HomeMy WebLinkAboutPreliminary Condominium Declaration and By-Laws for Mendenhall Marketplace Condominiums`,
~~ /
~~
U
~~ ~~ ~~
'~4v co. M~
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: James Goehrung, Director of Facility Services
Chris Kukulski, City Manager
SUBJECT: Condominium Agreement for the Downtown Bozeman
Interniodal Facility
MEETING DATE: September 29, 2008
RECOMMENDATION: Authorize the City Manager to sign the Condominium Agreement
for the retail space associated with the Downtown Bozeman Intermodal Facility.
BACKGROUND: The original design for the Downtown Bozeman Intermodal Facility
included ground level retail spaces facing East Mendenhall Street and North Tracy Avenue. The
seven retail spaces, (units R-1, R-2, R-3, R-4A, R-5, R-6 and R-7), were sold to the City Center
Commerce LLC., in November of 2007. The money from the sale of these retail spaces was used
to pay for the added level of roof top parking.
Earnest money has been accepted from the buyer for the property. The specified closing date for
the sale, identified in the Agreement to Sell and Purchase, is 45 days following Substantial
Completion. The revised completion date provided by the Construction Manager, and accepted
by the Bozeman Parking Commission, is November 26, 2008.
One final condition of the sale is the preparation, and approval, of the Condominium Association
Agreement. This Agreement defines the responsibilities of all parties with an interest in the
property, what are generally referred to as the common and limited common elements adjacent to
each unit.
The agreement has been reviewed and approved by the Bozeman Parking Commission and the
buyer. The document was prepared under legal contract by Tom Anacker, for the City of
Bozeman. The document and the exhibits that designate the areas of the building that are
assigned to each of the two parties, the garage and the retail spaces, are attached.
Once the agreement is signed it is filed with the County Clerk and Recorder's office.
FISCAL EFFECTS: The Agreement defines the responsibilities of all parties and lays out
the operations plan for such items as snow removal, site maintenance, and general building
upkeep. An escrow account will. be established that all parties will pay into so that funds are
available to pay the various service providers. These expenses will become part of the
operational costs associated with the operation of the garage.
ALTERNATIVES:
Respectfully submitted,
James Goehrung
Director of Facility Services
As suggested by the City Commission.
Chris A. Kukulski, City Manager
Attachments: Condominium Declaration and By-Laws
Exhibits
Report compiled on September 23, 2008
PRELIMINARY CONDOMINIUM DECLARATION
AND BY-LAWS
FOR
MENDENHALL MARKETPLACE CONDOMINIUMS
C:\Documents and Settings\User\My Documents\Clients\City Center Commerce LLC\Condominium Declaration -Mendenhall Marketplace Condominiums -FINAL
092308.wpd
PRELIMINARY DECLARATION
FOR
MENDENHALL MARKETPLACE CONDOMINIUMS
C:\Documents and Settings\User\My Documents\Clients\City Center Commerce LLC\Condominium Declaration -Mendenhall Marketplace Condominiums -FINAL
092308.wpd
INDEX
Certificate of Name ............................................................ i
Certificate of Floor Plan ....................................................... ii
PRELIMINARY DECLARATION FOR MENDENHALL MARKETPLACE
CONDOMINIUMS ....................................................... 1
Definitions ......................................... ......................... 1
Real Estate .............................. ......... ......................... 4
Easements, Common Elements--Interior Remodeling ....... ......................... 7
Ownership and Voting--Exhibits -- Use .................. ......................... 8
Bylaws of The Association ............................ ........................ 13
Declarant's Rights to Change ........................... ........................ 16
Amendment ........................................ ........................ 16
Changes, Repairs and Liens ............................ ........................ 17
Insurance .......................................... ........................ 19
Removal of Partition--Subdivision ...................... ........................ 22
Remedies .......................................... ........................ 23
Severability ........................................ ........................ 23
Interpretation ....................................... ........................ 23
Miscellaneous ...................................... ........................ 24
C:\Documents and Settings\User\My Documents\Clients\City Center Commerce LLC\Condominium Declaration - Mendenhall Marketplace Condominiums - FINAL
092308.wpd
CERTIFICATE OF NAME
The undersigned being the duly authorized agent of the Department of Revenue of the State
of Montana within Gallatin County, herewith executes the following certificate relating to
MENDENHALL MARKETPLACE CONDOMINIUMS situated as follows:
The Retail Unit of Bozeman Commerce Condominium located in COS C-1-F (Lots
13-24, Block F Original Plat of Bozeman) in the City of Bozeman, Montana as
described in RFP enlarged retail plans provided in RFP deadline date of July 13,
2007 and as preliminarily described on Exhibit A (The "Real Property").
1. That the name "MENDENHALL MARKETPLACE CONDOMINIUMS" is not the
same as, similar to or pronounced the same as a word in the name of any other property or
subdivision within Gallatin County; and
2. All taxes and assessments due and payable for the said Mendenhall Marketplace
Condominiums have been paid to date.
Dated:
County Assessor
CERTIFICATE OF FLOOR PLAN
The undersigned, being a duly registered professional architect in the State of Montana, herewith
certifies the following:
That the floor plans for the MENDENHALL MARKETPLACE CONDOMINIUMS situated
according to the official plat thereof on file and of record in the office of the County Clerk and
Recorder of Gallatin County, Montana, as duly filed with the Declaration and Bylaws thereof,
fully and accurately depict the layout, location, unit designation and dimensions to be built of the
MENDENHALL MARKETPLACE CONDOMINIUMS and that such floor plans are an
accurate copy of the plans filed with and approved by the officials and officers of the State of
Montana having jurisdiction to file building permits.
Dated:
Registered Professional Architect
Number:
PRELIMINARY DECLARATION FOR
MENDENHALL MARKETPLACE CONDOMINIUMS
THIS PRELIMINARY DECLARATION is hereby made and entered into this ~ day
of ~ ,Iyp~p 1^ , 2008, by CITY OF BOZEMAN with principal offices at P.O. Box 1230
Bozeman, Montana 59771, hereinafter referred to as the "Declarant" whereby lands and property
hereinafter described are submitted to the provisions of Chapter 23, Title 70, MCA, also known as
the "Unit Ownership Act" as a condominium.
The property subject to this Preliminary Declaration shall be known as MENDENHALL
MARKETPLACE CONDOMINIUMS (hereinafter referred to herein as "MARKETPLACE").
The street address of MARKETPLACE is 26 East Mendenhall Street, Bozeman, Montana 59715
and the mailing address is P.O. Box ,Bozeman, MT 597
I.
Definitions
Unless the context expressly provides otherwise, the following definitions shall pertain
throughout this Preliminary Declaration and in the interpretation thereof:
1. A rebate Voting shall mean the entire number of votes or persons present
or available to vote in person or by proxy in a particular circumstance.
2. Association or Association of Unit Owners shall mean all of the Unit Owners
of Mendenhall Marketplace Condominiums acting as a group and in accordance with
duly adopted Bylaws and this Declaration.
3. Board or Board of Directors shall mean the Board of Directors of the
Association as more particularly defined in the Bylaws.
4. Boundary Wal] shall mean and consist of that wall which encloses a Unit of
the condominium as shown and set forth on the floor plan on file and of record for
MARKETPLACE and shall be subject to the terms and conditions set forth
hereafter.
5. Bozeman Commerce Condominium shall mean the Master Condominium
Regime of which Mendenhall Marketplace Condominiums is located within as asub-
condominium regime. Bozeman Commerce Condominium is made up of one
building containing two Units, namely the "Retail Unit" and the "Parking Garage"
Unit of Bozeman Commerce Condominium. The Retail Unit has been further
submitted to this Mendenhall Marketplace Condominium regime.
1
Units; where they service all Units, they shall be general common elements),
stairways, balconies, entrances, stoops, furnaces, patios, decks, designated parking
spaces, boilers, hot water tanks, and fixtures, or other portions of the building
servicing only a particular Unit or less than all of the Units. The percentage of the
separate Unit's interest in the limited common elements shall be computed by
determining the number of Units that have use of the limited common elements and
dividing that number into the total value of those limited common elements.
10. Common Expenses shall mean expenses of administration, maintenance,
repair or replacement of general common elements, expenses agreed upon as
common by the Association of all Unit Owners, and expenses declared common by
the Unit Ownership Act. Such expenses shall also include dues payable to the
Bozeman Commerce Condominium Association.
11. Condominium Unit shall mean the separate condominium Units of
MARKETPLACE taken together with the appurtenant common elements and
limited common elements and shall differ from the definition of "Unit" as set forth
below under item 17. Mendenhall Marketplace Condominium shall originally have
seven (7) units, described as R-1 through R-7.
12. Declaration shall mean this document and all parts attached thereto or
incorporated by reference.
13. Limited Expenses shall mean the expenses attributable to the maintenance,
repair and replacement of limited common elements, and are expenses only for
owners of Units within the respective building for which the expenses are accrued.
14. Manager shall mean the manager, the Board of Directors, management
corporation, or any other person or group of persons retained or appointed by the
Association of Unit Owners for the purpose of conducting the day-to-day operations
of MARKETPLACE.
15. Property shall mean the land, buildings, improvements, and structures
thereon, and all easements, rights, and appurtenances belonging thereto, which are
herewith submitted to the provisions of the Unit Ownership Act.
16. Recording Officer shall mean the county officer charged with the duty of
filing and recording deeds, mortgages and all other instruments or documents
relating to this Declaration and the property which is its subject.
17. Unit shall be the separate condominium Units of MARKETPLACE and is
a parcel of real property including and containing one or more rooms occupying one
or more floors or a part or parts thereof, intended for any type of independent use,
and with a direct exit to a public street or to a common area or areas leading to a
public street or highway or, reference to a Unit herein shall be exclusive of the
3
6. Bozeman Commerce Condominium Association shall mean the Unit Owners
of Bozeman Commerce Condominium acting as a group and in accordance with duly
adopted Bylaws and its own Declaration filed with the Gallatin County Clerk and
Recorder as Document # .Bozeman Commerce Condominium Association
is made up of two Units, namely the Parking Garage Unit and the Retail Unit. The
Retail Unit is further subject to this condominium regime.
7. Buildin shall mean the "Retail Unit" ofBozeman Commerce Condominium
as defined within the Bozeman Commerce Condominium Declaration and
comprising a part of the property, which contains the Units of Mendenhall
Marketplace.
8. B^ 1y aws shall mean the Bylaws promulgated by the Mendenhall Marketplace
Condominium Association under this Declaration and the Unit Ownership Act.
9. Common Elements shall mean both general common elements and limited
common elements.
a. General Common Elements include all those elements which are for the use
of all Unit Owners, business invitees, and guests of Unit Owners of
MARKETPLACE. Specifically included are: grounds surrounding the building,
common heating system, driveways, the land on which the buildings are located,
paths, sidewalks and walkways, any portion of the parking areas. not specifically
allocated to a particular Unit or to the Parking Garage Unit of the Bozeman
Commerce Condominium, water entry room, any irrigation system placed on the
property for landscape maintenance, any portions of the buildings designated on the
floor plans as common to all Units, electrical, gas, telephone, water and sewer lines
and connections serving all of the Units, landscaping, plants and other materials and
improvements separate from and outside the buildings containing the Units, and
other elements necessary for the safety, maintenance and existence of
MARKETPLACE in which each Unit Owner shall have his designated percentage
of interest, as set forth in paragraph IV below.
b. Limited Common Elements as used in this Declaration shall mean those
common elements which are reserved for the use of fewer than all of the owners,
business invitees, and guests of Unit Owners of MARKETPLACE to the exclusion
of other such owners, business invitees, and guests. As to any given Unit Owner or
Owners, limited common elements shall mean the common elements which are
located within or affixed to the building containing his Unit, and which are for the
use of the Unit Owners, business invitees, and guests of that Unit in which the
elements are located or situated on the real property known as MARKETPLACE.
Specifically included are: flues, chimneys, ducts, cables, conduits, public utility
lines, water, sewer, electrical, gas, cable television lines, the lateral floor drain
infrastructure which includes the drain, hot and cold water pipes (all such utility
pipes and lines are limited common elements where they service only one or two
2
appurtenant common elements or limited common elements. Originally, there are
seven (7) units in the Mendenhall Marketplace Condominium, described as R-1
through R-7.
18. Unit Desi ng ation shall mean the combination of letters, numbers, or words
which identifies the designated Units.
19. Unit Owner shall mean the person or persons owning a fee simple absolute,
or one who is a co-owner in any real estate tenancy relationship that is recognized
under the laws of the State of Montana, in one or more Units of MARKETPLACE.
20. Voting Interest shall mean the vote of the Unit Owners based on their
respective percentile interest of ownership of the common elements.
II.
Real- Estate
Description
All owners and purchasers, their heirs, successors and assigns agree and consent that this is
a Preliminary Declaration. Once all units are fully completed, this document will be amended and
finalized in order to meet with all the requirements of the Montana Ownership Act. In this regard,
all owners, purchasers, their heirs, successors and assigns of any unit or interest in and to the
condominiums created hereunder, agree to and do hereby appoint the Declarant or Declarant's
successor, assign or designee as having a power of attorney to effectuate any amendments that may
need to be made in order to finalize this Declaration.
The property which is by this Declaration submitted and subject to the Montana Unit
Ownership Act is described in Exhibit "A" attached hereto.
The condominium consists of one (1) building, having a total of 7 Units. The provisions of
this Declaration and the Bylaws shall be construed to be covenants running with the land, and shall
include every Unit and shall be binding upon the Unit Owners, their heirs, successors, personal
representatives and assigns for as long as this Declaration and Bylaws for MARKETPLACE are
in effect. The property upon which the Units are located is also subject to the Bozeman Commerce
Condominium Declaration and Bylaws.
All owners and purchasers acknowledge that while initially there has been constructed one
building containing a total of seven (7) units that the initial percentages set forth herein are based
upon, owners of the air space above the units shall have the right to expand their units upwards
additional levels/stories in order to either create additional Units or expand a Unit, so long as such
expansion does not harm the structural integrity of the building including but not limited to the
Parking Garage Unit of the Bozeman Commerce Condominium or other Units within the
Marketplace Condominium. Owners of air space who elect to expand shall be required to pay all
costs necessary to upgrade the Parking Garage attached to the Units so that the Parking Garage,
4
Unit, and building are incompliance with all building codes including, without limitation, any costs
necessary to upgrade sprinkler or ventilation systems. In the event an Owner of air space desires to
add or expand a Unit to additional levels or stories, they shall be required to comply with all land
use laws and regulations and obtain all necessary governmental reviews and approvals prior to
proceeding.
Each such expansion/addition shall change the respective percentage of ownership of
common elements and voting interests accordingly by the addition of square footage. Any such
expanded/additional Units will be encumbered with the same terms, conditions, restrictions and
provisions contained and set forth in this Declaration and these Bylaws. This provision is made with
the understanding as referenced herein that all additional units created or expanded on the real
property described on Exhibit "A" shall cause a modification in the future and dilution in the future
of the percentage of membership interest as each such unit is expanded or created and the
appropriate amendment to this Declaration and Bylaws setting forth the floor plans and square
footages and new percentages for all of the existing units is filed of record in the Gallatin County
Clerk and Recorder's Office.
All owners and purchasers, their heirs, successors and assigns agree and consent that the
specific units described above may be further expanded upwards additional levels/stories into
additional units or to make an original Unit larger as set forth above by the owners of such units,
their successors or assigns. In this regard, all owners, purchasers, their heirs, successors and assigns
of any unit or interest in and to the condominiums created hereunder agree to and do hereby appoint
said owners of such units or that owner's successor, assign or designee as having a power of attorney
to effectuate the division of such unit. A Unit may further subdivide its Unit so long as each
resulting sub unit contains a minimum of 500 square feet. Any such subsequent sub unit created by
the division will be encumbered with the terms, conditions, restrictions and provisions contained and
set forth in this Declaration and these Bylaws and shall for all intent and purposes hereunder be
considered a part of the Mendenhall Marketplace Condominium. All Units and any subsequent sub
unit created by the division shall also be encumbered with the terms, conditions, restrictions and
provisions contained and set forth in the Bozeman Commerce Condominium Declaration. All
owners and purchasers, their heirs, successors and assigns agree and consent that the Units maybe
further divided into sub units as set forth above by the owners of such units, their successors or
assigns. In this regard, all owners, purchasers, their heirs, successors and assigns of any Unit or
interest in and to the condominiums created hereunder agree to and do hereby appoint said owners
of such units or that owner's successor, assign or designee as having a power of attorney to
effectuate the division of such unit in so far as maybe required to amend this Declaration and agree
to the amendment of this declaration as maybe needed to reflect changes in the site plan and floor
plans.
Bozeman Commerce Condominium
Mendenhall Marketplace is asub-condominium regime within the Retail Unit of Bozeman
Commerce Condominium. The Units in Mendenhall Marketplace Condominium are subject to the
Declaration of Bozeman Commerce Condominium. The provisions contained herein shall not
5
conflict with the provisions of Bozeman Commerce Condominium Declaration. In the event of a
conflict, the Bozeman Commerce Condominium Declaration shall govern.
Condominium Units
Each Unit, together with the appurtenant undivided interest in the common elements of
MARKETPLACE shall together comprise one condominium Unit and maybe conveyed, leased,
rented, devised or encumbered as a condominium Unit. The Units comprising the condominium are
contained in one building.
Encroachments
If any portion of the general common elements or limited common elements encroaches upon
a Unit or Units, a valid easement for the encroachment and for the maintenance of the same, so long
as it stands, shall and does exist. If any portion of Unit encroaches upon the general common
elements, or limited common elements, or upon an adjoining Unit or Units, a valid easement for the
encroachment and for the maintenance of the same, so long as it stands, shall and does exist. Such
encroachments and easements shall not be considered or determined to be encumbrances either on
the general common elements, the limited common elements, or on the Units for the purpose of
marketability of title. Nothing herein shall prohibit the reasonable use of the loading docks as built
and designed.
Parking Areas
Parking for MARKETPLACE is subject to the parking provisions of the Bozeman
Commerce Condominium Declaration. Although there are 28 cash-in-lieu parking spaces reserved
for the Retail Unit of the Bozeman Commerce Condominium, there is no dedicated parking and use
of Parking Garage shall be pursuant to the above provisions and regulation of the Bozeman
Commerce Condominium Association.
The Retail Unit of which Marketplace is a part of, has 28 "cash-in-lieu" parking spots that
may be used to fulfill parking requirements for the Marketplace Units. These cash-in-lieu parking
spaces shall be held by the Marketplace Association and divided out to each Marketplace Unit
proportionate to each unit's square footage. Unit Owners are hereby put on notice that no parking
spaces within the Parking Garage are specifically reserved for use by the Marketplace. Units may
use the Parking Garage as members of the general public and will be assessed the same fees for
parking as the general public. Unit owners are hereby put on notice that the cash-in-lieu parking
spaces are subject to sales restrictions requiring that the parking spaces may not be sold and shall
remain at all times the. property of the Mendenhall Marketplace Owners Association.
Unit Boundaries
Each Unit shall include the part of the building containing the Unit that lies within the
boundaries of the Unit, which boundaries are as follows:
6
a. Upper and Lower Boundaries: the upper and lower boundaries of the Unit
shall be the following boundaries extended to an intersection with the
perimetrical boundaries:
(1) Upper Boundary: the plane formed by the steel roof decking or the center
line of the concrete roof/floor system.
(2) Lower Boundary: the plane formed by the center line of the concrete floor
system.
b. Perimetrical Boundaries: the perimetrical boundaries of the Unit shall be the
following boundaries extended to an intersection with the upper and lower
boundaries:
(1) Exterior Building Walls: the plane formed by the outermost surface or
face of the exterior walls of the buildings and includes within it all windows
in the Unit and exterior wall finishes.
(2) Interior Building Walls: the vertical planes of the center line of the walls
bounding a Unit extended to an intersection with other perimetrical
boundaries. Where walls between Units are ofvarying thicknesses, the plane
of the center line of a boundary wall shall be the median line drawn between
the two outermost boundaries on such wall.
(3) Notwithstanding any other provision in here to the contrary, it is
expressly understood that the individual units described and created by this
Declaration may be further divided one or more times, so long as the proper
and appropriate amendment to this Condominium Declaration is filed.
III.
Easements, Common Elements--Interior Remodelin
Common Element Easements
A nonexclusive right of ingress, egress, and support through the limited common elements
within the buildings is appurtenant to each Unit, and all of the general common elements are subject
to such rights. Easements are also hereby granted and established for the floor drain system. No
owner or occupant shall block the flow through or use of the floor drain.
Easement for Utilities
Each Unit may have its air space penetrated by electrical wires and lines, gas lines,
mechanical equipment including air handling ducts, hot and cold water lines, waste water lines, fire
sprinkler lines and vents and other utility and mechanical lines, pipes or equipment. A non-
?
exclusive easement shall exist through, over and across each Unit for inspection, installation,
maintenance, replacement and repair of such utility lines and mechanical equipment for the use of
all of the Unit Owners or the Unit Owners being serviced by the air space being penetrated by such
lines and/or equipment to a minimum, ingress and egress for the purpose of such inspection,
installation, maintenance, replacement or repair of such easement rights shall only be done under
the direction and approval and with the authority of the Owners Association and/or the Manager
unless any emergency exists in which event any action may reasonably be taken which is justified
under the circumstances to minimize damage which would otherwise occur as a consequence of such
emergency. All units are subject to easements for the fire suppression system which serves the
condominium.
Parking Easement
The public at large, including but not limited to Owners and occupants of all Units and their
invitees or licensees shall have a perpetual and non-exclusive easement over and through the Parking
Garage Unit for purposes of ingress, egress and parking only.
Interior Remodeling
Each Unit Owner shall have the exclusive right to paint, repaint, tile, wax, paper, panel,
carpet, brick, or otherwise maintain, refinish and decorate the inner surfaces of the walls, ceilings,
floors, windows and doors bounding his own Unit, and the interior thereof so long as such Unit
Owner does not affect the structural integrity of the building in which his Unit is located.
IV.
Ownership and Voting--Exhibits--Use
Percentage of interest
Each Unit Owner shall be entitled to the exclusive ownership, use and possession of his Unit.
Additionally, each Unit Owner shall have a percentage of undivided interest in the general common
elements of MARKETPLACE. Such percentage represents his ownership interest in the general
common elements, his liability for common expenses, and his voting interest in all matters
concerning the Association of Unit Owners and this Declaration. The percentage of interest in the
general common elements for the respective Unit Owners shall be computed by taking the square
footage of each Unit as shown on the attached floor plans as of the date of filing the Final
Declaration and dividing it by the total square footage of all of the Units having an interest in the
general common elements of the Condominium. Such percentage of interest owned by each of the
initial Units in MARKETPLACE shall be according to the percentages set forth below.
8
UNIT SQUARE FOOTAGE PERCENTAGE OF INTEREST IN
GENERAL COMMON ELEMENTS
R-1 1375 14.02%
R-2 1312 13.42%
R-3 1341 13.72%
R4-A 523 5.35%
R-5 1550 15.95%
R-6 1600 16.37%
R-7 2065 21.12%
TOTAL 9775 100.00%
Notwithstanding any provision in this Declaration to the contrary, it is expressly acknowledged that
the condominium units created by this Declaration may each be further expanded up levels or
stories, as set forth herein, to either expand its own Unit or create additional Units and any Unit so
expanded shall change its percentage interest as calculated herein and such new percentage interest
shall be set forth in an amendment to this Declaration.
Unit Owners hereby acknowledge that MENDENHALL MARKETPLACE CONDOMINIUM,
is a part of BOZEMAN COMMERCE CONDOMINIUM and is known as "the Retail Unit". The
"Retail Unit" has one vote in the BOZEMAN COMMERCE CONDOMINIUM ASSOCIATION.
Therefore, MENDENHALL MARKETPLACE CONDOMINIUM ASSOCIATION shall have
a special meeting in order to vote on how the "Retail Unit" will vote on a~ BOZEMAN
COMMERCE CONDOMINIUM ASSOCIATION matter.
Floor Plans and Exhibits
For identification and descriptive purposes the following Exhibits are attached and by
reference hereto incorporated into and made a part of this Declaration:
Exhibit A: Legal description of the real property;
Exhibit B: Showing the floor plans for each of the Units of MARKETPLACE, the area of
each, and the dimensions and the designation for each Unit;
Exhibit C: Showing the site plan of MENDENHALL MARKETPLACE
CONDOMINIUM showing the property, the location of the building containing the
MENDENHALL MARKETPLACE CONDOMINIUM Units within the boundaries of the
Bozeman Commerce Condominiums and the common areas to which each Unit has access and the
Unit designation and location of the Unit within the building.
Exhibit D: Showing the location for signage and including the Master Signage Plan
requirements.
Exhibit E: Graffiti Plan.
9
Exhibit F: Sign Plan.
Construction Materials
The principal materials of construction of the Units are concrete for the foundations,
footings, and slabs, steel, structural and finish work, sheetrock for the interior, masonite, rock, and
brick and stucco siding for exterior wall surfaces, and membrane roofing material for the roof of the
building.
Use
The use of the Mendenhall Marketplace Units shall be for the following: Anything allowed
by Bozeman United Development Ordinance per table 18-1 including but not limited to permitted
principal, conditional and accessory uses.
The use of all of the Units in MARKETPLACE shall be for those uses allowed in the
Bozeman Commerce Condominium Declaration and Bylaws and as set forth herein and that nothing
shall prohibit a Unit Owner from leasing or renting his Unit to third persons or holding it out for
lease or rental, or entering into an agreement or contract with others for the lease or rental of his Unit
for professional use. The use of the general common areas shall be for the enjoyment of the Unit
Owners, theirs guests, tenants, lessees, employees and business invitees. The Units and common
elements shall be limited as follows:
a. There shall be no obstruction of the common elements, nor shall anything be
stored in or on the common elements without the prior written consent of the
Association. Each Owner shall be obligated to maintain and keep in good order and
repair the interior of his own Unit.
b. Nothing shall be done or kept in any Unit or in the common elements which
will increase the rate of insurance on the building or contents thereof, without the
prior written consent of the Association. No Unit Owner shall permit anything to be
done or kept in his Unit or in the common elements which will result in the
cancellation of insurance on the building, or contents thereof, or which would be in
violation of any law. No waste will be permitted on the common elements.
c. Except for appropriate signs, as discussed under Miscellaneous below, Unit
Owners shall not cause or permit anything to be hung or displayed on the outside of
windows or placed on the outside walls of a building, and no sign, awning, canopy,
radio or television antenna shall be affixed to or placed upon the exterior walls or
roof or any part thereof, without the prior written consent of the Association, except
that the Parking Garage Unit of Bozeman Commerce Condominium shall be allowed
to install and maintain public WIFI antennas. All signs shall comply with
appropriate sign codes and the comprehensive sign plan for the Units.
d. No nuisances shall be allowed upon the property, nor shall any use or practice
10
be allowed which is a source of annoyance to Unit Owners or which interferes with
the peaceful possession and proper use of the property by its residents. No offensive
or unlawful use shall be made of the property nor any part thereof, and all valid laws,
zoning ordinances and regulations of all governmental bodies having jurisdiction
thereof shall be observed.
e. Nothing shall be done in any Unit or in, on, or to the common elements which
will impair the structural integrity of the building, or which would structurally
change the building, except as is otherwise provided herein.
f. Domestic pets shall be allowed in Units during normal business hours.
However, no more than two domestic pets shall be allowed in any Unit. This
provision does not apply to service animals or therapy support animals.
g. Nothing shall be altered or constructed in or removed from the common
elements, except upon the written consent of the Association.
h. Nothing shall be done on or within the condominium created by this
Declaration in contravention of the terms, conditions and provisions of any
underlying covenants, Declaration, land use restrictions imposed by any
municipality, zoning, (unless variance or conditional use granted) or other term or
provision which is a matter of public record in the Gallatin County Clerk and
Recorder's Office effecting the real property described on Exhibit "A" attached
hereto. In this regard, an Owner agrees to abide by, keep and perform each and
every one and all of the terms and conditions to be kept and performed, including
any agreement to pay assessments, as set forth in any document referenced in this
paragraph or filed as a matter of public record in the Gallatin County Clerk and
Recorder's Office effecting the title to the real property described on Exhibit "A";
notwithstanding, however, the owner's association created herein shall be
empowered to keep and perform those obligations expressly assumed by it, which
obligations may be found throughout this Declaration or in other documents effecting
the title to the real property described on Exhibit "A"; notwithstanding, however, the
Owner's Association created herein shall be empowered to keep and perform those
obligations expressly assumed by it, which obligations may be found throughout this
Declaration or in other documents effecting the title to the real property described
on Exhibit "A".
There shall be no residential use of a Unit.
j. Garbage shall be stored within each Unit in appropriate contains until such
time as garbage is transported to main dumpster.
k. Canvassing, solicitation and peddling in the Condominium property is
prohibited and Unit Owners shall report and otherwise cooperate to prevent the
same.
11
1. No building or structure shall be occupied or open for business until the'
exterior is completed and the interior of the space open to the public as completed.
All applicable government agencies, inspections and permits shall be obtained and
followed prior to occupancy.
m. All zoning, land use regulations and all other laws, rules and regulations of
any government or agency under whose jurisdiction the land lies are considered to
be part of and enforceable hereunder, and all of the owners of said land shall be
bound by such laws, rules and regulations. In the event there is a conflict between
the covenants and the applicable zoning, the most restrictive provision of either the
covenants or the zoning shall control.
n. There shall be no incineration or burning of garbage, trash or other waste or
debris or any other material in any Unit. No petroleum products shall be deposited
on any Unit nor in the common areas. All such waste material, trash and garbage,
except that which may be legally cleaned and efficiently disposed of through the use
of sanitary sewer systems, shall be disposed of off the property and in accordance
with the rules and regulations of the public authorities. No junk, garbage, trash,
equipment, parts, debris, graffiti, or other waste shall be allowed to permanently
accumulate on any Unit shall be disposed of or cleaned regularly.
o. Each Unit shall be responsible for maintaining its interior and exterior walls
and surfaces therein. The Units specifically acknowledge that graffiti must be
removed from a Unit within seventy-two (72), hours, weather permitting, or less of
the reporting of the same. The Units acknowledge that one of the most effective
deterrents to graffiti is its immediate removal. To this end, each Unit shall be
responsible for the removal of any graffiti, at its own expense, from any part of its
Unit, whether interior or exterior.
p. Outside lighting of any Unit or the building shall first be approved in writing
by the Association before installation.
q. The Association may adopt such additional rules and regulations as shall be
reasonable to implement the purpose and intent of the covenants. Within 30 days of
adopting a new rule, regulation or changing an existing rule or regulation, the
Association must mail written notice to allUnit Owners of the change.
r. Unit Owners and their invitees and guests shall, at all times act in an orderly
manner without creating disturbing noises or being a nuisance to the other Unit
Owners and invitees.
12
s. All Unit Owners shall abide by the Declaration and Bylaws of the
BOZEMAN COMMERCE CONDOMINIUM ASSOCIATION. In the event of
a conflict between BOZEMAN COMMERCE CONDOMINIUM and
MENDENHALL MARKETPLACE CONDOMINIUM, the BOZEMAN
COMMERCE CONDOMINIUM shall control.
Exclusive Ownership
Each Unit Owner or Owners shall be entitled to exclusive ownership and possession of their
Unit. Such Unit Owners may use the general and limited common elements in accordance with the
purposes for which they are intended and as they may otherwise agree between themselves, so long
as they do not hinder or encroach upon the lawful rights of other Unit Owners.
V.
Bylaws of The Association
Membership
An Owner of a Unit in MARKETPLACE shall automatically, upon becoming the Owner
of said Unit, be a member of MARKETPLACE Association, hereinafter referred to as the
Association, and shall remain a member of said Association until such time as his membership in
said Association shall automatically cease. The membership shall be limited to Unit Owners as
defined in this Declaration.
Function
It shall be the function of the Association to:
a. Adopt Bylaws for the governance of the Association.
b. Make provisions for the general management and/or repairs and maintenance of
MARKETPLACE, including the structure and landscaping.
c. Levy assessments as provided for in the Declaration, Bylaws and Unit Ownership
Act, and provide for garbage service, and insurance of common elements.
d. Adopt and implement a policy for the affairs of the condominium.
e. Enter into contracts or hire personnel for the management of the affairs of the
Association and the maintenance and repair of the common areas.
13
Vo ine
On all matters, unless excluded by this Declaration, to be decided by the Association, each
Unit Owner shall be given a vote equal to his percentage ofinterest in the general common elements.
A Unit Owner, upon becoming a Unit Owner, shall be a member of the Association and remain a
member for the period of his ownership of the Unit. Except as otherwise provided in the Unit
Ownership Act, this Declaration or the Bylaws, a majorityof the aggregate interest present at any
meeting or by proxy shall be sufficient to act on matters brought before the Association. Meetings
of the Association shall only be conducted when a quorum is present, as defined in the Association
Bylaws.
Failure to Comply
Each Unit Owner shall comply strictly with the provisions of this Declaration, the Bylaws
of the Association, and the rules, regulations, decisions and resolutions of the Association adopted
pursuant thereto as the same maybe lawfully amended from time to time. Failure to comply with
any of the same shall be grounds for an action to recover sums due, for damages or injunctive relief
or both, and for reimbursement of all costs, including attorney fees incurred in connection therewith,
which action shall be maintainable by the Manager in the name of the Association, on behalf of the
Unit Owner, or in the proper case, by an aggrieved Unit Owner.
Payment of Assessments
All assessments shall be due thirty (30) days from. the date of mailing such assessment
following the meeting at which time assessments are levied by the Association, and may be payable
in one annual payment or in monthly installments, at the option of the Unit Owner. The amount of
the common expenses assessed against each Unit, and the amount of limited common expenses
assessed against each Unit, shall be the personal and individual debt of the owner thereof. No Unit
Owner may exempt himself from liability for this contribution toward the common expenses and the
limited expenses by waiver of the use or enjoyment of any of any of the general common elements
or limited common elements or by abandonment of his Unit. All assessments which are not paid
within thirty (30) days from the date they are due and payable become delinquent and are subject
to interest and penalty charges. The Association or Manager shall have the responsibility of taking
prompt action to collect any unpaid assessment which becomes delinquent. In the event of
delinquency in the payment of the assessment, the Unit Owners shall be obligated to pay interest at
the rate of 15% per annum on the amount of the assessment from the due date thereof, together with
all expenses, including attorney fees incurred, together with such late charges as are provided in the
Bylaws of the Association. Suit to recover a money judgment for unpaid common expenses and
limited expenses maybe maintainable without foreclosing or waiving the lien securing the same.
Lev~~ Assessments--When Made--Purposes
The Association of Unit Owners shall levy assessments upon the Unit Owners in the
following manner and for the following reasons:
14
a. Assessments shall be made as a part of the regular business of the Association at any
regular or special meeting thereof as provided in the Bylaws of the Association. Notice of
the assessment, amount thereof, and the purpose for which it is made, whether regular or
special, including an annual budget for expenditures and operation, shall be served on all
Unit Owners affected by delivering a copy of the same to the Unit Owner personally or by
mailing a copy of the notice to the Unit Owners at their addresses of record at least ten (10)
days prior to the date for such meeting.
b. Assessments shall be made for the repair, replacement, general maintenance,
management, and administration of common elements, fees, costs, and expenses of the
manager, taxes for common areas, if any, and for the Unit Owner's percentage share of any
Special Improvement District Assessments. Assessments shall be based upon and computed
by using the percentage of interest that each Unit Owner has in the general common
elements.
c. Assessments may also be made for the payment of limited expenses such that the
Unit Owners are chargeable only for the expenses relating to their respective Units or
building. Unit Owners shall share in the payment for limited expenses for the repair,
maintenance and replacement of limited common elements or their respective Units in
accordance with the percentage the Unit or Units have in the limited common elements for
which the assessment is being made. If only one Unit is associated with the limited common
elements, then the entire cost of such repair, maintenance or replacement shall be borne by
the Unit.
d. Assessments may also be made for any purpose contemplated by this Declaration and
for any purpose set out in the Montana Unit Ownership Act.
e. Common expenses and profits, if any, of the condominiums shall be distributed
among and charged to, the Unit Owners according to the percentage of undivided interest
of each in the common elements.
£ In a voluntary conveyance of a Unit, the Grantee of the Unit shall be jointly and
severally liable with the Grantor for all unpaid assessments by the Association against the
latter for his share of the common expenses up to the time of the grant or conveyance,
without prejudice to the Grantee's right to recover from the Grantor the amounts paid by the
Grantee therefore. However, any such Grantee shall be entitled to a statement from the
Manager or Board of Directors of the Association, as the case may be, setting forth the
amount of said unpaid assessments against the Grantor due the Association and such Grantee
shall not be liable for, nor shall the Unit conveyed be subjected to a lien for any unpaid
assessments made by the Association against the Grantor in excess of the amount therein set
forth.
g. At the time the Association holds its first meeting, a reserve account shall be setup
to which initial assessments shall then be deposited, and which assessment shall be a sum
that is equal to two times the monthly assessment fee for that year multiplied by the number
of Units in the condominium project. Said total amount shall then be credited among all
15
Unit Owners according to the percentage of undivided interest of each in the common
elements.
VI.
Declarant's Right to Change
The Declarant reserves the right to change the interior design and arrangement of all Units,
and alter the boundaries between Units, so long as the Declarant owns the Units to be altered. No
such change shall increase the number of Units or alter the boundary of the general common
elements without an amendment to this Declaration.
VII.
Amendment
Amendment of this Preliminary Declaration shall be made in the following manner:
At any regular or special meeting of the Association of Unit Owners, such amendment may
be proposed as a resolution by any Unit Owner, the Board or Manager. Upon adoption of the
resolution by a majority vote of those present, the amendment shall be made a subject for
consideration at the next succeeding meeting of the Association with notice thereof, together with
a copy of the amendment, to be furnished to each Unit Owner no later than thirty (30) days in
advance of such meeting. At such meeting, the amendment shall be approved upon receiving the
favorable vote of seventy-five percent (75%) of the total percentage vote of all the Unit Owners
based on percentile ownership of the common elements. If so approved, it shall be the responsibility
of the Association to file the amendment with the Clerk and Recorder's Office of Gallatin County,
Montana. If an Owner subsequently divides a unit, as provided in Section 1 1, Unit Boundaries, no
other Owner's consent shall be needed to approve the internal reconfiguration or internal division
of a unit.
Notwithstanding the foregoing, and as discussed, described and noted above in the
Declaration, certain owners have reserved the right to further divide their units and that withthe
creation of such additional Units, the percentage ownership and voting percentages of Unit Owners
shall be diluted. Such division maybe done by the owner of such Units or such owner's successors
or assigns without vote of the Unit Owners or Association as acceptance of a condominium Unit
constitutes consent and acceptance for the division of said Units as described herein. Upon each
division ofUnits the owner ofsuch Unit shall file an appropriate Amendment to this Declaration and
Bylaws setting forth the floor plans and square footages and new percentages for all of the existing
Units in the Gallatin County Clerk and Recorder's Office.
16
VIII.
Changes, Repairs, and Liens
Alterations by Unit Owners Association
The interior plan of a Unit may be changed by the Unit Owner. The boundaries between
Units may be changed only by the owners of the Units affected. No change in the boundaries of
Units shall encroach upon the boundaries of the general common elements.
Boundary walls must be equal in quality of design and construction to the existing boundary
walls. A change in the boundaries between Units shall be set forth in an amendment to this
Declaration. In addition to compliance with the provisions of Paragraph VII above, such
amendment must further set forth and contain plans for the Units concerned showing the Units after
the change in boundaries, which plans shall be drawn by an architect licensed to practice in
Montana, and attached to the amendment as exhibits, together with the certificate of architect or
engineer as required by the Unit Ownership Act. Such an amendment shall be signed and
acknowledged by the owners of the Units concerned, as well as those Unit Owners with an interest
in any common element affected. The amendment shall also be approved by the Board of Directors
of the Association, and signed and acknowledged by all lienors and mortgagees of the Units
concerned.
Maintenance by Unit Owners
Each Unit Owner shall maintain and keep in repair the interior of his own Unit, including
the fixtures thereof. All fixtures and equipment installed in the Unit, commencing at the point where
the utilities enter the Unit, shall be maintained and kept in repair by the owner thereof. A Unit
Owner shall do no act nor any work that will impair the structural soundness or integrity of the
building or impair any easement.
Each Unit Owner shall also keep any balcony, entrance or deck area appurtenant to his Unit
in a clean and sanitary condition. The right of each Unit Owner to repair, alter, and remodel is
coupled with the obligation to replace any finishing or other materials removed with similar type
or kinds of materials. All glass replacement shall be with similar quality, shade, and design. No act
or alteration, repairing, or remodeling by any Unit Owner shall impair in any way the integrity of
the adjoining Units or the integrity of limited common elements or general common elements.
Exterior Alterations
No Unit Owner may change, alter or remodel the exterior of his Unit without the prior
written approval of the Association.
17
Liens for Alterations
Labor performed and materials furnished and incorporated into a Unit with the consent of
or the request of the Unit Owner, his agent, his contractor, or subcontractor shall be the basis for the
filing of a lien against the Unit of the Unit Owner consenting to or requesting the same. Each Unit
Owner shall indemnify and hold harmless each of the other Unit Owners from and against all
liability arising from the claim of any lien against the Unit or any other Owner or against the general
or limited common elements for construction performed or for labor, materials, services or other
products incorporated in the Owner's Unit at such Unit Owner's request.
Liens and Foreclosures
All sums assessed but unpaid for the share of common expenses and limited expenses
chargeable to any Unit shall constitute a lien on such Unit superior to all other liens and
encumbrances, except only for tax and special assessment liens on the Unit in favor of any assessing
authority, and all sums unpaid on a first mortgage, a first trust indenture, or contract for deed, or
record. To evidence such lien, the Association shall prepare a written notice of lien assessment
setting forth the amount of such unpaid indebtedness, the amount of accrued interest and late charges
thereon, the name of the Unit Owner, and a description of the Unit. Such notice shall be signed and
verified by one of the officers of the Association or by the Manager, or his authorized agent, and
shall be recorded in the office of the Clerk and Recorder of Gallatin County, Montana. Such lien
shall attach from the date of recording such notice. Such lien may be enforced by the foreclosure
of the defaulting Owner's Unit by the Association as provided in the Unit Ownership Act in like
manner as foreclosure of a mortgage on real property. In any foreclosure, the Unit Owner shall be
required to pay a reasonable rental for the unit, if so provided in the Bylaws, and the plaintiff in such
foreclosure action shall be entitled to the appointment of a receiver to collect the same. Suit to
recover a money judgment for unpaid common expenses shall be maintainable without foreclosure
or waiving the lien securing the same. In any such proceeding the Unit Owner may be required to
pay the costs, expenses and attorney fees incurred in filing a lien, and in the event of foreclosure
proceedings, additional costs, expenses and attorney fees incurred.
Bidding at Foreclosure
The Association shall have the power to bid on the Unit at a foreclosure or other legal sale,
and to acquire and hold, lease, mortgage, and vote the votes appurtenant to, convey, or otherwise
deal with the same. Any lienholder holding a lien on a Unit may pay, but shall not be required to
pay, any unpaid general common expenses, or limited common expenses payable with respect to any
such Unit, and upon such payment such lienholder shall have a lien on said Unit for the amounts
paid for the same priority as the lien of his encumbrance without the necessity of having to file a
notice or claim of such lien.
18
IX.
Insurance
Purchase
All insurance policies upon MARKETPLACE property shall be purchased by the
Association and shall be issued by an insurance company authorized to do business in Montana.
a. Named Insured: The named insured shall be the Association individually and as
agent for the Unit Owners without naming them. Such policies shall provide that payments
for losses thereunder by the insurer shall be paid to the insurance Trustee hereinafter
designated, and all policies and endorsements thereon shall be deposited with the insurance
Trustee. Unit Owners may obtain insurance coverage, at their own expense, upon their own
personal property and for their personal liability.
(1) Loss or damage by fire and other hazards covered by a standard extended
coverage endorsement; and
(2) .Such other risks as from time to time shall be customarily covered with
respect to buildings similar in construction, location and use as the building on the
land, including, but not limited, vandalism and malicious mischief.
(3) Errors or Omissions Insurance for the Directors, Officers and Manager if the
Association so desire, in amounts to be determined by the Board.
b. Copies to Mortgagees: One copy of each insurance policy and of all endorsements
thereon shall be furnished by the Association to each mortgages of a Unit Owner on request.
Coverage
a. Casualty: All buildings and improvements upon the land shall be insured in an
amount equal to the maximum insurable replacement value, and all personal property
included in the common elements shall be fully insured, with all such insurance to be based
on current replacement value, as determined annually by the Board of Directors, but subject
to such deductible clauses as are required in order to obtain coverage at reasonable costs.
b. Public Liability: In such amounts and with such coverage as shall be required by the
Board of Directors of the Association, including, but not limited to, hired automobile and
non-owned automobile coverage, if applicable, and with cross-liability endorsement to cover
liabilities of the Unit Owners as a group to a Unit Owner.
c. Other Insurance: Such other insurance as the Board of Directors of the Association
shall determine from time to time to be desirable and as may be required by the Federal and
State laws.
19
Premiums
Premiums for insurance policies purchased by the Association shall be paid by the
Association as a common expense, except that the amount of increase in the premium occasioned
by use, misuse, occupancy, or abandonment of a Unit or its appurtenances or of the common
elements by a Unit Owner shall be assessed against the Unit Owner. Not less than ten (10) days
prior- to the date when a premium is due, evidence of such payment shall be furnished by the
Association to each mortgagee listed in the roster of mortgagees.
Insurance Trustee
All insurance policies purchased by the Association shall be for the benefit of the
Association and the Unit Owners and their mortgagees as their interests may appear, and shall
provide that all proceeds covering property losses shall be paid to the Owners' Association as
"insurance trustee". The insurance trustee shall not be liable for payment of premiums, nor for the
renewal or the sufficiency of policies, nor for the failure to collect any insurance proceeds. The duty
of the insurance trustee shall be to receive such proceeds as are paid and hold the same in trust for
the purposes elsewhere stated in this instrument and for the benefit of the Unit Owners, and their
mortgagees in the following shares, but which shares need not be set forth in the records of the
insurance trustee:
a. Unit Owners: An undivided share for each Unit Owner, such share being the same
as the undivided share in the common elements appurtenant to his unit.
b. Mortgagees: In the event a mortgage endorsement has been issued as to a Unit, the
share of the Unit Owner shall be held in trust for the mortgagee and the Unit Owner as their
interests may appear; provided, however, that no mortgagee shall have any right to determine
or participate in the determination as to whether or not any damaged property shall be
reconstructed or repaired, and no mortgagee shall have any right to apply or have applied to
the reduction of a mortgage debt any insurance proceeds except distributions thereof made
to the Unit Owner and mortgagee pursuant to the provision of this Declaration.
Declaration Proceeds
Proceeds of insurance policies received by the insurance trustee shall be distributed to or for
the benefit of the beneficial owners in the following manner:
a. Miscellaneous: Expenses of administration, the insurance trustee, and construction,
or remodeling supervision shall be considered as part of the cost of construction,
replacement, or repair.
b. Reconstruction or Repair: If the damage for which the proceeds are paid is to be
repaired or reconstructed by the Association, the remaining proceeds shall be paid to defray
the cost thereof as elsewhere provided. Any proceeds remaining after defraying such costs
20
shall be distributed to the beneficial owners, remittances to Unit Owners and their
mortgagees being payable jointly to them.
c. Failure to Reconstruct or Repair: If it is determined in the manner elsewhere
provided that the damage for with the proceeds are paid shall not be reconstructed or
repaired, the remaining proceeds shall be distributed to the beneficial owners, remittances
to Unit Owners and their mortgagees being payable jointly to them.
d. Certificate: In making distribution to Unit Owners and their mortgagees, the
insurance trustee may rely upon a Manager as to the names of the Unit Owners and their
respective shares of the distribution.
Benefit to Mortgagees
Certain provision in this paragraph entitled "Insurance" are for the benefit of mortgagees or
trust indenture beneficiaries of condominium Units, and all such provisions are covenants for the
benefit of any mortgagee of a Unit and may be enforced by such mortgage or beneficiary.
Reconstruction
A. Repair After CasualtX
If any part of the condominium property shall be damaged by casualty, whether or not it shall
be reconstructed or repaired shall be determined in the following manner:
1. Lesser Damage: If a Unit or Units are found by the Board of Directors of the
Association to be tenantable after the casualty, the damaged property shall be repaired.
2. Greater Damage: If a Unit or Units are found by the Board of Directors to be not
tenantable after the casualty, the damaged property shall be reconstructed or rebuilt.
3. Certificate: The insurance trustee may rely upon a certificate of the Association
made by its president and secretary to determine whether or not the damaged property is to
be reconstructed or repaired.
B. Plans and Specifications
Any reconstruction or repair must be substantially in accordance with the plans and
specifications and the original improvements, or if not, then according to plans and specifications
approved by the Board of Directors and by more than seventy-five percent (75%) of the Unit
Owners according to their percentile ownership of common elements, including the Owners of all
Units the plans for which are to be altered. Any such reconstruction not in accordance with the
original plans and specifications must be set forth in an amendment to the Declaration, which
amendment shall be prepared and filed of record in accordance with the provisions of such amended
filing, more particularly set forth in Paragraph VII and Paragraph VIII, subparagraph I , hereinabove.
21
C. ResponsibilitX
The responsibility for reconstruction or repair after casualty shall be the same as for
maintenance and repair of the condominium property, and the Association shall work with the
insurance trustee to carry out the provisions of this Article.
D. Assessments
If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction
or repair for which the Association is responsible or, if at any time during such reconstruction or
repair or upon completion of such reconstruction or repair, the funds for the payment of the costs
thereofare insufficient, assessments shall be made against all Unit Owners in sufficient amounts to
provide funds to the payment of such costs. Such assessments shall be in proportion to the Unit
Owner's percentage of interest in the general common elements.
E. Construction Funds
The funds for payment of costs of reconstruction or repair after casualty, which shall consist
of proceeds of insurance held by the Insurance Trustee and funds collected by the Association from
assessments against Unit Owners, shall be disbursed in the sound discretion of the insurance trustee
and according to the contract of reconstruction or repair, which contract must have the approval of
the Board and the Unit Owners involved.
F. Surplus
It shall be presumed that the first monies disbursed in payment of costs of reconstruction and
repair shall be from the insurance proceeds. If there is a balance in a construction fund after
payment of all costs of the reconstruction and repair for which the fund is established, such balance
shall be paid to the Association for the use and benefit of the Unit Owners.
X.
Removal or Partition -Subdivision
MARKETPLACE may only be removed from condominium ownership, and may only be
partitioned or sold, upon compliance with each of the conditions hereof:
a. The Board of directors of the Association must approve the plans of removal,
partition or sale, including the details of how any partition or sale, and the distribution of the
property or funds, shall be accomplished.
b. The plan of removal, partition, or sale must be approved as provided in the Montana
Unit Ownership Act. If approval for any of the foregoing is not required by the Unit
Ownership Act, then approval shall be required from at least seventy-five percent (75%) of
the Unit Owners based on percentile ownership of common elements. Upon obtaining such
22
approval., the Board shall be empowered to implement and carry out the plan of removal,
partition, or sale.
c. No Unit may be divided or subdivided into a smaller Unit, nor any portion thereof
sold or otherwise transferred, except as provided in this Declaration. No such change shall
increase the number of Units or alter the boundary of the general common elements without
an amendment to this Declaration.
d. This section shall not apply to the sale of individual Units and shall not be considered
as a right of first refusal.
e. The common elements of MARKETPLACE shall not be abandoned, partitioned,
subdivided, encumbered, sold or transferred without compliance with all of the above
requirements.
XI.
Remedies
All remedies provided in this Declaration and Bylaws shall not be exclusive of any other
remedies which may now be, or are hereafter available to the parties hereto as provided for by law.
XII.
Severability
The provisions hereof shall be deemed independent and severable and the invalidity, partial
invalidity or unenforceability of any one or more provision shall not affect the validity or
enforceability of any other provision hereof.
XIII.
Interpretation
The provisions of the Declaration and of the Bylaws to be promulgated and recorded
herewith shall be liberally construed to effectuate the purpose of the Declaration and Bylaws and
to create a building or buildings subject to and under the provisions of the Unit Ownership Act.
23
XIV.
Miscellaneous
Utility Payments
In addition to the easements provided for herein, easements are reserved through the
condominium property as may be required for utility services, including heat, air conditioning,
water, sewer, power, telephone, natural gas, and cable television, in order to serve
MARKETPLACE adequately. However, such easements through the property or Units shall be
only according to the plans and specifications for the building, as set forth in the recorded plat, or
as the building is constructed, unless approved in writing by the Unit Owner. The heating system
is forced air. No Owner or occupant shall leave open a pedestrian door. ,
Right of Access
The Association shall have the irrevocable right, to be exercised by the Manager or Board
of Directors, to have access to each Unit from time to time during reasonable hours as may be
necessary for the maintenance, repair or replacement of any of the limited common elements therein
or accessible therefrom, or for making emergency repairs therein necessary to prevent damage to
the general or limited common elements or to any other Unit.
Damage to the interior or any part of the Unit resulting from maintenance, repair, emergency
repair or replacement of any of the general or limited common elements, or as a result of an
emergency repair within another Unit at the instance of the Association, shall be designated either
limited or common expenses by the Association and assessed in accordance with such designation.
Expenditures
No single expenditure or debt in excess of $1,000.00 may be made or incurred by the
Association or Manager without the prior approval of seventy-five percent (75%) of the Unit
Owners, according to their percentile interest of ownership of common elements.
Benefit
Except as otherwise provided herein, this Declaration shall be binding upon and shall inure
to the benefit of the Declarant, the Association and each Unit Owner and the heirs, personal
representatives, successors and assigns of each.
24
Service of Process
The name and address of the person to receive service of process for MARKETPLACE
until another designations filed of record shall be:
Holly N. March
225 East Mendenhall
Bozeman, MT 59715
Warranties
The Declarant expressly makes no warranties or representations concerning the property, the
Units, the Declaration, Bylaws, or deeds of conveyance except as specifically set forth therein, and
no one may rely upon such warranty or representation not so specifically expressed therein.
Estimates of common expenses are deemed accurate, but no warranty or guarantee is made or is
intended, nor may one be relied upon.
Suns
All signs shall be in compliance with County regulations and the Signage Plan attached
hereto as Exhibit F and shall be maintained in good working order at all times. Any damage from
installation or removal of signage shall be repaired at the expense of the Owner.
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be made and
executed according to the provisions of the Montana Unit Ownership act, Title 70, Section 23,
MCA.
CITY OF BOZEMAN
By:
25
STATE OF MONTANA
COUNTY OF GALLATIN
ss.
On this ~ ~ day of ~ 008, before me, a notary public in and for
the State ofMontana, personally appeared known to me to be the person
whose name is s scribed ab~je, and acknowledged to e that~e executed the same in rapacity
as a member of~ii-~'1n~~lX~fl~i~(Yl/,1,(~
IN WITNESS WHEREOF, I have here}~nto set m 1 nd and seal the day and year in this
certificate ~~~~~~~itten.
~~~ ~ ~k\
_ r ,,. ~ ,
- ~, , - _
,..t
,' ~ f r- ,- ~ \\\\
~e~~ ' ~~'
//~~~~~~Il l tom! I I~111~~~\~
Nbtary Pu c tate of M
Residing at: 6
My commissions expires:
26
EXHIBIT "A"
Leal Description
The Retail Unit of Bozeman Commerce Condominium located in
COS Gl-F (Lots 13-24, Block F Original Plat of Bozeman) in the
City of Bozeman, Montana as described in RFP enlarged retail plans
provided in RFP deadline date of July 13, 2007 and as preliminarily
described on Exhibit A (The "Real Property").
27
~~
~~
~~
6d
mIT xd
2.C .fC
~ em
~•~ ~ d
z!s
P~
a~
,~
rt~
~m
a ~
Q
o - __.
o- __
0 -
I O
~---
LL~-11 '
'i II
II
II
II
- ._ __-o
- II- -- --
II '
U
~ II
II
$ p
~- --O
I
I
I
I_ _-0
I
I
~---~
II
h
_a
I
II
II
-~ II---~
I
_~--- -®
IhI
V
® o
o- -- -
o- _.
0
----- o
7+_--0
-- ~ -o
.___~
r w ~ m
m'f~ ad
~ Z:C ~ ry
Z~S ~ °1
wn
m n
v ~
~ ~ m
s
--_-0
r_ __~
V
~~
$~
~~
~o
~~
T ~
d
r b a °1
P
~ Z.c o m
~In ~ m
zx
an
mn
°~
" d~
e ~
~~
0
~~
m~
r ro " °'
m~7e x d
Z:C "m
• pT
~' ~ ~ d
z!x
a~
~~
°~
" d
a ~
0
o-_ _ ~
_. ~
~_ _._ ~
--_ o
0
~~
~~
s~
r ro " :'
p1i% ; d
Z~C n m
~ o A
~•~ ~ d
'J, . ~' ..
r ~
n
J
A i ~
u.
0
O
o ® ~
O
~_, ~ ~
~~
~T_
___ _ ,,,
~~
o---- - ~-
,,:
~~ ~ ~ ~' ~
f ~ ~ ~~ ..
~ ~~~~~
~o- ~ .
..
P.
i:: - --- - ~ ~`~ ,~-
i'
~°
--
-- -- - - ~
a~
o- _ _ - ____ _ - - ~-_ _- --
~ ~ ~ a~~
o-.__ _ _ _- -- -~- _ - - ---
'~
0 - - -- -- _. _ __ _ - _ - - ..
~ ~!' ~ ~
~ ~;
u
.~
~,_ ! ~_ - -
~,
ill I ®~
-~- ~--
~ ~ ,~~
~ '' ~~ '~~
r ~ ~
~ ~~ i~
m~
rb „m
mom ~d
n 2:C
o'n
z~x n m
aA
, m
a~
~~
no
w 'O
a ~
m ~
0
rn
~3
3
O
z
m ~,
r b ~ d
a m:a ~m
v 2:C o m
OiL1 ; m
zs
>~
~~
m~
~~
nm
~, ~
0
rn
~ m~
r~ ":
ma ~^+
z~c nfO
o ° 1D
z;x ~d
a~
~~
~~
^~
~~
" =~
70
m ~
. ~_. - L
J ~~
'~ ~ ~ ~
~:. rum ~ `t ~ ~ ~ i
.~-
o- -
- ` ~'{
~V
*~ ~~ ~I ~ a
0 0 ~
~~
~ i
Io ~ ~ ~ ~
• { I
e I I
~ ~ ~i
I ' ~~ °' ® 4
rn o _-- - _ __ .; _ ---- _ __
x I
~ 'I ~~ 4
~' ~ ~ ~ ~
rn o- - -_ _ --~ - _ __
~ € '~, ~ L' e~ 1 I
~i
o- - -- _-- - - ~ II
-- - '~ l
e
r
_ _ - _ -__
o- ~ ~ ~
z - -
p al I I' ®~
..
o -- - -- - - - -_ -
e .
~ ~ ~ ~
a-- - _ -- ,-i~-fl~ .
- ~ ~ ~ .j.
i
. ' 0~ a
.i
r - --
• ~ ~ ~
m;f, R fC
Z:~ 'o ry
o'n ; m
z'x - ' a~acww
>~
K
m n
e ry
~ ' ~ o
_ /
m ~ '~~' ~'~ ~ ~ ~
-~- - - i,
~'
D
O ~
X
x
n
Z
C
~~
~ .. ~ ~ 3. ®~ ® '.1 : m
i ri
.~
o l It d i, '~ ~~~
.
a ~~ ~ ~ ~ ~ ~
~.
c.
• . .
i I
~........_ _ '. __ I
I . '
~
l
b
• ~
^ .•
e,
O-
~
_ - - _
_-__.-... .~
.__ __ _ _
F ''
! q'
*y~ ~
~
L
~
.,
~ ; ~
~ ~ r
~ ~
o ~
~, ~ .~,.
~,
>° `~
o-
_-- - -
-- - -
~ ,.
- -
~
~, ~ '~
I o- _.
._ _ - _ I _.. -- --.
- ___ __ •y
o-__
I i
__ -.T.. __ -_ I
___ -. _ __
__.-_
~ m~ and
A ~ d
* 7,':C o A
~•~ 3 m
zs
a~
a, ~
* o~
3~
a ~
~ ~,-_~
f _
- -- ---- j
la` ~ ~, 0~
r '~ ~
~ - - ~~
~:~. ~ -
i ~,,,.
b
~/ac a.M~
Downtown Parking Garage
Comprehensive Sign Plan
Bozeman, Montana
Table of Contents
Section 1 - Intent
Section 2 - Summary
Section 3 - Permitted Retail Signage Areas
Section 4 - Lighting
Section 5 - Materials
Section 6 - Types of Permitted Retail Signage
6.1 - Projecting Signs
6.2 - Wall Signs
6.3 - Window Signs
6.4 - Sandwich Board Signs
Section 7 - Temporary Signage
Section 8 - Building Identification Signs
Section 9 - Directional Signage
Appendix A Sign Area Allocations
InCrnsik
IN WITNESS WHEREOF, the parties have hereunto executed this document as
of the day and year which corresponds to their signature below.
BRIDGER VISTA, LLC
By:
Its: Member
DATE:
FOREST VIEW ESTATES, INC.
By:
Its:
DATE:
STATE OF MONTANA )
:ss.
County of Gallatin )
On this day of , 2008, before me, a Notary Public
for the State of Montana, personally appeared
known to me to be a member of
BRIDGER VISTA, LLC and the person whose name is subscribed to the within
instrument, and acknowledged to me that he/she executed the same pursuant to the
authority vested in him/her.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial
Seal, the day and year first above written.
Notary Public for the State of Montana
Residing at
(SEAL) My commission expires:
3
Section 1: Intent
The intent of the Downtown Parking Garage Comprehensive Sign Plan is to
provide a creative, coherent and coordinated framework for retail, building
identification and directional signage. All graphics are included for
informational purposes only.
Section 2: Summary
The Downtown Parking Garage falls within the B-3 zone or Central Business
District. The Unified Development Ordinance (UDO) establishes a signage cap
of 250 square feet for this district. This Comprehensive Sign Plan is designed to
proportionately disperse the total allowable retail signage based on tenant
suite sizes. Four different types of retail signage are permitted -projecting signs,
wall signs, window signs and sandwich board signs. This plan also describes
exemptions for allowable directional and building identification signage.
All signage within the Bozeman Parking Garage must be in compliance with
this Comprehensive Sign Plan and is subject to a City of Bozeman Sign Permit
and Certificate of Appropriateness unless specifically listed as exempt. Any
definitions shall be those used in the UDO. The following sections describe
allowable signage sizes, lighting, and materials as well as the specific
requirements of each of the allowable types of signage.
Section 3: Sign Area
Allowable sign areas for tenants are based on the total percentage of square
footage of the tenant space and suite location within the overall complex as
specifically outlined in Appendix A.
Section 4: Lighting
All light fixtures must be dark-sky compliant. Note that neon is permitted for
interior window signs and for wall signs. Excessive use of neon is prohibited.
Internally illuminated stock "can" signs are not permitted; however, individual
internally illuminated letters may be considered.
Section 5: Materials
Signs must be constructed of high-quality durable materials including but not
limited to treated wood, sand-blasted wood or sign board, or metal. As
previously noted, internally illuminated boxes ("can signs") are not
appropriate; however internally illuminated individual letters will be considered.
Signs with relief and depth are encouraged while flat signs are discouraged.
Downtown Parking Garage Comprehensive Sign Plan -September 2008
Section 6: Types of Permitted Retail Signage
6.1 Projecting Signs:
Projecting signs are the most effective form of Signage for pedestrian-
dominated settings such as Downtown Bozeman. To promote a sense
of consistency, each of the seven retail spaces is required to have one
projecting sign near the main entrance. Projecting signs shall not
exceed 10 square feet in area and shall not extend more than b feet
from the building. Such signs must also provide a minimum sidewalk
clearance of eight feet.
6.2 Wall Signs:
The area of permitted wall Signage is directly proportionate to the
square footage of the tenant spaces as outlined in Appendix A. Note
that corner suites are required to have a small portion of their allowable
wall signage on the corner-side to add pedestrian visual interest to all
three streetscapes.
,, ` _
~~•. ,~
~~
{., ,.1,, t,,l,t;
~ / ..,r '{.I ,~,,. f 1-.. - 1 ~... ~I r i i Ills P. it
Cano and awnin si ns are considered a t -
pY g g ype of wall sign. As stated
in the Neighborhood Conservation Overlay District Design Guidelines,
fabric operable awnings or fixed metal canopies are encouraged. The
awning or canopy should be in character with the building and
streetscape, should be mounted to accentuate character-defining
features and should fit in the opening of the buildings. Awning colors
should be compatible with the overall color scheme of the building.
Simple shed shapes are appropriate for rectangular openings. Odd
shapes, bullnose awnings, bubble awnings and internally illuminated
awnings are inappropriate.
Downtown Parking Garage Comprehensive Sign Plan -September 2008
6.3 Window Signs:
Window signs painted on a window or physically affixed to the interior of
a window are permitted provided that such signs do not occupy more
than 25 percent of the area of the window in which they are displayed.
Window signs that occupy less than 25 percent of the window are
permitted in addition to the allowable signage areas noted in Appendix
A. Window signs are generally exempt from permitting and review;
however, if such signage exceeds 25 percent of the area of the window,
it will be classified as a wall sign and is subject to permitting procedures.
..l ~ , .. .: . ~ ~~:,~ . t
'`y .rti'~ ~~ t % it
~~ ~^ _ `~1y' 111 _ ° I
-- - 1 ~.
6.4 Sandwich Board Signs:
Sandwich board signs are encouraged to add street-level interest to the
block. Such signs are limited to 42-inches in height and thirty-inches in
width and must be located adjacent and perpendicular to the building
within four feet of the entrance. Sandwich board signs may only be
displayed during the businesses hours of operation. Permits for signs that
encroach into the public right-of-way shall be obtained from the City
Manager's office in City Hall. A minimum five foot sidewalk aisle must be
maintained at all times for pedestrians. No signs shall be placed within two
feet of the curb and all street vision triangles must be maintained.
~ . '.i
` I -- ' _ '
~ i~Tn'~ "W I '
r~resaA II
~w ~~
.
~
~
y.
Downtown Parking Garage Comprehensive Sign Plan -September 2008
Section 7: Temporary Signage
Temporary signs and banners are permitted within the Downtown Parking
Garage on a limited basis. A temporary sign permit is required from the City of
Bozeman and all temporary signs are subject to the provisions of the Section
18.52.040 of the UDO.
Section 8: Directional Signage
Directional signage is informational and may not contain commercial
messages. Both on and off-site directional signs are exempt from permit
requirements but must comply with the criteria in Section 18.52.050 of the UDO.
Address signs and tenant numbers or letters must be a minimum of six-inches in
height.
r .. j ..
~'~J ,~-
~~
~~ ~~ ~--~
~. i.~~
Section 9: Building Identification Signs
Building identification signs for the parking garage facility are also exempt from
permit requirements but must comply with the criteria in Section 18.52.050 of
the UDO.
Downtown Parking Garage Comprehensive Sign Plan -September 2008 4
Appendix A: Sign Area Calculations
Downtown Parking Garage Comprehensive Sign Plan -September 2008