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DECLARATION OF COVENANTS, CONDITIONS, AND
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR FLANDERS MILL
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ........................................................................................................... 2
ARTICLE II DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND
CREATION OF PROPERTY RIGHTS ............................................................................. 5
2.1 Description of Project ............................................................................................. 5
2.2 Easements; Dedication of Common Area ............................................................... 5
2.3 Easements to Accompany Conveyance of Lot ....................................................... 6
2.4 Delegation of Use ................................................................................................... 6
2.5 Conveyance of Common Area to Association; Reservations of Easements........... 6
2.6 Owners’ Rights and Easements for Utilities .......................................................... 6
2.7 Annexation of Additional Property ......................................................................... 6
2.8 Party Walls .............................................................................................................. 7
A. General Rules of Law to Apply .................................................................. 7
B. Sharing of Repair and Maintenance ............................................................ 7
C. Destruction by Fire or Other Casualty ........................................................ 7
D. Weatherproofing ......................................................................................... 7
E. Right to Contribution Runs with Land........................................................ 7
F. Arbitration ................................................................................................... 7
2.9 Maintenance Easement ........................................................................................... 8
2.10 Drainage Easements ................................................................................................ 8
2.11 Other Easements ..................................................................................................... 8
2.12 Rights of Entry and Use .......................................................................................... 8
2.13 Partition of Common Area ...................................................................................... 8
2.14 No Subdivision of Lots ........................................................................................... 8
2.15 No View Rights....................................................................................................... 9
2.16 All Easements Part of Common Plan...................................................................... 9
ARTICLE III ASSOCIATION ADMINISTRATION, MEMBERSHIP AND VOTING
RIGHTS .............................................................................................................................. 9
3.1 Association to Own and Manage Common Areas .................................................. 9
3.2 Membership ............................................................................................................ 9
3.3 Transferred Membership ......................................................................................... 9
3.4 Membership and Voting Rights ............................................................................ 10
ARTICLE IV MAINTENANCE AND ASSESSMENTS ............................................................ 10
4.1 Creation of the Lien and Personal Obligation of Assessments ............................ 10
4.2 Purpose of Assessments ........................................................................................ 10
4.3 Assessments .......................................................................................................... 10
A. Regular Assessments ................................................................................ 11
B. Special Assessments ................................................................................. 11
4.4 Restrictions on Increases in Regular and Special Assessments ............................ 11
4.5 Notice and Quorum for Arm, Action Authorized Under Section 4.4 ................... 12
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4.6 Division of Assessments ....................................................................................... 12
4.7 Date of Commencement of Regular Assessment; Due Dates ............................... 12
4.8 Effect of Nonpayment of Assessments ................................................................. 12
4.9 Transfer of Lot, by Sale or Foreclosure ................................................................ 13
4.10 Priorities; Enforcement; Remedies ....................................................................... 13
4.11 Unallocated Taxes ................................................................................................. 14
ARTICLE V DUTIES AND POWERS OF THE ASSOCIATION ............................................. 14
5.1 Duties .................................................................................................................... 14
A. Maintenance .............................................................................................. 14
B. Insurance ................................................................................................... 15
C. Discharge of Liens .................................................................................... 15
D. Assessments .............................................................................................. 15
E. Payment of Expenses and Taxes ............................................................... 15
F. Enforcement .............................................................................................. 15
G. Operation of Common Area and Creation of Rules ................................. 15
H. Inspection and Maintenance Guidelines ................................................... 15
I. Preparation of Financial Documents ......................................................... 15
5.2 Powers ................................................................................................................... 16
A. Utility Service ........................................................................................... 16
B. Easements ................................................................................................. 16
C. Manager .................................................................................................... 16
D. Adoption of Rules ..................................................................................... 16
E. Access ....................................................................................................... 16
F. Assessments, Liens. Penalties, and Fines ................................................ 16
G. Enforcement .............................................................................................. 17
H. Acquisition and Disposition of Property................................................... 17
I. Contracts ................................................................................................... 17
J. Delegation ................................................................................................. 17
K. Appointment of Trustee ............................................................................ 18
L. Litigation/Arbitration ................................................................................ 18
M. Other Powers ............................................................................................. 18
ARTICLE VI ARCHITECTURAL CONTROL .......................................................................... 18
6.1 Purpose of Architectural Controls ........................................................................ 18
ARTICLE VII USE RESTRICTIONS ......................................................................................... 18
7.1 Use of Lot ............................................................................................................. 18
7.2 Nuisances .............................................................................................................. 18
7.3 Vehicle Restrictions and Towing .......................................................................... 19
7.4 Parking .................................................................................................................. 19
7.5 Commercial Activity ............................................................................................. 19
7.6 Storage .................................................................................................................. 20
7.7 Signs ...................................................................................................................... 20
7.8 Animals ................................................................................................................. 20
7.9 Garbage and Refuse Disposal ............................................................................... 20
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7.10 Antennas ............................................................................................................... 20
7.11 Power Equipment and Car Maintenance ............................................................... 20
7.12 Liability of Owners for Damage to Common Area .............................................. 20
7.13 Leasing of Lots ..................................................................................................... 21
7.14 Commonly Metered Utilities ................................................................................ 21
7.15 Activities Causing Increase in Insurance Rates .................................................... 21
7.16 Temporary Structures............................................................................................ 21
7.17 Owner’s Right and Obligation to Maintain and Repair ........................................ 21
7.18 Timeshare and Fractional Ownership Prohibition ................................................ 21
7.19 High Groundwater Note ........................................................................................ 21
ARTICLE VIII PROJECT DEVELOPMENT AND LANDSCAPE GUIDELINES .................. 22
8.1 Driveways ............................................................................................................. 22
8.2 Driveway Swale Prohibitions ............................................................................... 22
8.3 Kennels ................................................................................................................. 22
8.4 Fences ................................................................................................................... 22
8.5 Privacy Screening ................................................................................................. 22
8.6 Antennas and Satellite Dishes ............................................................................... 22
8.7 Exterior Lighting ................................................................................................... 22
8.8 Utilities .................................................................................................................. 23
8.9 No Storage Sheds .................................................................................................. 23
8.10 Temporary Structures............................................................................................ 23
8.11 Solid Waste Containers ........................................................................................ 23
8.12 Recreational Vehicles ........................................................................................... 23
ARTICLE IX INSURANCE; DAMAGE OR DESTRUCTION; CONDEMNATION ............... 23
9.1 Insurance ............................................................................................................... 23
9.2 Damage or Destruction ......................................................................................... 25
A. Process For Repair or Reconstruction of Common Area
Improvements ........................................................................................... 26
B. Process If Repair or Reconstruction Not Undertaken ............................... 27
9.3 Condemnation ....................................................................................................... 27
ARTICLE X GENERAL PROVISIONS...................................................................................... 28
10.1 Enforcement .......................................................................................................... 28
10.2 Invalidity of Any Provision .................................................................................. 28
10.3 Term ...................................................................................................................... 28
10.4 Amendments ......................................................................................................... 28
10.5 Limitation of Restrictions on Declarant ................................................................ 28
10.6 Termination of Any Responsibility of Declarant.................................................. 29
10.7 Owners’ Compliance ............................................................................................ 29
10.8 Notice .................................................................................................................... 30
10.9 No Discrimination ................................................................................................. 30
10.10 Alternative Dispute Resolution ............................................................................. 30
10.11 Number; Gender.................................................................................................... 30
10.12 Captions ................................................................................................................ 30
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10.13 Exhibits ................................................................................................................. 31
10.14 Compliance with FHA, VA, FHLMC or FNMA Requirements .......................... 30
10.15 Power of Attorney ................................................................................................. 30
ARTICLE XI ENFORCEMENT .................................................................................................. 31
11.1 Priority and Defined Terms .................................................................................. 31
11.2 Enforcement and Nonwaiver ................................................................................ 31
11.3 Agreement to Avoid Litigation ............................................................................. 31
11.4 Claims ................................................................................................................... 31
11.5 Mandatory Procedures .......................................................................................... 32
A. Notice ........................................................................................................ 32
B. Negotiation and Mediation ....................................................................... 32
C. Arbitration ................................................................................................. 33
11.6 Allocation of Costs of Resolving Claims.............................................................. 33
11.7 Enforcement of Resolution ................................................................................... 33
11.8 Agreement for Dispute Resolution Waivers of Jury Trial and Award of
Punitive Damages ................................................................................................. 33
ARTICLE XII SPECIAL DECLARANT RIGHTS ..................................................................... 34
12.1 Special Declarant Rights ....................................................................................... 34
12.2 Transfer of Special Declarant Rights .................................................................... 34
12.3 Models, Sales Offices and Management Offices .................................................. 35
12.4 Construction of Improvements ............................................................................. 35
12.5 Other Covenants Prohibited .................................................................................. 35
12.6 Master Planned Community ................................................................................. 35
12.7 Equal Treatment .................................................................................................... 35
12.8 Right to Use Common Area for Special Events ................................................... 36
12.9 Amendment ........................................................................................................... 36
ARTICLE XIII REQUIREMENTS OF GALLATIN COUNTY ................................................. 37
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DECLARATION OF COVENANTS, CONDITIONS, AND
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR FLANDERS MILL SUBDIVISION
This Declaration of Covenants, Conditions, and Restrictions and Reservation of
Easements for Flanders Mill Subdivision (“Declaration”) is made this 13th day of April, 2014 by
Flanders Mill LLC, a Montana limited liability company (“Declarant”).
This Declaration of Covenants, Conditions, and Restrictions and Reservation of
Easements for Flanders Mill Subdivision recorded ___________ as Document No. _________,
records of Gallatin County, Montana.
RECITALS
A. All of the property described in Exhibit A (“Property”) of this Declaration shall
be held, sold, used and conveyed subject to the following easements, restrictions, covenants, and
conditions, which are for the purpose of protecting the value and desirability of and which shall
run with title to the real property subjected to this Declaration. This Declaration shall be binding
on all parties having any right, title, or interest in the Property or any part thereof, their heirs,
successors, successors-in-title, and assigns, and shall inure to the benefit of each owner thereof.
B. Declarant is developing the subdivision known as Flanders Mill Subdivision
pursuant to the Act. The Property and all improvements from time to time constructed thereon,
shall hereafter be referred to as the “Project.”
C. If developed as currently planned, at full completion the Project will contain 292
lots (individually a “Lot” and collectively the “Lots”) intended for single family residential use,
18 Townhome Units, 16 Auxiliary Dwelling Units, approximately 5.42 acres of R-4 Multi
Family Apartments, and 4.4 acres of PLI (Public Lands Institutional) and all related common
areas, and Tracts for the construction of common use facilities to serve the Project.
D. Declarant intends by this Declaration to impose upon the Project mutually
beneficial restrictions under a general plan of improvement for the benefit of all Owners of Lots
in the Project that will become subject to this Declaration.
AGREEMENT
NOW, THEREFORE, Declarant hereby declares that the Project shall be held, sold,
mortgaged, encumbered, used, occupied, improved and conveyed subject to the following
declarations, limitations, easements, restrictions, covenants, and conditions which are imposed as
equitable servitudes pursuant to a general plan for the development of the Project for the purpose
of enhancing and protecting the value, desirability and attractiveness off the Project as a first-
class residential development. These restrictions, covenants, conditions and easements shall run
with the Property and be binding on Declarant and its successors and assigns, and on all parties
having or acquiring any right, title or interest in or to the Property or any part thereof, and their
respective heirs, successors and assigns, and shall inure to the benefit of each Owner thereof.
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ARTICLE I
DEFINITIONS
The terms in this Declaration and the exhibits to this Declaration shall generally be given
their natural, commonly accepted definitions except as otherwise specified. Capitalized terms
shall be defined as set forth below:
1.1 “Act” shall mean and refer to the Montana Subdivision Platting Act, Mont. Code
Ann. § 76-3-101, et seq.
1.2 “Flanders Mill, LLC Architectural Committee (FMAC)” shall be the committee
described in Section 6.3.
1.3 “Articles” shall mean and refer to the Articles of Incorporation of the Association,
as amended from time to time.
1.4 “Assessment” shall mean that portion of the cost of maintaining, improving,
repairing, operating and managing the Project, which is to be paid by each Owner as determined
by the Association, and shall include regular and special assessments, and each Owner’s share of
Common Expenses.
1.5 “Association” shall mean and refer to the Flanders Mill Homeowners Association,
a Montana non-profit mutual benefit corporation, the Members of which shall be the Owners of
Lots in the Project.
1.6 “Board” or “Board of Directors” shall mean and refer to the governing body of
the Association.
1.7 “Bylaws” shall mean and refer to the Bylaws of the Association, as amended from
time to time.
1.8 “Committee” shall mean and refer to the Flanders Mill, LLC Architectural
Committee (FMAC).
1.9 “Common Area” or “Common Areas” shall mean and refer to the portions of the
Project and all improvements thereon designated from time to time in this Declaration or in any
supplemental declaration, which is to be owned by the Association or which is actually owned by
the Association, or which is dedicated in fee or through a recorded Trail Corridor, to the City of
Bozeman for the common use and enjoyment of the Owners and the Public. Common Areas
within the Project are indicated on Exhibit B.
1.10 “Common Expenses” means and includes the actual and estimated expenses of
operating the Common Area (and pursuing, implementing, and executing the intent, purposes,
business and affairs of the Association) and any reasonable reserve for such purposes as found
and determined appropriate by the Board, and all sums designated Common Expenses by or
pursuant to this Declaration, the Articles, Bylaws or Rules. Common Expenses shall also
include costs and reserves (if appropriate) incurred by the Association in connection with
maintaining the Project and any areas at or adjacent to the Project that the Association is
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otherwise required to maintain as required by City of Bozeman, Montana, or any other
governmental agency with jurisdiction thereof. Funds to pay all Common Expenses may be
collected as part of Assessments, as provided herein. Common Expenses include street lighting,
maintenance and upkeep of the water features and wetlands of the Project, landscaping and
maintaining the Common Areas, landscaping and maintaining the streets (including snow
removal), maintenance and upkeep of any community center or recreational facility, if any, and
all expenses associated with utilities and water for the Common Areas.
1.11 “Declarant” shall mean and refer to Flanders Mill, a Montana Limited Liability
Company qualified to do business in the State of Montana, and any successor or assign that
expressly assumes the rights and duties of the Declarant hereunder in a recorded written
document.
1.12 “Declaration” shall mean and refer to this Declaration, as amended or
supplemented from time to time.
1.13 “Design Regulations Guidelines” shall mean and refer to the Flanders Mill
Subdivision Design and Landscape Guidelines dated April 13 2014, as amended from time to
time by Declarant or the Committee.
1.14 “Development Period” shall mean and refer to the period of time during which the
Declarant is entitled to exercise Development Rights and Special Declarant Rights. The
Development Period commenced on ________________ and shall terminate on the earlier of the
following to occur: (a) ninety percent (90%) of the Lots are sold from Declarant to third parties;
or (b) Declarant delivers written notice to the Association that Declarant is voluntarily
relinquishing its Development Rights and Special Declarant Rights under this Declaration.
1.15 “Development Rights” shall mean and refer to the rights reserved to the Declarant
to (a) submit additional property to be subject to the Declaration; (b) create Lots and Common
Area; and (c) subdivide Lots or convert Lots into Common Area. Development Rights may be
exercised in all or any portion of the Project at any time within the Development Period.
1.16 “First Mortgage” shall mean and refer to any recorded mortgage made in good
faith and for value on a Lot with first priority over other mortgages thereon.
1.17 “Foreclosure” shall mean and refer to the legal process by which the mortgaged
property of a borrower in default under a Mortgage is sold, and the borrower’s interest in such
property is sold, pursuant to applicable law.
1.18
1.19 “Initial Phase” shall mean the Final Plat of Flanders Mill Subdivision, Phase 1,
located in _____________________________________________________________________
Gallatin County, Montana, according to the official plat thereof on file and of record in the office
of the County Clerk and Recorder of Gallatin County, Montana.
1.20 “Lot” or “Residential Lot” shall mean any legally subdivided parcel within the
Project which is intended for single family residential use and the development and maintenance
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thereon of a Residential Unit as described herein. As used herein, the term “Lot” shall not
include Common Areas, Common Area Lots, Parks or Tracts which are designated on the Plat
Maps. Residential Lots are normally designated as numbered lots on recorded Plat Maps
“Member” shall mean and refer to a person entitled to membership in the Association as
provided herein, and “Membership” shall refer to such entitlement.
1.21 “Mitigated Area” shall mean those areas of Open Space outside the boundaries of
the Residential Lot which constitute wetlands or stream site areas.
1.22 “Mortgage” shall include a deed of trust, as well as a Mortgage.
1.23 “Mortgagee” shall include a beneficiary or a holder of a deed of trust, as well as a
Mortgage.
1.24 “Mortgagor” shall include the trustor off a deed of trust, as well as Mortgagor.
1.25 “Open Space” shall mean developed land to be owned by the Association, City of
Bozeman in fee or through Trail Corridor Easements for the use of the Owners and the Public
under such restrictions as the Association or Declarant may provide.
1.26 “Owner” or “Owners” shall mean and refer to the record Owner, whether one or
more Persons, of fee simple title to any Lot which is a part of the Project, but excluding those
Persons having an interest merely as security for the performance of an obligation. If a Lot is
sold under a contract of sale and the contract is recorded, the purchaser, rather than the fee
owner, shall be considered the “Owner” from and after the date the Association receives written
notice of the recorded contract.
1.27 “Person” means a natural person, a corporation, a partnership, a trust, or other
legal entity.
1.28 “Plat Map” shall mean and refer to any recorded subdivision Plat Map covering
all or any portion of the Project.
1.29 “Private Open Space” shall mean land dedicated for the use by Flanders Mill
Owners Association.
1.30 “Project” shall mean and refer to the property listed on Exhibit A, as modified
from time to time and all of the improvements thereon.
1.31 “Project Documents” shall mean and refer to the basic organizational and
governance documents of the Association, including the Articles, Bylaws, and this Declaration.
1.32 “Public Records” shall mean and refer to the Public Records as reflected in the
office of the County Clerk and Recorder of Gallatin County, Montana.
1.33 “Rules” shall mean and refer to the rules adopted from time to time by the
Association pursuant to Section 1.71.
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1.34 “Special Assessment” shall mean and refer to Assessments levied in accordance
with Section 1.61.
1.35 “Special Declarant Rights” shall mean and refer to the rights of Declarant
described in Article XII.
1.36 “Unit” or “Residential Unit” shall mean and refer to any single family residence
and related improvements constructed upon a Residential Lot.
ARTICLE II
DESCRIPTION OF PROJECT, DIVISION OF PROPERTY,
AND CREATION OF PROPERTY RIGHTS
2.1 Description of Project. The Project is a development consisting of the property on
Exhibit A, including but not limited to, the Common Area, the Residential Lots, the creek and
wetlands and all improvements thereon. The Project is intended to be developed in phases. As
each phase is completed, it will be subject to the terms of this Declaration.
2.2 Easements; Dedication of Common Area. Each Lot shall have appurtenant to it as
the dominant tenement an easement over all Common Area Lots and Common Areas for ingress,
egress, use and enjoyment, and for the construction, maintenance, operation and use of utilities,
subject to the rights and easements in favor of Declarant as provided herein, and to the following
provisions:
A. The right of the Association to discipline Members and to suspend the
voting rights of a Member for any period during which any Assessment against his Lot remains
unpaid, and for any infraction of the Articles, Bylaws, this Declaration or the Rules, in
accordance with the provisions of this Declaration.
B. The right of the Association to dedicate, or transfer all or any part of the
Common Area to any public agency, authority, or utility for such purposes and subject to such
conditions as may be agreed to by Board of Directors shall be subordinate to the rights of the
Members of the Association, and no such dedication, or transfer shall be effective unless an
instrument signed or approved by two-thirds of the voting power of the Association.
C. The right of the Association to grant easements under, in, upon, across,
over, above or through any portion of the Common Area for reasonable purposes, as approved by
the Board, which are beneficial to the Association or the Project or the development of it.
D. Easements for work and activities necessary to complete construction,
development and marketing of the Project, including all parcels annexed or to be annexed, as
more particularly described in section 2.7.
The foregoing easements are granted and reserved subject to the condition that their use
and enjoyment shall not unreasonably interfere with the use, occupancy or enjoyment of all or
any material part of the Lot servient to them or to which they are appurtenant.
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2.3 Easements to Accompany Conveyance of Lot. Easements that benefit or burden
any Lot shall be appurtenant to that Lot and shall automatically accompany the conveyance of
such Lot, even though the description in the instrument of conveyance may refer only to the fee
title to the Lot.
2.4 Delegation of Use. Any Owner may delegate, in accordance with the Rules, his
right of enjoyment to the Common Area and facilities to the members of his family, guests,
tenants, or contract purchasers, who occupy such Owner’s Lot.
2.5 Conveyance of Common Area to Association; Reservations of Easements. On or
before conveyance of title to the last Lot in a particular phase of the Project, Declarant shall
convey the Common Area in that phase to the Association to be held for the benefit of the
Members of the Association and Public. Whenever any Common Area is conveyed by Declarant
to the Association, an easement is automatically reserved (whether or not expressed in the
conveyance document) over, under and through such Common Area for the benefit of remaining
portions of the Property that have not yet been conveyed, for ingress, egress, access and all
utilities and similar appurtenances, and for the construction, marketing and sale of Lots and/or
improvements on such remaining portions of the Annexed Property. Use of such portions of the
Property shall be subject to the obligation to pay an equitable share of regular and special
Assessments as provided in Article IV.
2.6 Owners’ Rights and Easements for Utilities. The rights and duties of the Owners
of Lots within the Project with respect to sewer, drainage, water, irrigation water, electric, gas,
television and telephone equipment, cables and lines (collectively “utility facilities”) shall be as
follows:
A. Whenever utility facilities are installed within the Project, which utility
facilities or any portion thereof lie in or upon a Lot or Lots owned by other than the Owner of a
Lot served by said utility facilities, the Owners of any Lots served by such utility facilities shall
have the right of reasonable access for themselves or for utility companies or providers to repair,
to replace and generally maintain said utility facilities as and when the same may be necessary,
due to failure or inability of the Board to take timely action to make such repairs or perform such
maintenance.
B. Whenever utility facilities are installed within the Project which serve
more than one Lot, the Owner of each Lot served by said utility facilities shall be entitled to the
full use and enjoyment of such portions of said utility facilities as service his Lot.
C. In the event of a dispute between Owners with respect to the repair or
rebuilding of said utility facilities, or with respect to the sharing of the cost thereof, then, upon
written request of one (1) Owner addressed to the other Owner(s), the matter shall be submitted
first to the Board for mediation, and thereafter, if the dispute remains unresolved, to binding
arbitration pursuant to the rules of the American Arbitration Association.
2.7 Annexation of Additional Property. Declarant reserves the right from time to
time to add additional property (“Annexed Property”) to the Project. This right is irrevocable.
Declarant shall not be required to add such additional lands to the Project and Declarant may add
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a portion or all thereof at Declarant’s discretion. Declarant reserves an easement through the
Common Elements herein described for access, ingress and egress, and for utility and service
lines, and the hookup to existing access and utility and service lines. The manner of subjecting
the Annexed Property to this Declaration shall be accomplished by the filing of record in the
office of the County Clerk and Recorder for Gallatin County an amendment to the legal
description of the lands covered by this Declaration. Any Annexed Property shall be deemed
annexed to the Project and made subject to the Declaration and the jurisdiction of the
Association, and shall be held, sold, leased, transferred, occupied and conveyed subject to the
terms, provisions, covenants, conditions, restrictions, reservations and easements of this
Declaration. The right of unilateral annexation provided for in this paragraph constitutes a
covenant running with the land, and is as such enforceable by any successor or assignee of
Declarant who acquires any part of the Annexed Property, and who assumes the role of
Declarant.
2.8 Party Walls:
A. General Rules of Law to Apply: Each wall (or fence) that is built as part
of original construction, is located on the boundary line with an adjacent Lot and either is used in
common with the adjacent Lot or abuts against a similar wall on the adjacent Lot shall constitute
a party wall. To the extent not inconsistent with this section, the general rules of law regarding
party walls and liability for property damage due to negligence or willful acts or omissions shall
apply thereto.
B. Sharing of Repair and Maintenance: The cost of reasonable repairs and
maintenance of a party wall shall be shared by the Owners who make use of the wall in
proportion to such use.
C. Destruction by Fire or Other Casualty: If a party wall is destroyed or
damaged by fire or other casualty, any Owner who has used the wall may restore it, and if the
other Owners thereafter make use of the wall, they shall contribute to the cost of restoration
thereof in proportion to such use; provided, however, that the Owner or Owners whose negligent
act or omission proximately caused the damage or destruction shall ultimately be responsible for
such restoration.
D. Weatherproofing: Notwithstanding any other provisions of this Article, an
Owner who by his negligent or willful act causes the party wall to be exposed to the elements
shall bear the whole cost of furnishing the necessary protection against such elements.
E. Right to Contribution Runs with Land: The right of any Owner to
contribution from any other Owner under this section shall be appurtenant to the land and shall
pass to such Owner’s successors in title.
F. Arbitration: In the event of any dispute arising concerning a party wall, or
concerning the provisions of this section, upon written request of one Owner addressed to the
other Owner, the matter shall be submitted first to the Board of Directors for mediation, and
thereafter, if the dispute remains unresolved, to binding arbitration pursuant to the rules of the
American Arbitration Association.
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2.9 Maintenance Easement. An easement over each Lot as the servient tenement is
reserved by Declarant in favor of each other Lot as the dominant tenement, and in favor of the
Association, for the purpose of allowing the Association’s agents the right, but not the
obligation, to enter the Lot to perform such maintenance, if any, as the Association may do in
accordance with the provisions of this Declaration.
2.10 Drainage Easements. An easement over and under each Lot as the servient
tenement is reserved by Declarant in favor of each other Lot and the Association for the purpose
of allowing the Association’s agents the right, but not the obligation, to enter the Lot to maintain
that portion of any storm drainage system located thereon. No Owner or occupant shall commit
any act that would interfere with the operation of any drainage system (including drainage
swales) installed on the Owner’s Lot. The Owner shall maintain the system free of debris and
other obstacles at all times. Reciprocal appurtenant easements between each Lot and the
Common Area and between adjoining Lots are reserved for the flow of water in the storm
drainage system.
2.11 Other Easements. The Common Area and each Lot are subject to all easements,
dedications, and rights of way granted or reserved in, on, over and under the Project as shown on
any Plat Map for the Project, and as otherwise provided or contemplated in this Declaration.
2.12 Rights of Entry and Use. The Lots and Common Area shall be subject to the
following rights of entry and use:
A. The right, but not the obligation, of the Association’s agents to enter any
Lot to cure any violation of this Declaration, the Articles, Bylaws or Rules, provided that the
Owner has received notice and a hearing as required by the Bylaws (except in the case of an
emergency) and the Owner has failed to cure the violation or take steps necessary to cure the
violation within thirty (30) days after the finding of a violation by the Association;
B. The access rights of the Association to perform maintenance as provided
in Section 5.2E;
C. The easements described in this Article II;
D. The right of the Association’s agents to enter any Lot to perform
maintenance to the extent described herein; and
E. The rights and easements of the Declarant during construction and sales as
described in herein.
2.13 Partition of Common Area. Unless approved in writing by Declarant, there shall
be no subdivision or partition of the Common Area, nor shall any Owner seek any partition or
subdivision thereof. Nothing herein shall be construed to prohibit partition of a joint tenancy or
co-tenancy in any Residential Lot.
2.14 No Subdivision of Lots. There shall be no further division of any Residential Lot
without written approval of Declarant and the Board, which approval may be withheld or
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conditioned in the discretion of Declarant and the Board, and which approval would be subject to
the Laws of the State of Montana and Gallatin County.
2.15 No View Rights. This Declaration is not intended and shall not in any way confer
or grant (or be construed to confer or grant) to any Residential Lot or Residential Unit or the
Owner thereof any right to the maintenance of any view, viewscape or scenic corridor or area.
Each Owner, by acceptance of a deed to his or her Lot, acknowledges and agrees that no
representations or warranties have been made concerning any view, present or future, that may
be enjoyed from all or any portion of the Project or such Owner’s Lot or Unit, and that the same
may change and/or be affected or obstructed by construction or installation of improvements,
structures, fences, walls and/or landscaping by Declarant or other owners of property within or
outside the Project and/or the growth of trees, landscaping and/or vegetation within or outside
the Project. This Declaration does not contain any provisions intended to protect the view from
any Lot or Unit or any other portion of the Project.
2.16 All Easements Part of Common Plan. Whenever any easements are reserved or
created herein, such easements shall constitute equitable servitudes for the mutual benefit of all
property in the Project, even if only certain Lots are specifically mentioned as subject to or
benefiting from a particular easement, and when easements referred to herein are subsequently
created or reserved by deeds or conveyances, such easements are to be considered to be part of
the common plan created by this Declaration for the benefit of all property Owners within the
Project.
ARTICLE III
ASSOCIATION ADMINISTRATION, MEMBERSHIP AND
VOTING RIGHTS
3.1 Association to Own and Manage Common Areas. The Association shall own and
manage the Common Area in accordance with the provisions of this Declaration, the Articles,
Bylaws and Rules. Declarant shall provide Common Area noxious weed control, litter removal
and implementation of the “Riparian Management Plan” (exhibit C) until the Association accepts
maintenance responsibility.
3.2 Membership. The Owner of a Lot shall automatically upon becoming the Owner
of same, be a Member of the Association, and shall remain a Member thereof until such time as
his ownership ceases for any reason. Membership shall be appurtenant to and may not be
separated from ownership of a Lot. Membership shall be held in accordance with this
Declaration, the Articles, Bylaws and Rules. Declarant shall be a Member of the Association for
all Lots owned by Declarant and all parcels designated in the Master Plan to become Lots in the
future.
3.3 Transferred Membership. Membership in the Association shall not be transferred,
encumbered, pledged, or alienated in any way, except upon the sale or transfer of the Lot to
which it is appurtenant, and then only to the purchaser, in the case of a sale, or to a Mortgagee
that has foreclosed or received a deed in lieu of foreclosure, in the case of an encumbrance. On
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any transfer of title to an Owner’s Lot, Membership shall automatically pass with such transfer.
A Mortgagee shall not have Membership rights until it obtains title to the Lot through
foreclosure or deed in lieu thereof. Any attempt to make a prohibited transfer is void. No
Member may resign his Membership. On receipt of notice of a transfer, the Association shall
record the transfer on its books.
3.4 Membership and Voting Rights. Membership and voting rights shall be as set
forth in the Bylaws.
ARTICLE IV
MAINTENANCE AND ASSESSMENTS
4.1 Creation of the Lien and Personal Obligation of Assessments. Subject to the
exception for Declarant as provided in Section 4.7A, each Owner of any Lot by acceptance of a
deed or conveyance thereto, whether or not it shall be so expressed in such deed or conveyance,
covenants and agrees:
(1) to pay to the Association regular and special Assessments, to be
established and collected as hereinafter provided; and
(2) to allow the Association to enforce any Assessment lien established
hereunder by non-judicial proceedings under a power of sale or by any other means authorized
by law.
The regular and special Assessments, together with interest, late charges, collection costs,
and reasonable attorneys’ fees, shall be a charge on the land and shall be a continuing lien upon
the property against which each such Assessment is made, the lien to become effective upon
recordation of a notice of delinquent Assessment. Each such Assessment, together with interest,
late charges, collection costs, and reasonable attorneys’ fees, shall also be the personal obligation
(joint and several) of each Person who was the Owner of such property at the time when the
Assessment fell due. No Owner of a Lot may exempt himself from liability for his contribution
towards the Common Expenses by waiver of the use or enjoyment of any of the Common Areas
or by the abandonment of his Lot.
The interest of any Owner in the amounts paid pursuant to any Assessment upon the
transfer of ownership shall pass to the new Owner. Upon the termination of these covenants for
any reason, any amounts remaining from the collection of such Assessments after paying all
amounts properly charged against such Assessments shall be distributed to the then Owners on
the same pro rata basis on which the Assessments were collected.
4.2 Purpose of Assessments. The Assessments levied by the Association shall be
used to pay Common Expenses, to promote the economic interests, recreation, health, safety and
welfare of Owners in the Project, and to enable the Association to perform its obligations
hereunder.
4.3 Assessments:
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A. Regular Assessments: The Board shall annually establish and levy regular
Assessments in an amount that the Board estimates will be sufficient to raise the funds needed to
pay Common Expenses and perform the duties of the Association during each fiscal year. The
regular Assessments shall include a portion for reserves in such amounts as the Board in its
discretion considers appropriate to meet the costs of the future repair, replacement or additions to
the major improvements and fixtures that the Association is obligated to maintain and repair.
Reserve funds shall be deposited in a separate account and the signatures of at least two (2)
Persons, who shall either be Members of the Board or one officer who is not a Member of the
Board and one Member of the Board, shall be required to withdraw monies from the reserve
account. Except to the limited extent otherwise provided herein, reserve funds may not be
expended for any purpose other than repairing, restoring, maintaining or replacing the major
components that the Association is obligated to maintain without the consent of Owners holding
a majority of the voting power either at a duly held meeting or by written ballot.
B. Special Assessments: The Board may at any time levy a special
assessment in order to raise funds for unexpected operating or other costs, insufficient operating
or reserve funds, or such other purposes as the Board in its discretion considers appropriate.
Special Assessments shall be allocated among the Lots in the same manner as regular
Assessments, except in the case of an Assessment levied by the Board against a Member to
reimburse the Association for costs incurred in bringing the Member and his Lot into compliance
with provisions of the Project Documents.
4.4 Restrictions on Increases in Regular and Special Assessments. The Board may
not impose a regular Assessment on any Lot which is more than twenty percent (20%) greater
than the regular Assessment for the immediate preceding fiscal year, or levy a special
Assessment to defray the cost of any action or undertaking on behalf of the Association which in
the aggregate exceeds ten percent (10%) of the budgeted gross expenses of the Association for
that fiscal year, without the vote or written assent of Members casting a majority of the votes at a
meeting of the Association at which a quorum is present. Any meeting of the Association for
purposes of complying with this section 4.4 shall be conducted in accordance with the Montana
Non-Profit Corporation Act. The Board may increase regular Assessments by more than twenty
percent (20%) over the regular Assessment for the immediate preceding fiscal year only if the
Board has complied with the provisions set forth in the Bylaws and this Declaration.
Notwithstanding the foregoing, the Board, without Membership approval, may increase
regular Assessments or levy special Assessments necessary for an emergency situation. For
purposes of this section, an emergency situation is one of the following:
(1) an extraordinary expense required by an order of a court;
(2) an extraordinary expense necessary to repair or maintain the Project or any
part of it for which the Association is responsible where a threat to personal safety on the Project
is discovered; or
(3) an extraordinary expense necessary to repair or maintain the Project or any
part of it for which the Association is responsible that could not have been reasonably foreseen
by the Board in preparing and distributing the pro forma operating budget, provided, however
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that prior to the imposition or collection of the Assessment, the Board shall pass a resolution
containing written findings as to the necessity of the extraordinary expense involved and why the
expense was not or could not have been reasonably foreseen in the budgeting process and the
resolution shall be distributed to the Members with the notice off the Assessment.
The Association shall provide by first-class mail notice to Owners of any increase in the
regular or special Assessments of the Association not less than thirty (30) nor more than Sixty
(60) days prior to the increased Assessment becoming due.
4.5 Notice and Quorum for Action Authorized Under Section 4.4. Any action
authorized under section 4.4, which requires a vote of the Membership, shall be taken at a
meeting called for that purpose, written notice of which shall be sent to all Members not less than
ten (10) nor more than sixty (60) days in advance of the meeting, specifying the place, day and
hour of the meeting and, in the case of a special meeting, the nature of the business to be
undertaken. The action may also be taken without a meeting pursuant to the provisions of the
Bylaws.
4.6 Division of Assessments. All Assessments, both regular and special, shall be
levied equally among the Lots, except to the limited extent otherwise provided herein.
Assessments levied against the Multifamily, and Townhome Lots, shall set by Declarant at a rate
less than the Lots. Regular Assessments shall be collected on a monthly basis unless the Board
directs otherwise. Special Assessments may be collected in one payment or periodically as the
Board shall direct.
4.7 Date of Commencement of Regular Assessment; Due Dates. The regular
Assessments provided for herein shall commence as to each Lot in the Initial Phase on the first
day of the month following the conveyance from Declarant of the Lot to an Owner in the Initial
Phase. In subsequent phases, the regular Assessments against each Lot in each phase shall
commence on the first day of the month following the conveyance from Declarant of the Lot to
an Owner in such phase. As Lots in each annexed phase become subject to Assessments, the
Board shall determine whether the amount of regular Assessments payable by all Owners will
change and, if so, the amount of such change, and the Board shall then send out revised
Assessment notices as appropriate. Subject to the provisions of section 4.3, the Board of
Directors shall use its best efforts to fix the amount of the regular Assessments against each Lot
and send written notice thereof to every Owner at least forty-five (45) days in advance of each
fiscal year, provided that failure to comply with the foregoing shall not affect the validity of any
Assessment levied by the Board. The due dates shall be established by the Board of Directors.
The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by
an officer of the Association stating whether the Assessments on a specified Lot have been paid.
Such a certificate shall be conclusive evidence of such payment.
4.8 Effect of Nonpayment of Assessments. Any Assessment not paid within fifteen
(15) days after the due date shall be delinquent, shall bear interest at the rate of twelve percent
(12%) per annum from thirty (30) days after the due date until paid, and shall incur a late
payment penalty in an amount to be set by the Board from time to time, such interest and
penalties not to exceed the maximum permitted under Montana law.
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4.9 Transfer of Lot, by Sale or Foreclosure. Sale, transfer or foreclosure of any Lot
shall not affect the Assessment lien. If a Lot is transferred, both the grantee and the grantor shall
remain liable to the Association for all unpaid Assessments against the Lot through and including
the date of the transfer. The grantee shall be entitled to a statement from the Association, dated
as of the date of transfer, setting forth the amount of the unpaid Assessments against the Lot to
be transferred and the Lot shall not be subject to a lien for unpaid Assessments in excess of the
amount set forth in the statement; provided, however, the grantee shall be liable for any
Assessments that become due after the date of the transfer.
4.10 Priorities; Enforcement; Remedies.
(a) If an Owner fails to pay an Assessment when due, the Association has the
right, and option, to bring legal action against the Owner to enforce collection of the unpaid and
past-due Assessment, or may impose a lien on the Lot owned by Owner, or both. Suit to recover
a money judgment for unpaid Assessments and attorney’s fees shall be maintainable without
foreclosing or waiving the lien securing the same. Before the Association may place a lien upon
a Lot, the Association shall notify the Owner in writing by certified mail of the fee and penalty
procedures of the Association, provide an itemized statement of the charges owed by the Owner,
including the principal owed, any late charges, and the method of collection, any attorneys’ fees,
and the collection practices used by the Association, including the right of the Association to the
reasonable costs of collection. The Association may record a notice of delinquent Assessment
and establish a lien against the Lot of the delinquent Owner prior and superior to all other liens
except (1) all taxes, bonds, Assessments and other levies which, by law, would be superior
thereto, and (2) the prior lien or charge of any Mortgage of record (meaning any recorded
Mortgage or deed of trust with first priority over other Mortgages or deeds of trust) made in good
faith and for value. The notice of delinquent Assessment shall state the amount of the
Assessment, collection costs, attorney’s fees, late charges and interest, a description of the Lot
against which the Assessment and other sums are levied, the name of the record owner, and the
name and address of the trustee authorized by the Association to enforce the lien by sale. The
notice shall be signed by any officer of the Association or any management agent retained by the
Association and shall be mailed in the manner required under Montana law to all record owners
of the Lot no later than 10 days after recordation.
(b) After the expiration of thirty days following the recordation of the lien, an
Assessment lien may be enforced in any manner permitted by law, including sale by the court or
sale by the trustee designated in the notice of delinquent Assessment. Any sale by the trustee
shall be conducted in accordance with the provisions of Montana law applicable to the exercise
of powers of sale in Mortgages and deeds of trust, or in any other manner permitted by law.
Nothing herein shall preclude the Association from bringing an action directly against an Owner
for breach of the personal obligation to pay Assessments.
(c) The Association, acting on behalf of the Owners, shall have the power to
bid for the Lot at a foreclosure sale, and to acquire and hold, lease, mortgage and convey the
same.
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(d) The Board may temporarily suspend the voting rights of a Member who is
in default in payment of any Assessment, after notice and hearing, as provided in the Bylaws.
(e) To the extent allowed under Montana law, the Association may file a lien
against a Lot for fines and penalties for violation of restrictions, as well as monetary penalties
imposed by the Association to reimburse the Association for costs incurred for repair of damage
to Common Area or facilities for which the Owner, or guests or tenants of an Owner, were
responsible.
(f) The Association is not empowered to cause a forfeiture or abridgement of
an Owner’s right to the full use and enjoyment of his Lot on account of the failure by the Owner
to comply with provisions of the Project Documents or Rules, except by judgment of a court or a
decision arising out of binding arbitration or on account of a foreclosure or sale under power of
sale for failure of the Owner to pay Assessments duly levied by the Association.
(g) Each Owner waives, to the maximum extent permitted by law, the benefit
of any Montana homestead or exemption laws in effect when any Assessment or installment
becomes delinquent or a lien is imposed.
4.11 Unallocated Taxes. In the event that any taxes are assessed against the Common
Area, or the personal property of the Association, rather than against the Lots, said taxes shall be
included in the Assessments made under the provisions of section 4.1 and, if necessary, a special
Assessment may be levied against the Lots in an amount equal to said taxes, to be paid in two (2)
installments, thirty (30) days prior to the due date of each tax installment.
ARTICLE V
DUTIES AND POWERS OF THE ASSOCIATION
5.1 Duties. In addition to the duties enumerated in the Articles and Bylaws, or
elsewhere provided for in this Declaration, and without limiting the generality thereof, the
Association shall perform the following duties:
A. Maintenance: The Association shall maintain and repair the Common
Area, all improvements and landscaping thereon, all mitigation areas, and all property owned by
the Association, including but not limited to the landscaping, Riparian Areas, and water features
contained within the Common Area. The Association shall also pay all Common Expenses, as
defined herein which will include but not be limited to Trail maintenance, Common Area
maintenance, irrigation water for Common Areas, snow removal on streets, and Trails, and
arrange for the maintenance of all areas for which Common Expenses are payable.
The responsibility of the Association for maintenance and repair described above
shall not extend to repairs or replacements arising out of or caused by the willful or negligent act
or omission of any Owner, or his guest, tenant, invitee or pet. Any such repairs or replacements
not covered by insurance carried by the Association shall be made by the responsible Owner,
provided the Board approves the Person or entity actually making the repairs and the method of
repair. If the responsible Owner fails to take the necessary steps to make the repairs within a
reasonable time under the circumstances, the Association shall cause the repairs to be made and
charge the cost thereof to the responsible Owner, which costs shall bear interest at the rate of
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twelve percent (12%) per annum (but no greater than the maximum rate allowed by law) until
paid in full. If such repair is covered by the insurance carried by the Association, the
Association shall be responsible for making the repairs, and the responsible Owner shall pay any
deductible pursuant to the insurance policy. If the Owner fails to make such payment, then the
Association may make such payment and shall charge the responsible Owner, which charge shall
bear interest at the rate of twelve percent (12%) per annum (but no greater than the maximum
rate allowed by law) until paid in full. If the Owner disputes the charge, the Owner shall be
entitled to a notice and a hearing as provided in the Bylaws before the charge may be collected.
Owners shall be responsible for keeping their Lots in good maintenance and
repair. If the responsible Owner fails to take the necessary steps to keep its Lot in good repair
and well maintained, make the repairs within a reasonable time under the circumstances, the
Association shall cause the repairs to be made and charge the cost thereof to the responsible
Owner, which costs shall bear interest at the rate of twelve percent (12%) per annum (but no
greater than the maximum rate allowed by law) until paid in full. If such repair is covered by the
insurance carried by the Association, the Association shall be responsible for making the repairs,
and the responsible Owner shall pay any deductible pursuant to the insurance policy. If the
Owner fails to make such payment, then the Association may make such payment and shall
charge the responsible Owner, which charge shall bear interest at the rate of twelve percent
(12%) per annum (but no greater than the maximum rate allowed by law) until paid in full.
B. Insurance: The Association shall obtain and maintain such policy or
policies of insurance as are required by section 9.1 of this Declaration.
C. Discharge of Liens: The Association shall discharge by payment, if
necessary, any lien against the Common Area and charge the cost thereof to the Member or
Members responsible for the existence of the lien after notice and hearing as provided in the
Declaration.
D. Assessments: The Association shall fix, levy, collect and enforce
Assessments as set forth in Article IV hereof.
E. Payment of Expenses and Taxes: The Association shall pay all expenses
and obligations incurred by the Association in the conduct of its business including, without
limitation, all licenses, taxes, assessments and governmental charges levied or imposed upon, or
which are or may become a lien against, the property of the Association.
F. Enforcement: The Association shall be responsible for the enforcement of
this Declaration, the Articles, Bylaws and Rules. In the event an Owner fails to comply with any
Project Documents, the Association has the right to enter upon such Owner’s Lot, remedy the
lack of compliance and assess the costs incurred by the Association to such Owner.
G. Operation of Common Area and Creation of Rules: The Association shall
maintain and operate the Common Area of the Project in accordance with all applicable
municipal, state, and federal laws, statutes and ordinances, as the case may be. The Association
shall also, as a separate and distinct responsibility, exert reasonable efforts to endeavor to ensure
that third parties (including Owners and their guests) utilize the Common Area in accordance
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with the aforementioned regulations. The Association shall, when it becomes aware of any
violation of the aforementioned regulations, endeavor to expeditiously correct such violations,
H. Inspection and Maintenance Guidelines: The Board shall adopt inspection
and maintenance guidelines for the periodic inspection and maintenance of the Common Area
improvements and landscaping and any other improvements outside the Common Area which
the Association has the responsibility to maintain. The Board periodically and at least once
every two years shall review and update the inspection and maintenance guidelines. The Board
shall take all appropriate steps to implement and comply with the inspection and maintenance
guidelines.
I. Preparation of Financial Documents: The Board shall cause the
preparation of budgets and financial statements as required by the Bylaws.
5.2 Powers. In addition to the powers enumerated in the Articles and Bylaws, or
elsewhere provided for herein, and without limiting the generality thereof, the Association shall
have the following powers:
A. Utility Service: The Association shall have the authority (but not the
obligation) to obtain, for the benefit of all of the Owners, all utilities and utility services
including, without limitation, water, sewer, gas, electric service, refuse collection and cable
access television.
B. Easements: The Association shall have the right to grant easements under,
in, upon, across, over, above or through any portion of the Common Area for reasonable
purposes, as approved by the Board, which are beneficial to the Association or the Project or the
development of same.
C. Manager: The Association may employ a manager or other Persons and
contract with independent contractors or managing agents to perform all or any part of the duties
and responsibilities of the Association, except for the responsibility to levy fines, impose
discipline, hold hearings, file suit, record or foreclose liens, or make capital expenditures.
D. Adoption of Rules: The Board shall have the right to adopt, promulgate
and enforce reasonable rules and regulations (“Rules”), not in conflict or inconsistent with this
Declaration relating to the Project and all aspects thereof including, without limitation, the
operation, maintenance, use and enjoyment of the Project, the Common Areas and individual
Lots. It is the intent of this section that the Board have broad discretion with respect to the Rules
and that the Board’s authority in this regard be construed liberally in order to effectuate the
objectives of the Board with respect to the Rules. In general, the objectives of the Board should
be to promote and enhance the Project, its attractiveness and economic viability, and provide for
the orderly operation, maintenance, repair and upkeep of the Project, including procedures
relating to the conduct of Association business. Written copies of such Rules and any schedule
of fines and penalties adopted by the Board shall be furnished to Owners. Anything contained
herein to the contrary notwithstanding, until ninety percent (90%) of the Lots planned for the
overall Project (including subsequently planned phases), the adoption or amendment of any
Rules shall require the consent of Declarant.
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E. Access: For the purpose of performing construction, maintenance or
emergency repair for the benefit of the Common Area or the Owners in common and/or to
perform maintenance work which the Lot Owner has failed to perform as provided herein, the
Association’s agents or employees shall have the right, after reasonable notice to the Owner
thereof, to enter any Lot at reasonable hours and at any necessary time in the event of an
emergency. Such entry shall be made with as little inconvenience to the Owner as practicable
and, except as otherwise provided herein, any damage caused thereby shall be repaired by the
Board at the expense of the Association.
F. Assessments, Liens, Penalties, and Fines: The Board shall have the power
to levy and collect Assessments in accordance with the provisions of Article IV hereof. The
Association may impose fines or take disciplinary action against any Owner for failure to pay
Assessments or for violation of any provision of the Project Documents and the unrecorded
Rules adopted by the Board or the Association. Penalties may include but are not limited to
fines, temporary suspension of voting rights, rights to the use of recreational facilities, if any, or
other appropriate discipline, provided the Member is given notice and a hearing as provided in
the Bylaws before the imposition of any fine or disciplinary action. The Board shall have the
power to adopt a schedule of reasonable fines and penalties for violations of the terms of this
Declaration, and for violations of any Rules adopted pursuant to section 5.2D. The penalties
prescribed may include suspension of all rights and privileges of Membership; provided,
however, that suspension for failure to pay Assessments shall be for a maximum period of thirty
(30) days, renewable by the Board for an additional thirty (30) day period or periods until paid;
and provided further that suspension for infraction of Rules or violation of this Declaration, other
than for failure to pay Assessments, shall be limited to a maximum period of thirty (30) days per
infraction or violation, and shall be imposed only after a hearing before the Board. The Board
may extend said period for an additional period or periods in the case of a continuing infraction
or violation, and no hearing need be held for such extension. Written copies of Rules and the
schedule of penalties shall be furnished to Owners. The Board shall assess fines and penalties
and shall enforce such Assessments as appropriate under applicable law.
G. Enforcement: The Board shall have the power to enforce this Declaration,
the Articles, Bylaws and Rules.
H. Acquisition and Disposition of Property: The Board shall have the power
to acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain,
convey, sell, lease, transfer, or otherwise dispose of real or personal property in connection with
the affairs of the Association. Except to the extent authorized herein, any transfer of fee title to
Association property shall be by document signed or approved by two-thirds (2/3) of the total
voting power of the Members of the Association.
I. Contracts: The Board shall have the power to contract for goods and/or
services for the Project including Common Areas subject to limitations set forth in the Bylaws,
or elsewhere herein.
J. Delegation: The Association, the Board, and the officers of the
Association shall have the power to delegate their authority and powers to committees, officers
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or employees of the Association, or to a manager employed by the Association, provided that the
Board shall not delegate its responsibility:
(1) To make expenditures for capital additions or improvements
chargeable against the reserve funds;
(2) To conduct hearings concerning compliance by an Owner or his
tenant, lessee, guest or invitee with the Declaration, Bylaws or Rules promulgated by the Board;
(3) To make a decision to levy monetary fines, impose special
Assessments against individual Lots, temporarily suspend an Owner’s rights as a Member of the
Association or otherwise impose discipline;
(4) To make a decision to levy regular or special Assessments; and
(5) To make a decision to bring suit, record a claim of lien or institute
Foreclosure proceedings for default in payment of Assessments.
K. Appointment of Trustee: The Association, or the Board acting on behalf
of the Association, has the power to appoint or designate a trustee to enforce Assessment liens by
sale as provided in section 4.10.
L. Litigation/Arbitration: Subject to the terms and provisions of Article X,
the Association shall have the power to institute, defend, settle or intervene in litigation,
arbitration, mediation or administrative proceedings in matters pertaining to (A) enforcement of
the Project Documents, (B) damage to the Common Areas, (C) damage to the separate interests
which the Association is obligated to maintain or repair, or (D) damage to the separate interests
which arises out of or is integrally related to damage to the Common Areas or separate interests
that the Association is obligated to maintain or repair.
M. Other Powers: In addition to the powers contained herein, the Board may
exercise the powers granted to a nonprofit mutual benefit corporation under Montana law.
ARTICLE VI
ARCHITECTURAL CONTROL
6.1 Purpose of Architectural Controls. The purpose and intent of this Article VI and
the Design Regulations Guidelines (Exhibit D) is to empower the Declarant to preserve property
values within the Project. The Declarant has the ultimate responsibility, but may delegate that
authority to Flanders Mill Architectural Committee (FMAC) (“Committee”). All Lots are
subject to the provisions of this Article VI and the Design Regulations Guidelines; provided,
however, homes constructed for Declarant do not require Committee approval. A current copy
of the Design Regulations Guidelines are attached or may be obtained from the Declarant. To
the extent any building or landscape design provisions in this Declaration conflict with the
Design Regulations Guidelines, the Design Regulations Guidelines shall control.
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ARTICLE VII
USE RESTRICTIONS
In addition to all of the covenants, conditions and restrictions contained herein, the use of
the Project and each Lot therein is subject to the following:
7.1 Use of Lot. Lots in the Project shall be used for purposes of constructing and
maintaining single family Residential Units and purposes reasonably incidental thereto and for
no other purposes, and be used and maintained in compliance with this Declaration, the Articles,
Bylaws and Rules. Use of Lots shall at all times be in compliance with the conditions of
approval of the Project by City of Bozeman, Montana.
7.2 Nuisances. No noxious, illegal, or seriously offensive (to a reasonable Person)
activities shall be carried on upon any Lot, or in any part of the Project, nor shall anything be
done thereon which may be or may become a serious annoyance or a nuisance to or which may
in any way interfere with the quiet enjoyment of each of the Owners or his respective Lot.
7.3 Vehicle Restrictions and Towing.
(a) Vehicles may be operated, maintained, parked or stored in the Project only
in strict compliance with the Rules and to the extent allowed by the Rules. In general, only
normal and reasonable transportation vehicles shall be allowed. Inoperable, noisy, smoky,
unregistered, unlicensed vehicles shall not be allowed. Recreational vehicles and boats may not
be stored or parked at any location within the Project except within a fully enclosed garage or
designated area approved by the Association so as not to be visible from the Common Area or
from any other Lot within the Project.
(b) The Association may cause the removal of any vehicle wrongfully parked
on the Project, including a vehicle owned by an occupant. If the identity of the registered owner
of the vehicle is known or readily ascertainable, the Association shall, within a reasonable time,
notify the owner of the removal in writing by personal delivery or first class mail. In addition,
notice of the removal shall be given to the local traffic law enforcement agency immediately
after the vehicle has been removed. The notice shall include a description of the vehicle, the
license plate number and the address from where the vehicle was removed. If the identity of the
owner is not known or readily ascertainable and the vehicle has not been returned to the owner
within one hundred twenty (120) hours after its removal, the Association immediately shall send
or cause to be sent a written report of the removal by mail to the Montana Department of Justice
and shall file a copy of the notice with the proprietor of the public garage in which the vehicle is
stored. The report shall be made on a form furnished by the Department of Justice and shall
include a complete description of the vehicle, the date, time and place from which the vehicle
was removed, the amount of mileage on the vehicle at the time of removal, the grounds for
removal and the name of the garage or place where the vehicle is stored. Notwithstanding the
foregoing, the Association may cause the removal, without notice, of any vehicle parked in a
marked fire lane, within fifteen (15) feet of a fire hydrant, in a parking space designated for
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handicapped without proper authority or in a manner which interferes with any entrance to, or
exit from the Project or any Lot, parking space or garage located thereon. The Association shall
not be liable for any damages incurred by the vehicle owner because of the removal in
compliance with this section or for any damage to the vehicle caused by the removal, unless such
damage resulted from the intentional or negligent act of the Association or any Person causing
the removal of or removing the vehicle. If requested by the owner of the vehicle, the Association
shall state the grounds for the removal of the vehicle.
7.4 Parking. Parking of vehicles (recreational, transportation or otherwise) shall be
allowed on the Common Area only in designated areas and in compliance with the Rules.
7.5 Commercial Activity. No business, professional or commercial activity shall be
conducted on any Lot, except for Declarant’s activities in connection with development of the
Project and marketing and sales of the Lots as provided or contemplated herein. Nothing in this
section is intended to restrict or prohibit Owners from using portions of their Units for home
offices and related purposes such as operations of personal computers, the internet and similar
equipment and facilities, so long as such activities do not materially increase the volume of
vehicular traffic into the Project.
7.6 Storage. No machinery, equipment, trailer, boats, recreational vehicles or other
personal property shall be stored on the Common Area or Lots except in compliance with the
Rules.
7.7 Signs. No signs shall be displayed to the public view on any Lot or on any
portion of the Project except such signs as are allowed by the Rules. This provision shall not
apply to Declarant.
7.8 Animals. No animals, pets or insects of any kind shall be raised, bred, or kept on
any Lot or in the Common Area except that no more than three (3) usual and ordinary household
pets such as dogs or cats provided they are not kept, bred, or maintained for any commercial
purposes, and are kept under reasonable control at all times. No dangerous or poisonous
animals, pets or insects of any kind shall be allowed in the Project. No pets shall be allowed in
the Common Area except as may be permitted by Rules which shall include, without limitation,
the requirement that such pets be maintained under control. After making a reasonable attempt
to notify the Owner, the Board may cause any pet found within the Common Area in violation of
the Rules or this Declaration to be removed to a pound or animal shelter under the jurisdiction of
the city or county, by calling the appropriate authorities, whereupon the Owner may, upon
payment of all expenses connected therewith, repossess the pet. Owners shall prevent their pets
from soiling the Common Area or other’s property and shall promptly clean up any mess left by
their pets. Owners shall be fully responsible for any damage caused by their pets.
7.9 Garbage and Refuse Disposal. All rubbish, trash and garbage shall be regularly
removed from the Lots, and shall not be allowed to accumulate thereon. Trash, garbage and
other waste must be kept in appropriate containers. All equipment for the storage or disposal of
such materials shall be kept in a clean and sanitary condition, and shall be screened from view of
neighboring Lots, Common Areas and streets. No toxic or hazardous materials shall be disposed
of within the Project by dumping in the garbage containers or down the drains, or otherwise.
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7.10 Antennas. Antennas shall be authorized on Lots for purposes of transmitting or
receiving radio, video, television and related signals, to the extent allowed by the Rules and
approved by the Committee.
7.11 Power Equipment and Car Maintenance. No offensive power equipment, hobby
shops, or recreational vehicle, truck, car, motorcycle or boat maintenance (other than emergency
work) or similar maintenance shall be conducted or stored outside of a garage. The Association
shall have sole discretion in determining what constitutes “offensive” under this Section 7.11;
provided however, the Association recognizes that the reasonable use of power washers and
other power tools that do not disturb neighbors are not offensive. All hazardous waste shall be
disposed of properly by each Owner.
7.12 Liability of Owners for Damage to Common Area. The Owner of each Lot shall
be liable to the Association for all damage to the Common Area improvements (including
landscaping) caused by such Owner, his agents, employees, guests, invitees or pets, except for
that portion of damage covered by insurance carried by the Association. The responsible Owner
shall be charged with the cost of repairing such damage (including interest thereon) as described
in section 5.1A.
7.13 Leasing of Lots. No Owner shall be permitted to lease his Unit for any period
less than one hundred eighty (180) days. Any lease shall be in writing and shall be subject in all
respects to the provisions of the Declaration, the Bylaws and the Rules, and any failure of the
tenant to comply with the foregoing shall be a default under the lease, regardless of whether the
lease so provides. In the event of such a default, the Owner immediately shall take all action to
cure the default including, if necessary, eviction of the tenant. All Owners leasing their Lots
shall promptly notify the Secretary of the Association in writing of the names of all tenants and
Members of tenant’s family occupying such Lot and of the address and telephone number where
the tenant and such Owner can be reached. Owners remain fully responsible for any Lessee’s
non-compliance with the Declaration, Bylaws and Rules.
7.14 Commonly Metered Utilities. The Board may establish restrictions regarding the
individual use of any utility on a common meter, if any, and may impose reasonable charges for
the individual use thereof.
7.15 Activities Causing Increase in Insurance Rates. Nothing shall be done or kept on
any Lot or in any improvements constructed thereon, or in the Common Area, which will
increase any applicable rate of insurance or which will result in the cancellation of insurance on
any Lot or any part of the Common Area, or which would be in violation of any law.
7.16 Temporary Structures. No structure, facility or appurtenance of a temporary
character shall be placed upon any Lot except in accordance with the Rules.
7.17 Owner’s Right and Obligation to Maintain and Repair. Each Owner shall, at his
sole cost and expense, maintain and repair his Unit and Lot and all improvements and lawn and
landscaping thereon, including snow removal, keeping the same in good condition. In the event
an Owner of any Lot shall fail to so maintain his Lot, the Association’s agents may, after notice
and a hearing as provided in the Bylaws, enter the Lot and perform the necessary maintenance.
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The cost of such maintenance shall immediately be paid to the Association by the Owner of such
Lot, together with interest at the rate of twelve percent (12%) per annum (but not to exceed the
maximum interest rate authorized by law) from the date the cost was incurred by the Association
until the date the cost is paid by the Owner.
7.18 Timeshare and Fractional Ownership Prohibition. No Lot or Lots or any portion
thereof in the Project shall be leased, subleased, occupied, rented, let, sublet, or used for or in
connection with any time sharing or fractional agreement, plan, program or arrangement,
including, without limitation, any so called “vacation license,” “travel club,’’ “extended
vacation,” or other membership or time interval ownership arrangement. This section shall not be
construed to limit the personal use of any Lot or any portion thereof in the Project by any Owner
or his or her social or familial guests.
7.19 High Groundwater Note. Owners are hereby informed that areas of high
groundwater and outside shallow flooding areas may exist within the Project.
It is recommended that Owners consult with a qualified Consulting Professional Engineer
licensed in the State of Montana prior to initiating construction of full or partial basements in
order to determine if groundwater could impact the planned structure and what mitigation actions
might be taken.
ARTICLE VIII
PROJECT DEVELOPMENT AND LANDSCAPE GUIDELINES
All site improvement plans shall be reviewed and approved by Declarant or the
Committee prior to commencement of construction or alteration. Minor adjustments to the home
site and landscaping after initial construction shall not require submittal of plans. Minor
adjustments shall include replacement of dead or dying vegetation and the addition of trees,
shrubs or other landscaping features providing that such additions are consistent with the Black
Bull Subdivision Design and Landscape Guidelines.
8.1 Driveways. All driveways and parking areas shall be surfaced in concrete.
8.2 Driveway Swale Prohibitions. No Lot owner shall fill or obstruct the natural flow
of any borrow ditch or drainage swale with the exception of the materials placed for the location
of the driveway culvert. No borrow ditches may be filled.
8.3 Kennels. In general, kennels are discouraged in favor of the “invisible fence”
system. A kennel shall not exceed 300 square feet. Kennels or dog runs must be placed within
the area allowable for side or rear yard fencing. Kennels shall be integrated into the dwelling
(attached) to avoid isolation and to provide as much aesthetic appeal as possible. Kennels shall
not be higher than six (6’) feet in height and must be built using the same building materials as
Privacy Screening. Chain link kennels may be allowed if they are screened in a manner
approved by the Committee. Kennels must be kept clean and free from obnoxious odors or
undue barking dogs. All kennels and dog runs must be approved by the Committee.
8.4 Fences. One of the primary goals of the Project is to create an atmosphere that is
open and friendly. Because of the importance of this goal perimeter lot fencing will not be
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allowed in this subdivision. Dog runs, kennels, and electric invisible fence are to be used for
constraining dogs. The Committee may approve fencing consistent with the Design Regulations
Guidelines.
8.5 Privacy Screening. Privacy screens will be allowed but must be constructed of
wood siding, stucco, brick, or stone, and they shall be an integrated part of the main building.
Privacy Screening shall not extend into more than 1/3 of the required setback on the front or
sides, nor more than 1/3 of the setback on the rear elevation, nor be more than 1/3 the width of
the structure on the front (street) or rear elevation, nor 2/3 the length on the side elevations.
Plans for privacy screening must be submitted and approved by the Committee.
8.6 Antennas and Satellite Dishes. Only smaller dishes of the latest technology (not
exceeding two feet in diameter) will be allowed. Such dishes must be hidden from view and
shall require Committee approval.
8.7 Exterior Lighting. Incandescent or residential fluorescent lighting is encouraged,
and the use of mercury vapor, and obtrusive flood lighting is prohibited. Each house will
provide a single street light which will be standardized for the entire subdivision and will be
located at the inside corner of the driveway and the front yard setback. These street lights will be
a free standing decorative light. All light fixtures shall be arranged to deflect down and/or away
from adjoining properties or streets. They will be placed at a minimum height of six (6’) feet
measured from the top of the sidewalk adjacent to it to the bottom of the light fixture itself.
Light fixtures must incorporate cut-off shield to direct light downward. Fixtures should be
compatible with architecture and site design. Luminaries shall not be visible from adjacent
streets or properties. Locations must be approved by the Committee.
8.8 Utilities. All utilities including, but not limited to, natural gas, electricity,
telephone and cable T.V. shall be located underground.
8.9 No Storage Sheds. Storage needs should be anticipated in the planning stage and
will be required to be an integral part of the design of the garage so that all storage is within the
garage or attached structure.
8.10 Temporary Structures. No temporary structures, trailers, campers, motor homes,
tents, shacks, or similar structures shall be used as a residence on any Lot.
8.11 Solid Waste Containers. All solid waste containers must be stored out of view
except during reasonable periods prior to and after pick-up, and only on day of pick-up.
8.12 Recreational Vehicles. Recreational vehicles and boats may not be stored or
parked at any location within the Project except within a fully enclosed garage or designated area
approved by the Association so as not to be visible from the Common Area or from any other
Lot within the Project.
ARTICLE IX
INSURANCE; DAMAGE OR DESTRUCTION; CONDEMNATION
9.1 Insurance. The Association shall obtain and maintain the following insurance:
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(1) A hazard policy insuring all improvements, equipment, and fixtures
owned by the Association, unless the Board determines, in its sole discretion, that such insurance
is not necessary;
(2) a comprehensive general liability policy insuring the Association, its
agents, the Owners and their respective family Members, against liability incident to the
ownership or use of the Common Area or any other Association owned or maintained real or
personal property (in occurrence version form if obtainable); the amount of general liability
insurance which the Association shall carry at all times shall be not less than the minimum
amounts required by Montana law;
(3) workers’ compensation insurance to the extent required by law (or such
greater amount as the Board deems necessary); the Association shall obtain a Certificate of
Insurance naming it as an additional insured in regard to workers’ compensation claims from any
independent contractor who performs any service for the Association, if the receipt of such a
certificate is practicable;
(4) Fidelity bonds or insurance covering officers, directors, and employees
that have access to any Association funds;
(5) Officers and directors liability insurance in the minimum amounts
required by Montana law;
(6) Flood insurance if the Project is located in an area designated by an
appropriate governmental agency as a special flood hazard area;
(7) Earthquake insurance to the extent deemed appropriate by the Board, in its
discretion, provided same is available at commercially reasonable rates, in the opinion of the
Board;
(8) Water damage coverage, to the extent deemed appropriate by the Board, in
its discretion;
(9) Liability for non-owned and hired automobiles; and
(10) Such other insurance as the Board in its discretion considers necessary or
advisable.
To the extent applicable, the Board may, in its discretion, consider including the
following endorsements:
(a) changes in building codes, and demolition coverage (sometimes referred
to as “ordinance or law endorsement”);
(b) Inflation guard coverage;
(c) “agreed-amount” endorsement (to eliminate a coinsurance problem);
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(d) Replacement cost endorsement; or
(e) Primary coverage endorsement.
Each Owner appoints the Association or any insurance trustee designated by the
Association to act on behalf of the Owners in connection with all insurance matters arising from
any insurance policy maintained by the Association, including without limitation, representing
the Owners in any proceeding, negotiation, settlement or agreement. Any insurance maintained
by the Association shall contain “waiver of subrogation” as to the Association and its officers,
directors and Members, the Owners and occupants of the Lots (including Declarant) and
Mortgagees, and cross-liability and severability of interest coverage insuring each insured
against liability to each other insured. The Association shall periodically (and not less than once
every three years) review all insurance policies maintained by the Association to determine the
adequacy of the coverage and to adjust the policies accordingly.
All individually owned insurance shall contain a waiver of subrogation as to the
Association and its officers, directors and Members, the Owners and occupants of the Lots and
Mortgagees, and all Members are deemed to have waived subrogation rights as to the
Association and/or other Members, whether or not their policies so provide.
Each Owner shall be responsible for obtaining, maintaining and paying for such
insurance as the Owner may deem reasonably necessary with respect to fire, casualty and
liability involving such Owner’s Lot and all improvements and property thereon. All such
individually carried insurance shall contain a waiver of subrogation by the carrier as to the other
Owners, the Association, Declarant, and the Mortgagees of such Lot.
The Association shall make available to Members upon request copies of the
Association’s policies to enable Members to insure their Lots without duplicating insurance
carried by the Association.
The Association, and its directors and officers, shall have no liability to any Owner or
Mortgagee if, after a good faith effort, it is unable to obtain the insurance required hereunder,
because the insurance is no longer available or, if available, can be obtained only at a cost that
the Board in its sole discretion determines is unreasonable under the circumstances, or the
Members fail to approve any Assessment increase needed to fund the insurance premiums. In
such event, the Board immediately shall notify each Member and any Mortgagee entitled to
notice that the insurance will not be obtained or renewed.
9.2 Damage or Destruction. If any improvements or landscaping on any Lot are
damaged or destroyed by fire or other casualty, the Owner of such Lot may repair or reconstruct
the improvement only in accordance with the plans and specifications approved by the
Association or its representative as provided herein including but not limited to approval by the
Committee. In the event that such an Owner elects not to rebuild any structures, said Owner
shall be responsible for promptly removing from the Lot any and all debris, including any
portion of a structure which may remain standing after partial damage or destruction, and the
Owner shall landscape the Lot in the manner approved by the Committee and the Association. If
such an Owner elects to rebuild the damaged or destroyed improvements, the Owner of such Lot
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is responsible for the cost of all such reconstruction that is not covered by insurance or is within
the deductible amount. If an Owner fails to pay the cost of required demolition or re-
landscaping, the Association may elect to pay for the uninsured portion of the cost and shall have
the right to assess the Owner for the cost thereof and to enforce the Assessment as provided in
this Declaration.
If Common Area improvements are damaged or destroyed by fire or other casualty, the
improvements shall be repaired or reconstructed substantially in accordance with the original as-
built plans and specifications, modified as may be required by applicable building codes and
regulations in force at the time of such repair or reconstruction, and subject to such alterations or
upgrades as may be approved by the Flanders Mill, LLC Architectural Committee (FMAC),
unless either of the following occurs: (1) the cost of repair or reconstruction is more than fifty
percent (50%) of the current replacement cost of all Common Area improvements, available
insurance proceeds are not sufficient to pay for at least eighty-five percent (85%) of the cost of
such repairs or reconstruction, and three-fourths (3/4) of the total voting power of the
Association vote against such repair and reconstruction; or (2) available insurance proceeds are
not sufficient to substantially repair or reconstruct the improvements within a reasonable time as
determined by the Board, a special Assessment levied to supplement the insurance fails to
receive the requisite approval (if such approval is required) as provided in section 4.4, and the
Board, without the requirement of approval by the Owners, is unable to supplement the insurance
by borrowing on behalf of the Association sufficient monies to enable the improvements to be
substantially repaired or reconstructed within a reasonable time.
A. Process for Repair or Reconstruction of Common Area Improvements: If
the Common Area improvement is to be repaired or reconstructed and the cost for repair or
reconstruction is in excess of twenty-five percent (25%) of the current replacement cost of all the
Common Area improvements in the Project, the Board shall designate a construction consultant,
a general contractor, and an architect for the repair or reconstruction. All insurance proceeds,
Association monies allocated for the repair or reconstruction, and any borrowings by the
Association for the repair or reconstruction shall be deposited with a commercial lending
institution experienced in the disbursement of construction loan funds (the “depository”) as
selected by the Board. Funds shall be disbursed in accordance with the normal construction loan
practices of the depository that require as a minimum that the construction consultant, general
contractor and architect certify within ten (10) days prior to any disbursement substantially the
following:
(1) That all of the work completed as of the date of such request for
disbursement has been done in compliance with the approved plans and specifications;
(2) That such disbursement request represents monies which either
have been paid by or on behalf of the construction consultant, the general contractor or the
architect and/or are justly due to contractors, subcontractors, material men, engineers, or other
Persons (whose name and address shall be stated) who have rendered or furnished certain
services or materials for the work and giving a brief description of such services and materials
and the principal subdivisions or categories thereof and the respective amounts paid or due to
each of said Persons in respect thereof and stating the progress of the work up to the date of said
certificate;
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(3) That the sum then requested to be disbursed plus all sums
previously disbursed does not exceed the cost of the work insofar as actually accomplished up to
the date of such certificate;
(4) That no part of the cost of the services and materials described in
the foregoing paragraph 8.2A (1) has been or is being made the basis for the disbursement of any
funds in any previous or then pending application; and
(5) That the amount held by the depository, after payment of the
amount requested in the pending disbursement request, will be sufficient to pay in full the costs
necessary to complete the repair or reconstruction.
If the cost of repair or reconstruction is less than twenty-five percent (25%) of the current
replacement cost of all the Common Area improvements in the Project, the Board shall disburse
the available funds for the repair and reconstruction under such procedures as the Board deems
appropriate under the circumstances.
The repair or reconstruction shall commence no later than ninety (90) days after the date
of such damage or destruction and shall be completed no later than one hundred eighty (180)
days after commencement of reconstruction, subject to delays that are beyond the control of the
party responsible for making the repairs. Steps shall be taken as reasonably necessary to secure
any hazardous condition and to screen any unsightly views resulting from the damage or
destruction.
In the event the work required to maintain or to repair or restore damage or destruction
involves work that is the responsibility of Owner and the Association, then all of such work shall
be directed by the Board, with the expense to be allocated as appropriate between Owner and the
Association. If more than one Owner is involved, the expense to be paid by each Owner shall be
apportioned by the Board.
If the Association undertakes any work which this Declaration requires an Owner to
undertake, or any work which, pursuant to this Declaration, the Association is required to
undertake at the expense of the Owner, the Board shall assess the Lot of the Owner for such
work and shall so inform the Owner thereof in writing; provided, however, that the Assessment
shall be reduced by the amount of any insurance proceeds paid to the Association as a result of
damage to or destruction of the Lot involved. Such Assessment shall be a lien upon the Lot of
the Owner and may be foreclosed, as set forth in section 4.10.
B. Process If Repair or Reconstruction Not Undertaken: If the Common
Area improvement is not repaired or reconstructed in accordance with the foregoing, all available
insurance proceeds shall be disbursed among all Owners and their respective Mortgagees in the
same proportion that the Owners are assessed, subject to the rights of the Owners’ Mortgagees,
after first applying the proceeds to the cost of mitigating hazardous conditions on the Project,
making provision for the continuance of public liability insurance to protect the interests of the
Owners until the property can be sold, and complying with all other applicable requirements of
governmental agencies.
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9.3 Condemnation. If all or any part of a Lot (except the Common Area) is taken by
eminent domain, the award shall be disbursed to the Owner of the Lot, subject to the rights of the
Owner’s Mortgagees. If the taking renders the Lot uninhabitable, the Owner shall be divested of
any further interest in the Project, including Membership in the Association, and the interest of
the remaining Owners shall be adjusted accordingly. If all or any part of the Common Area is
taken by eminent domain, the proceeds of condemnation shall be used to restore or replace the
portion of the Common Area affected by condemnation, if restoration or replacement is
impossible, and any remaining funds, after payment of any and all fees and expenses incurred by
the Association relating to such condemnation, shall be distributed among the Owners in the
same proportion as such Owners are assessed, subject to the rights of Mortgagees. If necessary,
the remaining portion of the Project shall be resurveyed to reflect such taking. The Association
shall participate in the negotiation, and shall propose the method of division of the proceeds of
condemnation, where Lots are not valued separately by the condemning authority or by the court.
The Association shall represent the Owners in any condemnation proceedings or in negotiations,
settlements and agreements with the condemning authority for acquisition of the Common Area
or part thereof.
ARTICLE X
GENERAL PROVISIONS
10.1 Enforcement. Subject to the provisions and requirements of Article X, the
Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity,
all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed
by the provisions of this Declaration, the Articles and the Bylaws, and in such action shall be
entitled to recover reasonable attorneys’ fees as are ordered by the Court. The Association has
the right to record a Notice of Violation against the Lot of an Owner who is not in compliance
with the provisions of the Project Documents. Failure by the Association or by any Owner to
enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the
right to do so thereafter.
10.2 Invalidity of Any Provision. Should any provision or portion hereof be declared
invalid or in conflict with any law of the jurisdiction where this Project is situated, the validity of
all other provisions and portions hereof shall remain unaffected and in full force and effect.
10.3 Term. The covenants and restrictions of this Declaration shall run with and bind
the Project, and shall inure to the benefit of and shall be enforceable by the Association or the
Owner of any property subject to this Declaration, their respective legal representatives, heirs,
successors and assigns, for a term of sixty (60) years from the date this Declaration is recorded,
after which time they shall be automatically extended for successive periods of ten (10) years,
unless an instrument in writing, signed by a majority of the then Owners of the Lots, has been
recorded within the year preceding the beginning of each successive period of ten (10) years,
agreeing to change said covenants and restrictions in whole or in part, or to terminate the same.
10.4 Amendments. Prior to sale of ninety percent (90%) of the Lots planned for the
overall Project (including subsequently planned phases), the Declarant may amend this
Declaration without the consent of the Owners or the Association. After sale of ninety percent
(90%) of the Lots planned for the overall Project (including subsequently planned phases), this
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Declaration may be amended only by the affirmative vote (in person or by proxy) or written
consent of Members representing a majority of the total voting power of the Association.
However, the percentage of voting power necessary to amend a specific clause shall not be less
than the prescribed percentage of affirmative votes required for action to be taken under that
clause. Any amendment must be certified in a writing executed and acknowledged by the
Association President or Vice President and recorded in the Gallatin County Clerk & Recorder’s
Office. No amendment shall adversely affect the rights of the holder of any Mortgage of record
prior to the recordation of such amendment.
10.5 Limitation of Restrictions on Declarant. Declarant is undertaking the work of
construction of improvements upon the Project. The completion of that work and the sale of said
Lots are essential to the establishment and welfare of the Project as a residential community. In
order that said work may be completed and said Project be established as a fully occupied
residential community as rapidly as possible, nothing in this Declaration shall be understood or
construed to:
A. Prevent Declarant, its contractors, or subcontractors from doing on the
Project or any Lot, whatever is reasonably necessary or advisable in connection with the
completion of said work; or
B. Prevent Declarant or its representatives from erecting, constructing and
maintaining on the Project (except upon Lots owned by others), such structures as may be
reasonable and necessary for developing said Project as a residential community and disposing
of the same by sale, including a sales office and design center; or
C. Prevent Declarant from conducting on the Project (except upon Lots
owned by others) its business of completing said work and of establishing a plan of residential
ownership and of disposing of the Lots and Units by sale; or
D. Prevent Declarant from maintaining or displaying such signs, pennants
and flags(s) on the Project (except upon Lots owned by others) as may be necessary for the sale,
lease or disposition thereof, or
E. Subject Declarant to the architectural control provisions of Article VI for
the construction of any improvement on the Project.
F. Prevent Declarant from exercising the following rights: Declarant
reserves and shall have the right and easement, both while Declarant is still the Owner of Lots in
the Project and thereafter, to enter upon the Project, and all portions thereof, for purposes of
inspecting and correcting any alleged defect in the design or construction of improvements in the
Project.
The foregoing rights of Declarant shall, except as provided in Section 10.5F, terminate
upon the sale by Declarant of all Lots in the Project. Until such time, said rights shall constitute
easements reserved by Declarant for the benefit of Declarant and any Lots or property owned by
Declarant within the Project.
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So long as Declarant, or its successors and assigns, owns one or more of the Lots
described herein, Declarant, or its successors and assigns, shall be subject to the provisions of
this Declaration. Declarant shall make reasonable efforts to avoid disturbing the use and
enjoyment of Lots and the Common Area by their Owners, while completing any work necessary
to said Lots or Common Area.
10.6 Termination of Any Responsibility of Declarant. In the event Declarant shall
convey all of its rights, title and interest in and to the Project to any successor Person or entity,
then and in such event, Declarant shall be relieved of the performance of any further duty or
obligation hereunder, and such successor Person or entity shall be obligated to perform all such
duties and obligations of the Declarant.
10.7 Owners’ Compliance. Each Owner, tenant or occupant of a Lot shall comply with
the provisions of this Declaration, and (to the extent they are not in conflict with the Declaration)
the Articles, Bylaws and Rules, and the decisions and resolutions of the Association or the
Board, as lawfully amended from time to time. Failure to comply with any such provisions,
decisions, or resolutions shall be grounds for an action (1) to recover sums due, (2) for damages,
(3) for injunctive relief, (4) for costs and attorney fees, or (5) any combination of the foregoing.
In the event of a violation of the Project Documents, the Association may record a Notice
of Violation against the Lot of the non-complying Owner. Upon recording a Notice of Violation,
the Association shall have complete discretion in deciding whether, when and how to proceed
with enforcement, and any delay after recording a Notice of Violation shall not give rise to a
defense of waiver or estoppel in favor of a noncomplying Owner. The Association may take
action to enforce compliance against a subsequent Owner who acquires a Lot with a recorded
Notice of Violation. The right of the Association to record a Notice of Violation shall be in
addition to all other rights and remedies the Association may have at law or under the Project
Documents.
All agreements and determinations lawfully made by the Association in accordance with
the voting percentages established in this Declaration, or in the Articles or the Bylaws, shall be
deemed to be binding on all Owners, their successors and assigns.
10.8 Notice. Any notice permitted or required by the Declaration, Articles or Bylaws
may be delivered either personally or by mail. If delivery is by mail, it shall be deemed to have
been delivered seventy-two (72) hours after a copy of the same has been deposited in the United
States mail, first class or registered, postage prepaid, addressed to the person to be notified at the
current address given by such person to the Secretary of the Board or addressed to the Lot of
such person if no address has been given to the Secretary.
10.9 No Discrimination. No Owner shall, either directly or indirectly, forbid or restrict
the conveyance, encumbrance, leasing, or mortgaging, or occupancy of his Lot to any person of a
specified race, sex, adulthood, marital status, color, religion, ancestry, physical handicap, or
national origin.
10.10 Alternative Dispute Resolution. Alternative dispute resolution procedures shall
be applicable and implemented as provided in Article XI hereof.
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10.11 Number; Gender. The singular and plural number and the masculine, feminine
and neuter gender shall each include the other where the context requires.
10.12 Captions. The captions and headings herein are for convenience only and shall
not be used to limit or expand the terms or provisions hereof.
10.13 Exhibits. All Exhibits are deemed incorporated herein by reference as though set
forth in full.
10.14 Compliance with FHA, VA, FHLMC or FNMA Requirements. If Declarant
chooses a financing program that involves Mortgage insurance issued by a government agency
such as the FHA or VA, or involves first Mortgage sales to an agency such as FHLMC or
FNMA, the Association, the Board and each Owner shall take reasonable steps to satisfy the
requirements of such program and/or agency including, without limitation, initiating and
completing amendments to the Project Documents.
10.15 Power of Attorney. Each Owner hereby appoints the Declarant as his or her
attorney-in-fact, and grants the Declarant all necessary authority so that the Declarant may file
any amendment authorized by the process described herein.
ARTICLE XI
ENFORCEMENT
11.1 Priority and Defined Terms. The terms and provisions of this Article shall have
priority over and supersede any inconsistent terms or provisions contained in any other Articles
or portions of this Declaration. The defined (initially capitalized) terms contained in this Article
shall be in addition to defined terms set forth in Article I hereof.
11.2 Enforcement and Nonwaiver.
11.2.1 Rights of Enforcement of Project Documents. The Association ( Owners
Association) or any Owner shall have a right of action against any Owner, and any Owner shall
have a right of action against the Association, to enforce by proceedings at law or in equity, all
restrictions, conditions, covenants and reservations, now or hereafter imposed by the provisions
of the Project Documents or any amendment thereto, including the right to prevent the violation
of such restrictions, conditions, covenants, or reservations and the right to recover damages or
other dues for such violation except that Owners shall not have any right of enforcement
concerning liens for Assessments. The Association shall have the exclusive right to the
enforcement of provisions relating to architectural control and the Rules, unless the Association
refuses or is unable to effectuate such enforcement, in which case any Owner who otherwise has
standing shall have the right to undertake such enforcement. Failure of the Association,
Declarant or any Owner to enforce any covenants or restrictions herein contained shall in no
event be deemed a waiver of the right to do so thereafter.
11.3 Agreement to Avoid Litigation. The Declarant, the Association, its officers,
directors, and committee members, all Persons subject to this Declaration, any Builder, and any
Person not otherwise subject to this Declaration who agrees to submit to this Article (collectively
“Bound Parties”) agree to encourage the amicable resolution of disputes involving the Properties,
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without the emotional and financial costs of litigation. Accordingly, each Bound Party
covenants and agrees that those claims, grievances or disputes described in Section 11.5
(“Claims”) shall be resolved using the procedures set forth in Section 11.6 in lieu of fling suit in
any court.
11.4 Claims. Unless specifically exempted below, all claims, grievances or disputes
arising out of or relating to the interpretation, application or enforcement of the Project
Documents, or the rights and duties of any Bound Party under the Project Documents or relating
to the design or construction of improvements on the Lots shall be subject to the provisions of
Section 11.5.
Notwithstanding the above, unless all parties thereto otherwise agree, the following shall
not be Claims and shall not be subject to the provisions of Section 11.5:
A. Any suit by the Association against any Bound Party to enforce the
provisions of Article IV (Assessments);
B. Any suit by the Association to obtain a temporary restraining order (or
equivalent emergency equitable relief) and such other ancillary relief as the court may deem
necessary in order to maintain the status quo and preserve the Association’s ability to enforce the
provisions of Article VI (Architectural Controls) and Article VII (Use Restrictions).
C. Any suit between Owners, which does not include Declarant or the
Association as a party, if such suit asserts a Claim which would constitute a cause of action
independent of the Project Documents; and
D. Any suit in which any indispensable party is not a Bound Party.
11.5 Mandatory Procedures.
A. Notice. Any Bound Party having a Claim (“Claimant”) against any other
Bound Party (“Respondent”) (collectively the “Parties”) shall notify each Respondent in writing
(the “Notice”), stating plainly and concisely:
1. The nature of the Claim, including the Persons involved and
Respondent’s role in the Claim;
2. The legal basis of the Claim (i.e., the specific authority out of
which the Claim arises;
3. Claimant’s proposed remedy; and
4. That Claimant will meet the Respondent to discuss in good faith
ways to resolve the Claim.
B. Negotiation and Mediation.
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1. The parties shall make every reasonable effort to meet in person
and confer for the purpose of resolving the claim by good faith negotiation. If requested in
writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist
the Parties in resolving the dispute by negotiation.
2. If the Parties do not resolve the Claim within thirty (30) days of the
date of the Notice (or within such period as may be agreed upon by the Parties) (“Termination of
Negotiations”), Claimant shall have 30 days to submit the Claim to mediation under the auspices
of an independent agency providing dispute resolution services in Montana.
3. If Claimant does not submit the Claim to mediation within 30 days
after Termination of Negotiations, or does not appear for the mediation, Claimant shall be
deemed to have waived the Claim, and Respondent shall be released and discharged from any
and all liability to Claimant on account of such Claim; provided, nothing herein shall release or
discharge Respondent from any liability to any Person other than the Claimant.
4. Any settlement of the Claim through mediation shall be
documented in writing by the mediator and signed by the Parties. If the Parties do not settle the
Claim within 30 days after submission of the matter to the mediation process, or within such
time as determined by the mediator, the mediator shall issue a notice of termination of the
mediation proceedings (“Termination of Mediation”). The Termination of Mediation notice
shall set forth that the Parties are at an impasse and the date that mediation was terminated.
5. Within five (5) days of the Termination of Mediation, the Claimant
shall make a final settlement demand (“Settlement Demand”) to the Respondent and Respondent
shall make a final written settlement offer (“Settlement Offer”) to the Claimant. If the Claimant
fails to make a Settlement Demand, Claimant’s original Notice shall constitute the Settlement
Demand. If the Respondent fails to make a Settlement Offer, Respondent shall be deemed to
have made a “zero” or “take nothing” Settlement Offer.
C. Arbitration.
1. If the parties do not agree in writing to a settlement of the Claim
within fifteen (15) days of the Termination of Mediation, the Claimant shall have 15 additional
days to submit the Claim to arbitration in accordance with the rules of the American Arbitration
Association. If not timely submitted to arbitration or if the Claimant fails to appear for the
arbitration proceeding, the Claim shall be deemed abandoned, and Respondent shall be released
and discharged from any and all liability to Claimant arising out of such Claim; provided,
nothing herein shall release or discharge Respondent from any liability to Persons other than
Claimant.
2. This subsection (C) is an agreement to arbitrate and is specifically
enforceable under applicable arbitration laws. The arbitration award (the “Award”) shall be final
and binding, and judgment may be entered upon it in any court of competent jurisdiction to the
fullest extent permitted under the laws of the State of Montana.
11.6 Allocation of Costs of Resolving Claims.
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(a) Subject to Section 11.6.2, each party shall bear its own costs, including
any attorney’s fees incurred, and each Party shall share equally all charges rendered by the
mediator(s) and all filing fees and costs of conducting the arbitration proceeding (“Post
Mediation Costs”).
(b) Any award which is equal to or more favorable to Claimant than
Claimant’s Settlement Demand shall add to Claimant’s Post Mediation Costs to the Award, such
costs to be borne equally by all Respondents. Any award which is equal to or less favorable to
Claimant than any Respondent’s Settlement Offer shall award to such Respondent its Post
Mediation Costs.
11.7 Enforcement of Resolution. After resolution of any Claim, if any Party fails to
abide by the terms of any agreement or binding Award, then any other Party may file suit or
initiate administrative proceedings to enforce such agreement or Award. In such event, the Party
taking action to enforce the agreement or Award shall be entitled to recover from the non-
complying Party (or if more than one non-complying Party, from all such Parties pro rata) all
costs incurred in enforcing such agreement or Award, including, without limitation, attorney’s
fees and court costs.
11.8 Agreement for Dispute Resolution Waivers of Jury Trial and Award of Punitive
Damages. DECLARANT, AND BY ACCEPTING A DEED OR CONVEYANCE TO THE
COMMON AREA OR A LOT, AS THE CASE MAY BE, THE ASSOCIATION AND EACH
OWNER, AGREE TO HAVE ANY DISPUTE RESOLVED ACCORDING TO THE
PROVISIONS OF THIS ARTICLE XI AND WAIVE THEIR RESPECTIVE RIGHTS TO
PURSUE ANY DISPUTE IN ANY MANNER OTHER THAN AS PROVIDED IN THIS
ARTICLE X. SUCH PARTIES ACKNOWLEDGE THAT BY AGREEING TO RESOLVE
ALL DISPUTES AS PROVIDED IN THIS ARTICLE XI. THEY ARE GIVING UP THEIR
RESPECTIVE RIGHTS TO HAVE SUCH DISPUTES TRIED BEFORE A JURY AND
FURTHER WAIVE THEIR RESPECTIVE RIGHTS TO AN AWARD OF PUNITIVE
DAMAGES RELATING TO SUCH DISPUTES, THEREBY GIVING UP ANY RIGHTS
SUCH PARTIES MAY POSSESS TO SUCH REMEDIES. THIS ARTICLE XI SHALL NOT
BE AMENDED WITHOUT DECLARANT’S PRIOR WRITTEN CONSENT.
ARTICLE XII
SPECIAL DECLARANT RIGHTS
Special Declarant Rights. Declarant reserves the following Declarant Rights during the
Development Period (“Special Declarant Rights”), which may be exercised, where applicable,
anywhere within the Project:
A. To complete any improvements indicated on Plat Maps or development
plans filed with the Declaration or the Master Plan on the Property or any Annexed Property;
B. To exercise a Development Right;
C. To maintain sales offices, management offices, signs advertising on the
Project as set forth in section 13.3;
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D. To use easements through the Common Area for the purpose of making
improvements within the Project;
E. To merge or consolidate the Association with another common interest
community of the same form of ownership or make it subject to a master association;
F. To operate a resale or rental office on site after all the Lots have been
developed, sold and completed; and
G. To exercise any rights granted to the Declarant by these Covenants.
12.1 Transfer of Special Declarant Rights.
A. Assignment. Declarant may assign any Special Declarant Rights,
Development Rights, or other special rights and obligations of Declarant set forth in this
Declaration or the Bylaws to any affiliate of Declarant, or Declarant may allow any affiliate of
Declarant to exercise such rights on behalf of Declarant. The method of exercising such rights
shall be subject to the agreement of the parties thereto, which shall not require recordation in the
Public Records.
B. Transfer. Any or all Special Declarant Rights identified in this section,
Development Rights, or any of the other special rights and obligations of Declarant set forth in
this Declaration or the Bylaws may be transferred in whole or in part to other Persons, provided
that the transfer shall not reduce an obligation nor enlarge a right beyond that which Declarant
has under this Declaration or the Bylaws. No such transfer shall be effective unless it is in a
written instrument signed by Declarant and duly recorded in the Public Records.
12.2 Models, Sales Offices and Management Offices. During the Development Period,
Declarant may maintain and carry on upon any Lot owned by Declarant or any portion of the
Common Area such facilities and activities as, in the sole opinion of the Declarant, may be
reasonably required, convenient, or incidental to the sale of Lots and construction of Units on the
Lots, including, but not limited to, business offices, signs, model units, marketing trails, and
sales offices. Declarant shall have easements for access to and use of such facilities. Declarant’s
unilateral right to use the Common Area for purposes stated in this section shall not be exclusive
and shall not unreasonably interfere with use of such Common Area by Owners unless leased
pursuant to a lease agreement with the Association providing for payment of reasonable rent.
12.3 Construction of Improvements. Declarant and its employees, agents and
designees shall also have a right and easement during the Development Period over and upon all
of the Common Area for the purpose of making, constructing and installing such improvements
to the Common Area as it deems appropriate in its sole discretion.
12.4 Other Covenants Prohibited. During the Development Period, no Person shall
record any declaration of covenants, conditions and restrictions, or similar instrument affecting
any portion of the Project without Declarant’s review and written consent. Any attempted
recordation without such consent shall result in such instrument being void and of no force and
effect unless subsequently approved by written consent signed by Declarant and recorded in the
Public Records.
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12.5 Master Planned Community. Each Owner, by accepting title to a Lot and
becoming an Owner, and each other Person, by acquiring any interest in the Lots, acknowledges
awareness that the Project is a master planned community, the development off which is likely to
extend over many years, and agrees not to protest or otherwise object to (a) zoning or changes in
zoning or to uses of, or changes in density of, the Project (other than within said Owner’s or
other Person’s Neighborhood) during the Development Period, or (b) changes in any conceptual
or master plan for the Project; provided, such revision is or would be lawful (including, but not
limited to, lawful by special use permit, variance or the like) and is not inconsistent with what is
permitted by the Declaration (as amended from time to time).
12.6 Equal Treatment. So long as Declarant owns any property described in Exhibit A,
the Association shall not, without prior written consent of Declarant, adopt any policy, rule or
procedure that:
A. Limits the access of Declarant, its successors, assigns and/or affiliates or
their personnel from advertising, marketing or using the Association or its Common Areas or any
property owned by any of them in promotional materials;
B. Limits or prevents Declarant, its successors, assigns and/or affiliates or
their personnel from advertising, marketing or using the Association or its Common Areas or any
property owned by any of them in promotional materials;
C. Limits or prevents Owners of Units from becoming members of the
Association or enjoying full use of its Common Areas, subject to the membership provisions of
this Declaration and the Bylaws;
D. Discriminates against or singles out any group of Association members or
prospective members or Declarant that discriminates against or singles out any group or
Association members or Declarant;
E. Impacts the ability of Declarant, its successors, assigns and/or affiliates, to
carry out to completion its development plan and related construction activities for the Project as
such may be amended and updated from time to time, including Declarant’s right to easements
for development and construction of residential units and related landscaping activities; or
F. Impacts the ability of Declarant, it successors, assigns and/or affiliates to
develop and conduct customer service programs and activities in a customary and reasonable
manner. The Association shall not exercise its authority over the Common Areas (including, but
not limited to, any gated entrances and other means of access to the Project) to interfere with the
rights of Declarant set forth in this Declaration or to impede access to any portion of the Project
over the streets and other Common Areas within the Project.
12.7 Right to Use Common Area for Special Events. As long as Declarant owns any
property described in Exhibit A (as amended from time to time), Declarant shall have the right to
use all Common Area, including any recreational facilities, for up to eight days each year to
sponsor special events for charitable, philanthropic, political or marketing purposes as
determined by Declarant in its sole discretion. Any such event shall be subject to the following
conditions.
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A. The availability of the facilities at the time a request is submitted to the
Association;
B. Declarant shall pay all costs and expenses incurred and shall indemnify
the Association against any loss or damage resulting from the special event; and
C. Declarant shall return the facilities and personal property owned by the
Association and used in conjunction with the special event to the Association in the same
condition as existed prior to the special events.
Declarant shall have the right to assign the rights contained in this section 13.8 to charitable
organizations or foundations selected by Declarant. Declarant’s right to use the Common Area
for special events shall be enforceable by injunction, by any other remedy in law or equity, and
by the terms of this Declaration.
12.8 Amendment. This Article shall not be amended without the prior written consent
of Declarant so long as Declarant owns any property described in Exhibit A (as amended from
time to time). The rights contained in this Article shall terminate as specifically provided in the
Act, or upon the earlier of (a) 20 years after the conveyance of the first Lot to an Owner, or (b)
upon recording by Declarant of a written statement that all sales activity has ceased. Thereafter,
Declarant may continue to use the Common Areas for purposes stated in this Article only
pursuant to a rental or lease agreement between Declarant and the Association which provides
for rental payments based on the fair market value of any such portion of the Common Areas.
ARTICLE XIII
REQUIREMENTS OF GALLATIN COUNTY
The following conditions have been imposed on the Project by Gallatin County, and shall
not be amended or revoked without the consent of the Owner in accordance with the amendment
procedures of these Covenants, and the County Commission:
A. The property owner shall be responsible for the control of County-
declared noxious weeds.
B. Individual lot accesses from County/City public roads shall be built to the
standards of Section 7.G.2 of the Subdivision Regulations.
C. The control of noxious weeds by the Association on those areas for which
the Association is responsible and the control of noxious weeds by individual owners on their
respective lots shall be as set forth and specified under the Montana Noxious Weed Control Act
(MCA 7-22-2101 through 7-22-2153) and the rules and regulations of the Gallatin County Weed
Control District.
D. The landowner shall be responsible for the control of state and county
declared noxious weeds on his or her lot. Both unimproved and improved lots shall be managed
for noxious weeds. In the event a landowner does not control the noxious weeds, after 10 days’
notice from the property owners’ association, the association may cause the noxious weeds to be
controlled.
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The cost and expense associated with such weed management shall be assessed to the lot
and such assessment may become a lien if not paid within 30 days of the mailing of such
assessment.
E. All garbage shall be stored in animal-proof containers or be made
unavailable to animals.
F. All areas disturbed by construction shall be re-seeded with vegetation
types approved by the Gallatin County Weed Control Officer.
G. All public and private structures shall be properly designed in accordance
with the International Building Code (IBC).
H. The new construction, alterations, and substantial improvements of
residential and accessory structures shall be constructed such that the bottom floor elevations are
at least three feet above existing (natural) grade.
I. No basements shall be allowed in the shallow flooding area.
J. There shall be no filling, draining, excavating, dredging, mining, drilling
or removal of topsoil, loan, peat, sand, gravel, rock, minerals or other materials within the
boundaries and the wetland mitigation areas.
K. There shall be no building of roads or paths nor any change in the
topography of the Land within the boundaries and the wetland mitigation areas.
L. There shall be no removal, destruction, or cutting of trees or plants,
spraying with biocides, insecticides, pesticides or herbicides (except to control noxious weeds),
grazing of animals, farming, tilling of soil, or other agricultural activity within the boundaries
and the wetland mitigation areas.
M. There shall be no operation of snowmobiles, motorcycles, all-terrain
vehicles or any other type of motorized vehicles on the Land within the boundaries and the
wetland mitigation areas.
N. Upon completion of the monitoring period, an operation and maintenance
plan shall be developed. Maintenance within the wetland mitigation areas shall be turned over to
the Homeowner’s Association and/or subcontracted.
O. The Covenant of Dedication may be changed, modified or revoked only
upon written approval of the District Engineer of the Omaha District of the US Army Corps of
Engineers. To be effective, such approval must be witnessed, authenticated and recorded
pursuant to the law of the State of Montana.
P. These Covenants J through P are made in perpetuity such that the present
owner and its heirs and assigns forever shall be bound by the terms and conditions set forth
herein.
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IN WITNESS WHEREOF, Declarant has executed this Declaration this 19th day of
August, 2011.
DECLARANT:
FALNDERS MILL, LLC,
By: ________________________________
Walter Wolf
HOMELANDS DEVELOPMENT COMPANY,
LLC, a Nevada limited liability company, its
Managing Member
STATE OF Montana )
:ss
COUNTY OF Gallatin )
This instrument was acknowledged before me on ____________ IN WITNESS
WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first
above written.
Notary Public for the State of
My commission expires: