HomeMy WebLinkAbout015 - Draft Declaration FormReturn to:
Jason C. Harby, LL.M.
Winthrop & Weinstine, P.A.
225 South Sixth Street
Suite 3500
Minneapolis, MN 55402
Declaration
CONTENTS
ARTICLE I - DEFINITIONS ..........................................................................................................2
Section 1.01 - Allocated Interest ..........................................................................................2
Section 1.02 - Articles..........................................................................................................2
Section 1.03 - Assessment, Annual......................................................................................2
Section 1.04 - Assessment, Capital Improvement ...............................................................2
Section 1.05 - Assessment, Reconstruction .........................................................................2
Section 1.06 - Assessment, Special......................................................................................2
Section 1.07 - Association ...................................................................................................3
Section 1.08 - Beneficiary....................................................................................................3
Section 1.09 - Board or Board of Directors .........................................................................3
Section 1.10 - Budget ...........................................................................................................3
Section 1.11 - Bylaws ..........................................................................................................3
Section 1.12 - Common Areas-General ...............................................................................3
Section 1.13 - Common Expenses .......................................................................................3
Section 1.14 - Declarant .......................................................................................................4
Section 1.15 - Declaration....................................................................................................4
Section 1.16 - Department ...................................................................................................4
Section 1.17 - “Maintenance Fund” .....................................................................................4
Section 1.18 - Member, Membership ..................................................................................4
Section 1.19 - Operating Fund .............................................................................................4
Section 1.20 - Owner ...........................................................................................................4
Section 1.21 - Person ...........................................................................................................4
Section 1.22 - Property or Project ........................................................................................5
Section 1.23 – Residential Unit ...........................................................................................5
Section 1.24 - Restrictions ...................................................................................................5
Section 1.25 - Reserve Fund ................................................................................................5
Section 1.26 - Rules and Regulations ..................................................................................5
Section 1.27 - Section 42 Compliance Period .....................................................................5
Section 1.28 - Site Plan ........................................................................................................5
Section 1.29 - Tenant Spaces ...............................................................................................5
Section 1.30 - Unit ...............................................................................................................5
Section 1.31 - Unit Designation, Description of Building ...................................................6
Section 1.32 - Units..............................................................................................................6
Section 1.33 - Unit Owners ..................................................................................................6
ARTICLE II – [__________] CONDOMINIUMS OWNERS ASSOCIATION, INC. ..................6
Section 2.01 - Organization of Association, Agent for Service of Process .........................6
Section 2.02 - Duties and Powers ........................................................................................6
Section 2.03 - Membership ..................................................................................................7
Section 2.04 - Transfer .........................................................................................................7
Section 2.05 - Classes of Membership .................................................................................7
Section 2.06 - Voting Rights ................................................................................................7
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Section 2.07 - Repair and Maintenance by the Association of General Common
Areas ........................................................................................................................8
Section 2.08 - Unsegregated Real Property Taxes...............................................................9
Section 2.09 - Repair and Maintenance by Owners .............................................................9
Section 2.10 - Use of Agent ...............................................................................................10
ARTICLE III - RIGHTS IN GENERAL COMMON AREAS .....................................................10
Section 3.01 - Association Easement .................................................................................10
Section 3.02 - Partition ......................................................................................................10
Section 3.03 - Members’ Easements of Use and Enjoyment of General Common
Areas ......................................................................................................................10
Section 3.04 - Extent of Members’ Easements ..................................................................10
Section 3.05 - Delegation of Use .......................................................................................11
Section 3.06 - Waiver of Use .............................................................................................11
Section 3.07 - Damage by Member ...................................................................................12
ARTICLE IV - (RESERVED) .......................................................................................................12
ARTICLE V - ASSOCIATION FUNDS AND ASSESSMENTS ................................................12
Section 5.01 - Personal Obligation of Assessments ..........................................................12
Section 5.02 - Purposes of Assessments ............................................................................12
Section 5.03 - Basis of Maximum Annual Assessment .....................................................13
Section 5.04 - Commencement and Collection of Annual Assessments ...........................13
Section 5.05 - Delinquency and Acceleration....................................................................14
Section 5.06 - Creation and Release of Lien......................................................................15
Section 5.07 - Enforcement of Liens .................................................................................15
Section 5.08 - Priority of Assessment Lien .......................................................................16
ARTICLE VI - PROJECT EASEMENTS AND RIGHTS OF ENTRY .......................................16
Section 6.01 - Easements ...................................................................................................16
Section 6.02 - Rights of Entry............................................................................................17
ARTICLE VII - UNIT AND USE RESTRICTIONS ....................................................................17
Section 7.01 - Residential and Commercial Use Only ......................................................17
Section 7.02 - Parking and Vehicular Restrictions ............................................................17
Section 7.03 - Nuisances ....................................................................................................18
Section 7.04 - Signs ...........................................................................................................18
Section 7.05 - Antennae .....................................................................................................19
Section 7.06 - Inside and Outside Installations ..................................................................19
Section 7.07 - Animal Regulations ....................................................................................19
Section 7.08 - Business or Commercial Activity ...............................................................20
Section 7.09 - Rubbish Removal .......................................................................................20
Section 7.10 - Section 42 ...................................................................................................20
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ARTICLE VIII - INSURANCE.....................................................................................................20
Section 8.01 - Duty to Obtain Insurance; Types ................................................................20
Section 8.02 - Waiver of Claim Against Association ........................................................20
Section 8.03 - Right and Duty of Owners to Insure ...........................................................20
Section 8.04 - Notice of Expiration Requirements ............................................................21
Section 8.05 - Insurance Premiums ...................................................................................21
Section 8.06 - Trustee for Policies .....................................................................................21
Section 8.07 - Actions as Trustee ......................................................................................22
ARTICLE IX - DESTRUCTION OF IMPROVEMENTS ............................................................22
Section 9.01 - Reconstruction of the Property-General Common Areas ...........................22
Section 9.02 - Interior Damage ..........................................................................................23
Section 9.03 - Notice to Owners and Listed Mortgages ....................................................23
ARTICLE X - DURATION AND AMENDMENT ......................................................................23
Section 10.01 - Duration ....................................................................................................23
Section 10.02 - Amendment ..............................................................................................24
Section 10.03 - Protection of Declarant .............................................................................24
ARTICLE XI - GENERAL PROVISIONS ...................................................................................24
Section 11.01 - Legal Proceedings.....................................................................................24
Section 11.02 - Violation of Restrictions ...........................................................................25
Section 11.03 - Severability ...............................................................................................25
Section 11.04 - Interpretation ............................................................................................25
Section 11.05 - No Public Right or Dedication .................................................................25
Section 11.06 - No Representations or Warranties ............................................................26
Section 11.07 - Nonliability and Indemnification..............................................................26
Section 11.08 - Notices ......................................................................................................27
Section 11.09 - Priorities and Inconsistencies ...................................................................27
Section 11.10 - Local Jurisdiction Provisions....................................................................27
EXHIBITS
A – Site Plans
B – Allocated Interests
C – Articles of Incorporation of the Association
D – By-Laws of the Association
E – Certificate of Name
F – Certificate of Tax and Assessment Payment
G – Declaration of Certificate of Exemption from Review
[______________] Condominiums Owners Association, Inc.
~ DECLARATION ~
THIS DECLARATION IS MADE BY [________________________]
PREAMBLE
A. Declarant is the owner of certain real property (“[__________] Condominiums”) located
in at 8553 Huffine Lane, Bozeman, Montana, being more particularly described as follows:
[Legal Description]
B. It is the desire and intention of Declarant to develop the Property (as hereinafter defined)
into Condominium estates, pursuant to the Montana Unit Ownership Act (the “Act”) and to impose
mutually beneficial restrictions under a general plan of improvement for the benefit of all the
condominium estates created.
C. Declarant hereby declares that all of the Property is to be held, conveyed, hypothecated,
encumbered, leased, rented, used, occupied and improved subject to the following limitations,
restrictions, reservations, rights, easements, conditions and covenants, all of which are declared
and agreed to be in furtherance of a plan for the protection, subdivision, maintenance, improvement
and sale of the Property for the purpose of enhancing the value, desirability and attractiveness of
the Property. All provisions of this Declaration, including without limitation the easements, uses,
obligations, covenants, conditions and restrictions hereof, are hereby imposed as equitable
servitudes upon the Property. All of the limitations, restrictions and reservations, rights,
easements, conditions and covenants herein shall run with and burden the Property and shall be
binding on and for the benefit of all of the Property and all Persons having or acquiring any right,
title or interest in the Property or any part thereof and their respective heirs, executors,
administrators, personal representatives, successors, assigns, tenants, employees, guests and
invitees.
D. Declarant, its successors, assigns and grantees, covenant and agree that the undivided
interest in the General Common Areas, the membership in the Association, any easements
conveyed therewith and the fee title to each respective Unit conveyed therewith shall not be
separated or separately conveyed, and each such undivided interest, membership and easement
shall be deemed to be conveyed or encumbered with its respective Unit even though the description
in the instrument of conveyance or encumbrance may refer only to the Unit; provided, however,
that this restriction upon the severability of the component interests of the Units shall not extend
beyond the period for which the right to partition the Property is suspended in accordance with
Montana law.
E. The Condominium shall be composed of no more than two (2) Units, which shall be
referred to herein as “Unit 1” and Unit 2” and the Buildings constructed therein as indicated on
the Site Plan attached hereto as Exhibit A. It is the intention of Declarant that the Unit Owner or
Owners, as the case may be, of each respective Unit and the Buildings constructed therein shall be
responsible for the care, maintenance and repair of their respective Units and the Buildings
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constructed therein. Further, as provided herein, each Unit shall form a committee of Unit Owners,
or shall designate a property manager or agent, to attend to any maintenance, repair, or care, and
any related annual or special assessments respecting each Unit and the Buildings constructed
thereon. It is the intention of the Declarant that Unit 1 shall be constructed as and maintained as
low-income residential housing units, while Unit 2 shall be initially constructed and maintained as
market-rate residential housing units.
ARTICLE I - DEFINITIONS
Unless otherwise expressly provided, the following words and phrases when used in this
Declaration shall have the following specified meanings.
Section 1.01 - Allocated Interest
“Allocated Interest” means the percentage undivided interest in the General Common Areas
allocated to each of the Units as set forth on Exhibit B.
Section 1.02 - Articles
“Articles” shall mean the Articles of Incorporation of the Association, filed or to be filed in the
Office of the Secretary of State of the State of Montana, a true copy of which is attached hereto,
marked Exhibit C, as such Articles may be amended from time to time.
Section 1.03 - Assessment, Annual
“Annual Assessment” shall mean a charge against a particular Owner and his Unit, representing a
portion of the Common Expenses which are to be paid by each Owner to the Association in the
manner and proportions provided herein. Such Assessment may be billed and collected by the
Association in monthly installments. The charges will be determined by the Board of Directors.
Section 1.04 - Assessment, Capital Improvement
“Capital Improvement Assessment” shall mean a charge against a particular Owner and his Unit,
representing a portion of the expenses which are to be paid by such Owner that pertain or relate to
capital improvements approved by, in the case of General Common Areas, the Association, or, in
the case of a Unit, the Unit Committee applicable to such Unit as provided in Section 2.02A hereof.
Section 1.05 - Assessment, Reconstruction
“Reconstruction Assessment” shall mean a charge against a particular Owner and his Unit,
representing a portion of the expenses which are to be paid by such Owner that pertain or relate to
reconstruction costs, as approved by the Association, or, in the case of a Unit, the Unit Committee
applicable to such Unit as provided in Section 2.02A hereof.
Section 1.06 - Assessment, Special
“Special Assessment” shall mean a charge against a particular Owner directly attributable to, or
reimbursable by, the Owner, equal to the cost incurred by the Association for corrective action
performed pursuant to the provisions of this Declaration, or a reasonable fine or penalty assessed
by the Board, plus interest and other charges on such Special Assessments as provided for in this
Declaration. Special Assessments shall not include any late payment penalties, interest charges or
costs (including attorneys’ fees) incurred by the Association in the collection of Annual, Capital
Improvement and Reconstruction Assessments.
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Section 1.07 - Association
“Association” shall mean [____________] Condominiums Owners Association, Inc., a
Montana non-profit corporation, its successors and assigns.
Section 1.08 - Beneficiary
“Beneficiary” shall mean a Mortgagee under a Mortgage or a Beneficiary under a Deed of Trust,
as the case may be, and the assignees of such Mortgagee or Beneficiary.
Section 1.09 - Board or Board of Directors
“Board of Directors” or “Board” shall mean the Board of Directors of the Association, as provided
in this Declaration and in the Articles and Bylaws of the Association, and the Act.
Section 1.10 - Budget
“Budget” shall mean a written, itemized estimate of the income and Common Expenses of the
Association in performing its functions under this Declaration, which Budget shall be prepared
pursuant to the Bylaws.
Section 1.11 - Bylaws
“Bylaws” shall mean the Bylaws of the Association as adopted by the Board initially in the form
of Exhibit “D”, attached hereto, as such Bylaws may be amended from time to time in accordance
with the terms thereof.
Section 1.12 - Common Areas-General
“General Common Areas” shall mean all areas on the Project identified in the Site Plan, except
the Units. General Common Areas shall include, without limitation, for maintenance purposes of
the Association, but not necessarily by way of fee title, all gas, water and waste pipes, all sewers,
all ducts, chutes, conduits, wires and other utility installations which are not otherwise clearly
within or appurtenant to either Unit 1 and Unit 2. Each Unit Owner shall have an undivided interest
in the General Common Areas to the extent of its Allocated Interest. The General Common Areas
shall be the joint responsibility of all Unit Owners in the Project in accordance with their Allocated
Interest.
Section 1.13 - Common Expenses
“Common Expenses” shall mean those expenses for which the Association is responsible under
this Declaration, and for which each Unit Owner will be responsible to the extent of its Allocated
Interest (except as may otherwise be specified herein) including the actual and estimated costs of:
maintenance, management, operation, repair and replacement of the General Common Area; the
cost of maintenance of any recreational facilities on the General Common Areas; the cost of
maintenance of those public parkway areas which the Association is obligated to maintain, if any;
the costs of any and all utilities metered to more than one Unit and other commonly metered
charges for the Property, if any; the cost of management and administration of the Association
including, but not limited to, compensation paid by the Association to managers, accountants,
attorneys and other employees; the costs of all gardening, security, clustered mailboxes and other
services benefitting the General Common Areas; the costs of fire, casualty and liability insurance,
workers’ compensation insurance, errors and omissions and director, officer and agent liability
insurance, and other insurance covering the Property and the directors, officer and agents of the
Association; the costs of bonding of the members of the Board; taxes paid by the Association,
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including any blanket tax assessed against the General Common Area; amounts paid by the
Association for discharge of any lien or encumbrance levied against the General Common Area,
or portions thereof; and the costs of any other item or items incurred by the Association, for any
reason whatsoever in connection with the General Common Area, for the common benefit of the
Owners. The Board shall, at least annually, meet to determine the Common Expenses that shall
be apportioned to each Unit.
Section 1.14 - Declarant
“Declarant” shall mean [_________________________________], its successors, and any Person
to which it shall have assigned any of its rights hereunder by an express written assignment, and
as permitted by the Act.
Section 1.15 - Declaration
“Declaration” shall mean the within Declaration, as it may be amended from time to time as
provided herein, and as permitted by the Act.
Section 1.16 - Department
“Department” shall mean the Montana Department of Revenue.
Section 1.17 - “Maintenance Fund”
“Maintenance Fund” shall refer to such fund or money held by the Association on behalf of each
Unit to pay expenses associated with maintenance, repair, or improvements approved by each
individual Unit Owner.
Section 1.18 - Member, Membership
“Member” shall mean every Person holding a membership in the Association, pursuant to Section
2.03 hereof. “Membership” shall mean the property, voting and other rights and privileges of
Members as provided herein, together with the correlative duties and obligations contained in this
Declaration and the Articles and Bylaws.
Section 1.19 - Operating Fund
“Operating Fund” shall refer to such fund of money held by the Association on behalf of each Unit
Owner to pay the normal operating expenses or other charges or liabilities, or obligations of the
Association with regard to each Unit.
Section 1.20 - Owner
“Owner” shall mean the record owner of a fee interest in any Unit, including the buyer under a
contract for deed, and excluding other persons having and interest in the Unit merely as security
for the performance of obligations, unless such Person has acquired record title to the Unit pursuant
to foreclosure or any proceedings in lieu of foreclosure.
Section 1.21 - Person
“Person” shall mean a natural person, a trustee, a personal representative, a corporation, a
partnership, a limited liability company, a limited liability limited partnership, a joint venture, a
government entity, or any other individual or entity capable of holding title to real property.
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Section 1.22 - Property or Project
“Property” or “Project” shall mean the property identified above in the Preamble to this
Declaration. The Property shall be known as [___________] Condominiums.
Section 1.23 - Residential Unit
“Residential Unit” or “Residence” shall mean a Unit specifically intended for residential use, as
depicted on the Site Plan, attached hereto as Exhibit A.
Section 1.24 - Restrictions
“Restrictions” shall mean this Declaration, the Articles, Bylaws and the Rules and the Regulations
of the Association from time to time in effect
Section 1.25 - Reserve Fund
“Reserve Fund” shall refer to such fund of money held by the Association on behalf of each Unit
to pay expenses associated with the replacement and improvement of each Unit and the Building
constructed thereon approved by Individual Unit Owners.
Section 1.26 - Rules and Regulations
“Rules and Regulations shall mean those rules and regulations established by the Board of
Directors for the Association in accordance with the Articles of Incorporation and By-laws of the
Association.
Section 1.27 - Section 42 Compliance Period
For purposes of this Declaration, “Compliance Period” shall have the meaning set forth in Section
8.04, hereof.
Section 1.28 - Site Plan
“Site Plan” shall refer to the site plan attached to this Declaration as Exhibit A.
Section 1.29 - Tenant Spaces
“Tenant Spaces” shall refer to the individual rental units within each Unit of the Project.
Section 1.30 - Unit
“Unit” shall mean the elements of the Property not owned in common with the Owners of other
Units in the Project. Each of the Units shall be a separate fee simple estate as separately shown,
numbered and designated in the Site Plan attached as Exhibit A, as well as the undivided interest
in the General Common Areas to the extent of its Allocated Interest. Each such Unit consists of a
fee interest in the real estate upon which it is built (to the extent of its Allocated Interest), space
bounded by and contained within the interior unfinished (meaning exclusive of wall coverings,
floor coverings, fixtures, or decorations) surfaces of the perimeter walls, floors, ceilings, windows,
and doors of each individual Unit, as shown and defined in the Site Plan.
On those sides where the Site Plan shows that exterior walls or structural interior walls of the
building in which the Unit is located bound the Unit, the interior unfinished surfaces of such walls
shall be the lateral boundaries of the Unit. On those sides of a Unit where no structural interior
wall bounds the Unit, the lateral boundaries of such Unit shall be shown on the Site Plan; provided
however, that such lateral boundaries shall extend to the center lines of any partitions which may
be constructed from time to time along such boundaries.
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Section 1.31 - Unit Designation, Description of Building
The Project shall consist of no more than two (2) Units and the buildings constructed thereon. Unit
1 will consist of ____ buildings. Each building within Unit 1 will be [___________] stories and
shall be of [wood frame] construction. Unit No. 2 will consist of ___ buildings. Each Building in
Unit 2 will be [__________] stories and shall be of [wood frame] construction. The Units are
designated “Unit 1” and “Unit 2” as shown on Exhibit A.
Section 1.32 - Units
A - Unit 1 Owner
Unit 1 Owner is [______________________________].
B - Unit 2 Owner
Unit 2 Owner is [_____________________________].
Section 1.33 - Unit Owners
The Unit 1 Owner and Unit 2 Owner are sometimes collectively referred to as “Unit Owners”.
ARTICLE II - [_________________] CONDOMINIUMS OWNERS ASSOCIATION, INC.
Section 2.01 - Organization of Association, Agent for Service of Process
The Association is or shall be incorporated under the name of [______] Condominiums Owners
Association, Inc., as a nonprofit corporation under the Nonprofit Corporation Law of the State of
Montana. For purposes of Montana Code Annotated §70-23-901 the agent for service of process
is [____________________________], whose place of business within the county in which the
Property is located is [____________________________].
Section 2.02 - Duties and Powers
The duties and powers of the Association are those set forth in the Declaration, the Articles and
Bylaws, together with its general and implied powers of a nonprofit mutual benefit corporation,
generally, to do any and all things that a corporation organized under the laws of the State of
Montana may lawfully do which are necessary or proper, in operating for the peace, health,
comfort, safety and general welfare of its Members, subject only to the limitations upon the
exercise of such powers as are expressly set forth in the Articles, the Bylaws and in this
Declaration. The Association shall further have the right to install or construct capital
improvements on the General Common Areas. The Association may at any time, and from time
to time reconstruct, replace or refinish any Improvement portion thereof upon the General
Common Areas in accordance with the original design, finish or standard of construction of such
Improvement; replace destroyed trees or other vegetation and plant trees, shrubs and ground cover
upon any portion of the General Common Areas. The Association may employ personnel
necessary for the effective operation and maintenance of the General Common Areas, including
the employment of legal, management and accounting services. The Association shall make
available for inspection by any prospective purchaser of a Unit, any Owner of a Unit, and the
Beneficiaries, prospective Beneficiaries, insurers and guarantors of the first Mortgage on any Unit,
current copies of the Declaration, the Articles, the Bylaws, the Rules and Regulations and all other
books, records, and financial statements of the Association.
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A - Unit Committees
The Unit Committee for Unit 1 shall consist solely of the Owner of Unit 1 or the Property Manager
appointed by the Owner of Unit 1. The Unit Committee for Unit 2 shall consist solely of the
Owner of Unit 2 or the Property Manager appointed by the Owner of Unit 2, the Unit Committee
for Unit 1 and Unit Committee for Unit 2 are sometimes collectively referred to as the “Unit
Committees”). Each such Unit Committee or Property Manager shall have the powers and duties
prescribed in the Association Bylaws. Such powers and duties shall include, without limitation,
the power to determine maintenance, care, repair or improvements within or appurtenant to each
Building, and to fix any Special or Annual Building Assessments relating solely to such Building
(which may be billed centrally through the Association at the request of the of the Unit Owners).
Section 2.03 - Membership
Every Owner, upon becoming the fee simple Owner including the buyer under a contract for deed,
but excluding the seller under a contract for deed and other persons having an interest in a Unit
merely as security for the performance of an obligation (unless such Person has acquired record
title to the Unit by foreclosure or any proceedings in lieu of foreclosure), shall automatically
become a Member of the Association, and shall remain a Member thereof until such time as his
ownership ceases for any reason, at which time his Membership in the Association shall
automatically cease. Ownership of a Unit shall be the sole qualification for Membership in the
Association. All Memberships shall be appurtenant to the Unit.
Section 2.04 - Transfer
The Membership held by any Owner shall not be transferred, pledged or alienated in any way,
except upon the sale or encumbrance of such Owner’s Unit, or as otherwise approved by the
Association, and then only to the purchaser or Beneficiary of such Unit. A prohibited transfer is
void and will not be reflected upon the books and records of the Association. A Member who has
sold his Unit to a contract purchaser under an agreement to purchase shall delegate to the contract
purchaser his Membership rights in the Association. The delegation shall be in writing and shall
be delivered to the Board before the contract purchaser may vote. However, the contract seller
shall remain liable for all charges and assessments attributable to his Unit until fee title to the Unit
sold is transferred, as further provided in Section 5.01 of this Declaration. If the Owner of any
Unit fails or refuses to transfer the Membership registered in his name to the purchaser of the Unit
upon transfer of fee title thereto, the Board of Directors shall have the right to record the transfer
upon the books of the Association. The Association may levy a reasonable transfer fee against a
new Owner and his Unit (which fee shall be added to the Annual Assessment chargeable to such
new Owner) to reimburse the Association for the administrative cost of transferring the
membership to the new owner on the records of the Association. Notwithstanding anything
contained in this Section 2.04, the Membership held by the Owner of Unit 1 and the Membership
held by the Owner of Unit 2 may be pledged as a part of the construction or permanent financing
for the Owner’s respective Unit.
Section 2.05 - Classes of Membership
The Association shall have one (1) class of voting Membership.
Section 2.06 - Voting Rights
(a) All voting rights shall be subject to the Restrictions.
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(b) At any meeting of the Association, each Owner, except as otherwise provided in
Section 10.03 of this Declaration with respect to the protection of the Declarant,
shall be entitled to cast no more than one (1) vote for each Unit owned as shown on
the Site Plan. Where there is more than one (1) record Owner of a Unit
(“co-owners”), all of those co-owners shall be Members and may attend any
meeting of the Association, but only one (1) of those co-owners shall be entitled to
exercise the single vote to which the Unit is entitled. Co-owners owning the
majority interests in a Unit shall from time to time designate in writing one (1) of
their number to vote. Fractional votes shall not be allowed, and the vote for each
Unit shall be exercised, if at all, as a Unit. Where no voting co-owner is designated
or if the designation has been revoked, the vote for the Unit shall be exercised as
the co-owners owning the majority interests in the Unit mutually agree. Unless the
Board receives a written objection in advance from a co-owner, it shall be
conclusively presumed that the corresponding voting co-owner is acting with the
consent of his co-owners. No vote shall be cast for any Unit if the co-owners
present in person or by proxy owning the majority interests in such Unit cannot
agree to said vote or other action. The nonvoting co-owner or co-owners shall be
jointly and severally responsible for all of the obligations imposed upon the
jointly-owned Unit and shall be entitled to all other benefits of ownership. All
agreements and determinations lawfully made by the Association in accordance
with the voting procedures established herein, or in the Articles of Incorporation or
Bylaws of the Association, shall be deemed to be binding on all Owners, their
successors and assigns. Voting shall be by class. Any action presented to the
Members by the Association must be approved by a majority of Unit 1 Owners and
by a majority of the Unit 2 Owners.
(c) During the Initial Meeting of the Association, and at each annual meeting
thereafter, the directors of the Association shall be appointed in accordance with
the Articles of the Association.
Section 2.07 - Repair and Maintenance by the Association of General Common Areas
The Association shall paint, maintain, repair and replace the General Common Areas and
improvements thereon, if any, or shall contract for such maintenance, repair and replacement to
assure maintenance of the General Common Areas and improvements thereon in a clean, sanitary
and attractive condition reasonably consistent with the level of maintenance reflected in the most
current Budget on file with and approved by the Department. However, the Association shall not
be responsible for or obligated to perform those items of maintenance, repair or improvement of
the Units which is the responsibility of the Owners as provided in Article II, Section 2.09 hereof.
Association maintenance, repair or improvements shall include, without limitation, the right,
without obligation, to perform all corrective janitorial, landscaping and repair work within any
Unit, if the Owner fails to repair it; the repair and payment for all centrally metered utilities, water
charges, and mechanical and electrical equipment in the General Common Areas, if any; payment
of all charges for all utilities which serve individual Units but which are subject to a meter common
to the entire Property, if any; payment of all Common Expenses and charges for water and utilities
servicing recreational amenities in the General Common Areas; the repair and maintenance of all
walks, private driveways and other means of ingress and egress with in the property within the
General Common Areas (except as may be otherwise specified in any easement approved pursuant
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to the terms hereof with respect to any General Common Areas), and if determined by the Board
to be economically feasible, an inspection and preventative program for the prevention and
eradication of infestation by wood-destroying and other pests and organisms in the General
Common Areas. All such costs of maintenance, repairs and replacements for the General Common
Area shall be paid for as Common Expenses out of the Association Funds as provided in this
Declaration. All work performed by the Association for and on behalf of an Owner as permitted
hereunder which work is not the responsibility of the Association shall be charged to the Owner
as a Special Assessment. It shall further be the affirmative duty of the Board of Directors to require
strict compliance with all provisions of this Declaration and to cause the Units to be inspected by
the related Unit Committee for any violation thereof. The cost of any maintenance, repairs or
replacements by the Association arising out of, or caused by, the act of an Owner or such Owner’s
family, tenants, guests, invitees, or agents shall, after Notice and Hearing, be levied by the Board
as a Special Assessment against such Owner.
All such painting, repair, maintenance and replacement, as the case may be, of the General
Common Areas shall be equally apportioned among Units within the Project according to its
Allocable Interest except as provided in Section 1.14 of this Declaration. All such painting, repair
or maintenance which is solely within either Building, shall be apportioned among the Unit
Owner(s) of such Building.
Section 2.08 - Unsegregated Real Property Taxes
To the extent not assessed to or paid by the Unit Owners, the Association shall pay all real and
personal property taxes and assessments levied upon any portion of the Property. In addition, if
Unit 1 and Unit 2 are taxed under a blanket tax bill covering all of such Units on the Property,
each Owner shall pay his proportionate share of any installment due under the blanket tax bill to
the Association at least ten (10) days prior to the delinquency date; and the Association shall
transmit the taxes to the appropriate tax collection agency on or before the delinquency date.
Blanket taxes shall be allocated on a pro rata basis among the Units, based upon the ratio of the
square footage in each Unit to the total square footage of the Property. The Association shall, at
least forty-five (45) days prior to the delinquency date of any blanket tax installment, deliver to
each Owner of such Unit a copy of the tax bill, along with a written notice setting forth the Owner’s
obligation to pay is proportionate share of the tax installment and the potential additional charges
to the Owner for failure to comply. The Association may elect to pay the taxes on behalf of any
Owner who does not pay his proportionate share. In such event, the Association shall levy a
Special Assessment against any delinquent Owner in the amount of any sum advanced, plus
interest at the rate of ten percent (10%) per annum and may, in addition, include as part of the
Special Assessment an amount necessary to reimburse the Association for any penalty or late
charge actually assessed in connection with the blanket tax bill, for which a late charge results
from the failure of the delinquent Owner(s) to make timely payment of his proportionate share of
the taxes.
Any payments in lieu of taxes that may be assessed with respect to Unit 1 and Unit 2 shall be the
sole responsibility of the Unit Owners based on the same square footage ratio laid out above.
Section 2.09 - Repair and Maintenance by Owners
Each Owner shall maintain, repair, replace, paint, paper, plaster, tile, finish and restore or cause to
be so maintained, repaired, replaced and restored, at his sole expense, all portions of its Unit, as
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well as the windows, light fixtures actuated from switches controlled from, or separately metered
to, such Owner’s Unit, and the interior surfaces of the walls, ceilings, floors, doors, including
exterior doors, and permanent fixtures, as well as the decking, railing, and other non-structural
components of their decks in a clean, sanitary and attractive condition, in accordance with the Site
Plan and the original construction design of the improvements in the Project. It shall further be
the duty of each Owner to pay when due all charges for any utility service which is separately
metered to his Unit. Subject to any required approval of the Unit Committee. Each Owner shall
be responsible for maintaining those portions of any heating and cooling equipment and other
utilities which are located within or which exclusively serve his Unit. In addition, each Owner
shall be responsible for maintaining and repairing the air conditioning pad which supports or will
support the air conditioning compressor serving such Owner’s Unit.
Section 2.10 - Use of Agent
The Board of Directors, on behalf of the Association, may contract with a Manager for the
performance of maintenance and repair and for conducting other activities on behalf of the
Association. The term of such contract, or any contract with Declarant for the furnishing of
services to the Association, shall not exceed one (1) year, renewable by agreement of the parties
for successive one-year periods, and such contract shall be terminated by the Association, acting
through the Board, at any time (a) for cause upon thirty (30) days’ written notice thereof, and (b)
without cause or upon ninety (90) days’ written notice.
ARTICLE III - RIGHTS IN GENERAL COMMON AREAS
Section 3.01 - Association Easement
The Association shall have an easement over the General Common Area for purposes described
in this Declaration. The Association’s obligations with respect to maintenance of the General
Common Areas shall commence on the date the Property receives its Certificate of Occupancy
from the City of Bozeman, Montana; and upon such date, the Association shall be deemed to have
accepted its responsibilities to maintain and manage the General Common Areas.
Section 3.02 - Partition
Except as provided in this Declaration, there shall be no judicial partition of the General Common
Areas, or any part thereof, for the term of the Project, nor shall Declarant, any Owner or any other
Person acquiring any interest in any Unit in the Project seek any such judicial partition.
Section 3.03 - Members’ Easements of Use and Enjoyment of General Common Areas
Subject to the provisions of this Declaration, every member of the Association shall have, for it,
its assigns, its tenants and guests, a nonexclusive easement of access, ingress, egress, use and
enjoyment of, in and to the General Common Areas, and such easements shall be appurtenant to
and shall pass with title to every Unit in the Project.
Section 3.04 - Extent of Members’ Easements
The rights and easements of use and enjoyment of the General Common Areas created by this
Declaration shall be subject to the Restrictions, which include, without limitation, the following:
(a) The right of the Board to suspend the rights and easements of any Member, and the
Persons deriving such rights and easements from any Member, for any period
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during which the payment of any, Annual Building, or Special Assessment against
the Member and his Unit remains delinquent, and, after Notice and Hearing as
provided in the Bylaws, to suspend such rights and easements for the period set
forth in the Bylaws for any violation of the Restrictions, it being understood that
any suspension for either nonpayment of any Assessment or breach of the
Restrictions shall not constitute a waiver or discharge of the Member’s obligation
to pay assessments as provided in this Declaration;
(b) The right of the Association to consent to or otherwise cause the construction of
additional improvements on the General Common Areas and to consent to or
otherwise cause the alteration or removal of any existing improvements on the
General Common Areas for the benefit of the Members of the Association;
(c) The right of the Association, acting through the Board of Directors, to grant,
consent to or join in the grant or conveyance of easements, licenses or rights-of-way
in, on or over the General Common Areas for purposes not inconsistent with the
intended use of the Property as a residential Unit project;
(d) Subject to the provisions of this Declaration, the right of each Owner to the
exclusive use and occupancy for the purposes designated in this Declaration to his
respective Unit.
(e) The rights and reservations of Declarant as set forth in this Declaration;
(f) The right of the Association, acting through the Board of Directors, to reasonably
restrict access to roofs, maintenance and landscaped areas and similar areas of the
Property within the General Common Areas;
(g) The right of the Association to reasonably limit the number of guests and tenants
of the Owners using the General Common Areas; and
(h) The right of the Association, acting through the Board, to establish uniform Rules
and Regulations for the use of the General Common Areas, as provided in this
Declaration.
Section 3.05 - Delegation of Use
Any Member entitled to the right and easement of use and enjoyment of the General Common
Areas may delegate, in accordance with the Bylaws, its right to use and enjoyment of the General
Common Areas to his tenants, contract purchasers or subtenants who reside in his Unit, subject to
reasonable regulation by the Board.
Section 3.06 - Waiver of Use
No Member may exempt himself from personal liability for Assessments duly levied by the
Association or effect the release of his Unit from the liens and charges thereof, by waiving use and
enjoyment of the General Common Areas or by abandoning his Unit.
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Section 3.07 - Damage by Member
To the extent permitted by Montana law, each Member shall be liable to the Association for any
damage to the General Common Areas not fully reimbursed to the Association by insurance if the
damage is sustained because of the negligence, willful misconduct or unauthorized or improper
installation or maintenance of any Improvement by the Member, his guests, tenants or invitees, or
any other Persons deriving their right and easement of use and enjoyment of the General Common
Areas from the Member, or his or their respective family and guests, both minor and adult.
However, the Association, acting through the Board, reserves the right to determine whether any
claim shall be made upon the insurance maintained by the Association, and the Association further
reserves the right, after Notice and Hearing as provided in the Bylaws, to levy a Special
Assessment equal to the increase, if any, in insurance premiums directly attributable to the damage
caused by the Member or the Person for whom the Member may be liable as described above. In
the case of joint ownership of a Unit, the liability of the Owners shall be joint and several, except
to the extent that the Association shall have previously contracted in writing with the joint owners
to the contrary. After Notice and Hearing as provided in the Bylaws, the cost of correcting the
damage to the extent not reimbursed to the Association by insurance shall be a Special Assessment
against such Member’s Unit and may be enforced as provided herein.
ARTICLE IV - (RESERVED)
ARTICLE V - ASSOCIATION FUNDS AND ASSESSMENTS
Section 5.01 - Personal Obligation of Assessments
Declarant, for each Unit owned by Declarant, hereby covenants and agrees to pay, and each Owner,
by acceptance of a deed of a Unit whether or not it shall be so expressed in any such deed, is
deemed to covenant and agree to pay to the Association all Annual Assessments for Common
Expenses and all applicable Annual Unit Assessments and Special Assessments. Except as
provided in this Section 5.01, all such assessments, together with interest, costs, and reasonable
attorneys’ fees shall be a separate, distinct and personal obligation of the Person who was the
Owner of the Unit at the time when the assessment fell due. This personal obligation cannot be
avoided by abandonment of the Unit or by an offer to waive use of the General Common Areas.
The Association may impose a reasonable late fee for any payment of any Annual Unit
Assessment, Capital Improvement Assessments, Reconstruction Assessments or Special
Assessment. In the case of the monthly installments for the Annual Assessment, the Association
may charge a late fee of Ten Dollars ($10.00) for any such monthly installment which is paid more
than seven (7) days after such monthly installment is due. Unless provided otherwise by the
Association, each monthly installment shall be due on the 1st day of each calendar month.
Section 5.02 - Purposes of Assessments
The assessments levied by the Board of Directors on behalf of the Association shall be used
exclusively to promote the recreation, health, safety and welfare of the residents of the Units, for
the operation, replacement, improvement and maintenance of the Property, and to discharge any
other obligations of the Association under this Declaration. All amounts deposited into the Funds
for Annual Assessment must be used solely for the common benefit of all of the Unit Owners for
purposes authorized by this Declaration. Disbursements from the Operating Fund shall be made
by the Board of Directors for such purposes as may be necessary for the discharge of its
responsibilities herein for the common benefit of all of the Owners, other than those purposes for
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which disbursements from the Reserve Fund are to be used. Disbursements from the Reserve Fund
shall be made by the Board of Directors only for the respective purposes specified in this Article
V. Nothing in this Declaration shall be construed in such a way as to prohibit the Association from
using any assessments to abate any annoyance or nuisance emanating from outside the boundaries
of the Property. Annual Assessments shall be used to satisfy Common Expenses of the
Association, as provided herein and in the Bylaws. The Association shall separately account for
and separately maintain the Unit Fund, Operating Fund, Reserve Fund, Reconstruction Fund and
Capital Improvement Fund with respect to each Unit. Additionally, such funds with respect to
Unit 1 shall be held by the Owner of Unit 1 in accordance with Section 42 of the Internal Revenue
Code and the regulations promulgated thereunder.
Section 5.03 - Basis of Maximum Annual Assessment
Except as provided below, until the first day of the Association’s next fiscal year following receipt
by the Property of the Certificate of Occupancy from the City of Bozeman, Montana, the maximum
Annual Assessment under this Article V shall be determined in accordance with the initial Budget
of the Association. The first Annual Assessment shall be adjusted according to the number of
months remaining in the initial fiscal year.
If the Board of Directors determines that the initial Annual Assessment is insufficient to meet the
Common Expenses of the Association during the remainder of the Association’s initial fiscal year,
the Board of Directors may, by majority vote, increase that Annual Assessment, subject to approval
by a majority vote of the voting power of the Association.
(a) Commencing on the first day of the next fiscal year following receipt by the
Property of the Certificate of Occupancy from the City of Bozeman, Montana, the
maximum Annual Assessment for any fiscal year may be increased by the Board
above the maximum Annual Assessment for the previous fiscal year, without a vote
of the Membership and effective no sooner than the first day of each fiscal year, in
an amount no more than ten percent (10%). Any increase in the maximum Annual
Assessment which exceeds the maximum increase authorized in this subsection (a)
shall require the vote or written consent of Members representing a majority of the
Unit 1 Owner and Unit 2 Owner.
(b) Except as provided in this Section 5.04 the Board of Directors may not fix an
Annual Assessment at an amount which exceeds the maximum set forth in (a)
above.
(c) All expenses relating to the General Common Areas and all expenses relating to
real and personal property taxes and assessments levied against the Property, shall
be allocated on a pro rata basis among the Units, based upon the ratio of the square
footage in each Unit to the total square footage of the Property, except as
specifically provided in Section 2.08 hereof.
Section 5.04 - Commencement and Collection of Annual Assessments
The Board of Directors shall authorize and levy the amount of the Annual Assessment upon each
Unit, as provided herein, by majority vote of the Board. The initial Annual Assessment shall begin
on each Unit of the Project on the first day of the first calendar month following the receipt by the
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Property of the Certificate of Occupancy from the City of Bozeman, Montana. All Annual
Assessments shall be assessed equally against the Members and their Unit based upon the
proportion of the square footage of Unit owned by each Member as compared to the total square
footage of the Property. Annual Assessments for fractions of any month involved shall be
prorated. The Board shall fix the amount of the Annual Assessment against each Unit at least
thirty (30) days in advance of each Annual Assessment period. From time to time the Board may
determine that all excess funds in the Operating Fund be retained by the Association and used to
reduce the following year’s Annual Assessments. Upon dissolution of the Association incident to
the abandonment or termination of the Property, any amounts remaining in any of the Maintenance
Funds shall be distributed to or for the benefit of the Members in the same proportions as such
monies were collected from the Members.
Each Member shall pay to the Association his Annual Assessment in installments at such
frequency and in such amounts as established by the Board. Initially, the Annual Assessment shall
be apportioned and collected in monthly installments, due on the first day of each month. Each
Annual Assessment may be paid by the Member to the Association in one check or in separate
checks as monthly payments, or in such other manner as may be determined by the Association.
Declarant may enter into a written maintenance agreement with the Association under which
Declarant shall pay all or any portion of the Common Expenses and perform all or any portion of
the Association’s maintenance responsibilities. Such maintenance agreement may require Owners
to reimburse Declarant, through the Association, for a portion of the costs expended in satisfaction
of Common Expenses.
Section 5.05 - Delinquency and Acceleration
Any installment of an assessment provided for in this Declaration shall become delinquent if not
paid within seven (7) days of the due date as established by the Board of Directors of the
Association. The Board shall be authorized to adopt a system pursuant to which any installment
of Annual Assessments or Special Assessments not paid within seven (7) days after the due date
shall bear interest from the due date until paid at the rate of up to 10% per annum, but in no event
more than the maximum rate permitted by law. In addition, the Board of Directors may require
the delinquent Owner to pay a late charge in accordance with Montana Law to compensate the
Association for increased bookkeeping, billing and other administrative costs. No such late charge
shall exceed the maximum amount allowable by law. If any installment of any assessment is not
paid within thirty (30) days after its due date, the Board may mail a notice to the Owner and to
each Beneficiary of a Unit which has requested a copy of the notice. Such notice shall specify (1)
the fact that the installment is delinquent; (2) the action required to cure the default; (3) a date, not
less than thirty (30) days from the date the notice is mailed to the Owner, by which such default
must be cured; and (4) that failure to cure the default on or before the date specified in the notice
may result in acceleration of the balance of the installments of such assessment for the then current
fiscal year and sale of the Unit. The notice shall further inform the Owner of his right to cure after
acceleration. Notwithstanding anything herein to the contrary, the limited partner of a Unit Owner
shall have the right, but not the obligation, to cure such defaults [NTD: will need to confirm
structure of Market Rate Unit for purposes of cure rights]. If the delinquent installment of an
assessment of any charges thereon are not paid in full on or before the date specified in the notice,
the Board at its option may declare all of the unpaid balance of such assessment for the then current
fiscal year, attributable to that Owner and his Unit, to be immediately due and payable without
15
further demand and may enforce the collection of the full assessment for such fiscal year and all
charge thereon in any manner authorized by law and this Declaration.
Section 5.06 - Creation and Release of Lien
All sums other than Special Assessments assessed in accordance with the provisions of this
Declaration shall constitute a lien on the respective Unit prior and superior to all other liens, except
(1) all taxes, bonds, assessments and other levies which, by law, would be superior thereto, (2) the
lien or charge of any first Mortgage of record (meaning any recorded Mortgage or Deed of Trust
with first priority of seniority over other Mortgages or Deeds of Trust) made in good faith and for
value and recorded prior to the date on which the lien became effective, (3) the construction and
permanent loan financing required, including the Owners low income housing tax credit regulatory
agreements, for Unit 1, and (4) the construction and permanent loan financing required, for Unit
2. Notwithstanding the foregoing, any assessment lien provided for hereunder shall be prior and
superior to any declaration of homestead recorded after the recordation of this Declaration. The
lien shall become effective upon recordation by the Board or its authorized agent of a Notice of
Assessment (“Notice of Lien”) securing the payment of any Annual Assessment, Annual Unit
Assessment, Capital Improvement Assessments, Reconstruction Assessments or Special
Assessment or installment thereof, levied by the Association against any Unit Owner as provided
in Montana Law. The Notice of Lien shall state (i) the amount of the assessment or installment,
as the case may be, and other authorized charges and interest, including the cost of preparing and
recording the Notice of Lien, (ii) the expenses of collection in connection with any delinquent
installments, including, without limitation, reasonable attorneys’ fees, (iii) a sufficient description
of the Unit against which the same has been assessed, (iv) the name and address of the Association,
and (v) the name of the Owner. The lien shall relate only to the individual Unit against which the
assessment was levied and not to the Property as a whole. Upon payment to the Association of
the full amount claimed in the Notice of Lien, or other satisfaction thereof, the Board of Directors
shall cause to be recorded a Notice of Satisfaction and Release of Lien (“Notice of Release”)
stating the satisfaction and release of the amount claimed. The Board of Directors may demand
and receive from the applicable Owner a reasonable charge for the preparation and recordation of
the Notice of Release before recording it. Any purchaser or encumbrancer who has acted in good
faith and extended value may rely upon the Notice of Release as conclusive evidence of the full
satisfaction of the sums stated in the Notice of Lien.
Section 5.07 - Enforcement of Liens
It shall be the duty of the Board of Directors to enforce the collection of any amounts due under
this Declaration by one (1) or more of the alternative means of relief afforded by this Declaration.
The lien on a Unit may be enforced by sale of the Unit by the Association, the Association’s
attorneys, any title insurance company authorized to do business in Montana, or other persons
authorized to conduct the sale as a trustee, after failure of the Owner to pay any Annual
Assessment, Annual Unit Assessment, Capital Improvement Assessments, Reconstruction
Assessments or Special Assessment, or installment thereof, as provided herein. The sale shall be
conducted in accordance with the provisions of Montana law, applicable to the exercise of powers
of sale in mortgages and deeds of trust, or in any manner permitted by law; provided, however,
that if not otherwise required by law, the Beneficiary, shall be given notice of such sale in
accordance with the Montana Small Tract Financing Act. Notwithstanding anything herein to the
contrary, at any time a Unit 1 Owner has a limited partner, the limited partner of a Unit 1 Owner
shall have the right, but not the obligation, to cure defaults hereunder during the compliance period
16
under Section 42 Compliance Period [NTD: will need to confirm structure of Market Rate Unit
for purposes of cure rights]. An action may be brought to foreclose the lien of the Association by
the Board, after thirty (30) days from the date on which the Notice of Lien was recorded; provided
that at least ten (10) days have expired since a copy of the Notice of Lien was mailed to the Owner
affected thereby, and subject to the provisions of Section 5.05 if the Board accelerates the due date
of any assessment installments. The Association, through its agents, shall have the power to bid
on the Unit at foreclosure sale, and to acquire and hold, lease, mortgage and convey the same.
Upon completion of the foreclosure sale, an action may be brought by the Association or the
purchaser at the sale in order to secure occupancy of the defaulting Owner’s Unit and the defaulting
Owner shall be required to pay the reasonable rental value for such Unit during any period of
continued occupancy by the defaulting Owner or any persons claiming under the defaulting
Owner. Suit to recover a money judgment of unpaid assessments shall be maintainable without
foreclosing or waiving any lien securing the same, but this provision or any institution of suit to
recover a money judgment shall not constitute an affirmation of the adequacy of money damages.
Any recovery resulting from a suit at law or in equity initiated pursuant to this Section 5.07 may
include reasonable attorneys’ fees as fixed by the court.
Section 5.08 - Priority of Assessment Lien
The lien of the assessments, including interest and costs of collection (including attorneys’ fees),
provided for herein shall be subordinate to the lien of any first Mortgage upon any Unit, (i) the
construction and permanent loan financing required for Unit 1, including the Owner’s low income
housing tax credit regulatory agreements, and (ii) the construction and permanent loan financing
required for Unit 2. Sale or transfer of any Unit shall not affect the assessment lien.
ARTICLE VI - PROJECT EASEMENTS AND RIGHTS OF ENTRY
Section 6.01 - Easements
(a) Access. Declarant expressly reserves for the benefit of the Owners reciprocal,
nonexclusive easements for access, ingress and egress over all of the General
Common Areas, including any private streets or driveways currently existing in the
Property or subsequently added to it, which easements may be conveyed by
Declarant to the Owners and to the Association for so long as Declarant owns any
interest in the Property.
Subject to the provisions of this Declaration governing use and enjoyment thereof,
the easements may be used by all Owners and their guests, tenants and invitees
residing on or temporarily visiting the Property, for walkways, vehicular access and
such other purposes reasonably necessary for use and enjoyment of a Unit in the
Project.
(b) Maintenance and Repair. Declarant expressly reserves for the benefit of the
Board of Directors and all agents, officers and employees of the Association,
nonexclusive easements over the General Common Areas as necessary to maintain
and repair the General Common Areas, and to perform all other tasks in accordance
with the provisions of this Declaration. Such easements over the General Common
17
Areas shall be appurtenant to, binding upon, and shall pass with the title to, every
Unit conveyed.
(c) Utility Easements. Declarant expressly reserves for the benefit of the Association
the right of Declarant to grant additional easements and rights-of-way over the
Property to utility companies and public agencies, as necessary, for the proper
development and disposal of the Property. Such right of Declarant shall expire (i)
upon receipt by the Property of the Certificate of Occupancy from the City of
Bozeman, Montana; or (2) upon a later date if approved by a majority of the
Members.
Section 6.02 - Rights of Entry
The Board of Directors shall have a limited right of entry in and upon the General Common Areas
and the interior of all Units for the purpose of inspecting the Project, and taking whatever
reasonable corrective action may be deemed necessary or proper by the Board of Directors,
consistent with the provisions of this Declaration. However, such entry upon the interior of a Unit
shall be made, except to effect emergency repairs or other emergency measures, only after three
(3) days prior written notice to the Owner of such Unit and after authorization of two-thirds (2/3)
of the Board of Directors. Nothing herein shall be construed to impose any obligation upon the
Association to maintain or repair any property or improvements required to be maintained or
repaired by the Owners. Nothing in this Article VI shall in any manner limit the right of the Owner
to exclusive occupancy and control over the interior of his Unit. However, an Owner shall permit
a right of entry to the Board of Directors or any other personal authorized by the Board of
Directors, as reasonably necessary, such as in case of any emergency originating in or threatening
his Unit, whether the Owner is present or not. Any damage caused to a Unit by such entry by the
Board of Directors or by any person authorized by the Board of Directors shall be repaired by the
Board as a Common Expense of the Association. In case of an emergency such right of entry shall
be immediate. Any damage caused to a Unit by such entry by an Owner or its representative shall
be repaired by such Owner.
ARTICLE VII - UNIT AND USE RESTRICTIONS
All of the Property shall be held, used and enjoyed subject to the following limitations and
restrictions, subject to the exemptions of Declarant set forth in this Declaration.
Section 7.01 - Residential Use Only
The Units designated on the Site Plan as residential shall be used exclusively for residential
purposes. Any change in use within any of the Units must be approved by the Board of Directors.
Section 7.02 - Parking and Vehicular Restrictions
Following completion of construction of the Buildings and improvements located upon the Units,
no Owner of a Unit shall park, store, or keep anywhere on the Property any large commercial-type
vehicle (including, but not limited to, any dump truck, cement mixer truck, oil or gas truck or
delivery truck). No Person shall park, store, or keep any recreational vehicle (including, but not
limited to, any camper unit, house car or motor home), bus, trailer, trailer coach, camp trailer, boat,
aircraft, mobile home, inoperable vehicle or any other similar vehicle anywhere on the Property
[NTD: Confirm this is acceptable]. In addition, no Person shall park, store, or keep anywhere on
18
the Property any vehicle or vehicular equipment, mobile or otherwise, reasonably deemed to be a
nuisance by the Board. Each Unit Committee is hereby empowered to establish “parking”, “guest
parking’ and “no parking” areas associated with such Unit. Restoring or repairing of vehicles shall
not be permitted anywhere on the Property. Parking spaces which may constitute a part of the
General Common Areas shall be subject to reasonable control and use limitation by the
Association. The Unit Committee with respect to each Unit, shall determine, in its discretion,
whether there is noncompliance with the parking and vehicular restrictions herein. Without in any
way limiting the obligations of the Owners as elsewhere herein described, the Association, or
agency representing the Unit Committee with respect to a Unit, or its designee, as the case may
be, shall have the right, and shall be obligated, to enforce all parking restrictions herein set forth
and to remove any vehicles in violation thereof in accordance with Montana law with, or other
applicable laws, codes, and statutes, in each case, with respect to such Unit. Vehicles owned
operated or within the control of an Owner, or of a resident of such Owner’s Unit, shall be parked
in the assigned parking space(s) of such Owner (if any) to the extent of the space available therein.
Section 7.03 - Nuisances
No noxious or offensive activities (including, but not limited to, the repair of motor vehicles) shall
be carried on upon the Property. No horns, whistles, bells or other sound devices, except security
devices used exclusively to protect the security of a Unit and its contents, shall be placed or used
in any such Unit. No loud noises, noxious odors, noisy or smoky vehicles, large power equipment
or large power tools, unlicensed off-road motor vehicles or items which may unreasonably
interfere with television or radio reception of any Owner in the Project, shall be located, used or
placed on any portion of the Property. The Board of Directors of the Association shall have the
right to determine if any noise, odor, or activity producing such noise or odor constitutes a
nuisance. No Owner shall permit or cause anything to be done or kept upon the Property which
may increase the rate of insurance on Units or on the Property, or result in the cancellation of such
insurance, or which will obstruct or interfere with the rights of other Owners. No Person shall
commit or permit any nuisance on the Property. Each Owner shall comply with all of the
requirements of the local or state health authorities and with all other governmental authorities
with respect to the occupancy and use of a Unit.
Section 7.04 - Signs
No sign, poster, display, or other advertising device of any character shall be erected or maintained
anywhere on the Property, or shown or displayed from any Unit, without the prior written consent
of the Board of Directors; provided, however, that the restrictions of this Section 7.04 shall not
apply to any sign or notice of customary and reasonable dimension which states that the Unit is
for rent or sale or identifying signs for a Residential Unit, or any sign that the Act requires the
Association to permit, so long as it is consistent with the standards promulgated by the Unit
Committees. Such sign or notice may be placed within a Unit but not upon any portion of the
General Common Areas, without the prior written consent of the Board of Directors. The Board
of Directors may erect within the General Common Areas a master list of Tenant Spaces which
are for lease. Address identification signs and mail boxes shall be maintained by the Association.
This Section 7.04 shall not apply to any signs used by Declarant or its agents in connection with
the construction or alteration of the Units or General Common Areas, traffic and visitor parking
signs installed by Declarant, and traffic and parking control signs installed with the consent of the
Board. Notwithstanding the foregoing, nothing contained in this Section 7.04 shall be construed
19
in such manner as to permit the maintenance of any sign which is not in conformance with any
ordinances of the City or County in which the Property is located.
Section 7.05 - Antennae
No radio station or shortwave operators of any kind shall operate from any Unit or any other
portion of the Property unless approved by the Board of Directors. Satellite dishes or antennae
may not be attached or fixed to the exterior of the Units absent approval of the Association.
Section 7.06 - Inside and Outside Installations
No outside installation of any type, including but not limited to, clotheslines, shall be constructed,
erected or maintained on any Unit, excepting antennae installed by Declarant as a part of the initial
construction of a Unit and except as may be installed by, or with the prior consent of the Unit
Committee. No balcony, patio or deck covers, wiring, or installation of air conditioning, water
softeners, or other machines shall be installed on the exterior of a Unit or be allowed to protrude
through the walls or roofs of the buildings (with the exception of those items installed during the
original construction of the Project), unless the prior written approval of the Board of Directors is
secured. Outdoor patio or lounge furniture, plants and barbecue equipment may be maintained
pursuant to rules and procedures of the Board of Directors. Nothing shall be done in any Unit or
in, on, or to the General Common Areas which will or may tend to impair the structural integrity
of any Unit in the Project or which would structurally alter any such Unit except as otherwise
expressly provided herein. There shall be no alteration, repair or replacement of wall coverings
within Units which may diminish the effectiveness of the sound control engineering within the
Units in the Project. No Owner shall cause or permit any construction lien to be filed against any
portion of the Project for labor or materials alleged to have been furnished or delivered to the
Project or any Unit for such Owner, and any Owner who does so shall immediately cause the lien
to be discharged within five (5) days after notice to the Owner from the Board. If any Owner fails
to remove such construction lien, the Board may discharge the lien and charge the Owner a Special
Assessment for such cost of discharge.
Section 7.07 - Animal Regulations
No animals, livestock, reptiles, insects, poultry or other animals of any kind shall be kept in any
Unit except that usual and ordinary domestic dogs, cats, fish, and birds inside bird cages may be
kept as household pets within any Unit provided that they are not kept, bred or raised therein for
commercial purposes or in unreasonable quantities or sizes. As used in the Declaration,
“unreasonable quantities” shall ordinarily mean more than two (2) pets per Unit; provided,
however, that the Board may determine that a reasonable number in any instance may be more or
less. The Board shall have the right to limit the size of pets and may prohibit maintenance of any
animal which constitutes, in the opinion of the Board of Directors, a nuisance to any other Owner.
Animals belonging to Owners, occupants or their licensees, tenants or invitees within the Property
must be either kept within an enclosure, an enclosed balcony or on a leash held by a person capable
of controlling the animal. Furthermore, any Owner shall be liable to each and all remaining
Owners, their families, guests and invitees, for any unreasonable noise or damage to person or
property caused by any animals brought or kept upon the Project by an Owner or by members of
his family, his tenants or his guests. It shall be the duty and responsibility of each such Owner to
clean up after such animals which have deposited droppings or otherwise used any portion of the
General Common Areas or on any public street abutting or visible from the Property.
20
Notwithstanding the above, any Owner shall have the right to further limit or completely forbid
any animal of any sort pursuant to the lease it enters into with its tenants.
Section 7.08 - Business or Commercial Activity
No business or commercial activity shall be maintained or conducted on the Property which in in
violation of any Federal, State or local law or regulation, or which is contrary to the purposes of
the Project.
Section 7.09 - Rubbish Removal
The Association shall arrange for the containment and removal of trash, garbage, or other waste,
and may bill or assess the costs thereof to the Owners, based on the percentages of square footage
of their Units. No portion of the Property shall be used for the storage of building materials, refuse
or any other materials, except the building materials may be kept on any balcony, deck, patio or
parking space temporarily during construction which has been previously approved by the Unit
Committee.
Section 7.10 - Section 42
The Association and the Unit 1 Owner are prohibited from engaging in any activity or from using
the Unit 1 for any purpose or use that would cause the loss of tax credits issued pursuant to Section
42 of the Internal Revenue Code on Unit 1.
ARTICLE VIII - INSURANCE
Section 8.01 - Duty to Obtain Insurance; Types
The Board shall cause to be obtained and maintained, with respect to the General Common Areas,
adequate Commercial General Liability, and Umbrella/Excess Liability insurance, with
Commercial General Liability scheduled as underlying policies, with such limits as may be
considered acceptable to the Board, insuring, among other things, against third party claims for
liability for bodily injury, death and property damage arising from the activities of the Association
and its Members, with respect to the General Common Area. The policies shall include an
endorsement adding the Beneficiaries, and the Owners.
Section 8.02 - Waiver of Claim Against Association
As to all policies of insurance maintained by or for the benefit of the Association and the Owners,
the Association and the Owners hereby waive and release all claims against one another, the Board
of Directors and Declarant, to the extent of the insurance proceeds available, whether or not the
insurable damage or injury is caused by the negligence of or breach of any agreement by any of
said Persons.
Section 8.03 - Right and Duty of Owners to Insure
The Unit 1 Owner and the Unit 2 Owner shall be responsible for obtaining and maintaining all
insurance policies relating to its respective Unit, including but not limited to, Commercial General
Liability, Umbrella/Excess Liability, Builder’s Risk, General Contractor’s Liability, Architect’s
Liability, fire and casualty and any other forms or types of insurance which the Beneficiaries of
each Unit, and at any time the Unit 1 Owner and Unit 2 Owner have limited partners, then the Unit
1 Owner’s limited partner, the Unit 2 Owner’s limited partner, or other party in interest may now
or hereafter require [NTD: Confirm ownership structure of market rate unit]. It is the responsibility
21
of each Owner to provide insurance on its personal property and upon all other property and
improvements within its Unit for which the Association has not purchased insurance in accordance
with Section 8.01 hereof. Nothing herein shall preclude any Owner from carrying any public
liability insurance as it deems desirable to cover its individual liability for damage to person or
property occurring inside his individual Unit or elsewhere upon the Property. Such policies shall
not adversely affect or diminish any liability under any insurance obtained by or on behalf of the
Association, and duplicate copies of such other policies shall be deposited with the Board upon
request.
Section 8.04 - Notice of Expiration Requirements
If available, each of the policies of insurance maintained by the Association shall contain a
provision that said policy shall not be canceled, terminated, materially modified or allowed to
expire by its terms, without then (10) days’ prior written notice to the Board and Declarant, and to
each Owner and at any time the Unit 1 Owner and Unit 2 Owner have a limited partner, the limited
partner of the Unit 1 Owner, and the limited partner of the Unit 2 Owner during the longer of (a)
the compliance period under Section 42 of the Code with respect to Unit 1 Owner (herein referred
to as the “Section 42 Compliance Period”), or (b) [NTD: Confirm for structure of Market Rate
Project], and each Beneficiary, insurer and guarantor of a First Mortgage who has filed a written
request with the carrier for such notice and every other Person in interest who requests such notice
of the insurer
Section 8.05 - Insurance Premiums
Insurance premiums for any coverage obtained by the Association pursuant to Section 8.01 hereof
shall be a Common Expense to be included in the Annual Assessments levied by the Association
and collected from the Owners as provided herein. That portion of the Annual Assessments
necessary for the required insurance premiums shall be separately accounted for by the Association
in the Reserve Fund, to be used solely for the payment of premiums of required insurance as such
premiums become due.
Section 8.06 - Trustee for Policies
The Association, acting through its Board of Directors, is hereby appointed and shall be deemed
trustee of the interests of all named insured under policies of insurance purchased and maintained
by the Association. All insurance proceeds under any such policies as provided for in Section 8.01
of this Article shall be paid to the Board of Directors as trustees, subject to the rights of
Beneficiaries. The Board shall have full power to receive and to receipt for the proceeds and to
deal therewith as provided herein. Insurance proceeds shall be used by the Association for the
repair or replacement of the property for which the insurance was carried or otherwise disposed of
as provided in Article VIII of this Declaration. The Board is hereby granted the authority to
negotiate loss settlements with the appropriate insurance carriers, with participation, to the extent
they desire, of Beneficiaries. Any two (2) officers of the Association may sign a loss claim form
and release form in connection with the settlement of a loss claim, and such signatures shall be
binding on all the named insureds. Notwithstanding the foregoing, there may be named as an
insured, a representative chosen by the Board, including a trustee with whom the Association may
have entered into an insurance trust agreement or any successor to such trustee who shall have
exclusive authority to negotiate losses under any policy providing liability insurance and to
perform such other functions necessary to accomplish this purpose.
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Section 8.07 - Actions as Trustee
Except as otherwise specifically provided in this Declaration, the Board, acting on behalf of the
Association and all Owners, shall have the exclusive right to bind such parties in respect to all
matters affecting insurance carried by the Association, the settlement of a loss claim, and the
surrender, cancellation, and modification of all such insurance, in a manner satisfactory to
Beneficiaries of seventy-five percent (75%) of the Beneficiaries. Duplicate originals or certificates
of all policies maintained by the Association and of all renewals thereof, together with proof of
payment of premiums, shall be delivered by the Association to all Owners and Beneficiaries who
have requested the same in writing.
ARTICLE IX - DESTRUCTION OF IMPROVEMENTS
Section 9.01 - Reconstruction of the Property-General Common Areas
Except as otherwise provided in this Declaration, in the event of any destruction of any portion of
the General Common Areas, it shall be the duty of the Association to restore and repair the same
to its former condition, as promptly as practical. The proceeds of any insurance maintained
pursuant to Article VIII hereof for reconstruction or repair of the General Common Areas shall be
used for such purpose, unless otherwise provided herein. The Board shall be authorized to have
prepared the necessary documents to affect such reconstruction as promptly as practical. The
Property shall be reconstructed or rebuilt substantially in accordance with the Site Plan and the
original construction plans if they are available, unless changes recommended by the Unit
Committees have been approved in writing by the Unit 1 Owner and the Unit 2 Owner; and by the
Beneficiaries of Seventy-five Percent (75%) of the first Mortgages upon Unit 1, and Seventy-five
Percent (75%) of the first Mortgages upon Unit 2.
If the amount available from the proceeds of such insurance policies for such restoration and repair
is at least Sixty-five Percent (65%) of the estimated cost of restoration and repair, a Reconstruction
Assessment shall be levied by the Board of Directors to provide the necessary funds for such
reconstruction, over and above the amount of any insurance proceeds available for such purpose.
If the amount available from the proceeds of such insurance policies for such restoration and repair
is less than Sixty-five Percent (65%) of the estimated cost of restoration and repair, the Members
by the vote or written consent of the Unit 1 Owner and the Unit 2 Owner; and by the Beneficiaries
of Seventy-five Percent (75%) of the first Mortgages upon Unit 1, and Seventy-five Percent (75%)
of the first Mortgages upon Unit 2, shall determine whether the Board shall levy a Reconstruction
Assessment and proceed with such restoration and repair.
A - Section 9.01A - Reconstruction of the Property-Unit 1, Unit 2
In the event of any destruction of all or any portion of Unit 1, Unit 2 it shall be the duty of the
applicable Unit Committee of such Unit to reconstruct and repair the same to its former condition
as promptly as practical. The proceeds of any insurance maintained by the Association pursuant
to Article VIII hereof for reconstruction or repair of the Unit shall be used for such purpose unless
otherwise provided herein. The Unit Committees shall be authorized to undertake such actions to
affect such reconstruction (including, but not limited to obtaining required approvals, preparing
necessary documentation, reviewing proposed contract(s) as promptly as practical. Each Unit shall
be reconstructed or rebuilt substantially in accordance with the original Site Plan and original
construction plans to the extent practicable and permitted by applicable law.
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If the amount available from the proceeds of such insurance policies for such reconstruction and
repair is at least Sixty-five Percent (65%) of the estimated cost of reconstruction and repair, a
Reconstruction Assessment shall be levied by the Unit Committee of such Unit and collected by
the Association to provide the necessary funds for such reconstruction, over the and above the
amount of any insurance proceeds available for such purpose, in accordance with the Allocable
Interest of each Unit.
If the amount available from the proceeds of such insurance policies for such reconstruction and
repair of the Unit is less than Sixty-five Percent (65%) of the estimated cost of repair, then:
(a) For reconstruction of Unit 1, the decision of whether to rebuild and be assessed for
the insurance shortfall will be made by the Unit Committee of Unit 1.
(b) For reconstruction of Unit 2, the decision of whether to rebuild and be assessed for
the insurance shortfall will be made by the Unit Committee of Unit 2.
Section 9.02 - Interior Damage
With the exception of any casualty or damage insured against by the Association pursuant to
Section 8.01 of this Declaration, restoration and repair of any damage to the interior of any Unit
including without limitation the Tenant Spaces, all fixtures, cabinets and improvements therein,
together with restoration and repair of all interior paint, wall coverings and floor coverings, shall
be made by and at the individual expense of the Owner of such Unit so damaged. In the event of
a determination to rebuild the Property after partial or total destruction, as provided in this Article
IX, such interior repair and restoration shall be completed as promptly as practical and in a lawful
and workmanlike manner, in accordance with plans approved by the respective Unit Committee
as provided herein.
Section 9.03 - Notice to Owners and Listed Mortgages
The Board, immediately upon having knowledge of any damage or destruction, affecting a material
portion of the General Common Areas, shall promptly notify all Owners and Beneficiaries,
insurers and guarantors of first Mortgages on Units in the Project. The Board, immediately upon
having knowledge of any damage or destruction affecting a Unit, shall promptly notify any
Beneficiary, insurer or guarantor of any Mortgage encumbering such Unit who has filed a written
request for such notice with the Board.
ARTICLE X - DURATION AND AMENDMENT
Section 10.01 - Duration
This Declaration shall continue in full force for a term of fifty-five (55) years from the date of
Recordation hereof, after which time the same shall be automatically extended for successive
periods of ten (10) years, unless prior to the expiration of such term or any extension thereof a
Declaration of Termination is Recorded, meeting the requirements of an amendment to this
Declaration as set forth in Section 10.02 hereof. There shall be no severance by sale, conveyance,
encumbrance or hypothecation of an interest in any Unit from the concomitant Membership in the
Association, as long as this Declaration shall continue in full force and effect. The provisions of
this Article are subject to the provisions of Section 10.03 of this Declaration.
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Section 10.02 - Amendment
Notice of the subject matter of a proposed amendment to this Declaration in reasonably detailed
form shall be included in the notice of any meeting of the Association at which a proposed
amendment is to be considered. A resolution adoption a proposed amendment may be proposed
by an Owner at a meeting of Members of the Association. The resolution shall be adopted by the
vote, in person or by proxy, or written consent of Members representing a majority of the Unit
Owners, provided that the specified percentage of the voting power of the Association necessary
to amend a specified Section or provision of this Declaration shall not be less than the percentage
of affirmative votes prescribed for action to be taken under that Section or provision. A copy of
each amendment shall be certified by at least two (2) officers of the Association and the
amendment shall be effective when the Certificate of Amendment is recorded.
Section 10.03 - Protection of Declarant
Until the end of the Section 42 Compliance Period, the prior written approval of Declarant, as
developer of the Property, will be required before any amendment which would impair or diminish
the rights of Declarant to complete the Property or lease Tenant Spaces therein in accordance with
this Declaration shall become effective. Notwithstanding any other provisions of the Restrictions,
until such time as Declarant no longer owns any Units in the Property, the following actions, before
being undertaken by the Association, shall first be approved in writing by Declarant:
(a) Any amendment or action requiring the approval of Beneficiaries pursuant to this
Declaration, including without limitation, all amendments and actions specified in
Section 10.02;
(b) The annexation to the Property of real property;
(c) The levy of a Capital Improvement Assessment for the construction of new
facilities not constructed on the Common Property by the Declarant; or
(d) Subject to Section 5.03 regarding limitations on Annual Assessment increases, any
significant reduction of Association maintenance or other services.
ARTICLE XI - GENERAL PROVISIONS
Section 11.01 - Legal Proceedings
Failure to comply with any of the terms of the Restrictions by an Owner, his family, guests,
employees, invitees or tenants, shall be grounds for relief which may include, without limitation,
an action to recover sums due for damages, injunctive relief, foreclosure of any lien, or any
combination thereof. Failure to enforce any provision hereof shall not constitute a waiver of the
right to enforce that provision, or any other provision hereof. The Board, any Owner (not in default
hereunder at the time), or Declarant (so long as Declarant is an Owner) shall be entitled to bring
an action for damages against any defaulting Owner, and in addition may enjoin any violation of
this Declaration. Any judgment rendered in any action or proceeding pursuant to this Declaration
shall include a sum for attorneys’ fees in such amount as the Court may deem reasonable, in favor
of the prevailing party, as well as the amount of any delinquent payment, interest thereon, costs of
collection and court costs. Each remedy provided for in this Declaration shall be cumulative and
25
not exclusive or exhaustive. Each Owner shall have a right of action against the Association for
the failure by the Association to comply with the Restrictions.
Section 11.02 - Violation of Restrictions
Without in any way limiting the generality of the foregoing, if the Board of Directors determines
that there is a violation of any provision of this Declaration, or the Board determines that an
Improvement which is the maintenance responsibility of an Owner is in need of installation, repair,
restoration or painting, then the Board shall give written notice to the responsible Owner of the
condition or violation complained of, and to the Beneficiaries of the Unit owned by such Owner.
Unless the Board has approved in writing corrective plans proposed by the Owner to remedy the
condition complained of, and an opportunity to cure such violation or to make such installation,
repair, restoration or painting within such period of time as may be determined reasonable by the
Board after it has given said written notice, and such corrective work so approved is completed
thereafter within the time allotted by the Board, the Board, after Notice and Hearing, shall
undertake to remedy such condition or violation complained of, and the cost thereof shall be
charged to the Owner and his Unit whose Unit is the subject matter of the corrective work. Such
cost shall be deemed to be a Special Assessment to such Owner and shall be subject to enforcement
and collection by the Board in accordance with the procedures provided for in this Declaration.
The Board may also adopt a schedule of reasonable fines or penalties which, in its reasonable
declaration, it may assess against an Owner for the failure of such Owner, or of a resident of or
visitor to such Owner’s Unit, to comply with any provision of the Restrictions. Such fines or
penalties may only be assessed by the Board after Notice and Hearing. Notwithstanding anything
herein to the contrary, and at any time the Unit 1 Owner and Unit 2 Owner have limited partners,
then the limited partner of the Unit 1 Owner and the limited partner of the Unit 2 Owner shall have
the right, but not the obligation, to cure such defaults [NTD: Confirm structure of market rate
project].
Section 11.03 - Severability
The provisions hereof shall be deemed independent and severable, and a determination of
invalidity or partial invalidity or unenforceability of any one provision or portion hereof by a court
of competent jurisdiction shall not affect the validity or enforceability of any other provisions
hereof.
Section 11.04 - Interpretation
The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating
a uniform plan for the creation and operation of a residential Unit development and for the
maintenance of Common Areas, and any violation of this Declaration shall be deemed to be a
nuisance. The Article and Section headings, titles and captions have been inserted for convenience
only, and shall not be considered or referred to in resolving questions of interpretation or
construction. As used herein, the singular shall include the plural and the masculine, feminine and
neuter shall include the other, unless the context dictates otherwise.
Section 11.05 - No Public Right or Dedication
Nothing contained in this Declaration shall be deemed to be a gift or dedication of all or any part
of the Property to the public, or for any public use.
26
Section 11.06 - No Representations or Warranties
No representations or warranties of any kind, express or implied, have been given or made by
Declarant, or its agents or employees in connection with the Property, or any portion thereof, its
physical condition, zoning, compliance with applicable laws, fitness for intended use, or in
connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or
regulation thereof as a Unit Project, except as specifically and expressly set forth in this
Declaration and except as may be filed by Declarant from time to time with the Department.
Section 11.07 - Nonliability and Indemnification
Except as specifically provided in the Restrictions or as required by law, no right, power, or
responsibility conferred on the Board or the Unit Committee by this Declaration, the Articles or
Bylaws shall be construed as a duty, obligation or disability charged upon the Board, the Unit
Committee, any member of the Board or of the Unit Committee, or any other officer, employee or
agent of the Association. No such Person shall be liable to any party (other than the Association
or a party claiming in the name of the Association) for injuries or damage resulting from such
Person’s acts or omissions within what such Person reasonably believed to be the scope of his
Association duties (“Official Acts”), except to the extent that such injuries or damage result from
such Person’s willful or malicious misconduct. No such Person shall be liable to the Association
(or to any party claiming in the name of the Association) for injuries or damage resulting from
such Person’s Official Acts, except to the extent that such injuries or damage result from such
Person’s negligence or willful or malicious misconduct.
The Association shall pay all expenses incurred by, and satisfy any judgment or fine levied against,
any Person as a result of any action or threatened action against such Person to impose liability on
such Person for his Official Acts, provided that:
(a) The Board determines that such Person acted in good faith and in a manner such
Person reasonably believed to be in the best interests of the Association;
(b) In the case of a criminal proceeding, the Board determines that such Person had no
reasonable cause to believe his conduct was unlawful; and
(c) In the case of an action or threatened action by or in the right of the Association,
the Board determines that such Person acted with such care, including reasonable
inquiry, as an ordinarily prudent person in a like position would use under similar
circumstances.
Any determination of the Board required under this Section 11.07 must be approved by a majority
vote of a quorum consisting of Directors who are not parties to the action or threatened action
giving rise to the indemnification. If the Board fails or refuses to make any such determination,
such determination may be made by the vote or written consent of a majority of a quorum of each
class of the Members of the Association, provided that the Person to be indemnified shall not be
entitled to vote.
Payments made hereunder shall include amounts paid and expenses incurred in settling any such
action or threatened action. This Section 11.08 shall be construed to authorize payments and
indemnification to the fullest extent now or hereafter permitted by applicable law.
27
The entitlement to indemnification hereunder shall inure to the benefit of the estate, executor,
administrator, heirs, legatees, or devisees of any Person entitled to such indemnification.
Section 11.08 - Notices
Except as otherwise provided in this Declaration, in each instance in which notice is to be given
to an Owner, the same shall be in writing and may be delivered personally to the Owner, in which
case personal delivery of such notice to one (1) or more co-owners of a Unit shall be deemed
delivery to all co-owners or to the partnership, as the case may be with a copy to:
[Insert Notice Provisions]
Personal delivery of such notice to any officer or agent for the service of process on a corporation
shall be deemed delivery to the corporation. In lieu of the foregoing, such notice may be delivered
by regular United States mail, postage prepaid, addressed to the Owner at the most recent address
furnished by such Owner to the Association or, if no such address shall have been furnished, to
the street address of such Owner’s Unit. Such notice shall be deemed delivered Seventy-two (72)
hours after the time of such mailing, except for notice of a meeting of Members or of the Board of
Directors in which case the notice provisions of the Bylaws of the Association shall control. Any
notice to be given to the Association may be delivered personally to any member of the Board, or
sent by United States mail, postage prepaid, addressed to the Association at such address as shall
be fixed from time to time and circulated to all Owners.
Section 11.09 - Priorities and Inconsistencies
If there are conflicts or inconsistencies between this Declaration and either the Articles of
Incorporation or the Bylaws of the Association, the terms and provisions of this Declaration shall
prevail.
Section 11.10 - Local Jurisdiction Provisions
(a) Mont. Code Ann. § 76-4-122(C) Declaration. The [_________] Condominiums
are excluded from review under the Montana Subdivision and Platting Act as
provided by the following language of Mont. Code Ann. 76-4-125(1)(d)(iii):
“Land divisions excluded from review. (1) A subdivision excluded from the
provisions of chapter 3 must be submitted for review according to the provisions of
this part, except that the following divisions or parcels, unless the exclusions are
used to evade the provisions of this part, are not subject to review:
…
(d) as certified pursuant to 76-4-127:
…
(iii) divisions or parcels of land that are exempt from the Montana Subdivision and
Platting Act review under 76-3-203 or 76-3-207(1)(a), (1)(b), (1)(d), (1)(e), or
(1)(f);”
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(b) Termination and Amendment Requirements Pursuant to the Unified
Development Code of the City of Bozeman Chapter 38 (the “UDC Chapter
38”). The City of Bozeman has requested the following additions to the
Declaration:
a. The permission of the City of Bozeman Commission is required before:
i. The termination or dissolution of the Association;
ii. Any amendment or alteration of the Unit or General Common Area
boundaries; and
iii. Any Unit is removed from the Association or the obligations and
requirements imposed by this Declaration.
THIS DECLARATION is dated for identification purposes this _____ day of ___________.
[Signatures on following page]
29
DECLARANT:
STATE OF ____________ )
: ss.
County of ________ )
This instrument was acknowledged before me this _____ day of _____________ ,
___________________ as _________________ of _________________________.
(SEAL) Notary Public for the State of
____________________
A-1
Exhibit A
Site Plan
Unit 1
A-2
A-3
Exhibit A
Site Plan
Unit 2
A-4
A-5
B-1
Exhibit B
Allocated Interest
Unit Allocated Interest
Unit 1
Unit 2
C-1
Exhibit C
Articles of Incorporation
D-1
Exhibit D
Bylaws
E-1
Exhibit E
Certificate of Name
Exhibit F
Certificate of Tax and Assessment Payment
Exhibit G
Declaration of Certificate of Exemption from Review