HomeMy WebLinkAbout4-16-07 Packet Item_South Towne Square Minor Subdivision #P-07012_19
Commission Memorandum
TO: Honorable Mayor and City Commission
FROM: Brian Krueger, Associate Planner
SUBJECT: South Towne Square Minor Subdivision Preliminary Plat #P-07012
MEETING DATE: Monday, April 16, 2007 at 6:00 PM.
RECOMMENDATION: That the City Commission conditionally approves the South Towne
Square Minor Subdivision application (#P-07012) based on the Planning Board’s recommendation
of conditional approval, with the conditions listed on Page 2 of Planning Board Resolution #P-
07012.
BACKGROUND: Representative Allied Engineering submitted a Subdivision Preliminary Plat
Application #P-07012, a Second or Subsequent Minor Subdivision from a Tract of Record to create
one lot for a commercial condominium subdivision. The subject property is generally located at
2000 S. 3rd Avenue and is legally described as Lot 3, Block 4 of Thompson’s Addition #3
Subdivision, SW ¼ Sec. 18 Township 2S, Range 6E, PMM, City of Bozeman, Gallatin County,
Montana.
At their April 3, 2007 public hearing the City of Bozeman Planning Board voted 5 in favor and 1
against to forward a recommendation of conditional approval subject to 5 conditions.
UNRESOLVED ISSUES: The Department of Planning is not aware of any unresolved issues for
the subdivision at this time. Staff would like to inquire whether the Commission would like to
reclaim review authority for the site plan application per section 18.64.010 of the Bozeman
Municipal Code. This section allows that the Commission may, by an affirmative, simple majority,
vote of its members at a regularly scheduled meeting reclaim to itself the final approval of a
development normally subject to the approval of the Planning Director. The site plan application
has completed DRC and staff review and is ready for final review and decision. The project could
be considered on the next available Commission agenda. If the Commission chooses not to reclaim
the project a staff report will be forwarded to the Planning Director.
FISCAL EFFECTS: The Department of Planning is not aware of any fiscal effects for the
proposed development at this time.
ALTERNATIVES: As suggested by the City Commission.
CONTACT: Please email Brian Krueger at bkrueger@bozeman.net if you have any questions prior
to the public hearing.
APPROVED BY: Andrew Epple, Planning Director
Chris Kukulski, City Manager
285
PLANNING BOARD AND CITY COMMISSION STAFF REPORT
SOUTH TOWNE SQUARE MINOR SUBDIVISION FILE NO. #P-07012
#P-07012 South Towne Square Minor Subdivision Staff Report 1
Item: Subdivision Preliminary Plat Application #P-07012, a Second or Subsequent
Minor Subdivision from a Tract of Record to create one lot for a commercial
condominium subdivision. The subject property is generally located at 2000
S. 3rd Avenue and is legally described as Lot 3, Block 4 of Thompson’s
Addition #3 Subdivision, SW ¼ Sec. 18 Township 2S, Range 6E, PMM, City
of Bozeman, Gallatin County, Montana.
Owner./Applicant: Kailo Design and Dvelopment, LLC.
9350 Walker Road
Belgrade, MT 59714
Representative: Allied Engineering Services, Inc.
32 Discovery Drive
Bozeman, MT 59718
Date/Time: Before the Bozeman Planning Board on Tuesday, April 3, 2007 at 7:00 p.m. in
the Community Room, Gallatin County Courthouse, 311 West Main Street,
Bozeman, Montana.
Before the Bozeman City Commission on Monday, April 16, 2007 at 6:00 p.m.
in the Community Room, Gallatin County Courthouse, 311 West Main Street,
Bozeman, Montana.
Report By: Brian Krueger, Associate Planner
Recommendation: Conditional Approval
____________________________________________________________________________________
PROJECT LOCATION
The subject property is generally located at 2000 S. 3rd Avenue and is legally described as Lot 3, Block 4 of
Thompson’s Addition #3 Subdivision, SW ¼ Sec. 18 Township 2S, Range 6E, PMM, City of Bozeman,
Gallatin County, Montana.
The property is zoned B-1 (Neighborhood Business District).
Please refer to the vicinity map provided on Page 2.
286
PROPOSAL
Kailo Design and Development, LLC, represented by Allied Engineering Services, Inc., have made
application for a Second or Subsequent Minor Subdivision from a Tract of Record to create one lot for
commercial condominiums. The subject properties were originally platted as a lot for a church building.
Now, the applicant would like to remove the existing church and develop the site as a neighborhood mixed
use development with retail and office uses.
ZONING DESIGNATION & LAND USES
The subject property is currently occupied by a church building and is zoned B-1 (Neighborhood Business
District). The intent of the B-1 district is to provide for smaller scale retail and service activities frequently
required by neighborhood residents on a day to day basis, as well as residential development as a secondary
purpose, while still maintaining compatibility with adjacent residential uses. Development scale and
pedestrian orientation are important elements of this district. The following land uses and zoning are
adjacent to the subject property:
North: Kagy Corner and other neighborhood business uses, zoned B-1 (Neighborhood Business
District). Single Household residential, zoned R-1 (Residential Single Household, Low
Density District).
South: Single Household residential, zoned R-1 (Residential Single Household, Low Density
District).
East: Single Household residential, zoned R-1 (Residential Single Household, Low Density
District).
#P-07012 South Towne Square Minor Subdivision Staff Report 2 287
West: Museum of the Rockies, annexed and zoned PLI (Public Lands and Institutions District) and
open space, not annexed and under County jurisdiction.
ADOPTED GROWTH POLICY DESIGNATION
The subject property is designated as Neighborhood Commercial in the Bozeman 2020 Community Plan.
This category is the smallest scale of the commercial land use designations and is oriented at serving the
needs of the neighborhood. This category is typified by smaller scale shops and services and a high level of
pedestrian, bicycle, and transit opportunities. Neighborhood Commercial centers are intended to support
and help give identity to individual neighborhoods by providing a visible and distinctive focal point.
North: Existing single household residential and neighborhood commercial, designated
Neighborhood Commercial and Residential.
South: Existing single household residential, designated Residential.
East: Existing single household residential, designated Residential.
West: Museum of the Rockies and open space, designated Public Institutions.
PRELIMINARY PLAT SUPPLEMENTS
During the preapplication review the applicants submitted a letter requesting waivers for three of the
materials required by Section 18.78.060 “Additional Subdivision Preliminary Plat Supplements” of the
UDO. During the preapplication review, the development review committee (DRC) voted to grant two of
the requested waivers.
STAFF FINDINGS/REVIEW CRITERIA
The basis for the City Commission’s decision to approve, conditionally approve or deny the subdivision
shall be whether the preliminary plat, Planning Board advise and recommendation, and additional
information demonstrates that development of the subdivision complies with the Unified Development
Ordinance, the City’s growth policy, the Montana Subdivision and Platting Act and other adopted state and
local ordinances. The Montana Subdivision and Platting Act established six primary review criteria, which
the governing body must also consider when evaluating subdivisions. Planning staff, the DRC, and other
reviewing agencies have made comments in relation to those and other criteria as described below, and have
recommended conditions as outlined in this staff report.
A. Primary Review Criteria
1. Effects on Agriculture
The property has been planned, zoned and developed for Neighborhood Commercial uses.
The area has been platted and developed for several years, and does not support agricultural
uses.
2. Effects on Agricultural Water User Facilities
No effects on agricultural water user facilities were identified.
3. Effects on Local Services
#P-07012 South Towne Square Minor Subdivision Staff Report 3 288
Water/Sewer. There is some existing clay pipe infrastructure within the parcel. Therefore,
any extraneous water and sewer services will need to be abandoned at the main.
Police/Fire. The property is well within the City’s Police and Fire emergency response area.
Streets. The proposed lots will have legal and physical access on Kagy Boulevard and South
3rd Avenue.
Stormwater. Stormwater facilities have been designed and are under review with the site plan
application that is being reviewed concurrently with the subdivision application. All
stormwater facilities on site will be required to meet City design standards and will require
the approval of the City Engineering office.
Parks. Non-applicable. Commercial developments are not required to dedicate parkland.
Staff would note that though not required the applicant is proposing a “green” in the center
of the development to allow outdoor seating and activities on site.
Utilities. There are existing power, cable and phone utilities that were installed with the
existing church use. Necessary easements shall be provided with the site planning for the
new uses.
4. Effects on the Natural Environment
A Memorandum of Understanding must be entered into with the County Weed Board prior to submittal
of the final plat. The subject property has been developed for church uses for some time.
Additional development on this parcel may have some impacts on the Figgins Creek
watercourse corridor. A City standard 50’ setback on the watercourse should provide
adequate space for the corridor to function as a travel corridor for wildlife while providing a
functional buffer area for the watercourse and mitigating any potential impacts.
The Wetland Review Board has recommended conditions that affect the site planning of the
parcel. Those recommended conditions will be considered with the site plan application.
5. Effects on Wildlife and Wildlife Habitat
There should be some impact on wildlife and wildlife habitat. The subject property has been
developed for church uses for some time. Additional development on this parcel may have
some impacts on the Figgins Creek watercourse corridor. A City standard 50’ setback on the
watercourse should provide adequate space for the corridor to function as a travel corridor
for wildlife while providing a functional buffer area for the watercourse and mitigating any
potential impacts.
6. Effects on Public Health and Safety
The intent of the regulations in the Unified Development Ordinance is to protect the public
health, safety and general welfare. The subdivision has been reviewed and determined to be
in general compliance with the title. Any other conditions deemed necessary to ensure
compliance have been noted throughout this staff report.
#P-07012 South Towne Square Minor Subdivision Staff Report 4 289
B. Compliance with the survey requirements provided for in Part 4 of the Montana Subdivision
and Platting Act.
The property in question has been surveyed and platted in conformance with the Montana
Subdivision and Platting Act and filed as a preliminary plat in accordance with the state statute and
the Bozeman Municipal Code.
C. Compliance with the Bozeman Unified Development Ordinance.
The following requirements are standards of the Unified Development Ordinance and shall be
addressed with the final plat submittal:
1. The final plat shall include utility easements in compliance with Section 18.42.060.B.
2. Pursuant to Section 18.42.100.B.7, a watercourse setback planting plan shall be prepared and
provided to the Planning Department prior to final plat approval. The watercourse setback
plantings shall be installed or financially guaranteed prior to final plat approval.
3. Pursuant to Section 18.42.120, an off-street location for mail delivery will need to be
provided.
4. Pursuant to Section 18.42.150, subdivision lighting shall be provided as required. Trail
crossing lighting must installed in locations where trails intersection public or private streets.
A revised lighting plan must be submitted with street improvement plans and specifications.
Subdivision lighting must either be installed or financially guaranteed, and the City
Commission must acknowledge receipt of a petition to create an SILD for the subdivision,
prior to final plat approval.
5. Pursuant to Section 18.44.110.F, trails within and adjacent to the proposed development, as
well as off-street pathways (i.e., sidewalks and boulevard trails) along external development
streets, shall be maintained (including snow removal) in accordance with an approved
maintenance plan by the developer until 50 percent of the units within the development are
sold. Thereafter the property owners association shall be responsible for maintenance. The
property owners association may establish an improvement district to collect assessments to
pay for the maintenance.
6. Pursuant to Section 18.48.070.A.2, the developer shall be responsible at the time of initial
development for installing vegetative ground cover, boulevard trees and an irrigation system
in the public right-of-way boulevard strips along all external perimeter development streets
and adjacent to public parks or other open space areas. Municipal water shall be used for
irrigation if a well permit cannot be obtained for irrigation.
7. Pursuant to Section 18.48.070.B, a developer shall be responsible for irrigating and
maintaining landscaping along external streets and landscaping adjacent to parks or other
opens space areas until 50 percent of the lots are sold. Thereafter, the property owners
association shall be responsible for maintaining and irrigating these landscaped areas. The
property owners association may with the City’s approval establish an improvement district
to collect assessments to pay for the irrigation and maintenance.
8. Pursuant to Section 18.50.090, executed waivers of right to protest the creation of special
improvement districts (SIDs) for a park maintenance district will be required to be filed and
of record with the Gallatin County Clerk and Recorder.
#P-07012 South Towne Square Minor Subdivision Staff Report 5 290
9. Section 18.78.060.M requires that the preliminary plat application be accompanied by a
written statement from all relevant utility companies indicating that service can be provided.
10. In accordance with Section 18.78.070, a Memorandum of Understanding shall be entered
into with the Weed Control District prior to submitting the final plat. A copy of the MOU
shall be submitted with the final plat application.
11. A final copy of the covenants, restrictions, and articles of incorporation shall be submitted
with the final plat application for review and approval by the Planning Department and shall
contain, but not be limited to, provisions for assessment, maintenance, repair and upkeep of
common open space areas, public parkland/open space corridors, stormwater facilities,
public trails and pathways, snow removal, and other areas common to the association
pursuant to Chapter 18.72 of the Bozeman Unified Development Ordinance.
12. The final plat shall conform to all requirements of the Bozeman Unified Development
Ordinance and the Uniform Standards for Final Subdivision Plats and shall be accompanied
by all required documents, including certification from the City Engineer that as-built
drawings for public improvements were received, a platting certificate, and all required and
correct certificates. The final plat application shall include four (4) signed reproducible
copies on a 3 mil or heavier stable base polyester film (or equivalent); two (2) digital copies
on a double-sided, high density 3-1/2" floppy disk; and five (5) paper prints.
13. Pursuant to Section 18.06.040.D.6, conditional approval of the preliminary plat shall be in
force for not more than one calendar year. Prior to that expiration date, the developer may
submit a letter of request for the extension of the period to the Planning Director for the
City Commission’s consideration. The City Commission may, at the written request of the
developer, extend its approval for no more than one calendar year, except that the City
Commission may extend its approval for a period of more than one year if that approval
period is included as a specific condition of a written subdivision improvements agreement
between the City Commission and the developer, provided for in §18.74.060, BMC.
14. Pursuant to Section 18.74.030.B, if it is the developer’s intent to file the final plat prior to
installation, certification, and acceptance of all required improvements by the City of
Bozeman, an Improvements Agreement shall be entered into with the City of Bozeman
guaranteeing the completion of all improvements in accordance with the Preliminary Plat
submittal information and conditions of approval. If the final plat is filed prior to the
installation of all improvements, the developer shall supply the City of Bozeman with an
acceptable method of security equal to 150 percent of the cost of the remaining
improvements.
15. Pursuant to Section 18.06.060, the applicant shall submit with the application for final plat
review and approval, a written narrative stating how each of the conditions of preliminary
plat approval has been satisfactorily addressed, and specifically (tab, page, paragraph, etc.)
where this information can be found.
D. Compliance with the required subdivision review process.
A subdivision preapplication was submitted on January 16, 2007. The preapplication was reviewed
by the DRC on January 31, February 7 and 14 2007. The applicant had until February 16, 2007 to
submit a preliminary plat application.
#P-07012 South Towne Square Minor Subdivision Staff Report 6 291
A preliminary plat application was submitted on February 20, 2007 and the required completeness
letter was sent on March 7, 2007. The preliminary plat was reviewed by the DRC on March 14, 21,
and 28, 2007, and the required adequacy letter was mailed on March 28, 2007. On the third and final
week of DRC review, a favorable recommendation was forwarded for consideration by the Planning
Board and City Commission on March 28, 2007.
Public notice for this application was placed in the Bozeman Daily Chronicle on Sunday, March 25,
2007. The site was posted with a public notice on March 16, 2007. Finally, notice was sent to
adjacent property owners via certified mail, and to all other property owners of record within 200
feet of the subject property via first class mail, on March 22 and March 16, 2007 respectively.
On March 28, 2007 the subdivision staff report was drafted and forwarded with a recommendation
of conditional approval to the Planning Board for consideration at its April 3, 2007 public hearing.
The City Commission will make a final decision at an April 16, 2007 public hearing. Final decision
for a Second or Subsequent Minor Subdivision from a Tract of Record Preliminary Plat must be
made within 60 working days of the date it was deemed complete or in this case by May 29, 2007. If
the application is approved on April 16, 2007 then it will have taken 29 working days.
E. Provision of easements for the location and installation of any planned utilities.
The subject properties have a planned 30’easement that will contain water and sewer mains to be
located underneath the parking and drive aisles for the planned site development. A detailed plan of
utility locations is located in the civil drawings submitted by the applicant.
F. Provision of legal and physical access to each parcel.
The proposed lots will have legal and physical access on Kagy Boulevard and South 3rd Avenue.
RECOMMENDED CONDITIONS OF APPROVAL
The recommended conditions of approval do not include code requirements identified in the Staff Findings.
Mandatory compliance with the explicit terms of the Unified Development Ordinance does not constitute
conditions of approval. The conditions of approval may require compliance with more than the minimum
standards in order to conform to the physical and economic development of the City, and to the safety and
general welfare of the future lot owners and of the community at large. The applicant must comply with all
provisions of the Bozeman Municipal Code, which are applicable to this project.
Planning Staff and the Development Review Committee (DRC) find that the application, with conditions, is
in general compliance with the adopted Growth Policy, the Montana Subdivision and Platting Act and the
Unified Development Ordinance. The Planning Board may provide advice and comments on the following
recommended conditions of approval:
1. The final plat shall comply with the standards identified and referenced in the Unified Development
Ordinance. The applicant is advised that unmet code provisions, or code provisions that are not
specifically listed as conditions of approval, does not, in any way, create a waiver or other relaxation
of the lawful requirements of the Bozeman Municipal Code or state law.
#P-07012 South Towne Square Minor Subdivision Staff Report 7 292
2. An Occupancy Permit must be obtained from the Montana Department of Transportation for
location of water and sewer mains and services within the State's right-of-way, and an Access permit
must be obtained for the drive approach onto Kagy, unless MDT determines they are not required.
3. The median on Kagy shall be reconstructed to provide a dedicated turn lane for westbound traffic
turning into the site. The geometry of the median shall meet AASHTO standards and be approved
by the Montana Department of Transportation.
4. The northbound left turn bay for the ultimate design for the 3rd and Kagy intersection will extend
beyond the proposed access. A “pork chop” shall be installed on the South 3rd access to prohibit
southbound traffic from entering the site. All other movements will be allowed from this access.
5. All improvements necessary to provide adequate level of service at the intersections analyzed in the
Traffic Accessibility Study (TAS) must be installed as part of this development unless a variance is
applied for and approved by the City Commission. Approval of the TAS must also be obtained
from the Montana Department of Transportation and for all improvements along Kagy Boulevard.
CONCLUSION/RECOMMENDATION
Pursuant to Section 18.06.040.D of the Unified Development Ordinance, the Planning Board shall review
the preliminary plat and supplementary information to determine if the proposed plat is in compliance or
noncompliance with the adopted growth policy. The Planning Board shall act to recommend approval,
conditional approval or denial of the preliminary plat application. The Board shall then provide advice and
comments to the Bozeman City Commission for its consideration at its Monday, April 16, 2007, public
hearing which begins at 6:00 p.m. The Planning Board Resolution #P-07012 and minutes from the
Planning Board’s April 3, 2007 public hearing will be forwarded to the City Commission and made a part of
the Commission’s record.
THE BOZEMAN PLANNING BOARD WILL MAKE A RECOMMENDATION TO THE
BOZEMAN CITY COMMISSION. THE CITY COMMISSION SHALL MAKE THE FINAL
DECISION ON THIS APPLICATION. THE DECISION OF THE CITY COMMISSION MAY
BE APPEALED BY AN AGGRIEVED PERSON AS SET FORTH IN SECTION 18.66 OF THE
UNIFIED DEVELOPMENT ORDINANCE.
PUBLIC COMMENTS
No public comments have been received as of this date. Any public comments received after the date of this
report will be distributed at the public hearing.
ATTACHMENTS
Applicant’s preliminary plat submittal materials
#P-07012 South Towne Square Minor Subdivision Staff Report 8 293
REPORT SENT TO
Kailo Design & Development, LLC, 9350 Walker Road, Belgrade, MT 59714
Jason Burke, Allied Engineering Services, Inc., 32 Discovery Drive, Bozeman, MT 59718
#P-07012 South Towne Square Minor Subdivision Staff Report 9 294
South Towne Square Minor Subdivision
1
RESOLUTION #P-07012
RESOLUTION OF THE CITY OF BOZEMAN PLANNING BOARD REGARDING A
MINOR SUBDIVISION PRELIMINARY PLAT APPLICATION FOR THE SUBDIVISION
OF 4.97 ACRES INTO ONE COMMERCIAL CONDOMINIUM LOT AT 2000 SOUTH 3RD
AVENUE. THE PROPERTY IS ZONED B-1 (NEIGHBORHOOD BUSINESS DISTRICT)
AND IS LEGALLY DESCRIBED AS LOT 3, BLOCK 4 OF THOMPSON’S ADDITION #3
SUBDIVISION, SW ¼ SEC. 18 TOWNSHIP 2S, RANGE 6E, PMM, CITY OF BOZEMAN,
GALLATIN COUNTY, MONTANA., GENERALLY LOCATED AT 2000 SOUTH 3RD
AVENUE.
WHEREAS, the City of Bozeman has adopted a growth policy pursuant to Section 76-1-601,
M.C.A.; and
WHEREAS, the City of Bozeman Planning Board has been created by Resolution of the
Bozeman City Commission as provided for in Title 76-1-101, M.C.A.; and
WHEREAS, the property owners and applicants Kailo Design and Development submitted a
Second or Subsequent Minor Subdivision from a Tract of Record Preliminary Plat Application to divide
4.97 acres into on commercial condominium lot at 2000 South 3rd Avenue on land described as Lot 3,
Block 4 of Thompson’s Addition #3 Subdivision, SW ¼ Sec. 18 Township 2S, Range 6E, PMM, City of
Bozeman, Gallatin County, Montana.; and
WHEREAS, the proposed Second or Subsequent Minor Subdivision from a Tract of Record
Preliminary Plat Application has been properly submitted, reviewed, and advertised in accordance with
the procedures of Section 18.04 of the Bozeman Unified Development Ordinance; and
WHEREAS, the City of Bozeman Planning Board held a public hearing on Tuesday, April 3
2007, to review the application and any written public testimony on the request for said Second or
Subsequent Minor Subdivision from a Tract of Record Preliminary Plat Application; and
WHEREAS, three members of the public spoke at the public hearing; and
WHEREAS, the City of Bozeman Planning Board reviewed the application against the
requirements of the Montana Subdivision and Platting Act, and found that with conditions the Second
or Subsequent Minor Subdivision from a Tract of Record Preliminary Plat Application would comply
with those requirements; and
NOW, THEREFORE, BE IT RESOLVED, that the City of Bozeman Planning Board, upon a
vote of 5-1, recommends to the Bozeman City Commission that the application to divide 4.97 acres into
one commercial condominium lot at 2000 South 3rd Avenue, on land described as as Lot 3, Block 4 of
Thompson’s Addition #3 Subdivision, SW ¼ Sec. 18 Township 2S, Range 6E, PMM, City of Bozeman,
Gallatin County, Montana, be conditionally approved subject to the following conditions:
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South Towne Square Minor Subdivision
2
1. The final plat shall comply with the standards identified and referenced in the Unified
Development Ordinance. The applicant is advised that unmet code provisions, or code
provisions that are not specifically listed as conditions of approval, does not, in any way, create a
waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state
law.
2. An Occupancy Permit must be obtained from the Montana Department of Transportation
for location of water and sewer mains and services within the State's right-of-way, and an
Access permit must be obtained for the drive approach onto Kagy, unless MDT determines
they are not required.
3. The median on Kagy shall be reconstructed to provide a dedicated turn lane for westbound
traffic turning into the site. The geometry of the median shall meet AASHTO standards and
be approved by the Montana Department of Transportation.
4. The northbound left turn bay for the ultimate design for the 3rd and Kagy intersection will
extend beyond the proposed access. A “pork chop” shall be installed on the South 3rd
access to prohibit southbound traffic from entering the site. All other movements will be
allowed from this access.
5. All improvements necessary to provide adequate level of service at the intersections analyzed
in the Traffic Accessibility Study (TAS) must be installed as part of this development unless
a variance is applied for and approved by the City Commission. Approval of the TAS must
also be obtained from the Montana Department of Transportation and for all improvements
along Kagy Boulevard.
DATED THIS DAY OF , 2007 Resolution #P-07012
_____________________________ ____________________________
Andrew C. Epple, Planning Director Dave Jarrett, Vice President
Department of Planning & Community Development City of Bozeman Planning Board
296
LANGOHR
WESTRIDGE NORTH
GALLAGATOR LINEAR 4
WESTRIDGE NORTH
S 3RD AVE S T R A C Y A V E W KAGY BLVD
GREEK WAY
WESTRIDGE DR HIGHLAND CT SPRING CREEK DR HILL ST S WILLSON AVE OVERBROOK DR
HOFFMAN DR
S G R A N D A VE E KAGY BLVD FACULTY CT
W KAGY BLVD S 3RD AVE E KAGY BLVD
South Towne Square Subdivision ¯
Kagy Boulevard
South 3rd. AvenueSubject Property
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After Recording Please Return To:
City of Bozeman
411 East Main St.
PO Box 1230
Bozeman, MT 59771-1230
RELEASE AND RECONVEYANCE OF EASEMENT
COMES NOW the City of Bozeman, 411 E. Main, Bozeman, MT 59715, a Municipal
Corporation of the State of Montana hereinafter ("GRANTOR") and does hereby release and
reconvey the following described easements unto Kailo Design and Development, LLC, a
Montana Limited Corporation, as follows:
W I T N E S S E T H
WHEREAS the Grantor is the legal record title holder of utility easements situated
across Lot 3-A of Block 4 of the Amended Plat of the Rearrangement of the Thompson’s 3rd
Addition (G-10-A), City of Bozeman, Gallatin County, Montana.
WHEREAS the above utility easements were granted by Thompson Hereford Ranches,
Inc. by the following instruments:
A storm drainage easement recorded in Book 23, Page 121, recorded on August 23, 1966 at the
Clerk and Recorder's Office of Gallatin County, Montana.
WHEREAS no public utilities are located within the easements to be released and the
vacation of the said easements will not adversely impact the Grantor's interests.
WHEREFORE, the Grantor does hereby release and reconvey to Kailo Design and
Development, LLC, a Montana Limited Corporation, those portions of the utility easements
346
located on the above described real property as set forth on Exhibit A attached hereto together
with any right, title, or interest that the Grantor may have in said utility easements as set forth
on the Exhibit attached hereto and incorporated herein by reference as though fully set forth
and shown on the Exhibit.
This reconveyance shall not affect the remainder of those easements shown on said
Amended Plat of the Rearrangement of Thompson’s 3rd Addition (G-10-A) in the Clerk and
Recorder's office of Gallatin County, Montana.
DATED this ______ day of _____________________, 2 .
___________________________________
GRANTOR - CITY OF BOZEMAN
TITLE_____________________________
347
ACCEPTED:
CITY OF BOZEMAN
by its
ATTEST:
_______________________________
Clerk of the City Commission
STATE OF MONTANA )
):ss
County of Gallatin )
On this _____ day of _______________, 2 , before me, a Notary Public for the
State of Montana, personally appeared CHRIS KUKULSKI and ROBIN L. SULLIVAN, known to
me to be the City Manager and Clerk of the City Commission for the City of Bozeman and the
persons whose names are subscribed to the within instrument, and acknowledged to me that they
executed the same for and on behalf of the City of Bozeman.
In witness whereof, I have hereunto set my hand and affixed my seal on the day and
year first written above.
(SEAL)
______________________________________
Notary public for the state of Montana
Residing at Bozeman, Montana
My Commission Expires:_________________
348
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After Recording Please Return To:
City of Bozeman
411 East Main St.
PO Box 1230
Bozeman, MT 59771-1230
RELEASE AND RECONVEYANCE OF EASEMENT
COMES NOW the City of Bozeman, 411 E. Main, Bozeman, MT 59715, a Municipal
Corporation of the State of Montana hereinafter ("GRANTOR") and does hereby release and
reconvey the following described easements unto Kailo Design and Development, LLC, a
Montana Limited Corporation, as follows:
W I T N E S S E T H
WHEREAS the Grantor is the legal record title holder of utility easements situated
across Lot 3-A of Block 4 of the Amended Plat of the Rearrangement of the Thompson’s 3rd
Addition (G-10-A), City of Bozeman, Gallatin County, Montana.
WHEREAS the above utility easements were created by record by the following
instruments:
The Rearrangement of Thompson’s Addition No. 3, recorded in Book G, Page 10, at the Clerk
and Recorder's Office of Gallatin County, Montana.
WHEREAS no public utilities are located within the easements to be released and the
vacation of the said easements will not adversely impact the Grantor's interests.
WHEREFORE, the Grantor does hereby release and reconvey to Kailo Design and
Development, LLC, a Montana Limited Corporation, those portions of the utility easements
350
located on the above described real property as set forth on Exhibit A attached hereto together
with any right, title, or interest that the Grantor may have in said utility easements as set forth
on the Exhibit attached hereto and incorporated herein by reference as though fully set forth
and shown on the Exhibit.
This reconveyance shall not affect the remainder of those easements shown on said
Amended Plat of the Rearrangement of Thompson’s 3rd Addition (G-10-A) in the Clerk and
Recorder's office of Gallatin County, Montana.
DATED this ______ day of _____________________, 2 .
___________________________________
GRANTOR - CITY OF BOZEMAN
TITLE_____________________________
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ACCEPTED:
CITY OF BOZEMAN
by its
ATTEST:
_______________________________
Clerk of the City Commission
STATE OF MONTANA )
):ss
County of Gallatin )
On this _____ day of _______________, 2 , before me, a Notary Public for the
State of Montana, personally appeared CHRIS KUKULSKI and ROBIN L. SULLIVAN, known to
me to be the City Manager and Clerk of the City Commission for the City of Bozeman and the
persons whose names are subscribed to the within instrument, and acknowledged to me that they
executed the same for and on behalf of the City of Bozeman.
In witness whereof, I have hereunto set my hand and affixed my seal on the day and
year first written above.
(SEAL)
______________________________________
Notary public for the state of Montana
Residing at Bozeman, Montana
My Commission Expires:_________________
352
353
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DECLARATION FOR ___________________- 1
DECLARATION FOR
_____________ CONDOMINIUM
BY THIS DECLARATION, made this ______ day of ______________, 2007, by KAILO
DESIGN AND DEVELOPMENT, LLC, a Montana limited liability company with address of 3825
Valley Commons Dr., Ste. 6, Bozeman, Montana 59718, herereinafter referred to as “Declarant”,
whereby the real property hereinafter described is submitted to the provisions of the Montana Code
Annotated, Title 70 Chapter 23, which Chapter is also known as the "Unit Ownership Act".
The property subject to this Declaration is known as "____________ Condominium,"
hereinafter referred to as "Condominium". The Condominium is located on the real property
depicted on the site plan attached and more particularly described as
Lot 3 of Block 4 of the Rearrangement of Thompson’s Addition No. 3 to the city of
Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of
record in the office of Gallatin County Clerk and Recorder, Gallatin County, Montana (Plat
Reference: G-10)
Excepting therefrom that portion heretobefore conveyed to the State of Montana for the
benefit and use of its Department of Transportation by Bargain and Sale Deed, recorded in
Film 134, page 3414, records of Gallatin County, Montana.
I.
PURPOSE AND USE; POSSIBLE EXPANSION
The Declarant has constructed as part of the Condominium one building which may be
expanded to no more than five (5) buildings as depicted on the Site Plan that is attached and
incorporated as Exhibit __.
A.Building 1 shall be a one story building which shall be used for commercial retail use
only.
B.Buildings 2 - 5 shall be two story buildings of which the first floor shall be
commercial retail use and the second floor shall be office space only.
Further subdivision of every unit is permitted as provided within this Declaration. The
Declarant reserves the right, in the Declarant’s sole discretion, and without any obligation on
Declarant to do so, to expand the condominium by adding buildings into it as is more fully described
in this Declaration.
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DECLARATION FOR ___________________- 2
II.
DEFINITIONS
Unless the context expressly provides otherwise, the following definitions shall pertain
throughout this Declaration and in the interpretation thereof:
1.Aggregate Voting:
The term "aggregate voting" shall mean the entire number of votes present or available to
vote in person or by proxy in a particular circumstance.
2. Allocated Interest:
The term "allocated interest" means the percentage interests allocated to each unit,
that is, the undivided percentage interest in the common elements, the common
expense liability and votes in the Association.
3.Association of Unit Owners:
The terms "Association", "Association of Unit Owners" or “________________ Unit
Owners’ Association”, shall mean all of the unit Owners acting as a group or as members of
a nonprofit mutual benefit corporation and in accordance with duly adopted Articles of
Incorporation, Bylaws and this Declaration.
4.Board Or Board of Directors:
The terms "Board" or "Board of Directors" shall mean the Board of Directors of the
Association as more particularly defined in the Bylaws.
5.Building:
The term "building" means the building or buildings comprising a part of the property
containing the units shown and located on the site plan and floor plans attached hereto and
by this reference made a part hereof.
6.Bylaws:
The term "Bylaws" means the Bylaws promulgated by the Association under this Declaration
and the Unit Ownership Act. The initial Bylaws are attached hereto.
7.Common Elements:
The term common elements means the general common elements and the limited common
elements which are described as follows:
a.General Common Elements:
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DECLARATION FOR ___________________- 3
“General common elements” means all those elements which are for the use of all the
unit owners and their guests and invitees. The Declarant or the Association may add
or delete common elements by amendments to this Declaration and/or by the method
set forth in the Unit Ownership Act. The general common elements include, but are
not limited to the following:
1)all portions of the Property not included within the boundaries of the Units,
including but not limited to stairs, halls, entryways, fire escapes, elevators, all utilities
(water, sewer, gas, electric, cable television lines, and all similar utility, pipes and
lines even though not located or installed with in the Unit boundaries, beneficial
easements; general parking lot, landscaping, plants, and other materials and
improvements separate form and outside of the Units; and other elements necessary
for the safety, maintenance, and existence of the Condominium in which each Unit
Owner shall have his or her designated percentage interest.
b.Limited Common Elements:
Limited common elements shall mean those common elements designated in this
declaration, site plan, or floor plans or by agreement of the unit owners which are
reserved for the use of a certain unit or building or number of units or buildings to
the exclusion of the other units or buildings. The percentage interest of the units in
the limited common elements shall be computed by determining the number of units
that have use of the limited common elements and dividing by the total of the unit(s)
making use of the particular limited common element. The general common elements
include, but are not limited to the following:
1)all Utilities (water, sewer, electrical, gas, cable television lines, and all similar
utility pipes and lines) located or installed within a Unit commencing at the
point where any one of them enters a Unit.
8.Common Expenses and General Common Expenses:
The terms "common expenses" and “general common expenses” mean expenses of
administration, maintenance, repair, replacement of common elements and services provided
to the Association, and expenses agreed upon as common by the unit Owners, and other
expenses declared common by the Unit Ownership Act or this Declaration or the By-Laws.
9.Condominium:
The term “Condominium” means the concept of ownership of single units with appurtenant
common elements located on the property submitted to the provisions of the Unit Ownership
Act and the rights and obligations associated with the ownership of the units, including the
right to sell the individual units as a real estate unit. The term “Condominium” is also used
herein to refer to the ___________ Condominium project.
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DECLARATION FOR ___________________- 4
10.Declaration:
The term "Declaration" means this document and all parts attached hereto and incorporated
by reference and all amendments thereto and it is the instrument by which the property is
submitted to the provisions of the Unit Ownership Act. The acquisition of an Ownership
interest or lien holder's interest in a unit signifies that the Owner or lienholder accepts,
ratifies and agrees to comply with the terms and conditions of this Declaration and the Unit
Ownership Act.
11.Declarant:
The term "Declarant" means the initial owner of the property and the person or entity that
subjected the property to the Unit Ownership Act and Declarant’s successor and assigns.
12.Limited Expenses:
The term "limited expenses" means the expenses attributable to the maintenance, repair and
replacement of and services furnished for limited common elements and which are expenses
only for Owners of units within the units or building for which such expenses are incurred.
13.Majority or Majority of the Unit Owners:
The terms "majority" or "majority of the unit owners", unless otherwise provided in the
Declaration, means the Owners of more than fifty percent (50%) in the aggregate of the
undivided ownership interests in the general common elements designated herein as the
percentage of interest in such common elements appertaining to each unit as is expressed in
this Declaration. Whenever a percentage of the unit Owners is specified, percentage means
such percentage in the aggregate of such undivided ownership.
14.Manager:
The term "Manager" means the Manager, the Board of Directors, management company or
any other person or group of persons retained or appointed by the Board of the Association
of Unit Owners for the purpose of the administration of or managing the property.
15.Mortgagee:
The term "mortgagee" shall mean lienholder or any beneficiary under a mortgage, deed of
trust or Montana Trust Indenture or a Seller under a Contract for Deed.
16.Project:
The term "project" means a real estate condominium project, a plan whereby a condominium
of one or more units located on property is submitted to the provisions of the unit ownership
to be owned, transferred, mortgaged and held as a separate unit.
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DECLARATION FOR ___________________- 5
17.Property:
The term "property" means all of the land, buildings, improvements, facilities and structures
on the land and all easements, rights and appurtenances belonging thereto, which are
submitted to the Unit Ownership Act.
18.Recording Officer:
The term "recording officer" means the county officer charged with the duty of filing and
recording the deeds, mortgages and all other instruments and documents affecting the title
to real property. In this case, the recording officer is the Clerk and Recorder for Gallatin
County, Montana.
19.Rules and Decisions of the Association:
The term “Rules and Decision of the Association” means a rule adopted and promulgated by
the Association, or a decision made by the Association determining that such a rule has been
violated and stating the consequences, as provided in Article __ of this Declaration.
20.Unit:
The term “unit” shall be the separate units of the Condominium and the appurtenant
undivided interest in the common elements of the condominium and is a part of the property
including one or more buildings, rooms occupying one or more floors, intended for any type
of independent use, and with a direct exit to a hallway, pathway, sidewalk, street or roadway,
or to a common area or areas leading to a public street or highway.
21.Unit Designation:
The term "unit designation" means the number, letter, or combination thereof designating a
unit in the Declaration.
22.Unit Owner, Owner, Or Owners:
The terms "unit owner", “owner” or "owners" mean the person, persons, or entity owning
a unit in fee simple absolute or an ownership interest represented by a buyer's interest in a
contract for deed as shown by an abstract or notice of purchaser's interest recorded with the
Clerk and Recorder of the county in which the condominium is located, individually or as
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 the Condominium. A mortgagee shall not be
considered a unit owner. A unit owner may delegate his, her, its rights as a unit owner
including the right to vote, to a lessee of the owner’s unit by filing a copy of the lease and
such delegation in writing to the presiding officer of the association.
23.Utilities:
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DECLARATION FOR ___________________- 6
The term “Utilities” means utility lines or service for power, sewer, water, natural gas,
telephone, television, computer service and other similar service lines or services, whether or not
presently in or available to the Condominium.
III.
REAL PROPERTY
1.Description.
The real property, initially submitted to the Unit Ownership Act and initially included in the
condominium, is the land shown on the Site Plan and which is more particularly shown and
described:
Lot 3 of Block 4 of the Rearrangement of Thompson’s Addition No. 3 to the city of
Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of
record in the office of Gallatin County Clerk and Recorder, Gallatin County, Montana (Plat
Reference: G-10)
Excepting therefrom that portion heretobefore conveyed to the State of Montana for the
benefit and use of its Department of Transportation by Bargain and Sale Deed, recorded in
Film 134, page 3414, records of Gallatin County, Montana.
TOGETHER WITH the tenements, hereditaments and appurtenances thereunto belonging or in
anyway appertaining, and easements for ingress and egress, roads, paths, trails, sewer and water
systems, telephone, power, propane and other utilities and cable services to each building and unit
as shown or delineated on the subdivision plat or certificate of survey, site plan and other documents
filed or recorded with the Clerk and Recorder of Gallatin County, Montana, and reserving the use
thereof to the unit owners and a general easement therefore to the Association in the manner set forth
in this Declaration.
Reserving unto Declarant and its successor and assigns non-exclusive easements and rights
of way for ingress, egress and utilities and right to construct, use, convey, and attach to present and
future condominiums, buildings, and units located on the property as tenements, hereditaments and
appurtenances any ingress and egress, access roads and path systems, water and sewer systems,
including utility easements and the right to hook into said systems, paths, trails, utility easements and
lines and cable services and the right to hook into and use the same. Declarant shall provide a
method for the owners of additional buildings and units to be assessed for their prorated share of the
maintenance, improvement and replacement of the common areas and systems on an allocated
interest basis, per unit, or per building basis. Notwithstanding anything herein to the contrary, the
unit Owners within a limited common area shall have the exclusive use of such limited common
area, including the right to add additional units or improvements subject to any general common
easements over, under and across such limited common area.
The real property submitted to the Unit Ownership Act is subject to existing easements,
covenants, articles of incorporation, bylaws, terms, conditions, obligations, disclosures, reservations,
restrictions, dedications, conditions shown and delineated in the documents, plats and site plan filed
or recorded with the Clerk and Recorder of Gallatin County, Montana, or State of Montana,
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DECLARATION FOR ___________________- 7
applicable to said real property and subject to zoning ordinances and land use restrictions, if any,
laws and regulations of the State of Montana and United States of America, and also subject to taxes,
assessments and charges levied by the City of Bozeman, special improvement districts, if any.
Declarant reserves the right to improve and/or expand the said common systems and areas
thereto or to construct and/or replace the common systems as may be necessary for expansion or the
utility of such common systems and Declarant may dedicate roads and utility easements to the
public.
The Condominium shall initially consist of ___ units in one building. Buildings ____, as
shown on the Site Plan as the “proposed building” may be added by the Owner following compliance
with this Declaration, applicable laws and regulations of the State of Montana and regulatory
authority in regard to condominium units. The Declarant may expand the condominium project and
utilize the common elements in the manner set forth in this Declaration to add buildings, units, and
common areas and common facilities for Phase I or other Phases of the Condominium on said lands.
The Declarant will pay the costs of adding units or other improvements to their appurtenant limited
common areas. The Association or all the unit Owners, in accordance with their respective
percentage interest, shall pay for the construction, management, administration, maintenance and
repair of the general common facilities.
Notwithstanding anything herein to the contrary, the Declarant and the Owners of the units
shall be unconditionally bound to execute an expansion amendment to this Declaration for the Site
Plan and Floor Plans of the building and unit proposed for Building ___. The Declarant shall bear
all the costs of construction of the buildings contemplated by the expansion provisions herein,
including improvements on the limited common area and the costs of the amendment to the
Declaration.
Likewise, if one or both of the original unit Owners elects to expand the condominium by
adding additional units on or to such unit Owner’s limited common area, such unit Owner shall bear
all the costs therefore.
The provisions of this Declaration and the Bylaws shall be construed to be covenants running
with the land, including the buildings, improvements, easements, appurtenances and units, and shall
be binding upon each unit Owner, mortgagees, lienholders, and their heirs, successors, personal
representatives and assigns, as long as this Condominium Declaration and Bylaws are in effect.
2.Condominium unit as a separate and individual fee simple interest in real estate.
Each unit, together with the appurtenant undivided interest in the limited and general
common elements of the Condominium, shall together comprise a Condominium unit, shall be
inseparable, and may be conveyed, leased, rented, devised or encumbered as a Condominium unit
as a fee simple interest in a parcel of real property.
3.Encroachments.
If any portion of the general 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
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DECLARATION FOR ___________________- 8
and does exist. If any portion of a 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 purposes for marketability of title.
In the event any unit common area or other structure is partially or totally destroyed and then
rebuilt, the Owners of the unit or units agree that minor encroachment of parts of the building, units
and general or limited common areas necessary or reasonable for the reconstruction shall be
permitted and that valid easement for said encroachment and the maintenance thereof shall exist.
4.Buildings.
The building comprising of ___ units of the Condominium will be contained as shown on
the Site Plan. Additional buildings have one or two floors. The buildings are numbered 1 through
2 as shown on the site plan.
5.Unit Boundaries.
The boundaries of each unit are the exterior boundaries of the exterior walls, basement, roof
and foundation of each unit. Each unit shall include all utility, water, sewer and all other fixtures
and improvements within such unit. Each unit owner shall have an easement to connect, attach,
install, reinstall, maintain, repair and add or remove the utility lines and fixtures in, around, and to
the walls, floors, roofs and foundations appurtenant and within such unit.
6.Construction Materials.
The principal materials of construction of the units are concrete for the basement, foundation,
footings and slabs; structural wood beams and steel for the framing, wood for structural and finish
work; sheetrock, for the interior walls and ceilings; carpet, wood or vinyl for the floors; stone detail
work, masonite, stone, brick, metal, wood and standard siding for exterior wall surfaces; and metal,
wood or asphalt architectural grade shingles for the roofs of the buildings. Pole buildings on a
monolithic slab are allowed The Declarant or 100% of the unit Owners reserve the right to change
the materials of construction for future buildings and units by amending this Declaration.
IV.
EASEMENT, COMMON ELEMENT -
INTERIOR AND EXTERIOR MAINTENANCE, REPAIR & REMODELING
1.Common Element Easements.
A non-exclusive right and easement for ingress and egress over the roads, parking lot and
common areas, and utility easements for power, telephone, propane, and other utilities, service
cables, and support through the common elements and for maintenance and repairs is reserved and
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DECLARATION FOR ___________________- 9
appurtenant to each unit including future units added pursuant to the expansion rights of the
Declarant its successors and assigns. All common elements are subject to such rights.
2.Interior and Exterior Construction, Maintenance and Repair.
Each unit Owner shall have the exclusive right to improve, construct, remodel, repair,
maintain, and paint, repaint, tile, wax, paper, panel, carpet, brick or otherwise maintain, refinish and
decorate the exterior and interior surfaces of the walls, roofs, ceilings, floors, basements, fixtures,
windows and doors within the boundaries his or her own unit and its appurtenant and within the
appurtenant limited common area, such as garages, accessory buildings, signs and other
improvements, decks, paving, walkways and the like.
V.
OWNERSHIP AND VOTING - EXHIBITS -
USE - ARCHITECT'S CERTIFICATE -
CONSTRUCTION OF BUILDINGS AND UNITS
1.Allocated Interest.
Each unit Owner shall be entitled to the exclusive ownership, use and possession of his or
her unit. Each unit Owner shall own an undivided interest in the common elements in the percentage
expressed herein, based upon the approximate relation that the value of the unit, on the date of this
Declaration, bears to the then combined value of all units having an interest in the particular common
elements. The Declarant has based the value of each unit upon the approximate standard commercial
rates for the square foot construction costs of a unit. Such allocated interest represents the Owner’s
undivided ownership interest in the common elements and each unit Owner's responsibility and
liability for common expenses and voting interest in the Association and in all matters whereby a
unit Owner is entitled to vote. The approximate value of the units shall be set by the Declarant or
its successors and assigns. The values need not conform to market value.
The allocated interest and rounded percentage of interest of the ____units of the
Condominium are set forth below.
ALLOCATED FRACTIONAL INTEREST OR
BLDG PERCENT IN INTEREST IN
NO.UNIT NUMBER(S) GENERAL COMMON ELEMENTS
Total:
If and when additional units are added to the condominium by expansion and amendment to
this Declaration, the above allocated interests and percentage interest of each unit shall be reallocated
by taking the value of each unit on the date of filing the amendment and dividing it by the then
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DECLARATION FOR ___________________- 10
combined value of all the units having an undivided interest in the general common elements of the
condominiums. The approximate value of the units shall be set by the Declarant or his successors
and assigns based upon the approximate standard commercial rates per square foot construction costs
for a particular unit. The values need not conform to market value. Each unit Owner by accepting
title to a unit unconditionally agrees and consents to the foregoing method of altering the fractional
or percentage interest in the general common elements of the unit for units added to the
condominium. The undivided interest in the common elements, as the same may be allocated or
reallocated, will not be separated from the unit to which it appertains and shall be appurtenant to and
conveyed or encumbered with the unit even though such interest is not expressed, mentioned, or
properly described in the conveyance or other instrument. If the fractional interest and percentage
in a unit is reallocated and amended by the addition of units to the condominium, if a unit Owner
transfers, conveys, or encumbers such unit Owner’s unit, the Owner shall describe such Owner’s
percentage interest in the common elements as the same as amended. If an owner mistakenly
describes the owner’s percentage interest in the common elements, the same shall be deemed
amended to conform with this Declaration and any amendments thereto.
2.Site Plans, Floor Plans, Elevations And Exhibits.
For identification and descriptive purposes, the following Exhibits are attached hereto and
by this reference incorporated into and made a part of this Declaration showing the site plan, floor
plans of the buildings and each of the units:
Exhibit "A"
Site Plan:
Consists of the description of the real property initially in the condominium, a site plan of
the Condominium on the real property, the location of the buildings containing the units on
the property, the location and designation of each unit, and the location of the access and
utility easements and other exterior general and limited common areas. The proposed
building site is prospective only and may be installed, constructed, realigned or moved in the
discretion of the unit Owner.
Exhibits “B”
Floor Plans:
Showing the layout and unit designation for each of the units as shown on the site plan, the
floor levels of each building, the location of the units in the buildings, and the approximate
area of each unit and building, and the dimensions and elevations of each building and level
and unit and the common areas.
Exhibit "C-1"
A verified statement by a registered architect, registered professional engineer or professional
land surveyor who has reviewed the floor plans, certifying that the plans are an accurate copy
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DECLARATION FOR ___________________- 11
of the plans filed with and approved by the city and county officers having jurisdiction to
issue building permits, if any; that the floor plans fully and accurately depict the layout of
units and floors of the buildings, unit designation, square feet, dimensions, elevation and
floor plans of each of the units as built, and the date construction of each of the buildings and
units were completed. The verified statement is attached hereto as Exhibit C-1.
Exhibit "(C-2)"
A verified statement by a registered architect, registered professional engineer or registered
professional land surveyor, who has reviewed the site plan and verified that the site plans
fully and accurately depict the location of the buildings and units shown on the site plans of
the building(s) units as built. The verified statement is attached hereto as Exhibit C-2.
If any of the buildings or units are not completed on the date this Declaration is recorded,
within thirty days from the date of completion of a building or unit, (or as soon as possible
thereafter) an amendment to the Declaration shall be recorded, executed by the unit Owner
constructing the unit and Declarant, to which shall be attached the verified statement of a
registered architect, registered professional engineer, or registered professional land surveyor,
certifying that the floor plans and site plan previously filed or being filed simultaneously with
the amendment fully and accurately depict the layout, location, unit designation, square feet,
and dimensions of the building, units and floors of each building as shown on the site plan
and floor plans as built and the date construction of the building was completed.
3.Use.
The units and common elements shall be occupied and used as follows:
(a)The first floor units shall be used for commercial purposes only. The second floor
units shall be for office purpose only.
Rentals and leases are allowed subject to the conditions, provisions Covenants and
restrictions contained in this Declaration, and are further subject to the Bylaws.
(b)Except as provided elsewhere in this Declaration, and except for Declarant's rights,
there shall be no obstruction of the general common elements nor shall anything be
stored in or on the general common elements without the prior written approval of
the Association. Each unit Owner shall be obligated to maintain and keep in good
order and repair his, her, or its own unit. If the unit Owner fails to maintain and keep
in good order and repair his, her, or its unit, upon 30 days written notice by the
Association to the unit owner of such failure the Association may require the unit
Owner to make the repairs or maintenance.
(c)All valid laws, zoning ordinances and regulations of all governmental bodies having
jurisdiction thereof shall be observed.
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DECLARATION FOR ___________________- 12
(d)Nothing shall be done or kept in any Unit or in the Common Elements that will
increase the rate of insurance on the Buildings or contents thereof without prior
written consent of the Association. No Owner shall permit anything to be done or
kept in the Owner’s Unit or in the Common Elements that will result in the
cancellation of insurance on the Property or the contents thereof (without written
approval by the Association), or that would be in violation of the law. No waste will
be permitted in the Common Elements.
(e)No nuisance shall be allowed upon the Property nor shall any use or practice be
allowed that is a source of unreasonable annoyance to Owners, guests or customers
or the Condominium or that interferes with the peaceful possession and proper use
of the Property.
(f)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 shall structurally change the
Building, except as is provided herein.
4.Service of Process.
The names and address of the persons designated to receive service of process for the
Condominium until another designation is filed of record shall be ___________________, Bozeman,
Montana 59718.
5.Exclusive Ownership.
Each Owner or Owners shall be entitled to exclusive ownership and possession of their unit,
improvements and limited common area. Such Owner or Owners may use the general and limited
common elements in accordance with the purposes for which they are intended or as they may
otherwise agree between themselves, so long as they do not hinder or encroach upon the lawful rights
of other unit Owners.
VI
EXPANSION OF THE CONDOMINIUM - ANNEXATION OF ADDITIONAL LAND
1.Declarant and its successors and assigns reserve the right from time to time to add, expand
or revise the condominium by constructing, revising or adding buildings containing new units,
common elements (including land) and common facilities or amenities, by resurvey, replatting,
boundary line adjustments, amendment to this Declaration, or by any other means or methods
allowed under the laws and regulations of the State of Montana and Gallatin County. The buildings,
units, common elements, common facilities or amenities may be located on or off or partly on and
off the real property described herein and may then be submitted to the Unit Ownership Act. The
extent of any expansion or revision of the number of additional buildings, units or the common
elements created by this initial Declaration is in the sole discretion of Declarant and its successors
and assigns and Declarant is not bound as to use, design, location, or total number of buildings, units
or common elements, common facilities or amenities which may be constructed or added under the
provisions of this paragraph, except as shall be required by governmental authority or applicable
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DECLARATION FOR ___________________- 13
covenants. This right to expand the condominium shall be considered Developer’s development
rights which may be assignable by transfer of the development rights by the execution,
acknowledgment and recording of an assignment to any third person or entity by the Developer.
2.The manner of expansion and subjecting this condominium to the additional land and/or
buildings, units, common elements or common facilities shall be accomplished by the Declarant or
100% of the unit owners filing of record in the office of the Clerk and Recorder of Gallatin County,
Montana, an amended Declaration for each such expansion containing:
a.An amended Exhibit A. Site Plan showing the description of the lands,
buildings or units included, added or annexed, the location of the buildings and units, the
common elements, units to be added to this condominium, showing the designation by
number of the buildings and units to be added to the condominium by the amended
Declaration and showing the general common elements.
b.Amended Exhibit B. Floor plans showing the layout, unit designation, and
dimensions of the units and the location and approximate area of the units and the buildings
and the common elements to which each unit has access.
c.An amendment to paragraph IV of the Declaration showing the new
percentages of interest of all the units in the common elements by the inclusion of the new
units to be added to the condominium by such expansion, to be adjusted and allocated as
provided in paragraph IV above.
d.Such additional information and exhibits as shall be necessary to show the
changes and meet the requirements of the Unit Ownership Act and/or the then applicable
provisions of Montana law, including, without limitation, a description of the building
materials and structures, use, unit boundaries, descriptions of limited common elements and
general common elements, etc., and any and all other changes to be incorporated into the
initial Declaration as a consequence of such expansion, which do not conform with the
information set forth in the initial Declaration and are required to adequately describe the
units to be added to the condominium by such expansion.
e.Additional or amended Exhibits C-1 and C-2 with verified statement(s)
certifying that the floor plans and site plan fully and accurately depict the layout, dimensions,
and location of the new buildings and units as built.
3.The Declarant or 100% of the unit Owners and their successors or assigns reserve the right
and the privilege to make the amendments, revisions, changes, annexations, additions and expansion
as is provided for herein and subsequent transferees, grantees, buyers, lien holders, successors or
assigns in title and interest, including mortgagees or other lien holders herewith and by these
presents, agree to and give their consent to the filing or recording of the amended Declaration and
exhibits providing for the expansion of the condominium to include the additional lands, units, and
common elements or common facilities and the changes in the percentages of interest in the common
elements which occur as a consequence of such expansion. Such amendments or changes in
percentages, additions, and expansions may be done and executed solely by the Declarant or 100%
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of the owners without being required to obtain the consent or permission of the Association or any
unit lien holders to the expansion amendment. The changes in percentages of ownership of the
Owners of the condominium units in the common elements of the condominium shall be adjusted
as stated in Paragraph IV above. The resulting reallocated percentages of interest shall be set forth
in an amendment and/or restatement to this Declaration and shall thereafter be the percentage of
ownership interest allocated to all of the units in the common elements thereafter or until the next
expansion amendment for the purposes of operation of the condominium, ownership and
assessments as herein set forth.
4.Any expansion amendment to this Declaration shall be effective and binding upon Declarant,
the unit owners and any lienholder upon the execution and notary public acknowledgment by and
of Declarant (or its successors or assigns) of an amendment and/or restatement to this Declaration
duly recorded in the Clerk and Recorder’s office in Gallatin County Montana.
5.A copy of any amendment, after the same is recorded, shall be provided by the Declarant or
owners by mail or personal delivery to the Association and to each of the unit owners at their last
known address.
6.After the recording of such amended Declaration all of the owners of such condominium
units and lien holders or of an interest in the units including the owners of new units shall be subject
to the provisions of this Declaration in its then amended form. Such expansion may be by a single
amendment and/or restatement or there may be a series of amendments adding any portion of all of
the proposed land and additional buildings, units, common elements and facilities.
7.Except as otherwise specifically provided for in this Declaration or any amendment or
restatement thereto, all of the terms, conditions, provisions and definitions herein contained shall,
on the recording of such amendments, be deemed expanded to and include the additional lands,
buildings, and units then subject to the Declaration and the amendments thereto.
8.The Declarant shall not be required to construct all of the buildings and units shown on the
initial or amended site plan and floor plans during a specified period of time. Declarant or unit
owners reserve the right to make design changes to the interior floor plans and outside dimensions
of the unbuilt buildings and units and the resulting changes to the site plan and floor plans, provided
that the Site Plan of the unbuilt buildings in Phase I shall remain substantially the same as shown on
the original site plan and floor plans, unless Declarant files an expansion amendment.
Lines for an unbuilt and future planned units are the approximate location of the buildings
and units. Until an additional unit is designated as a unit on the Site Plans and Floor Plans and
completed and ready for occupancy (built unit), the assessments allocable and chargeable to the
owner for such units shall be adjusted to reflect Declarant's prorated share of the assessments for the
budgeted items and assessments for the general common elements relating only to the unbuilt units
and the owner shall not be charged with or pay for assessments relating only to the built units.
However Declarant will be charged for assessments for general common expenses which are
attributable to the general benefit all the built and unbuilt and designated units, such as liability
insurance, maintenance of roads, other general common elements, and general common element
easement areas, snow plowing, administrative, and assessments on the general common elements.
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DECLARATION FOR ___________________- 15
An owner shall be entitled to vote on the budget for the expenses solely attributable to designated
and unbuilt units. The rights and obligations herein set forth shall accrue to and be binding upon the
Declarant, the owners, the Association and their successors and assigns.
In matters relating to an owner or the Declarant’s designated but unbuilt units or to general
common elements for which an owner or Declarant may be assessed or affected by any vote of the
unit owners, the Declarant and the unit owners votes on such matters shall be adjusted to allow an
owner a vote equal to the allocated percentage each designated but unbuilt unit would have if built
for such voting purposes and for such assessment purposes. The allocated percentage of the unbuilt
units shall be based upon the proportionate expected value of the unbuilt units (based upon the floor
plans) and shown in Article IV bears to the total value of all the units.
The owner of Building __ may build additional units within Building ___. However, the
unit owner must comply with the provisions of this Declaration and this section on Expansion of the
condominiums and further obtain the necessary approvals of the required approvals of the City, state
and county public agencies and authorities. In this connection, the Declarant and other owners of
units shall cooperate and sign such amendments to this Declaration as shall be necessary to expand
the condominium.
VII
THE ASSOCIATION
1.Membership.
An Owner of a unit in the Condominium shall automatically, upon becoming the Owner of
said unit, become a member of the Association of unit Owners, hereinafter referred to as the
"Association", and shall remain a member of said Association until such time as his or her ownership
ceases for any reason, at which time his or her membership in said Association shall automatically
cease. The membership shall be limited to unit Owners as defined in this Declaration. However,
a member may by proxy or power of attorney appoint another person or entity to vote for the
member.
2.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 of the Condominium.
(c) Maintain and repair the common open space, public park lands, open space corridors,
storm water facilities, public trails, and parking lot including making provision for
snow removal and storage.
(d)Levy assessments as provided for in this Declaration, the Bylaws and the Unit
Ownership Act.
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(e)Adopt and implement a policy for the affairs of the Condominium.
(f)Enter into contracts to hire or engage personnel or entities for the management of the
affairs of the Association and the maintenance and repair of the common areas and
for services to the Association, or other entity for administration and management of
the sewer and water systems.
(g)The Association through it Board of Directors shall also have the power to adopt,
implement such reasonable rules and regulations as to the use by the unit Owners of
the common areas.
(h)The Association may be incorporated and operate as a Montana corporation. Either
the Declarant or the Board of Directors of the Association shall be authorized to sign
and file the Articles of Incorporation.
3.Vote.
On all matters to be decided by the members or the Association, unless otherwise provided
in this Declaration, each unit Owner shall have a vote equal to his or her unit percentage of interest
in the general common elements. An Owner of a unit, upon becoming an Owner, shall be a member
of the Association and shall remain a member for the period of his or her unit ownership. Except
as otherwise provided in Montana law, this Declaration, or the Bylaws, a majority of the aggregate
percentage interest voting at any meeting, in person, by proxy, by authorized agent, or voting on a
matter by written ballot shall be sufficient to act on, approve or disapprove matters brought before
the owners or the Association.
The unit Owners within each building may appoint by a majority written vote of the
aggregate percentage interest of all the unit Owners in the building a unit Owner or agent to represent
and vote as the authorized agent for all of the unit Owners in such building at any and all
Association meetings and matters. However, if a unit Owner is present at an Association meeting,
such unit Owner may vote his own interest if he notifies the Secretary of the meeting of his or her
intent to so vote prior to the vote on a matter.
4.Failure To Comply.
Each Owner shall comply 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 may be 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 reasonable attorney's fees incurred in connection therewith,
which action shall be maintainable by the Manager or by the Board of Directors in the name of the
Association, on behalf of the Owners or by an aggrieved Owner where there has been a failure of the
Association to bring such action within a reasonable time, or by Declarant, its successors or assigns.
The Association, after giving an Owner proper notice and a right to a hearing pursuant to the
standards for due process, may revoke an Owner’s right to use all or a portion of the common
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facilities in the event an Owner fails to comply or pay assessments, until the Owner is in compliance
and pays all assessments.
5.Payment Of Assessments - When Due.
All assessments shall be due within thirty days from the due date set forth in the mailing of
such assessments following the meeting at which time assessments are levied by the Association.
Assessments may be made payable in monthly, quarterly or annual installments at the option of the
Board. The amount of the common expenses assessed against each Condominium unit and the
amount of limited common expenses assessed against each Condominium unit shall be the personal
and individual debt of the Owner thereof. No Owner may exempt himself or herself from liability
for this contribution toward the common expenses and the limited common expenses by waiver of
the use or enjoyment of any of the general common elements or limited common elements or by
abandonment of his or her unit. All assessments which are not paid within thirty days from the date
they are due and payable become delinquent and are subject to interest and penalty charges. The
Association, through its Board of Directors shall have the authority and 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 Owner shall be
obligated to pay, in addition to the assessment, interest at the rate of ten percent (10%) per annum
on the amount of the assessment from the date delinquent; and if an attorney is engaged to collect
the delinquent assessment and interest or if an attorney is engaged to foreclose the lien for the unpaid
assessment, the unit Owner who is delinquent shall reimburse the Association for its costs and
attorney's fees. The Board of Directors may also set and assess a penalty for late payment of
assessments in an amount sufficient to cover the Association’s time and costs of sending additional
notices and collection letters.
(a)Common expenses and common profits, if any, and, limited common expenses of the
Condominium shall be distributed among, and charged to, the unit Owners according
to the percentage of interest of each in the common elements.
(b)Except as otherwise limited in this Declaration, each unit Owner shall have the right
to use the common elements for all purposes incidental to the use of and occupancy
of the respective unit as a residence, and such other incidental uses permitted by the
Association, which rights shall be appurtenant to and run with the unit.
6.Unpaid Assessments.
All delinquent assessments for the common expenses and limited common expenses
chargeable to any unit shall constitute a lien on such unit and the owners of a unit shall be personally
liable, jointly and severally, for payment of the assessments on a unit.
7.Unpaid Assessments - Mortgagee.
Where the mortgagee of a first mortgage of record or other purchaser of a unit obtains title
to the unit as a result of foreclosure of the first mortgage, which is prior in recording time to the
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DECLARATION FOR ___________________- 18
recording of the association lien for assessments, such acquirer of title and his or her successors and
assigns, shall not be liable for the share of common expenses and assessments by the Association,
chargeable to such unit, which become due prior to the acquisition of title to such unit by such
acquirer. Such unpaid share of common expenses or assessments shall be deemed to be common
expenses collectible from all of the units, including such acquirer and his or her successors and
assigns. However, the Owner of the unit when the assessment is made shall remain personally liable
for the assessment.
8.Levying 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:
(a)Annually, General assessments shall be made for the expenses of the Association and
the common expenses of the Condominium and common elements. Assessments
may be made for special purposes at any regular, annual or special meeting of the
Association thereof or approved by written ballot delivered to the unit owners. The
Board of Directors shall cause a annual budget for income and expenses to be
prepared as a proposed budget and delivered or mailed to each unit Owner prior to
or at the annual meeting or other meeting at which assessments are to be levied. The
proposed annual budget shall be reviewed, amended if necessary and discussed and
voted upon by the members at such meeting of the Association. A final budget must
be approved by a majority of the unit Owners present at the meeting, voting by mail
ballot, voting by proxy or by authorized agent at the meeting. The budget shall be
amended until so approved. The meeting may be continued if necessary to revise and
resubmit the budget. The annual assessments shall be fixed by a majority vote of the
Board of Directors based upon the annual budget approved by the unit Owners.
(b)General assessments may be made for the repair, replacement, general maintenance
of the Condominium and common elements, snow removal, purchase of personal
property and fixtures for the use of the Condominium, maintenance and repair of
trails, walkways, roads, park areas, easements, and common elements, management
and administration of the Condominium, public liability, fire and other standard
perils and casualties insurance, Directors and officers insurance, and other types of
protective insurance deemed reasonable and desirable by the Board of Directors; fees,
costs and expenses of a Manager, repairs, maintenance and taxes or assessments for
common elements or units owned by the Association, if any, and fees and costs of
any services or provisions for water, sewer, power, propane, telephone, cable,
television, special or rural improvement districts or sewer and water systems, and for
any other services provided to the Association and Condominium, including
professional fees and costs of collection of assessments and attorney’s fees and costs
of enforcement of this Declaration, the By-Laws or the rules and regulations, the
legal fees and costs of defense of the Association, its agents, officers and Board of
Directors in a law suit filed against the Association.
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DECLARATION FOR ___________________- 19
Assessments may be made for fees for management and administration of the
condominium including the water and sewer systems and the billing for the use and
maintenance of the water, heating and sewer systems may be made either to the
Association or to the unit owners. The base for billing for the water, heating and
sewer will be related to the expected use of the water and sewer system in each unit.
Therefore, assessments for water and sewer for each unit may not be the same
amount.
Assessments shall be based upon, computed and billed by using the allocated
percentage of interest that each unit Owner has in relation to the common elements.
Except in unusual circumstances where the Association owns a unit or common
element, the unit Owners will be separately assessed by the taxing authorities for real
estate taxes and assessments including special or rural improvement districts for their
respective units and percentage interest in the common elements and billed
individually. The individual unit Owners, and not the Association, shall pay the
taxes and assessments on each Owner's Units.
(c)General assessments may also be made for the payment of limited common element
expenses; provided that the Unit Owners are chargeable only for the limited common
element expenses relating to their respective units. Unit Owners shall share in the
payment for such limited common expenses for the repair, maintenance and
replacement of limited common elements of their respective units in accordance with
each unit's proportionate share, use or ownership in the limited common element for
which the assessment is being made. If only one unit is involved for which the
assessment is associated with the limited common elements, then the entire cost of
such repair, maintenance or replacement shall be borne by that unit, including
insurance.
(d)General assessments may be made for improvement, repair and replacement of utility
and service lines, garbage and snow removal, improvement maintenance, care of any
landscaping and easement areas, parking areas, roads, walkways, services rendered
by or to the Association and other common elements and/or facilities. General
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)Special assessments for improvements, amenities, or other special projects
allowed by this Declaration may be made if approved by seventy-five percent
(75%) of the aggregate percentage interests of the unit owners affected by
such special assessments. A special assessment may also be approved with
or without a meeting by 75% of the percentage interests of the unit owners
voting in favor of the special assessment by written ballot either mailed or
personally delivered to the unit owners and returned to the Association.
Special assessments are defined as assessments which are for a special project
expense and not part of the annual budget and general assessments.
However, the repair, maintenance, management and continuing costs of a
special project may be included in the annual budget for limited common or
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DECLARATION FOR ___________________- 20
general common expenses after a special project is approved by the unit
Owners. Written notice of any special assessments, the amount thereof, and
the purpose for which it is made, shall be delivered to all unit Owners
affected by the special assessment by mailing or delivering a copy of the
notice to the unit Owners at their address of record at least thirty (30) days
prior to the date of such meeting.
(f)Common expenses and profits, if any, of the Condominium shall be distributed
among and charged to the unit Owners according to the percentage of undivided
interest of each in the common elements. All of the Owners of the units shall be
chargeable for items of expenses common to all of the units, such as attributable to
the common areas and elements.
(g)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 or her share of the common expenses up to the time of the grant or
conveyance, without prejudice to the grantee's rights to recover from the grantor the
amounts paid by the grantee therefore. However, any such grantor or 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 any unpaid assessments made by the
Association against the grantor in excess of the amount therein set forth.
(h)An Association bank account may be set up in a financial institution in which all
assessments shall be deposited and withdrawn to pay association expenses. The
annual assessments should include an assessment for a reserve fund for contingencies
and future expected or known expenses of the Association. The assessments may be
billed to the owners on a monthly, quarterly, annual or other convenient basis as
determined by the Board of Directors.
(i)The unit owners of each building by a 75% vote based on one vote per unit may form
a separate sub-association to manage, improve and repair the building and administer
rules for such building and/or to vote as a unit in the main association matters and
meetings such sub-association and may elect directors, incorporate and adopt by-
laws, assess the unit owners and enforce such actions and assessments in the same
manner and to the same effect and extent as the main association may do under these
covenants.
VIII
AMENDMENT
Subject to Declarant’s and 100% of the owners’ rights set forth herein to expand the
condominium and amend this Declaration without the consent or approval of the Association, unit
Owners or lien holders, an amendment of this Declaration may be made in the following manner:
(a)At any regular, annual or special meeting of the Association of unit
Owners or the Board of Directors, an amendment may be proposed
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as a resolution by the Declarant or by at least 20% of the unit Owners
based upon the unit Owners' allocated percentages or by a majority of
the Board of Directors. Upon adoption of the resolution by a majority
vote of those Owners present, in person or by proxy, or by a majority
of the Board of Directors, the proposed amendment shall be made a
subject for consideration and vote by mail ballot and/or at a special
meeting or the next succeeding regular or annual meeting of the
Owners of the Association, with notice thereof, a copy of the
proposed amendment to be mailed or personally delivered to each
unit Owner at the Owner’s last know address at least ten days in
advance of such meeting or in the event of a mail ballot at least 15
days before the mail ballot is required to be returned in order to be
counted. At such meeting or ballot, the proposed amendment will be
deemed approved and adopted upon receiving the favorable vote of
at least seventy-five percent (75%) of the unit Owners' percentage
interests voting on the issue.
(b)The Association may, by resolution, provide that the amendment shall be
deemed adopted by a combination of mail ballots and Owners present at a
meeting or voting by proxy favorably vote in favor of the amendment by
seventy-five percent (75%) or more of the total aggregate interests of the unit
Owners voting on the issue. In lieu of a meeting of the unit Owners, the
proposed amendment shall be deemed adopted if approved by a written ballot
by the vote of at least seventy-five percent (75%) of the total aggregate
percentage interests of the unit Owners voting on the issue. A written ballot
for the amendment may be mailed to each unit owner or delivered personally
and shall set forth the amendment, the time when the written ballot must be
returned to be counted as a vote, and allow the unit owner to vote for or
against the amendment by checking or otherwise indicating his or her choice
and return the ballot to the Association. Each unit owners' vote shall be
based upon such owners' allocated percentage. If the amendment is approved
and adopted, it shall be the responsibility of the Association through its
President or Chairman or its Secretary to execute and record the amendment
with the Clerk and Recorder's Office of the county in which the
Condominium is located. The amendment shall state that the amendment
was adopted by the Association in accordance with this Section VII and shall
state the amendment upon recording of such amendment, this Declaration
shall be so amended. The chairman and secretary of the Board of Directors
shall have the authority to certify that the amendment was property adopted
and shall have the authority to execute, have acknowledged and record the
amendment.
(c)Declarant and its successors and assigns shall have the right and duty
from time to time to amend this Declaration for the purpose of
expanding the Condominium, amending the site plan and floor plans
for the buildings, units and common elements as the same are
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DECLARATION FOR ___________________- 22
amended in accordance with the terms of this declaration and for the
purpose of recording the verified statement of a registered architect,
professional engineer or professional land surveyor certifying the
completed buildings and units are built as shown on the original or
amended floor plans and site plan in accordance with the provisions
of this Declaration.
(d)Either the Board of Directors by a 75% vote, or the Declarant has the
power and authority to amend this Declaration to make corrections in
spelling, correct typographical errors or to amend sentences which are
inconsistent with the language of other sentences or the general
concept contained herein or to otherwise make an amendment to
clarify or restate sentences or paragraphs in this Declaration which are
ambiguous or unclear.
The Declarant shall not be required to give prior notice to or to obtain
the approval or vote of the unit Owners, lien holders, or Association
for amendments which the Declarant has the right to make under this
Declaration and each Owner, by the acceptance of a deed or other
conveyance of a unit, consents and agrees to such rights and
amendments. Declarant shall execute and have acknowledged any
such amendment setting forth the items amended and stating
compliance with the terms of this Declaration which shall be recorded
with the Clerk and Recorder of Gallatin County.
(c)Within 30 days after recording of any amendment to this Declaration,
the signer shall deliver a recorded copy thereof to the Association.
The Association shall then mail a copy to the last known address of
each unit Owner.
IX.
CHANGES, REPAIRS AND LIENS
1.Alterations By Unit Owners.
The interior plan of a unit may be modified by its Owner unless such modification affects the
structural integrity of the building or a portion thereof and with the exception of the bearing walls
which may not be moved. In addition to compliance with the provisions contained herein, an
amendment must be filed by the owner and the Association setting forth and contain an amended
floor plan to the unit(s) concerned showing layout of the unit after the change and attached to the
amendment as exhibits. Such amendments must be in conformance with this Declaration and the
Unit Ownership Act as amended.
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DECLARATION FOR ___________________- 23
2.Maintenance By Unit Owner.
An Owner shall maintain and keep in repair the unit, appurtenances and limited common
areas. All fixtures, utility lines, lighting and equipment installed in the unit or appurtenant limited
common areas shall be maintained and kept in repair by the Owner thereof. An Owner shall do no
act nor any work that will impair the structural soundness, or functional integrity of the building,
common elements, improvements, and fixtures, or impair any easement. The right of each Owner
to repair, alter and remodel is coupled with the obligation to replace any finishing or other materials
removed with similar types or kinds of material. No acts of alteration, repairing or remodeling by
any unit Owner shall impair in any way the structural or functional integrity of the units adjoining
or the structural integrity of limited common elements or general common elements.
3.Exterior Alterations.
An Owner may change, alter or remodel the exterior of his or her unit, the building, or the
common elements. Repair and maintenance of the exterior of the unit, building, and common
elements shall be the responsibility of the Owner, provided the provision of this Declaration shall
be complied with.
4.Liens For Alterations.
Labor performed and materials furnished and incorporated into a unit with the consent of or
at the request of the unit Owner, his or her agent, or his or her contractor or subcontractor, may be
the basis for the filing of a lien against only the unit or the unit Owner consenting to or requesting
the same. Each unit Owner shall indemnify and hold harmless each of the other Owners from and
against all liability arising from the claim of any lien against the unit or against the general common
elements or limited common elements for construction performed or for labor, materials, services
or other products incorporated in the Owner's unit at such Owner's request.
5.Claim for assessments and expenses - priority of lien - contents - recording - foreclosure of
lien - collection of assessments.
Whenever the Association furnishes or causes to be furnished to a unit owner and/or a unit
any services, labor, or material lawfully chargeable as common expenses, chargeable as individual
expenses against a unit owner or unit or chargeable as general or special assessments against a unit
owner, or a unit owner is delinquent in payment of annual or special assessments billed to the unit
owner, the Association shall have a lien upon the individual unit, and the undivided interest in the
common elements appertaining to such unit for such expenses or assessments, and the lien shall be
prior to all other liens or encumbrances upon the unit except:
(a) tax and assessment liens; and
(b) a first mortgage or trust indenture of record.
The Association claiming the benefits of the lien may record shall be recorded in the county
in which the unit or some part thereof is located a claim containing:
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DECLARATION FOR ___________________- 24
(a) a true statement of the account due for such common expenses
and assessments or individual expenses after deducting all just credits
and offsets and a general description of what the expenses or
assessments were charged for;
(b) the name of the Owner of the unit or reputed Owner, if known;
(c) a description of the property where the common expenses, if any,
were furnished and the designation of the unit, sufficient for
identification;
(d)a statement that the Association claims or has a lien on the unit for such
expenses or assessments.
The claim shall be verified by the oath of some person having knowledge of the facts and
shall be filed with and recorded by the recording officer in the book kept for the purpose of recording
liens filed under Title 7, Montana Code Annotated, Chapter 3, Part 5.
The lien may be enforced by the Manager acting on behalf of the Association of Unit Owners
or by the Board of Directors.
The proceedings to foreclose the liens created pursuant hereto and pursuant to the Unit
Ownership Act shall conform as nearly as possible to the proceedings to foreclose liens created by
Title 71, Chapter 3, Part 5, Montana Code Annotated.
An action to recover a money judgment for unpaid expenses and assessments may be
maintained by the Manager or Board of Directors without foreclosing or waiving the lien securing
the claim for expenses or assessments. It shall not be necessary to file a claim of lien to bring a suit
against a unit owner to collect assessments, interest, penalties, or attorney’s fees and costs.
6.Foreclosure on unit - payment of rent - purchase of unit by Manager or Board of Directors.
In any foreclosure suit against a unit, upon entry of the decree or order of foreclosure, the
unit Owner shall be required to pay a reasonable rental for the unit if the unit Owner fails to give up
possession unto the Association or purchaser, and the plaintiff in such foreclosure shall be entitled
to the appointment of a receiver to collect the rent and an order for the removal of the unit Owner
and his or her personal possessions
The Manager or Board of Directors acting on behalf of the Association shall have power, to
bid on the unit at the foreclosure sale and to acquire and hold, lease, mortgage, sell and convey the
same.
7.Purchaser at foreclosure sale not totally liable for prior common expenses.
Where the purchaser of a unit obtains title to the unit as a result of foreclosure of the first
mortgage or trust indenture, such purchaser, his successors, and assigns shall not be liable for any
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of the expenses or assessments chargeable to such unit which became due prior to the acquisition
of title to such unit by such purchaser. Such unpaid share of expenses or assessments shall be a
expense of all the unit Owners, including such purchaser, his successors, and assigns.
8.Joint liability of grantor and grantee for unpaid common expenses.
In a voluntary conveyance of a unit, the grantee is jointly and severally liable with the grantor
for all unpaid charges against the latter for his proportionate share of the common expenses, charges
and assessments 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 therefor. However, upon request of a
prospective purchaser or a closing agent, the Board of Directors or Manager shall make and deliver
a statement of the unpaid charges against the prospective grantor and unit, and the grantee in that
case is not liable for nor is the unit when conveyed subject to a lien filed thereafter for any unpaid
charges against the grantor in excess of the amount therein set forth.
9.Insurance.
I.The individual unit owners shall insure their buildings, appurtenant limited common area,
improvements and units owned by them against loss or damage by fire and such other perils and
hazards in such amounts as shall be determined reasonable. The Association shall not insure the
contents of a unit. The unit owner may insure the contents of their units.
(a)The Association is authorized to purchase and maintain such other insurance
coverage for the common elements and for the Association as the Board of Directors
shall determine shall be reasonable, including but not limited to, public liability
insurance, casualty insurance, theft insurance, earthquake insurance and Directors'
and officers' liability insurance.
All insurance policies purchased by the Association shall be issued by an insurance
company authorized to do business in the State of Montana. If the insurance is
purchased by the Association, the following shall apply:
(1)Named Insured on Building Improvements and Units - Personal Property:
The named insured for the Association insurance shall be the Association.
The Board of Directors or Manager shall be designated as the insurance
trustee and the agent for the unit Owners without naming them. Payments for
losses thereunder by the insurer shall be paid to the insurance trustee herein
designated and all policies and endorsements thereon shall be deposited with
the insurance trustee.
Unit Owners shall obtain insurance coverage at their own expense upon their
own units, buildings, limited common areas and personal property and for
their personal liability.
(b)Insurance Trustee.
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DECLARATION FOR ___________________- 26
The Insurance Trustee is irrevocably appointed agent for the Association each unit
Owner and for each Owner of a mortgagee or other lien holder upon a unit and for
each Owner of any other interest in the Condominium property to adjust all claims
arising under insurance policies purchased by the Association and to execute and
deliver releases upon the payment of claims.
(c)Benefit To Mortgagees.
Certain provisions in this paragraph entitled "Insurance" are also for the benefit of
mortgagees of Condominium Units and common elements, and all such provisions
are covenants for the benefit of any mortgagee of a unit and may be enforced by such
mortgagee.
10. Reconstruction.
(a)Repair After Casualty.
If any part of a unit, building, or 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, building, or other improvements are found by the Board of
Directors of the Association to be tenantable after the casualty, the damaged
property shall be repaired by the Owner.
(2)Not Tenantable And Election Not To Rebuild.
If a unit or units, building or other improvements are found by the Board of
Directors not to be tenantable after the casualty, the damaged property may
be reconstructed or rebuilt by the Owner; or if the Owners elect not to
reconstruct or rebuild, then the property shall be subject to the applicable
provisions of the Unit Ownership Act and this Declaration.
(3)Election Not To Rebuild.
In the event the Owner elects not to rebuild as herein provided and set forth
in §70-23-803, Montana Code Annotated, the insurance proceeds shall be
used to satisfy any outstanding liens or encumbrances on the property and the
balance paid to the Owners in accordance with the unit Ownership act.
(4)Certificate.
The insurance trustee may rely upon a certificate of the Association made by
its Chairman, or three members of the Board of Directors to determine
whether or not the damaged property is to be reconstructed.
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DECLARATION FOR ___________________- 27
(b)Plans And Specifications.
Any reconstruction or repair must be substantially in accordance with the floor plans
and site plans for the original improvements, or if not, then according to plans
approved in writing by not less than seventy-five percent (75%) of votes of the
percentage interests of the units voting on the matter, including one hundred percent
(100%) of the votes of the Owners of all units which are to be altered. Any such
reconstruction not in accordance with the floor plans 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 this Declaration.
(c)Responsibility.
The responsibility for maintenance and repair after casualty shall be the same as for
maintenance and repair of the Condominium property.
(d)Assessments.
If the proceeds of insurance are not sufficient to defray the estimated costs of
reconstruction or repair of the common areas or elements for which the Association
is responsible, or if at any time during such reconstruction or repair, the funds for the
payment of the costs thereof are insufficient, assessment shall be made against all
unit Owners in sufficient amounts to provide funds for the payment of such costs.
Such assessment shall be in proportion to the 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 trustee and according to the contract of reconstruction or
repair, which contract must have the approval of the Board of Directors.
(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 and/or to defray expenses of the Association.
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DECLARATION FOR ___________________- 28
X.
INTERPRETATION
The provisions of this Declaration and of the Bylaws to be promulgated and recorded
herewith shall be liberally construed to effectuate the purposes of this Declaration and Bylaws and
to create a building or buildings and units and common areas subject to and under the provisions of
the Montana Unit Ownership Act. In the event of any conflict between the Declaration and the
Bylaws, the Declaration shall prevail.
XI.
REMEDIES
All remedies provided for in this Declaration and Bylaws shall not be exclusive of any other
remedies which may not 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 or partial
invalidity or unenforceability of any other provisions shall not affect the validity or enforceability
of any other provision hereof.
XIII.
MISCELLANEOUS
1.Utility And Structural Easements.
Easements are reserved unto the Declarant and the Association through the Condominium
property and common elements as may be required for access roads, and utility easements and other
common services, including water, sewer, power, telephone, natural gas and such other easements
as shall be necessary to serve the Condominium and units adequately.
Every portion of a unit which contributes to the structural support of the building shall be
burdened with an easement of structural support for the benefit of the common elements.
2.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 general or limited common
elements therein or accessible therefrom or for making emergency repairs therein necessary for the
maintenance, repair or replacement of any of the limited common elements therein necessary to
prevent damage to the general or limited common elements or to any 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 any emergency repair within another unit
382
DECLARATION FOR ___________________- 29
at the instance of the Association shall be designated either limited or general common expenses by
the Association and assessed in accordance with such designation.
3.Expenditures.
No single expenditure or debt in excess of SEVEN THOUSAND FIVE HUNDRED AND
NO/100 DOLLARS ($7,500.00) for general common expenses, except for annual premiums for
required insurance, and other pre-approved general or special assessment items, may be made or
incurred by the Association or its manager for any project or service without the prior approval of
seventy-five percent (75%) of the Board of Directors of the Association.
4.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.
5.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. The
Declarant makes no warranty or representation as to sight protection, the view shed, or the type of
development of adjacent or nearby properties.
6.Notification Of First Mortgagee.
A first mortgagee, upon written request to the Association, will be entitled to written
notification from the Owners' Association of any default in the performance by an individual unit
Owner of any obligation under the Condominium documents which is not cured within thirty (30)
days.
7.First Mortgagees' Right.
First mortgagees of record shall have the right to examine the books and records of the
Association upon written request and at a reasonable time and place.
8.Unit Ownership Act.
The Unit Ownership Act - Condominium, Chapter 23, Title 70, of Montana Code Annotated,
and any amendments thereto are incorporated herein and by this reference made a part hereof as
though fully set forth. The provisions of this Declaration shall supersede the provisions of the Act
when permitted by the Act or law. However, in the event of any irreconcilable conflict between said
Act and any provisions contained herein, the Act shall control.
9.Fees And Costs In Action To Enforce.
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DECLARATION FOR ___________________- 30
In the event of any action to enforce the obligations and covenants contained herein, the
prevailing party shall be entitled to its, his or her costs, including reasonable attorney's fees.
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be made and
executed according to the provisions of the Montana Unit Ownership Act, MCA §70-23-101, et seq.,
Montana Code Annotated).
DECLARANT
KAILO DESIGN AND DEVELOPMENT, LLC
BY:______________________________________
Managing Member or Authorized Agent
State of Montana )
:ss
County of Gallatin )
This instrument was acknowledged before me on the ____ day of _________________,
2007, by ________________as Managing Member Kailo Design and Development, LLC.
______________________________________
NOTARY PUBLIC for the State of Montana
Printed Name: __________________________
Residing at __________________________
My Commission expires ________________
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CERTIFICATE
The undersigned, being the duly authorized agent of the Department of Revenue of the State
of Montana within the County of Gallatin, herewith executes the following Certificate relating to
_____________ Condominium, described as:
Lot 3 of Block 4 of the Rearrangement of Thompson’s Addition No. 3 to the city of
Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of
record in the office of Gallatin County Clerk and Recorder, Gallatin County, Montana (Plat
Reference: G-10)
Excepting therefrom that portion heretobefore conveyed to the State of Montana for the
benefit and use of its Department of Transporation by Bargain and Sale Deed, recorded in
Film 134, page 3414, records of Gallatin County, Montana.
1. The name "______________ 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 except for the word "Condominium"; and,
2. All taxes and assessments due and payable for the said real property______________
Condominium have been paid to date.
DATED this ______ day of ______________________, 2007.
Department of Revenue of the State of Montana
By:___________________________________
Agent for the County of Gallatin
(Gallatin County Assessor)
385
DECLARATION FOR ___________________- 32
EXHIBIT "C-1"
CERTIFICATE OF REGISTERED ARCHITECT
STATE OF MONTANA )
:ss.
County of Gallatin )
The undersigned, after first being duly sworn, deposes and says:
1. That he or she has reviewed the floor plans attached to and filed with the Declaration for
_______________Condominium or being simultaneously filed with an amendment to the
Declaration.
2. That the plans are an accurate copy of the plans filed with and approved by the County
officers having jurisdiction to issue building permits, if any.
3. That he or she certifies and verifies that the said floor plans fully and accurately depict the
layout of the units and floors of each building, square feet, unit designation and dimensions of each
of the following building and unit as built: Building______.
DATED this ______ day of ___________________, 2007.
___________________________________
Registered Architect
__________________________________,
Registration No. _________________
386
DECLARATION FOR ___________________- 33
EXHIBIT "C-2"
CERTIFICATE OF REGISTERED PROFESSIONAL LAND SURVEYOR
STATE OF MONTANA )
:ss.
County of Gallatin )
The undersigned, after first being duly sworn, deposes and says:
1. That he or she is a registered professional land surveyor in the State of Montana and has
reviewed the site plan attached to and filed with the Declaration for ________________
Condominium or being simultaneously filed with an amendment to the Declaration.
2. That he or she certifies and verifies that the said site plan fully and accurately depicts the
location of the building and units shown on the site plans of each of the following buildings and units
as built: Building____.
DATED this ______ day of ___________________, 2007.
_____________________________________
Registered Professional Land Surveyor
____________________________________,
Montana Registration No. ____________
387
BYLAWS OF THE ASSOCIATION OF UNIT OWNERS
OF
____________ CONDOMINIUM
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TABLE OF CONTENTS
Purpose and Application ........................................................1
Membership ..................................................................1
Obligations ...................................................................1
Meeting and Voting ............................................................2
Voting Interest ................................................................2
Board of Directors .............................................................3
Officers of the Board of Directors .................................................3
Powers and Duties of Board of Directors ...........................................3
Vacancies and Removal .........................................................5
Compensation ................................................................6
Managers ....................................................................6
Amendment of Bylaws..........................................................7
Assessments..................................................................7
The Declaration ...............................................................7
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BYLAWS OF THE ASSOCIATION OF UNIT OWNERS
OF
___________ CONDOMINIUM
I. PURPOSE AND APPLICATION
These Articles are and shall be the Bylaws of the Association of Unit Owners of __________
Condominium. These Bylaws shall, upon being recorded with the Clerk and Recorder of Gallatin
County, State of Montana, govern and control the administration of ____________ Condominium.
All Unit Owners, their employees, business invitees, guests and any renters or sublessees, present
and future, shall have the rights and responsibilities described in these Bylaws and shall be subject
to the provisions thereof.
The acquisition of an ownership interest in a unit in ___________ Condominium signifies
that the Owner accepts, ratifies and agrees to comply with these Bylaws.
II. MEMBERSHIP
Persons owning a Unit in _______ Condominium or an interest in a unit, or owning a unit
in any real estate tenancy relationship recognized by the State of Montana, shall be a member of the
Association of Unit Owners (“Association”). An owner may not decline membership in the
Association. Membership begins concurrently with the acquisition of an ownership interest and
terminates at the time such ownership interest is terminated. Such termination shall not relieve any
owner of liability for obligations incurred while a member of the Association; further, membership
in the Association does not in any way negate or impair any owner’s legal remedies, right to bring
legal action, or defenses to any and all actions involving the Association, other Unit Owners, or the
Management, which may arise from or be incidents of unit ownership.
III. OBLIGATIONS
Each Unit Owner shall be obligated to comply with these Bylaws, the Declaration, and the
laws of the City of Bozeman, the County of Gallatin, and the State of Montana. Such obligations
shall include, but not be limited to, the paying of assessments levied by the Association, and the
adherence to the protective covenants which are a part of the Declaration. Failure of any owner to
abide by these Bylaws, and all rules made pursuant thereto, the declaration, and the laws of the City
of Bozeman, the County of Gallatin, and the State of Montana, shall be grounds for appropriate legal
action by the Association of Unit Owners or by an aggrieved Unit Owner against such noncomplying
owner.
IV. MEETING AND VOTING
There shall be a regular meeting of the Association annually on the second Monday in
September of each year, commencing in the year ____ Condominium regime is established, or on
such other date properly announced by the Association.
Pursuant to these Bylaws, the Association may at any time hold special meetings. Such
special meetings may be called on the initiative of the Chairman of the Association, by the Board
of Directors, a signed request of the Manager, or a petition signed by fifty-one percent (51%) of the
Unit Owners. Notice of any special meeting must specify the reason for such meeting and the
matters to be raised. Only matters set forth in the petition or request may be brought before such
meeting unless more than fifty-one percent (51%) of the aggregate interest present agree otherwise.
A.Notice.
Notice of all meetings, regular or special, shall be mailed by the Association’s Secretary to
every Unit Owner of record at his address of record at least ten (10) business days prior to the time
for holding such meeting. Such notice shall specify the date, time and place of the meeting and shall
make provisions to allow for the voting of each Unit Owner’s interest by proxy at the discretion of
the owner. The mailing of a notice in the manner provided in this paragraph or the personal delivery
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of such notice by the Secretary of the Association shall be considered as notice served.
B.Quorum.
No meeting, regular or special, shall be convened to conduct business unless a quorum is
present in person or by proxy. A quorum shall consist of fifty-one percent (51%) of the total
aggregate interest of _________ Condominium. At any time, during any meeting, that quorum is
not present, such meeting shall be adjourned forthwith.
V. VOTING INTEREST
Each Unit at Association meetings shall have an equal voting interest as set forth in the
Declaration, a copy of which is being filed concurrently with the filing of these Bylaws with the
Clerk and Recorder of Gallatin County, State of Montana.
Each Unit shall thus have an equal voting interest on all matters affecting the general
business of _________ Condominium, on all matters affecting the common elements, assessments
for the common elements, and on all matters upon which the Association has agreed to have voting
on the general common elements’ interests. Voting upon matters affecting limited common elements
and assessments for limited expenses shall be only by owners having a unit or interest in units
located in the building affected.
Whenever a quorum is present at a meeting of the Association or the Board of Directors,
those present may do any and all acts they are empowered to do unless specific provisions of these
Bylaws, the Declaration, or the laws of the State of Montana direct otherwise.
VI. BOARD OF DIRECTORS
The governance of _______ Condominium shall be by a Board of five (5) Directors, elected
among the Unit Owners. Such Board shall have all powers and responsibilities attendant to the
general administration and control of the condominium. Additionally, the Board shall have the
authority necessary to carry into effect the powers and duties specified by these Bylaws.
VII. OFFICERS OF THE BOARD OF DIRECTORS
The Association shall elect from its membership a Board of Directors of five persons, who
shall serve for a term of one (1) year. The manner of election of the Board of Directors shall be as
follows:
At the first and all subsequent annual meetings of the Association, nominations for
positions on the Board shall be accepted from any of the Unit Owners present. Voting
will be noncumulative, with each Association member having a vote equal to his/her
percentage of interest in the general common elements, for as many persons as there
are Directors to be elected. Board members shall be elected by majority vote of the
interests present or voting by proxy at any annual or special meeting. The first Board
consisting of two (2) persons, as listed below, shall serve until the first annual
meeting of the Association, at which time a new Board shall be elected.
VIII. POWERS AND DUTIES OF THE BOARD OF DIRECTORS
The Board of Directors shall have the following powers and duties:
A.To call annual meetings of the Association and give due notice thereof.
B.To conduct elections of the Board of Directors.
C.To enforce the provisions of the Declaration, Bylaws and protective covenants of
____ Condominium by appropriate action.
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D.To promulgate and adopt rules and regulations for the use of the common elements
and for the occupancy of the units so as not to interfere with the peace and quiet of
all the residents. Such rules must be approved by seventy-five percent (75%) of the
unit owners at any regular or special meeting of the Association.
E.To maintain and repair the common open space, public park lands, open space
corridors, storm water facilities, public trails, and parking lot including making
provision for snow removal and storage.
F.To provide for the management of ___Condominium by hiring or contracting with
suitable and capable management and personnel for the day-to-day operation,
maintenance, upkeep and repair of the general common and limited common
elements.
G.To levy assessments as allowed by the Declaration, these Bylaws and the State of
Montana, and to provide for the collection, expenditure and accounting of said
assessments.
H.To pay for the expenses of the maintenance, repair and upkeep of the general
common elements and the limited common elements, and to approve payment
vouchers either at regular or special meetings.
I.To delegate authority to the Manager for the routine conduct of condominium
business, however, such authority shall be precisely defined with ultimate authority
at all time residing in the Board of Directors.
J.To provide a means of hearing grievances of Unit Owners and to respond
appropriately thereto.
K.To meet at regularly scheduled times and to hold such meetings open to all Unit
Owners or their agents.
L.To prepare an annual budget for the condominium in order to determine the amount
of the assessments payable by the Unit Owners to meet the general common and
limited common expenses, and allocate and assess such charges among the Unit
Owners according to their respective interests in the general common and limited
common elements.
M.To levy and collect special assessments whenever, in the opinion of the Board, it is
necessary to do so in order to meet increased operating or maintenance expenses,
costs, or additional capital expenses, or because of emergencies.
N.To take appropriate legal action to collect any delinquent assessments, payments or
amounts due from Unit Owners, or from any person or persons owing money to the
condominium, and to levy a penalty and to charge interest on unpaid amounts due
and owing. However, other than for the collection of delinquent assessments or
accounts, the Board shall not initiate any litigation or lawsuit without prior approval
of at least seventy five percent (75%) of the aggregate interest of the Unit Owners in
the condominium.
O.To defend in the name of the Association any and all lawsuits wherein CT
Condominium is a party defendant.
P.To enter into contracts necessary to carry out the duties herein set forth.
Q.To establish a bank account for CT Condominium, and to keep therein all funds of
the Association. Withdrawal of monies from such accounts shall only be by checks
signed by such persons as are authorized by the Board of Directors.
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R.In general, to act for and carry on the administration and affairs of the Association
as authorized and prescribed by the Declaration, and to do all those things which are
necessary and reasonable in order to carry out the governance and operation of CT
Condominium.
S.To make repairs, alterations, additions and improvements to the general common and
limited common elements consistent with managing the condominium in a first-class
manner and in the best interest of the Unit Owners.
T.To provide for the perpetual maintenance of the general common open area and
landscaping, the parking areas and driving lanes, and any stream, and to make any
assessments necessary for such maintenance as provided herein. Such maintenance
shall specifically include the control of County declared noxious weeds.
U.To arrange, keep, maintain and renew the insurance for the Association as set forth
in the Declaration.
V.To receive and make payment for common utility expenses, including the power bill,
for all of the condominium units. The pro rata portion of the utility expenses shall
be paid by the unit owners as part of, or in addition to, their condominium
assessment, with the method of payment to be determined by the Board.
W.To carry out the duties and responsibilities of the Board in all other matters as may
be authorized, needed or required by the Declaration.
IX. VACANCIES AND REMOVAL
Should a vacancy occur on the Board of Directors, the Board, subject to the exception
described below, shall appoint a member of the Association to serve for the unexpired term. Such
vacancy shall be filled no later than the next regular Board meeting after which it occurs. Should
such vacancy not be filled by the Board at the next regular meeting of the Association, the
Association may fill such vacancy.
At any regular or special meeting of the Association, any member of the Board may be
removed by a majority of the aggregate interest in _________ Condominium. Such vacancy shall
be filled by the Association. Such removal matter must be announced in the notice of such regular
or special meeting. The personal delivery of such notice by the Secretary of the Association shall
be considered notice served.
X. COMPENSATION
No member of the Board of Directors shall receive any compensation for acting as such.
Nothing herein, however, shall be construed to preclude compensation being paid to Managers who
are hired by the Board of Directors.
XI. MANAGERS
The Manager shall be appointed and/or removed by the Board of Directors. The Manager
(or any member of the Board or Association handling Association funds or having power to
withdraw or spend such funds) shall be bonded if required by the Board of Directors, and shall
maintain the records of the financial affairs of the condominium. Such records shall detail all
assessments made by the Association and the status of payments of said assessments by all Unit
Owners. All records shall be available for examination during normal business hours to any Unit
Owner or his assigned representative. All functions and duties herein provided for the Manager may
be performed by the Board, or the Chairman, if the Board should decide not to have a Manager.
A.Accounts: The receipts and expenditures of the Association shall be under the
direction of the Manager and be classified as appropriate into general common
expenses and limited common expenses, and shall include a provision for current
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expenses which shall include all receipts and expenditures to be made within the year
for which the budget is made, including a reasonable allowance for contingencies and
working funds, except expenditures chargeable to reserves or betterments. The
balance in this fund at the end of each year shall be applied to reduce the assessments
for current expenses for the succeeding year. Other budget items may be provided
for in the discretion of the Manager.
B.Budget: The Manager shall prepare and submit to the Board each calendar year, a
budget, which must be approved and adopted by the Board. The budget shall include
the estimated funds required to defray the general common and limited common
expenses and to provide and maintain funds for the foregoing accounts according to
good accounting practices.
Copies of the budget and proposed assessments shall be transmitted to each member
on or before December 15 of the year preceding the year for which the budget is
made. If the budget is subsequently amended, a copy of the amended budget shall
be furnished to each member.
C.Financial Report: An audit and financial report of the accounts of the Association
may be made annually by a Certified Public Accountant, if required by the Board of
Directors, and a copy of the report shall be furnished to each member no later than
March 1 of each year for which the audit is made. st
The Manager shall generally operate and manage the condominium for and on behalf of the
Unit Owners and shall have such other powers and authority as the Board may designate. If there
is no Manager or the Manager resigns, is terminated or his contract expires, the Board shall perform
all the duties of the Manager.
XII. AMENDMENT OF BYLAWS
These Bylaws may be amended at any regular or special meeting of the Association providing
that a copy of the proposed revision is included in the notice of such meeting. Upon a vote of over
fifty percent (50%) of the aggregate interest in the condominium, the amendment shall be declared
adopted. The Secretary shall as soon as practicable after adoption, prepare a copy of these Bylaws
as amended for certification by the Chairman and Secretary of the Association. Such amended and
certified Bylaws shall then be filed and recorded in the office of the Clerk and Recorder of Gallatin
County, State of Montana. Bylaws as amended shall become effective at the time of such recording.
XIII. ASSESSMENTS
In accordance with the percentage of interest in the general common elements as set forth in
the Declaration, each Unit Owner shall be assessed for general common expenses. Such
assessments, and assessments for limited common expenses, shall be collected and paid according
to the terms and under the procedures more particularly set forth in the Declaration. The amount of
assessments described above and any other assessments allowed by these Bylaws, the Declaration,
and by the State of Montana, shall be fixed by the Board of Directors. Notice of each owner’s
assessments shall be mailed to said owner at his address of record.
XIV. THE DECLARATION
The undersigned has filed, along with these Bylaws, a Declaration whereby the properties
known as CT Condominium are submitted subject to Title 70, Chapter 23, M.C.A. The Declaration
shall govern the acts, powers, duties and responsibilities of the Association of Unit Owners, and in
the event these Bylaws and the Declaration are in conflict, the Declaration shall prevail.
The definition of terms set forth in the Declaration shall be applicable throughout these
Bylaws and the interpretation thereof.
By virtue of these Bylaws and the Declaration, each Unit Owner has the right to membership
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in the Association of Unit Owners and any Unit Owner may be on the Board of Directors of ___
Condominium.
___Condominium Association of Unit Owners and its Board of Directors shall have the
primary and final authority on all matters solely affecting the condominium area, subject to the laws,
rules and regulations of the City of Bozeman, the County of Gallatin, and the State of Montana.
IN WITNESS WHEREOF, the undersigned, as the owners of record of all of the
condominium units and 100% of the voting interests of ____ Condominium as of the date hereof,
hereby appoints the following persons to serve on the Board of Directors and as officer until the first
annual meeting of the Association, to-wit:
And, the Declarants and the said Board hereby declare and affirm the adoption of the
foregoing Bylaws on the ___ day of _____________________, 2007.
KAILO DESIGN AND DEVELOPMENT, LLC.
By:________________________________________
STATE OF MONTANA )
) ss.
County of Gallatin )
On this ___ day of _______________________, 2007, before me, a Notary Public in and for
the State of Montana, personally appeared ___________, the _________of Kailo Design and
Development, LLC, whose name is subscribed to the within instrument and acknowledged to me that
he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above
written.
__________________________________________
Notary Public for the State of Montana
Printed Name: ______________________________
Residing at _________________________________
My Commission expires: ______________________
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Job # 06-137 South Towne Square
Engineer BJC Preliminary Storm Pond Sizing
Date
Calculation of Required Volume for Storm Detention Pond
Pond ID Pond 1
Accepts flow from basins Basin 1
(Reference: Bozeman Stormwater Master Plan - 1982)
Design Rainfall Freq. 10 year (see page III - 5 of master plan)
IDF coefficient a 0.64
IDF coefficient b
IDF coefficient n 0.65
Pre-development Calculations Post-development Calculations
CC
Areas (ft2):open space 45,651 0.20 Areas (ft2):open space 0.20
med. res. 0.35 med. res. 0.35
dense res. 0.50 dense res. 0.50
comm. neigh. 0.60 comm. neigh. 45,651 0.60
comm. down. 0.80 comm. down. 0.80
industrial 0.80 industrial 0.80
Total: 45,651 Total: 45,651
total area: 1.05 acres total area: 1.05 acres
composite C: 0.20 composite C: 0.60
Overland tc Overland tcaverage slope: 1.75 percent average slope: 3 percent
travel distance: 250 feet travel distance: 35 feet
tc:22 minutes tc:4 minutes
Channel tc Channel tc
channel tc:minutes channel tc:1 minutes
Total tc:22 minutes Total tc:5 minutes
intensity at tc (fig 23):1.23 in/hr intensity at tc (fig 23):3.22 in/hr
pre-devel peak runoff: 0.26 cfs post-devel peak runoff: 2.02 cfs
Detention Pond Calculations:Retention Pond Calculations:
design depth of pond 1.50 feet Q = CIA
max side slope 4.00 horizontal to 1.00 vertical C = 0.60 (post-development)
length/width ratio 3.00 I = 0.41 in/hr (10-yr, 2-hr storm)
min. particle removed 40 microns (1 micron = 1 x 10-6 meters)A = 1.05 acres
settling velocity of particle 0.0069 feet/second
Q = 0.26 cfs
min. pond to settle particle 293 square feet required retention storage (ft3) =1,847 ft3
06-137 detention pond COB.xls
498
Job # 06-137 South Towne Square
Engineer BJC Preliminary Storm Pond Sizing
Date
Calculation of Required Volume for Storm Detention Pond
Pond ID Pond 2
Accepts flow from basins Basin 2
(Reference: Bozeman Stormwater Master Plan - 1982)
Design Rainfall Freq. 10 year (see page III - 5 of master plan)
IDF coefficient a 0.64
IDF coefficient b
IDF coefficient n 0.65
Pre-development Calculations Post-development Calculations
CC
Areas (ft2):open space 21,301 0.20 Areas (ft2):open space 0.20
med. res. 0.35 med. res. 0.35
dense res. 0.50 dense res. 0.50
comm. neigh. 0.60 comm. neigh. 21,301 0.60
comm. down. 0.80 comm. down. 0.80
industrial 0.80 industrial 0.80
Total: 21,301 Total: 21,301
total area: 0.49 acres total area: 0.49 acres
composite C: 0.20 composite C: 0.60
Overland tc Overland tc
average slope: 1.75 percent average slope: 3 percent
travel distance: 75 feet travel distance: 35 feet
tc:12 minutes tc:4 minutes
Channel tc Channel tc
channel tc:minutes channel tc:1 minutes
Total tc:12 minutes Total tc:5 minutes
intensity at tc (fig 23):1.81 in/hr intensity at tc (fig 23):3.22 in/hr
pre-devel peak runoff: 0.18 cfs post-devel peak runoff: 0.94 cfs
Storm Duration Intensity Future Runoff Runoff Release Required
(minutes) (in/hr) Rate (cfs)Volume (cf)Volume (cf) Storage (cf)
5 3.22 0.94 283 53 230
7 2.59 0.76 319 74 244
9 2.20 0.64 348 96 252
11 1.93 0.57 373 117 256
13 1.73 0.51 396 138 258
15 1.58 0.46 416 160 257
17 1.45 0.43 435 181 254
19 1.35 0.40 452 202 250
21 1.27 0.37 468 223 245
23 1.19 0.35 483 245 239
25 1.13 0.33 498 266 232
27 1.08 0.32 511 287 224
29 1.03 0.30 524 308 216
31 0.98 0.29 536 330 207
33 0.94 0.28 548 351 197
35 0.91 0.27 560 372 188
37 0.88 0.26 571 394 177
required detention storage (ft3) =258
06-137 detention pond COB.xls
499
Job # 06-137 South Towne Square
Engineer BJC Preliminary Storm Pond Sizing
Date
Calculation of Required Volume for Storm Detention Pond
Pond ID Pond 3
Accepts flow from basins Basin 3
(Reference: Bozeman Stormwater Master Plan - 1982)
Design Rainfall Freq. 10 year (see page III - 5 of master plan)
IDF coefficient a 0.64
IDF coefficient b
IDF coefficient n 0.65
Pre-development Calculations Post-development Calculations
CC
Areas (ft2):open space 49,092 0.20 Areas (ft2):open space 0.20
med. res. 0.35 med. res. 0.35
dense res. 0.50 dense res. 0.50
comm. neigh. 0.60 comm. neigh. 49,092 0.60
comm. down. 0.80 comm. down. 0.80
industrial 0.80 industrial 0.80
Total: 49,092 Total: 49,092
total area: 1.13 acres total area: 1.13 acres
composite C: 0.20 composite C: 0.60
Overland tc Overland tcaverage slope: 1.75 percent average slope: 3 percent
travel distance: 250 feet travel distance: 35 feet
tc:22 minutes tc:4 minutes
Channel tc Channel tc
channel tc:minutes channel tc:1 minutes
Total tc:22 minutes Total tc:5 minutes
intensity at tc (fig 23):1.23 in/hr intensity at tc (fig 23):3.22 in/hr
pre-devel peak runoff: 0.28 cfs post-devel peak runoff: 2.18 cfs
Detention Pond Calculations:Retention Pond Calculations:
design depth of pond 1.50 feet Q = CIA
max side slope 4.00 horizontal to 1.00 vertical C = 0.60 (post-development)
length/width ratio 3.00 I = 0.41 in/hr (10-yr, 2-hr storm)
min. particle removed 40 microns (1 micron = 1 x 10-6 meters)A = 1.13 acres
settling velocity of particle 0.0069 feet/second
Q = 0.28 cfs
min. pond to settle particle 315 square feet required retention storage (ft3) =1,986 ft3
06-137 detention pond COB.xls
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