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HomeMy WebLinkAboutApprove Designating Parking Manager, Paul Burns to Mendenhall Marketplace Condominium Association Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Aimee Kissel, Deputy City Clerk Stacy Ulmen, City Clerk Chris A. Kukulski, City Manager SUBJECT: Designation of Parking Manager Paul Burns as City representative to the Mendenhall Marketplace Condominium Association MEETING DATE: October 19, 2009 AGENDA TYPE: Consent RECOMMENDATION: Designate Parking Manager, Paul Burns to act as a member on behalf of the City in the Mendenhall Marketplace Condominium Association. BACKGROUND: The Mendenhall Marketplace Condominiums is made up of the retail units within the parking garage. Ownership conveys membership within the Mendenhall Marketplace Condominium Association. This Association is a sub-condominium regime within the Retail Unit of Intermodal Commerce Condominium. As parking manager, Paul Burns can best represent the ownership interest of the City within this Association. The following was excerpted from section V. of the Bylaws of the Association. 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 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. 67 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. Voting 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 of interest 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 majority of 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. ALTERNATIVES: As suggested by the City Commission. Attachment: Condominium Declaration and Bylaws for Mendenhall Marketplace Condominiums Report Compiled on October 14, 2009 68 Bozeman City Clerk 2316527POBoX1230Page1of5212042008 122744 PM Fee 38400 Charlotte Mills Gallatin County MT MISC Bozeman MT 597711230 Illllillllilllllllllllllllllllllllllllllllllllllllllflllllllllllllllllllllllll FINAL CONDOMINIUM DECLARATION AND BYLAWS FOR MENDENHALL MARKETPLACE CONDOMINIUMS 69 j CITY OF BOZEMAN 1 DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M Stiff Professional Building phone 4065822260 20 East Olive Street fax 4065822263 PO Box 1230 planning@bozemannet Bozeman Montana 597711230 wwwbozemannet Iate October 6 2008 To Whom It May Concern Senate Bill 527 amending 763203MCAwas signed into law on April 17 2007 This bill revised the exemption for the creation ofnew condominiums from the Subdivision and Platting Act The amendment had an immediate effective date The text of the amended section is now as follows Section 1 Section 763203MCAis amended to read 763203 Exemption for certain condominiums Condominiums constructed nn land subdivided in compliance ui h parts and 6 of this chapter or on lots within incorporated cities and tcwns are exempt from the provisions of this chapter if 1 the approval of the original subdivision of land expressly contemplated the construction of the condominiLUns and any applicable park dedication requirements in 763621 are complied with or 2 the condominium proposal is in conformance aith applicable local zoning regulations when local zoning regulations are in effect Pursuant to the above statute the Department of Planning and Community Development has determined that the condominium development on property legally described as Parcel C COS C1F Northz of Block F Original Plat of Bozeman l does not require subdivision review and has satisfied the exemptionVcriteria has completed review as a subdivision If you have any questions or comments please contact the City ofBozeman Planning Office at 582 2260 Thank you for your cooperation And ew C Epple AICP Director of Planning and Commu ity Development planning zoning subdivision review annexation historic preservation housing grant administration neighborhood coordination70 M INDEX Certificate ofName i Certificate ofF1oorPlan ii FINAL DECLARATION FOR MENDENHALL MARKETPLACE CONDOMINIUMS Definitions 1 Real Estate 4 Easements Common ElementsInterior Remodeling 7 Ownership and VotingExhibits Use 8 Bylaws ofThe Association 13 Declarants Rights to Change 16 Amendment 16 Changes Repairs and Liens 17 Insurance 19 Removal ofPartitionSubdivision 22 Remedies 23 Severability 23 Interpretation 23 Miscellaneous 24 71 CERTIFICATE OF NAME The undersigned being the duly authorized agent ofthe Department ofRevenue ofthe State of Montana within Gallatin County herewith executes the following certificate relating to MENDENHALL MARKETPLACE CONDOMINIUMS situated as follows The Retail Unit oflnterniodal Commerce Condominium located in COS C1FLots1324BlockFOriginalPlatofBozemanintheCityofBozemanMontanaas described in RFP enlarged retail plans provided in RFP deadline date of July 13 007 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 subdivisioiwithin Gallatin County and 2 All taxes and assessments due and payable for the said Mendenhall Marketplace Condominiwishave been paid to date Dated Ioog County Assessor 72 CERTIFICATE OF FLOOR PLAN The undersigned being a duly registered professional architect in the State ofMontana herewith certifes 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 fill ly adaccurately depict the layout location unit designation and dimensions to be built ofthe MENDENIIALL 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 GQ i Registered Professional itect Number q r I2y2 73 FINAL DECLARATION FOR MENDENHALL MARKETPLACE CONDOMINIUMS THIS FINAL DECLARATION is hereby made and entered into this ZD7wday of jM 2008 by CITY OF BOZEMAN with principal offices at FO Box 1230 Bozeman Montana 59771 hereinafter referred to as the Declarant whereby lands and property hereinafter described are submitted to the provisions ofChapter 23 Title 70 MCA also known as the Unit Ownership Act as a condominium The property subject to this Final Declaration shall be known as MENDENHALL MARKETPLACE CONDOMINIUMS hereinafter referred to herein as MARKETPLACE The street address ofMARKETPLACE is 26 East Mendenhall Street Bozeman Montana 59715 and the mailing address is FO Box 122 Bozeman MT 597 1 1122 I Definitions Unless the context expressly provides otherwise the following definitions shall pertain throughout this Final Declaration and in the interpretation thereof 1 AregateVotive shall mean the entire number ofvotes or persons present or available to vote in person or by proxy in a particular circumstance 2 Association orAssociation ofUnit Owners shall mean all oftheUnit Owners ofMendenhall 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 BoundarX Wall shall mean and consist ofthat 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 Intermodal Commerce Condominium shall mean the Master Condominium Regime ofwhichMendenhall Marketplace Condominiums is located within as asub condominium regime Intenmodal Commerce Condominium is made up of one building containing two Units namely the Retail Unit and the Parking Garage Unit of Intermodal Commerce Condominium The Retail Unit has been further submitted to this Mendenhall Marketplace Condominium regime 74 6 Intermodal Commerce Condominium Association shall mean the Unit Owners oflntermodal 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 2 r 5 h Intermodal Commerce Condominium Association is made up oftwo Units namely the Parking Garage Unit and the Retail Unit The Retail Unit is further subject to this condominium regime 7 Building shall mean the Retail Unit of Intermodal Commerce Condominium as defined within the Intermodal Commerce Condominium Declaration and comprising a part of the property which contains the Units of Mendenhall Marketplace 8 Byiaws 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 whichare 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 Intermodal Commerce Condominium water entry roam 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 ofthe 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 N 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 ofUnit Owners ofMARKETPLACE to the exclusion ofother 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 ail such utility pipes and lines are limited common elements where they service only one or two 2 75 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 ar less than all ofthe Units The percentage of the separate Units interest in the limited common elements shall be computed by determining the number ofUnits that have use of the limited common elements and dividing that number into the total value ofthose 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 ofall Unit Owners and expenses declared common by the Unit Ownership Act Such expenses shall also include dues payable to the lntermodal 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 defmition ofUnit as set forth below under item 17 Mendenhall Marketplace Condominium shall originally have seven 7 units described as R1through R7 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 ofUnit Owners for the purpose ofconducting the daytodayoperations ofMARKETPLACE 15 Fro e 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 ofMARKETPLACE and is a parcel ofreal 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 76 appurtenant common elements or limited common elements Originally there are seven 7 units in the Mendenhall Marketplace Condominium described as R1 through R7 18 Unit Desi nation 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 coownerin any real estate tenancy relationship that is recognized under the laws ofthe State of Montana in one or more Units ofMARKETPLACE 20 Voting Interest shall mean the vote of the Unit Owners based on their respective percentile interest of ownership ofthe common elements II Descri tpion Real Estate All owners and purchasers their heirs successors and assigns agree and consent that this is a Final Declaration Once all units are fully completed this document will be amended and finalized in order to meet with all the requirements oftheMontana 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 Declarantssuccessor assign or designee as having a power ofattorney 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 ofone 1 building having a total of7 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 ong as this Declaration and Bylaws for ViARKETPLACE are in effect The property upon which the Units are located is also subj ect to the Intermodal Commerce Condominium Declaration and Bylaws All owners and purchasers acknowledge that while initially there has been constructed one building containing a total ofseven 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 levelsstories 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 Intermodal Commerce Condominium or other Units within the Marketplace Condominium Owners ofair 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 77 Unit and building are incompliance with all building codes including without limitation any costs necessary to upgrade sprinkler orventilation systems In the event an Owner ofair 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 expandedadditional 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 Recorders 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 levelsstories into additional units or to make an original Unit larger as set forth above by the owners of such units their successors orassigns In this regard all owners purchasers their heirs successors and assigns ofany unit or interest in and to the condominiums created hereunder agreeto and do hereby appoint said owners ofsuch units orthat owners successor assign or designee as having a power ofattorney to effectuate the division of such unit A Unit may further subdivide its Unit so long as each resulting sub unit contains aminimum of500 square feet Any such subsequent sub unitcreated by the division will beencumbered 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 apart ofthe 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 Intermodal 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 ownerssuccessor 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 ofthis declaration as maybe needed to reflect changes in the site plan and floor plans Intermodal Commerce Condominium Mendenhall Marketplace is asubcondominium regime within the Retail Unit of Intermodal Commerce Condominium The Units in Mendenhall Marketplace Condominium are subject to the Declaration ofIntermodal Commerce Condominium The provisions contained herein shall not 5 78 conflict with the provisions of Intermodal Commerce Condominium Declaration In the event of a conflict the Intermodal 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 may be conveyed leased rented devised orencumbered as acondominium Unit The Units comprising the condominium are contained in one building Encroachments Ifany portion ofthegeneral common elements or limited common elements encroaches upon a Unit or Units a valid easement for the encroachment and for the maintenance ofthe same so long as it stands shall and does exist If any portion ofUnit encroaches upon the general common elements or limited common elements orupon an adjoining Unit orUnits a valid easement for the encroachment and for the maintenance ofthe same so long as it stands shall and does exist Such encroachments and easements shall not be considered ar determined to be encumbrances either on the general common elements the limited common elements or on the Units for the purpose of marketability oftitle Nothing herein shall prohibit the reasonable use ofthe loading docks as built and designed Parking Areas Parking for MARKETPLACE is subject to the parking provisions of the Intermodal Commerce Condominium Declaration Although there are 28 cashinlieu parking spaces reserved for the Retail Unit ofthe intermodal Commerce Condominium there is no dedicated parking and use of Parking Garage shall be pursuant to the above provisions and regulation ofthe Intermodal Commerce Condominium Association The Retail Unit ofwhich Marketplace is a part of has 28 cashinlieuparking spots that may be used to fulfill parking requirements for the Marketplace Units These cashinlieuparking spaces shall be held by the Marketplace Association and divided out to each Marketplace Unit proportionate to each unitssquare 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 ofthe general public and will be assessed the same fees for parking as the general public Unit owners are hereby put on notice that the cashinlieuparking 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 ofthe Unit which boundaries are as follows 6 79 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 orthe center line ofthe concrete rooffloor system 2 Lower Boundary the plane formed by the center line ofthe concrete floor system b Perimetrical Boundaries the perimetrical boundaries ofthe 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 ofthe exterior walls ofthebuildings and includes within it all windows in the Unit and exterior wall finishes 2 Interior Building Walls the vertical planes of the center line ofthe walls hounding a Unit extended to an intersection with other perimetrical boundaries Where walls between Units are ofvarying thicknesses the plane ofthe center line ofa 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 ElementsInteriorRemodeling Common Element Easements A nonexclusive right ofingress egress and support through the limited common elements within the buildings is appurtenant to each Unit and all ofthe 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 ofthe 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 hotand cold water lines waste water lines fire sprinkler lines and vents and other utility and mechanical lines pipes or equipment A non 80 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 ofthe Unit Owners orthe Unit Owners being serviced by the air space being penetrated by such lines andor equipment to a minimum ingress and egress for the purpose of such inspection installation maintenance replacement or repair ofsuch easement rights shall only be done under the direction and approval and with the authority ofthe Owners Association andor 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 wouldotherwise occur as aconsequence ofsuch 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 orlicensees shall have a perpetual and nonexclusive easement over and through theParking Garage Unit for purposes ofingress 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 ofthe 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 ofthe building in which his Unit is located IV Ownership anal VotingExhibitsUse Percentage of Interest Each Unit Owner shall be entitled to the exclusive ownership use andpossession ofhis Unit Additionally each Unit Owner shall have apercentage ofundivided interest in the general common elements ofMARKETPLACE 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 ofUnit Owners and this Declaration The percentage ofinterest 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 1inal Declaration and dividing it by the total square footage of all ofthe Units having an interest in the general common elements ofthe Condominium Such percentage ofinterest owned by each ofthe initial Units in MARKETPLACE shall be according to the percentages set forth below 8 81 UNIT SQUARE FOOTAGE PERCENTAGE OF INTEREST IN GENERAL COMMON ELEMENTS R1 1375 1402 R2 1312 1342 R3 1341 1372 R4A 523 535 R5 1550 1595 R6 1600 1637 R7 2065 2112 TOTAL 9775 10000 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 suchnew percentage interest shall be set forth in an amendment to this Declaration Unit Owners hereby acknowledge that MENDENHALL MARKETPLACE CONDOMINIUM is a part ofINTERMODAL COMMERCE CONDOMINIUM and is known as the Retail Unit The Retail Unit has one vote in the INTERMODAL 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 anX INTERMODAL 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 ofthis Declaration Exhibit A Legal description of the real property Exhibit B Showing the floor plans for each ofthe Units of MARKETPLACE the area of each and the dimensions and the designation for each Unit Exhibit C General Common Elements Exhibit D Limited Common Elements Exhibit E 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 Intermodal 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 F Graffiti Cleanup Plan Exhibit G Snow Removal Plan Exhibit H Sign Plan 9 82 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 roofofthe building Use The use ofthe Mendenhall Marketplace Units shall be for the following Anything allowed by Bozeman United Development Ordinance per table 181 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 Intermodal 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 ofthe Unit Owners theirs guests tenants lessees employees and business invitees The Units and common elements shall be limited as follows a There shall beno obstruction ofthe 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 ofhis 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 ofthe 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 ofinsurance 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 ofthe Association except that the Parking Garage Unit of Intermodal 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 10 83 d No nuisances shall be allowedupon theproperty nor shall any use or practice be allowed which is a source ofannoyance to Unit Owners or which interferes with the peaceful possession and proper use ofthe property by its residents No offensive orunlawful use shat l be made ofthe property nor any part thereof and all valid laws zoning ordinances and regulations of all governmental bodies having jurisdiction thereofshall be observed e Nothing shall be done in any Unit or in on orto 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 ofthe 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 Recorders Ofhce 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 ofthe 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 Recorders Office effecting the title to the real property described on Exhibit A notwithstanding however the owners association created herein shall be empowered to keep and perform those obligations expressly assumed by it which obligations maybe found throughout this Declaration orin other documents effecting the title to the real property described onExhibit Anotwithstandinghowever the Owners Association created herein shall be empowered to keep and perform those obligations expressly assumed by it which obligations maybe found throughout this Declaration or in other documents effecting the title to the real property described on Exhibit A i There shall be no residential use ofa 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 11 84 same 1 No building or structure shall be occupied or open for business until the exterior is completed and the interior ofthe 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 ofeither the covenants or the zoning shall control n There shall be no incineration or burning ofgarbage 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 ofthrough the use ofsanitary sewer systems shall be disposed ofoff 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 seventytwo 72 hours weather permitting or less of the reporting ofthe 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 ofits Unit whether interior or exterior p Outside lighting ofany 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 ofthe covenants Within 30 days of adopting a new rule regulation or changing an existing rule or regulation the Association must mail written notice to all Unit Owners of the change r Unit Owners and their invitees and guests shall at all times actin an orderly manner without creating disturbing noises or being a nuisance to the other Unit Owners and imitees 12 85 s All Unit Owners shall abide by the Declaration and Bylaws of the INTERMODAL COMMERCE CONDOMINIUM ASSOCIATION Inthe event of a conflict between INTERMODAL COMMERCE CONDOMINIUM and MENDENHALL MARKETPLACE CONDOMINIUM the INTERMODAL COMMERCE CONDOMINIUM shall control Exclusive Ownership Each Unit Owner or Owners shall be entitledto exclusive ownership and possession oftheir 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 ofother Unit Owners V Bylaws ofThe Association Membershit An Owner ofa 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 ofthe Association to a Adopt Bylaws for the governance ofthe Association b Make provisions for the general management andor 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 ofcommon elements d Adopt and implement a policy for the affairs ofthe condominium e Enter into contracts or hire personnel for the management of the affairs of the Association and the maintenance and repair ofthe common areas 13 86 Votin 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 majority ofthe aggregate interest present at any meeting or by proxy shall be sufficient to act on matters brought before the Association Meetings ofthe Association shall only be conducted when a quorum is present as defined in the Association Bylaws Failure to Com Each Unit Owner shall comply strictly with the provisions of this Declaration the Bylaws ofthe Association and the rules regulations decisions and resolutions ofthe Association adopted pursuant thereto as the same may be lawfully amended from time to time Failure to comply with any ofthe same shall be grounds for an action to recover sums due for damages yr injunctive relief or both and for reimbursement ofall costs including attorney fees incurred in connection therewith which action shall be maintainable by the Manager in the name ofthe Association onbehalfofthe 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 leviedby the Association and may be payable in one annual payment or in monthly installments at the option ofthe 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 ofthe owner thereof No Unit Owner may exempt himselffrom liability for this contribution toward the common expenses and the limited expenses by waiver ofthe use or enjoyment of any ofany ofthe general common elements or limited common elements or by abandonment ofhis 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 orManager shall have the responsibility oftaking prompt action to collect any unpaid assessment which becomes delinquent In the event of delinquency in the payment ofthe assessment the Unit Owners shall be obligated to pay interest at the rate of 15per annum on the amount ofthe 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 linuted expenses may be maintainable without foreclosing or waiving the lien securing the same Levvin AssessmentsWhenMadePur ores The Association of Unit Owners shall levy assessments upon the Unit Owners in the following manner and for the following reasons 14 87 a Assessments shall be made as a part ofthe regular business ofthe Association at any regular or special meeting thereofas provided in the Bylaws ofthe 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 ofthe same to the Unit Owner personally or by mailing a copy ofthe notice to the Unit Owners at their addresses ofrecord 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 conunon areas if any and for the Unit Owners percentage share ofany Special Improvement District Assessments Assessments shall bebased 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 Ifonly one Unit is associated with the limited common elements then the entire cost ofsuch repair maintenance or replacement shall be borne by the Unit d Assessments may also be made for any purpose contemplated by thisDeclaration 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 ofundivided interest ofeach in the common elements f 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 Grantees right to recover from the Grantorthe 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 ofsaid unpaid assessments against theGrantor 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 ofthe amount therein set forth g At the time the Association holds its first meeting a reserve account shall be set up 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 15 88 of Units in the condominium project Said total amount shall then be credited among all Unit Owners according to the percentage of undivided interest of each in the common elements VI DeclarantsRight to Chance The Declarant reserves the right to change the interior design and arrangement ofall 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 ofthis Final Declaration shall be made in the following manner At any regular or special meeting ofthe Association ofUnit 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 ofsuch meeting At such meeting the amendment shall be approved upon receiving the favorable vote ofseventyfive percent 75 ofthe total percentage vote of all the Unit Owners based on percentile ownership ofthe common elements Ifso approved it shall be theresponsibility ofthe Association to file the amendmentwith the Clerk and Recorders Office ofGallatin County Montana If an Owner subsequently divides aunit as provided in Section 11 Unit Boundaries no other Owners consent shall be needed to approve the internal reconfiguration or internal division ofa 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 with the creation ofsuch additional Units the percentage ownership and voting percentages ofUnit Owners shall be diluted Such division may be done by the owner ofsuch Units or such ownerssuccessors or assigns without vote of the Unit Owners or Association as acceptance ofa condominium Unit constitutes consent and acceptance for the division of said Units as described herein Upon each division ofUnits the ownerofsuch Unit shall file anappropriate Amendment to this Declaration and Bylaws setting forth the floor plans and square footages and new percentages for all ofthe existing Units in the Gallatin County Clerk and Recorders Office 16 89 VIII Changes Repairs and Liens Alterations by Unit Owners Association The interior plan ofa Unit maybe changed by the Unit Owner The boundaries between Units may be changed only by the owners ofthe Units affected No change in the boundaries of Units shall encroach upon the boundaries ofthe general common elements Boundary walls must be equal in quality ofdesign 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 theUnits 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 ofthe 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 ofDirectors 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 thefixtures thereof All fixtures and equipment instal led in theUnit 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 ofmaterials All glass replacement shall bewith 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 ofthe Association 17 90 Liens for Alterations Labor performed and materials furnished and incorporated into a Unit with the consent of or the request ofthe Unit Owner his agent his contractor or subcontractor shall be the basis for the filing of a lien against the Unit ofthe 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 ofany lien against the Unit or any other Owner oragainst the general or limited common elements for construction performed or far labor materials services or other products incorporated in the Owners Unit at such Unit Ownersrequest 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 ontheUnit in favor ofany 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 ofsuch unpaid indebtedness the amount ofaccrued interest and late charges thereon the name ofthe Unit Owner and a description ofthe Unit Such notice shall be signed and verified by one ofthe 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 ofthe defaulting OwnersUnit by the Association as provided in the Unit Ownership Act in like manner as foreclosure ofa mortgage on real property In any foreclosure the Unit Owner shall be required to pay areasonable rental for the unit ifso 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 genera common expenses or 1 imited common expenses payable with respect toany 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 ofhaving to file a notice or claim ofsuch lien 18 91 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 ifthe 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 ofa 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 bebased on current replacement value as determined annually by the Board ofDirectors 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 nonownedautomobile coverage ifapplicable and with crossliabilityendorsement to cover liabilities ofthe Unit Owners as a group to a Unit Owner c Other Insurance Such other insurance as the Board ofDirectors ofthe Association shall determine from time to time to be desirable and as may be required by the Federal and State laws 19 92 Premiums Premiums for insurance policies purchased by the Association shall be paid by the Association as a common expense except that the amount ofincrease 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 ofmortgagees 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 ofpremiums nor for the renewal orthe sufficiency ofpolicies nor for the failure to collect any insurance proceeds The duty ofthe 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 ofthe Unit Owners and their mortgagees in the following shares but which shares need not be set forth in the records ofthe 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 ofthe Unit Owner shall beheld 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 orrepaired and no mortgagee shall have any right to apply or have applied to the reduction of a mortgage debt any insurance proceeds except distributions thereofmade to the Unit Owner and mortgagee pursuant to the provision ofthis Declaration Declaration Proceeds Proceeds ofinsurance policies received by the insurance trustee shall be distributedto or for the benefit ofthe beneficial owners in the following manner a Miscellaneous Expenses ofadministrafiion 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 Ifthe 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 thereofas elsewhere provided Any proceeds remaining after defraying such costs 20 93 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 ofthe distribution Benefit to Mortgagees Certain provision in this paragraph entitled Insurance are for the benefit ofmortgagees or trust indenture beneficiaries of condominium Units and all such provisions are covenants far the benefit of any mortgagee of a Unit and maybe enforced by such mortgage or beneficiary Reconstruction A Repair After Casualty Ifany part ofthe condominium property shalI be damaged by casualty whether ornot 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 ofDirectors 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 seventyfive percent 75 of the Unit Owners according to their percentile ownership ofcommon elements including the Owners ofall 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 ofrecord in accordance with the provisions ofsuch amended filing more particularly set forth in Paragraph VII and Paragraph VIII subparagraph 1 hereinabove 21 94 G Responsibility 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 ofthis Article D Assessments Ifthe proceeds ofinsurance are not sufficient to defray the estimated costs ofreconstruction or repair for which the Association is responsible or if at any time during such reconstruction or repair or upon completion ofsuch reconstruction or repair the funds for the payment of the costs thereofare insufficient assessments shall bemade 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 Owners percentage of interest in the general common elements E Construction Funds The funds for payment ofcosts ofreconstruction or repair after casualty which shall consist ofproceeds ofinsurance held by the Insurance Trustee and funds collected by the Association from assessments against Unit Owners shall be disbursed in the sound discretion ofthe insurance trustee and according to the contract ofreconstruction 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 ofcosts ofreconstruction and repair shall be from the insurance proceeds If there is a balance in a construction fund after payment ofail costs ofthe reconstruction and repair for which the fund is established such balance shall be paid to the Association for the use and benefit ofthe 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 ofthe conditions hereof a The Board of directors of the Association must approve the plans of removal partition or sale including the details ofhow any partition or sale and the distribution ofthe property or funds shall be accomplished b The plan ofremoval 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 seventyfivepercent 75 of the Unit Owners based on percentile ownership ofcommon elements Upon obtaining such 22 95 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 ofUnits oralter the boundary ofthe general common elements without an amendment to this Declaration d This section shall not apply to the saleofindividual Units and shall notbe considered as a right offirst refusal e The common elements ofMARKETPLACE 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 ofthe Declaration and Bylaws and to create a building or buildings subject to and under the provisions ofthe Unit Ownership Act 23 96 XIV Miscellaneous Utilityments 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 ofAccess 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 orreplacement ofany ofthe limited cornrnonelements 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 ofthe 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 ofthe 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 100000may be made or incurred by the Association or Manager without the prior approval of seventyfive percent 75 of the Unit Owners according to their percentile interest ofownership ofcommon 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 ofeach 24 97 Service of Process The name and address of the person to receive service ofprocess for MARKETPLACE until another designations filed ofrecord shall be Holly N March 225 East Mendenhall Bozematl MT 597 i 5 Varranties The Declarant expressly makes no warranties orrepresentations concerning the property the Units the Declaration Bylaws or deeds ofconveyance 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 rnade or is intended nor may one be relied upon Signs All signs shall be in compliance with County regulations and fhe Signage Plan attached hereto as Exhibit F and shall be maintained in good working order at all times Any damage from installation orremoval ofsignage shall be repaired at the expense ofthe 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 B 11 Its T I 25 98 STATE OF MONTANA COUNTY OF GALLATIN ss On this 11 day of C 2008 before me a notary public in and for the State ofMontana personally appeared A y 1lg known to me to be the personwhosenameissubscribedaboveandacowledgedtomethatheexecutedthesameinhiscapacityasanp1ic1anarzc2 IN WITNESS WHEREOF I have hereunto set my hand and seal the day and year in thiscertificatefirstwritten tti f Seal m a Notary Public tate of Montana Residing at tnDxro1 My commissions expires i f 26 99 EXHIBIT A Legal Description The Retail Unit ofIntermodal Conunerce Condominium located in COS C1FLots 1324 Block F Original Plat ofBozeman in the City ofBozeman Montana as described in RFP enlarged retail plans provided in RFP deadline date ofJuly 13 2007 and as preliminarily described on Exhibit A The Real Property 27 100 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 61 Projecting Signs 62 Wall Signs 63 Window Signs 64 Sandwich Board Signs Section 7 Temporary Signage Section 8 Building Identification Signs Section 9 Directional Signage Appendix A Sign Area Allocations InGrnslk EXHIBIT 101 Section 1 Intent The intent of the Downtown Parking Garage Comprehensive Sign Plan is to provide a creative coherent and coordinated framework for retail buildingidentificationanddirectionalsignageAllgraphicsareincludedfor informational purposes only Section 2 Summary The Downtown Parking Garage falls within the B3 zone or Central Business District The Unified Development Ordinance UDO establishes a signage capof250squarefeetforthisdistrictThisComprehensiveSignPlanisdesignedto proportionately disperse the total allowable retail signage based on tenant suite sizes Four different types of retail signage are permitted projecting signswallsignswindowsignsandsandwichboardsignsThisplanalsodescribes 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 AnydefinitionsshallbethoseusedintheUDOThefollowingsectionsdescribe allowable signage sizes lighting and materials as well as the specificrequirementsofeachoftheallowabletypesofsignage Section 3 Sign Area Allowable sign areas for tenants are based on the total percentage of squarefootageofthetenantspaceandsuitelocationwithintheoverallcomplexas specifically outlined in Appendix A Section 4 Lighting All light fixtures must be darksky compliant Note that neon is permitted for interior window signs and for wall signs Excessive use of neon is prohibitedInternallyilluminatedstockcansignsarenotpermittedhoweverindividual internally illuminated letters may be considered Section 5 Materials Signs must be constructed of highquality durable materials including but not limited to treated wood sandblasted 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 102 Section 6 Types of Permitted Retail Signage 61 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 6 feet from the building Such signs must also provide a minimum sidewalk clearance of eight feet YJ 4JCJ 62 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 cornerside to add pedestrian visual interest to all three streetscapes a Q wry f ti a rrid lifu tCanopy and awning signs are considered a type 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 characterdefiningfeaturesandshouldfitintheopeningofthebuildingsAwningcolors should be compatible with the overall color scheme of the buildingSimpleshedshapesareappropriateforrectangularopeningsOdd shapes bullnose awnings bubble awnings and internally illuminated awnings are inappropriate Downtown Parking Garage Comprehensive Sign Plan September 2008 103 63 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 morethan25percentoftheareaofthewindowinwhichtheyaredisplayedWindowsignsthatoccupylessthan25percentofthewindoware permitted in addition to the allowable signage areas noted in AppendixAWindowsignsaregenerallyexemptfrompermittingandreviewhoweverifsuchsignageexceeds25percentoftheareaofthewindowitwillbeclassifiedasawallsignandissubjecttopermittingproceduresJI ia tll j a i xj j M1 i4 i J IC M1 64 Sandwich Board Signs Sandwich board signs are encouraged to add streetlevel interest to theblockSuchsignsarelimitedto42inchesinheightandthirtyinchesin width and must be located adjacent and perpendicular to the buildingwithinfourfeetoftheentranceSandwichboardsignsmayonlybe displayed during the businesses hours of operation Permits for signs that encroach into the public rightofway shall be obtained from the CityManagersofficeinCityHallAminimumfivefootsidewalkaislemust 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 rir trj J F NEW GA7AGGD1 Lxr r Downtown Parking Garage Comprehensive Sign Plan September 2008 104 Section 7 Temporary Signage Temporary signs and banners are permitted within the Downtown ParkingGarageonalimitedbasisAtemporarysignpermitisrequiredfromtheCity ofBozemanandalltemporarysignsaresubjecttotheprovisionsoftheSection1852040oftheUDO Section 8 Directional Signage Directional signage is informational and may not contain commercial messages Both on and offsite directional signs are exempt from permitrequirementsbutmustcomplywiththecriteriainSection1852050ofthe UDOAddresssignsandtenantnumbersorlettersmustbeaminimumofsixinchesinheight T 1 i1 Section 9 Building Identification Signs Building identification signs for the parking garage facility are also exempt frompermitrequirementsbutmustcomplywiththecriteriainSection1852050oftheUDO Downtown Parking Garage Comprehensive Sign Plan September 2008 4 105 Appendix A Sign Area Calculations Downtown Parking Garage Comprehensive Sign Plan September 2008 106 COC O Q N N 0c C h C O O OO a a X p i cnCaaC a a in 0m co co o ooanoniiiinnii 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