thereof to the Member or Members responsible for the existence of the lien after notice and hearing as provided in the Declaration. e. Assessments: The Association shall fix, levy, collect and enforce Assessments as set forth in Article IV hereof. f. Payment of Expenses and Taxes: The Association shall pay all expenses and obligations incurred by the Association in the conduct of its business including, without limitation, all licenses, taxes, assessments and governmental charges levied or imposed upon, or which are or may become a lien against, the property of the Association. g. Enforcement: The Association shall be responsible for the enforcement of this Declaration, the Articles, Bylaws and Rules. In the event an Owner fails to comply with any Project Documents, the Association has the right to enter upon such Owner’s Lot, remedy the lack of compliance and assess the costs incurred by the Association to such Owner. h. Operation of Common Open Space: The Association shall maintain and operate the Common Open Space of the Project in accordance with all applicable municipal, state, and federal laws, statutes and ordinances, as the case may be. The Association shall also, as a separate and distinct responsibility, exert reasonable efforts to endeavor to ensure that third parties (the public) utilize the Common Open Space in accordance with the aforementioned regulations. The Association shall, when it becomes aware of any violation of the aforementioned regulations, endeavor to expeditiously correct such violations. i. Inspection and Maintenance Guidelines: The Board shall adopt inspection and maintenance guidelines for the periodic inspection and maintenance of the Common Open Space improvements and landscaping and any other improvements outside the Common Open Space which the Association has the DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 17 responsibility to maintain. The Board periodically and at least once every two years shall review and update the inspection and maintenance guidelines. The Board shall take all appropriate steps to implement and comply with the inspection and maintenance guidelines. j. Preparation of Financial Documents: The Board shall cause the preparation of budgets and financial statements as required by the Bylaws. 7.2 Declarant’s Easements and Related Rights. Declarant hereby reserves to itself for itself and for the benefit of its licensees, invitees, successors and assigns a non-exclusive, perpetual easement on, over, upon, across, above, under and through any Facilities as may be reasonably necessary to (a) discharge Declarant’s obligations under this Master Declaration; (b) exercise any Special Declarant Right; (c) make improvements within the Property on (i) property owned by the Declarant or (ii) Facilities of the Association; and (d) maintain, repair, access, replace, relocate, construct, use and operate utilities where they are located within the Property as of the date of this Master Declaration or any new or relocated utilities. 7.3 Utilities Easement. a. There are hereby reserved unto Declarant, during the Declarant Control Period, the Association, and the designees of each (which may include, without limitation, Gallatin County and any utility provider) access and maintenance easements upon, across, over, and under all of the Property to the extent reasonably necessary for the purpose of installing, replacing, repairing, maintaining and relocating cable television systems, master television antenna systems, security and similar systems, roads, lakes, ponds, wetlands, drainage systems, street lights, signage, and all utilities, including, but not limited to, water, sewer, meter boxes, telephone, gas, and electricity, and for the purpose of installing any of the foregoing on property which it owns or within easements designated for such purposes on any plat. b. The Declarant further hereby reserves for itself and its duly authorized agents, representatives, designees, successors and assigns a perpetual non-exclusive easement for utilization, tapping into, tying into, extending and enlarging all utilities within the Property, and a perpetual non-exclusive easement hereunder over the roadways for the purposes of ingress and egress to and from any improvements constructed or to be constructed by Declarant or the Association within the Property. c. The Declarant further hereby reserves an easement in favor of itself, the Association, and the designees of each, upon, across, over, and under all of the Property for the creation, use, maintenance and relocation of trail systems, including, without limitation, pedestrian, equestrian, walkways, bicycle, and for the creation, use, and maintenance of wildlife resistant landscape treatments and features, wildlife corridors, winter wildlife ranges, and natural wildlife habitats. The foregoing easements may traverse all Lots. d. Declarant hereby reserves to itself for itself and for the benefit of its licensees, invitees, successors and assigns, the right from time to time to establish, relocate, and use non-exclusive, perpetual utility and other easements, leases, permits or licenses on, over, upon, across, above, under and through the Property for uses for the Association or Declarant, including, without limitation, in relation to any improvements in order to serve all persons residing, visiting or doing business within the Property; provided that any such easement, lease, permit or license does not DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 18 unreasonably impair the use of the Facilities for their intended purpose or unreasonably impair construction within any Lot. e. The Declarant specifically reserves the right to convey to the Association or its designee, and to the local electric company, natural gas supplier, and cable television or communications systems supplier easements across the Property for ingress, egress, installation, reading, replacing, repairing, and maintaining utility meters, boxes, pump or other utility lines, valves, etc. However, the exercise of this easement shall not extend to permitting entry into a dwelling on any Lot, nor shall any utilities be installed or relocated on the Property, except as approved by the Board or the Declarant. f. Should any Person furnishing a service covered by the general easement herein provided request a specific easement by separate recordable document, the Board shall have the right to grant such easement over the Property without conflicting with the terms hereof. The easements provided for in this Section 7.2 shall in no way adversely affect any other recorded easement on the Property. 7.4 Association Easements. There is hereby reserved unto the Association and its successors and assigns a non-exclusive, perpetual easement upon, across, above and under the Property for access, ingress and egress in order to (a) exercise any right held by the Association under this Declaration or any other Governing Document, and (b) perform any obligation imposed upon the Association by this Declaration or any other Governing Document. The Association shall not enter a dwelling on any Lot without reasonable prior notice to the Owner of the Lot and shall not enter any dwelling of an Owner without the consent of such Owner, in each case except in cases of emergency. 7.5 Roadway Easements. Each Owner shall have a perpetual, non-exclusive easement for ingress, egress and access across and through the roadways to and from such Owner’s Lot and the common areas owned by the Association, subject to: (a) this Declaration, any final subdivision plat, certificate of survey or condominium declaration recorded in the public record, and any other applicable covenants, restrictions or limitations contained in any recorded instrument affecting the roadways; and (b) the right of the Board to promulgate and enforce any rules or regulations it deems necessary in its sole discretion for the reasonable use and enjoyment of the roadways by any and all Owners and their invitees and licensees, including, but not limited to, traffic regulation, speed regulation, parking, height, size and other vehicle regulations, security protocols and time/use regulations. 7.6 Rights and Obligations of Members. Subject to the provisions of this Master Declaration and the power of the Association and the Declarant to regulate the use of, and convey or encumber the Property, or portion thereof, as set forth in the Governing Documents, each Member, licensee and invitee shall have a non-exclusive easement over, upon, across and with respect to any Facilities as appropriate and necessary to use the Facilities for their intended purposes. a. Each Owner, by accepting a deed to a Lot, agrees for themselves and their licensees, invitees and successors and assigns, to be subject to all easements created by this Master Declaration and the Rules and Regulations from time to time in effect. b. Declarant hereby grants a non-exclusive perpetual easement across and over the Property for ingress and egress to all police, sheriff, fire protection, ambulance and similar emergency agencies or persons, now or hereafter serving the Property, to enter DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 19 the Property in the performance of their duties, subject, however, to limitations generally imposed by local, state and federal law. 7.7 Enjoyment of Functions and Facilities. There shall be no obstruction of any Facilities, nor shall anything be stored in or on any part of any Facility, without the prior written consent of the Association. Nothing shall be altered on, constructed in or removed from any Facility, except with the prior written consent of the Association. Nothing shall be done or kept on or in any Facility that would result in cancellation of the insurance or any part thereof which the Association is required to maintain pursuant hereto or increase the rate of the insurance or any part thereof over the amount that the Association, but for that activity, would pay, without the prior written consent of the Association. Nothing shall be done or kept on or in such Facility that would be in violation of any statute, rule, ordinance, regulations, permit or other requirement of any governmental or quasi-governmental entity. No damage to, or waste of, Facilities shall be committed, and each Member shall indemnify, defend and hold the Association and other Members harmless against all loss resulting from any such damage or waste caused by such Member, or such Member’s licensee or invitee. No noxious, destructive or offensive activity shall be carried on with respect to any Facility, nor shall anything be done therein or thereon which may be or become a nuisance to any other member of the general public, Member or Invitee. All restrictions contained in Article 4, above, shall also be deemed to apply to the Facilities. 7.8 Special Declarant Rights. In addition to those other rights and privileges contemplated by this Master Declaration, Declarant hereby reserves for itself and its successors and assigns the following rights, which rights may be exercised at any time during the Declarant Control Period (collectively the “Special Declarant Rights”): a. The right to complete any improvements on the Property owned by Declarant or shown on any plat or certificate of survey filed by Declarant or Declarant’s predecessors with respect to Property owned by Declarant, and the right to construct any improvement that Declarant deems necessary or advisable on any Property owned by Declarant or on any Facility; b. The right to construct and maintain sales offices, trailer, booths, improvements or other structures used for sales or promotional purposes, management offices and models on any Facility, or any Lot owned by Declarant; and the right to construct and maintain signs advertising the Development and properties therein. The number, size and location of any such sales structures and signage, management offices or models or the relocation thereof shall be determined by Declarant; c. The right to exercise any development right, including, without limitation, the right to add real property to the Property pursuant to Article 9 and to make that real property subject to this Master Declaration, the right to amend this Master Declaration to create additional Lots and Facilities within the Property, the right to subdivide Lots, the right to combine Lots, the right to convert any and all Lots owned by Declarant into Facilities, the right to record Supplemental Declarations and governing documents of any Sub-Association, and the right to withdraw any and all portions of the Property from this Master Declaration as provided in Article 9; d. The right to create, relocate and use easements through the Facilities for the purpose of making improvements within the Property or within real property which may be added to the Property; DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 20 e. The right to designate Lots or Facilities owned by Declarant within the Property for fire, police, utility service operation facilities (e.g., electric power, propane, sanitation, etc.), water and sewer facilities, public schools and parks, and other public facilities; f. The right to merge and consolidate the Association with a property owners association of the same form of ownership; and g. The right to accept, establish and amend reasonable use restrictions with respect to the Property. h. The right to establish and designate “Sub-Developments.” 7.9 Transfers of Special Declarant Rights and Rights as Declarant. The term “Declarant’s Rights” means, collectively, the Special Declarant Rights defined herein as well as all other rights of the Declarant under this Master Declaration, the other Governing Documents, and the rights of a declarant under applicable law. a. The Declarant’s Rights may be transferred by the Declarant in whole during the Declarant Control Period; provided, (i) the transfer shall not reduce an obligation or enlarge a right beyond that which Declarant has under this Master Declaration, and (ii) any such transfer shall only be effective if it is in a written instrument signed by Declarant and the transferee, and recorded in the public record. b. Upon transfer of the Declarant’s Rights, the liability of a transferor is as follows: i. A transferor is not relieved of any obligation or liability arising before the transfer. ii. A transferor has no liability for any act or omission or any breach of a contractual or warranty obligation arising from and after the date of such transfer. c. Upon transfer of the Declarant’s Rights, a transferee of the Declarant’s Rights is subject to all obligations and liabilities imposed on the Declarant by this Master Declaration arising from and after the date of such transfer. 7.10 Rights of Declarant after Declarant Control Period Terminates. After termination of the Declarant Control Period, Declarant, if still an Owner, will continue to have all of the rights and duties given to and Owners and Members under the Governing Documents. In no event shall the passage of time prevent the Declarant from utilizing any easement, right or privilege, granted by this Master Declaration or otherwise, upon the Facilities or portions of the Property owned by Declarant that is necessary or advisable in connection with the development and sale of Lots or amenities in relation to the Property and the Development. VIII. ENFORCEMENT AND REMEDIES 8.1 Procedure. The Association shall have the right (but not the obligation) to enforce the provisions of any of the Governing Documents, through its procedure adopted by resolution of the Board, abatement of the violation by the Association, or by proceedings either at law or in equity against any person(s) violating or attempting to violate any of the Governing Documents. 8.2 Discretion. a. The decision to have the Association pursue an enforcement action in any particular case shall be left to the Board’s discretion, except that the Board shall not be arbitrary or capricious in taking enforcement action. Without limiting the generality of the DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 21 foregoing sentence, the Board may determine that, under the circumstances of a particular case: (i) the Association’s position is not strong enough to justify taking any or further action; (ii) the covenant, restriction or rule being enforced is, or is likely to be construed as, inconsistent with applicable law; (iii) although a technical violation may exist or may have occurred, it is not of such a material nature as to be objectionable to a reasonable person or to justify expending Association resources; or (iv) it is not in the Association’s best interest, based upon hardship, expense, or other reasonable criteria, to pursue enforcement action. b. Such a decision shall not be deemed a waiver of the right of the Association to enforce such provision at a later time under other circumstances, nor shall it preclude the Association from enforcing any other covenant, restriction or rule, nor shall it preclude any Member from taking action at law or in equity to enforce the Governing Documents, including all such costs and fees for any appeal or enforcement of a judgment. 8.3 Costs of Enforcement. a. Costs incurred for enforcing the provisions of the Governing Documents (inclusive of giving notice of the violation), costs of correcting the defect or undoing or curing the violation, if undertaken by the Association or the Declarant, or any fines levied against the Member after the Member is determined by the Board to be in violation of the Governing Documents, shall be paid by the Member. Any costs incurred for enforcing the provisions of the Governing Documents, for correcting the defect or undoing the violation, or fine assessed against the Member that is not paid within sixty (60) days will be handled in accordance with Article 6, above. b. In the event the Declarant, the Association, or the Board employs an attorney because of a violation by a Member of one (1) or more of the provisions of the Governing Documents, or if the Declarant, the Association, or the Board commences an action for the enforcement of the Governing Documents or for a lien for assessments and the Declarant, the Association, or the Board (as applicable) is wholly or partially successful in such action, the offending Member shall be obligated to pay, on demand, all costs, charges and expenses, including reasonable attorney and paralegal fees, incurred by the Declarant, the Association, and the Board. 8.4 Delegation. The Board may delegate any of its rights or obligations with respect to enforcement as set forth above to its appointed agent, staff, or any committee of the Board; except that any decision to pursue or not pursue any legal proceeding may not be delegated, and shall be determined by the Board. 8.5 Remedies Cumulative. Each remedy provided under the Governing Documents is cumulative and not exclusive. IX. ANNEXATION AND WITHDRAWAL OF PROPERTY 9.1 Rights Subject to City Permission. All rights to change the boundaries of the Property contained in this Article 9 are expressly made subject to the permission of the commission of the City of Bozeman, Montana. DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 22 9.2 Annexation of Property. So long as Declarant owns property in the Development and Declarant has not recorded a written instrument specifically terminating its rights pursuant to this Article 9, Declarant may from time to time unilaterally annex or add real estate to the Property, which is subject to the provisions of this Master Declaration. Declarant may transfer or assign this right to annex real estate, provided that the transferee or assignee is the developer of at least a portion of the Property and that such transfer is memorialized in a written, recorded instrument executed by Declarant. Annexation shall be accomplished by filing a “Supplemental Declaration” describing the real estate being annexed in the public records of Gallatin County, Montana. A Supplemental Declaration annexing the property shall not require the consent of Owners. Any annexation shall be effective upon the recording of a Supplemental Declaration, unless otherwise provided therein. 9.3 Withdrawal of Property by Declarant. Declarant reserves the right to amend this Master Declaration so long as Declarant has a right to annex additional property pursuant to this Article 9, without prior notice and without the consent of any person, for the purpose of removing property then owned by the Declarant, its affiliates, or the Association from the coverage of this Master Declaration, to the extent originally included in error or as a result of any changes in the Declarant’s plans for the Property, provided that such withdrawal is not unequivocally contrary to the overall, uniform scheme of development for the Property. 9.4 Additional Covenants and Easements. The Declarant may unilaterally subject any portion of the Property subject to this Master Declaration initially or by Supplemental Declaration to additional covenants and easements. Such additional covenants and easements shall be set forth in a Supplementary Declaration filed either concurrent with or after the annexation of the subject property and shall not require the written consent of the Owner or Owners of the Property, if other than the Declarant, provided that such amendment is not unequivocally contrary to the overall, uniform scheme of development for the Property. X. GENERAL PROVISIONS 10.1 Incorporation of Recitals. The Recitals are hereby incorporated into, and made a part of, this Master Declaration. 10.2 Severability. Invalidation of any one of this Master Declaration by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect. 10.3 Amendment. During the Declarant Control Period, this Master Declaration shall not be amended without the prior written consent of Declarant. Thereafter, this Master Declaration shall not be amended without the affirmative vote of the Association. 10.4 Term. This Master Declaration shall be binding for a term of five (5) years from the date of this Master Declaration, after which time the Master Declaration shall be automatically extended for successive periods of five (5) years unless an instrument signed by all DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 23 of the Owners of the Property has been recorded in the real estate records of the Gallatin County Clerk and Recorder, agreeing to revoke or terminate this Master Declaration. [signature page follows] DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 24 IN WITNESS WHEREOF, Declarant has executed this Declaration of Covenants, Conditions, and Restrictions for Turnrow Master Development on the day and year first above written. DECLARANT: Virga Venture II, LLC, a Delaware limited liability company By: Its: STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on this ____ day of _____________, 2023, by ________________________, as ____________ of Virga Venture II, LLC, a Delaware limited liability company. Notary Public for the State of Montana [SEAL] DECLARATION OF RESTRICTIONS, COVENANTS AND CONDITIONS FOR TURNROW MASTER DEVELOPMENT PAGE 25 EXHIBIT A PROPERTY The West Half of the Southwest Quarter of the Northeast Quarter (W½SW¼NE¼) and the West Half of the East Half of the Southwest Quarter of the Northeast Quarter (W½E½SW¼NE¼) of Section Twenty-seven (27), Township One (1) South, Range Five (5) East, M.P.M., Gallatin County, Montana. Also, all that part of the West Half of the Northwest Quarter of the Northeast Quarter (W½NW¼NE¼) and of the West Half of the East Half of the Northwest Quarter of the Northeast Quarter (W½E½NW¼NE¼) of said Section Twenty-seven (27), Township One (1) South, Range Five (5) East, M.P.M., Gallatin County, Montana, lying South of the right of way of Interstate 90 and the access road to the South thereof heretofore deeded to the State of Montana. (Deed Reference: Film 8, Page 1756) The Northeast Quarter of the Northeast Quarter (NE¼NE¼) and the East Half of the East Half of the West Half of the Northeast Quarter (E½E½W½NE¼) of Section Twenty-seven (27), Township One (1) South, Range Five (5) East, M.P.M., Gallatin County, Montana. EXCEPTING THEREFROM that portion of the Burlington Northern Railroad rightof-way which traverses the above-described real property, and ALSO EXCEPTING THEREFROM that portion of the United States Interstate Highway No. 90 and that portion of Davis Lane which traverses the above described real property, as described in Bargain and Sale Deed recorded in Book 145 of Deeds, Page 293, records of Gallatin County, Montana. ALSO EXCEPTING THEREFROM that portion of the NE¼NE¼ lying North and East of the Burlington Northern Railroad Right-of-Way. (Deed References: Film 191, Page 1537 and Document No. 2613316) The Southeast Quarter of the Northeast Quarter (SE¼NE¼), EXCEPTING THEREFROM a parcel of land in the southeast corner thereof adjoining the south and east lines which is 25 ½ rods in length east and west and 11 ½ rods in width north and south, of Section Twenty-seven (27), Township One (1) South, Range Five (5) East, M.P.M., Gallatin County, Montana. ALSO EXCEPTING THEREFROM that portion of United States Interstate Highway No. 90 and that portion of Davis Lane which traverses the above described real property as described in Bargain and Sale Deed recorded in Book 145 of Deeds, Page 293, records of Gallatin County, Montana. (Deed Reference: Film 191, Page 1536)