HomeMy WebLinkAboutAppendix 8 - Declaration of Covenants, Conditions and Restrictions
Cannery District Planned Unit Development
Preliminary PUD Application
Cannery District Partners, llc
Appendix 8
Draft Declaration
Return to:
CDP Management, LLC
1006 West Main Street
Bozeman, Montana 59715
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DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
CANNERY DISTRICT PLANNED UNIT DEVELOPMENT
___________
TABLE OF CONTENTS
SECTION 1.
DEFINITIONS ............................................................................................................................4
SECTION 2
PROJECT SUBJECT TO DECLARATION; PROPERTY RIGHTS.................................................7
2.1
The Property; General Declaration..........................................................................................7
2.2
Property Rights ........................................................................................................................7
2.3
Delegation................................................................................................................................7
2.4
Transfer of Common Property to Association.........................................................................7
2.5
Subdivision and Consolidation of Lots....................................................................................7
SECTION 3
DECLARANT’S RIGHTS ............................................................................................................7
3.1
Right to Transfer......................................................................................................................7
3.2
Limitations on Declarant .........................................................................................................7
3.3
Authorization Required ...........................................................................................................8
SECTION 4
CANNERY DISTRICT PROPERTY OWNERS ASSOCIATION....................................................8
4.1
Creation and Purpose...............................................................................................................8
4.2
Membership in Association.....................................................................................................8
4.3
Membership Interest ................................................................................................................8
4.4
Voting Rights...........................................................................................................................9
4.5
Voting; Quorum.......................................................................................................................9
4.6
Declarant’s Right to Appoint Majority of Board.....................................................................9
4.7
Powers and Duties of the Association ....................................................................................9
SECTION 5
ASSESSMENTS, BUDGET & LIENS.........................................................................................10
5.1
Assessments and Owners’ Obligation to Pay ........................................................................10
5.2
Computation of General Assessment.....................................................................................11
5.3
Computation of Limited Assessments...................................................................................12
5.4
Special Assessments ..............................................................................................................13
5.5
Reserve Budget and Capital Contribution .............................................................................13
5.6
Date of Commencement of Assessments ..............................................................................14
5.7
Lien of Assessments; Foreclosure .........................................................................................14
5.8
Subordination of the Lien to First Mortgages........................................................................14
5.9
Exempt Property ....................................................................................................................14
5.10
Assessment Obligation of Declarant ....................................................................................14
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SECTION 5
MAINTENANCE .......................................................................................................................15
6.1
Association’s Maintenance Responsibility............................................................................15
6.2
Owners’ Maintenance Responsibility....................................................................................15
6.3
Noxious Weeds......................................................................................................................17
SECTION 7
COMMON PROPERTY..............................................................................................................17
7.1
Description of Common Property..........................................................................................17
7.2
Intent ......................................................................................................................................17
7.3
Right of Access......................................................................................................................17
SECTION 7
USE RESTRICTIONS AND RULES...........................................................................................17
8.1
Generally................................................................................................................................17
8.2
Laws and Ordinances.............................................................................................................18
8.3
Inspection...............................................................................................................................18
8.4
Operations and Uses ..............................................................................................................18
8.5
Prohibited Uses......................................................................................................................18
8.6
Permitted Uses.......................................................................................................................19
8.7
General use provisions...........................................................................................................19
8.8
Construction...........................................................................................................................22
8.9
Parking...................................................................................................................................22
SECTION 9.
DESIGN REVIEW PROCESS AND PROCEDURES ..................................................................22
9.1
Design Review Committee ....................................................................................................22
9.2
DRC Review Required ..........................................................................................................22
9.3
Employment of Architects, Engineers or Other Persons.......................................................22
9.4
Review Fee and Address .......................................................................................................22
9.5
Design Guidelines..................................................................................................................23
9.6
Plan Review and Approval ....................................................................................................23
9.7
Right to Inspect......................................................................................................................23
9.8
Construction Compliance ......................................................................................................23
9.9
Notice of Noncompliance or Noncompletion........................................................................23
9.10
No Liability...........................................................................................................................24
SECTION 10.
INSURANCE AND CASUALTY LOSSES...............................................................................24
10.1
Insurance on Common Property...........................................................................................24
10.2
Other Insurance.....................................................................................................................26
10.3
Damage and Destruction.......................................................................................................26
10.4
Disbursement of Proceeds ....................................................................................................26
10.5
Repair and Reconstruction....................................................................................................26
10.6
Property Insured by Owners; Damage and Destruction .......................................................27
SECTION 11
CONDEMNATION ..................................................................................................................27
SECTION 12
ANNEXATION AND WITHDRAWAL OF PROPERTY...........................................................27
12.1
Annexation by Declarant ......................................................................................................27
12.2
Annexation by Association...................................................................................................27
12.3
Additional Covenants and Easements ..................................................................................28
12.4
Withdrawal of Property ........................................................................................................28
12.5
Amendment...........................................................................................................................28
SECTION 13
MORTGAGEE PROVISIONS..................................................................................................28
13.1
Priority of First Mortgages ...................................................................................................28
13.2
Notices to Eligible Lenders ..................................................................................................28
13.3
Notice to Association............................................................................................................29
13.4
Failure of Mortgagee to Respond .........................................................................................29
SECTION 14.
EASEMENTS.........................................................................................................................29
14.1
Easements Reserved to Declarant.........................................................................................29
14.2
Easements for Encroachment ...............................................................................................29
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14.3
Easements for Overhang.......................................................................................................30
14.4
Easement for Maintenance and Repair of Lot Improvements ..............................................30
14.5
Easements for Installation of Common Property..................................................................30
14.6
Easement for Maintenance of Common Property ................................................................30
14.7
Easements for Use and Enjoyment of Common Property ....................................................30
SECTION 15.
ENFORCEMENT ....................................................................................................................31
15.1
Owner’s Compliance ............................................................................................................31
15.2
Remedies...............................................................................................................................31
15.3
Attorney’s Fees.....................................................................................................................32
15.4
No Waiver.............................................................................................................................32
SECTION 16.
GENERAL PROVISIONS........................................................................................................32
16.1
Covenants to Run with Land, Duration, Binding Effect ......................................................32
16.2
Amendment...........................................................................................................................32
16.3
Variance and Waiver ............................................................................................................33
16.4
Partition.................................................................................................................................33
16.5
Cannery District and Northside–Use of Terms ....................................................................33
16.6
Disclaimer.............................................................................................................................33
16.7
Notice of Sale or Transfer of Title........................................................................................33
16.8
Proper Notice to Owner or Mortgagee .................................................................................34
16.9
No Dedication.......................................................................................................................34
16.10
Severability...........................................................................................................................34
16.11
Captions ................................................................................................................................34
16.12
Cumulative Effect.................................................................................................................34
16.13
Interpretation.........................................................................................................................34
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
THIS DECLARATION is made _____________________, 2006, by CANNERY DISTRICT
PARTNERS, LLC, a Montana limited liability company, 1006 West Main Street, Bozeman, Montana
59715 (“Declarant”).
RECITALS
A. Declarant is the owner of real property (“Property”) in Gallatin County, Montana, described as
follows:
Tracts 1, 2, and 3 of Certificate of Survey ______, a tract of land being Tract 1 and
Tract 2 of Correction COS 2128B, and the parcel known as COS 2548, all located
within the SW¼ of Section 6, Township 2 South, Range 6 East, P.M.M, Gallatin
County, Montana; and
Lots 1, 2, and 3 of Amended Subdivision Plat _____, a tract of land being Tract 3-A of
COS 2128B, and portions of Block 2 and Block 3 of the Imes Addition to Bozeman
that lie North of Plats C-41-D and C-41-K which are considered East Oak Street,
located within the SW¼ of Section 6, Township 2 South, Range 6 East, P.M.M, City of
Bozeman, Gallatin County, Montana.
B. Declarant has subdivided the Property into smaller tracts and lots for purposes of resale or
development. Developer has established a planned unit development (“PUD”) for the Property and
intends that the Property be developed principally as a commercial and business park. The Property
may also include mixed-use buildings with both commercial space and residential dwellings. The
development is to be known as “Cannery District Planned Unit Development.”
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C. The Property has been used in the past for a pea canning facility and other various commercial and
light industrial uses. Declarant desires to retain certain architectural and design aspects associated
with the Property’s past uses, to the extent that such characteristics are consistent with the
contemplated uses of the Property.
D. Declarant desires to subject the Property and the subdivisions thereof to protective and restrictive
covenants, conditions, restrictions, easements, reservations and guidelines (collectively the
“Covenants”). The requirements set forth in the Covenants shall, at all times, meet or exceed the
minimum requirements and standards of all applicable state and local regulations and ordinances
governing subdivision and zoning.
NOW, THEREFORE, Declarant hereby declares that the Property, and other lands that may be added to
the Property pursuant to a Supplemental Declaration and the procedures set forth herein, shall be
developed, owned, held, sold, conveyed, encumbered, leased, used, and occupied subject to the following
Covenants. The Covenants shall run with the land and shall be binding upon and inure to the benefit of all
persons having any right, title or interest in the Property (or any part thereof) and their heirs, successors
and assigns. The Covenants are imposed upon the Property for the purposes of protecting and enhancing
the value and desirability of the Property, maintaining a consistent character and architectural theme,
regulating the development and use of the Property, and providing for the administration and maintenance
of the Common Property.
SECTION 1. DEFINITIONS
Unless the context requires otherwise, the following definitions shall pertain throughout this Declaration
and in the interpretation thereof:
• “Additional Property” means and refers to real property in Bozeman, Gallatin County, Montana,
described as set forth in the attached Exhibit A.
• “Assessment” means the assessments described and authorized in Section 5 of this Declaration.
• “Association” means the Cannery District Property Owners Association, a Montana non-profit
corporation to be created by Declarant as provided in Section 4. The Association shall consist of all
of the Owners acting as a group and in accordance with this Declaration and the Bylaws.
• “Board of Directors” or “Board” is the elected body of the Association and the term shall have its
normal meaning under Montana corporate law.
• “Bylaws” mean the Bylaws of the Association, as they may be amended from time to time.
• “Common Property” means all real and personal property, including the Common Space Tracts and
easements, that the Association owns, leases or otherwise holds possessory or use rights in for the
common use and enjoyment of the Owners, including but not limited to roadways, walkways,
entrance areas, utility lines and connections, landscaped areas, parking areas, median strips, curbs,
drainage areas, private rights-of-way and easements, utility and drainage easements, sign location
areas and signs located thereon.
• “Common Space Tracts” means the tracts identified as such on the PUD plat. Upon conveyance of
such tracts to the Association pursuant to this Declaration, the tracts shall be owned in fee by the
Association and shall become a part of the Common Property.
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• “Common Expenses” is an inclusive term referring to both General Common Expenses and Limited
Common Expenses.
• “Covenants” shall have the meaning set forth in Recital D.
• “Declarant” means Cannery District Partners, LLC, a Montana limited liability company, and any
successors and assigns controlled by or under common control with Cannery District Partners,
LLC.
• “Declarant Control Period” means the period of time described in Section 4.5.
• “Declaration” means this document and all parts attached thereto or incorporated by reference.
• “Design Guidelines” means the standards, restrictions, and specifications referred to in Section 9
that govern the construction, placement, location, alteration, maintenance or design of any
Improvements to the Property, and all amendments thereto at the time of reference.
• “General Assessments” means Assessments levied against all Lots on the Property to fund General
Common Expenses.
• “General Common Expenses” means the expenses incurred by the Association for the general
benefit of all Lot Owners, including any reasonable reserve, all as may be found necessary and
appropriate by the Board pursuant to this Declaration, the Bylaws, and the Articles of Incorporation
of the Association.
• “Improvements” means and includes, but is not limited to, buildings and roofed structures, changes
in any exterior color or shape of buildings, parking areas, loading areas, fences, walls, driveways,
hedges, landscaping, poles, signs, and any new construction or exterior renovation significantly
altering the appearance of these improvements. It shall not include public utilities, landscape
material replacements, or any other replacement or repair that does not change exterior colors or
exterior appearances. It shall include both original improvements and all later changes and
improvements.
• “Law” means all laws, ordinances, requirements, orders, proclamations, directives, codes, rules, and
regulations of any governmental authority that affect the Property, the Improvements, this
Declaration, or any Person’s rights and remedies under this Declaration in any way. The term shall
include Law in force at the date of this Declaration or passed, enacted or imposed at some later
time, subject in all cases, however, to any applicable waiver, variance or exemption.
“Governmental authority” as used in this paragraph shall include any agency, authority, bureau,
department, quasi-governmental body or other entity or instrumentality having or claiming
jurisdiction over the Property.
• “Limited Assessments” means Assessments levied against particular Lots to fund Limited Common
Expenses, as more particularly described in Section 5 hereof.
• “Limited Common Expenses” means the expenses incurred by the Association for the benefit of
Owners of fewer than all of the Lots. The Board shall determine what expenses benefit fewer than
all Lots, which determination shall be conclusive. Limited Common Expenses may include a
reasonable reserve for capital repairs and replacements and shall be specifically authorized by the
Board in accordance with Section 5 hereof.
• “Lot” means a fractional part of the subdivided Property as depicted on plats recorded from time to
time in the Public Records.
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• “Majority” means those votes, owners, members or other group, as the context may indicate,
totaling more than 50% of the total Member Votes and/or Percent Membership Interest.
• “Member” means a Person entitled to membership in the Association, as provided herein.
• “Member Votes” means the votes assigned to each Lot by this Declaration, as amended from time
to time. See Section 4.3.
• “Mortgage” means a mortgage, a deed of trust, trust indenture or other, similar form of consensual
security interest or consensual lien intended as security for an obligation.
• “Mortgagee” means a beneficiary or holder of a Mortgage.
• “Cannery District Architectural Review Committee” or “CDARC” means the committee
established pursuant to Section 9 for architectural and site plan review and approval of proposed
construction, alteration, addition, and erection of Improvements to the Property.
• “Occupant” means a Tenant or licensee of an Owner, or any other person or entity other than an
Owner in lawful possession of a Lot with the permission of the Owner.
• “Owner” means Declarant or other Person who owns the record title to any Lot, but excluding in all
cases any party having an interest in the Lot solely as security for an obligation. If a Lot is sold
under a contract of sale with a recorded notice of purchaser’s interest, and the contract specifically
so provides, then the purchaser (rather than the holder of the legal interest) shall be deemed the
Owner. If the entirety of a Lot and all Improvements thereon are subject to a single, written lease
with a primary term in excess of ten (10) years (not including extension or renewal terms) and the
lease specifically so provides, then upon filing a copy of the Lease with the Board of Directors, the
Tenant (rather than the fee owner) will be deemed the Owner for the purpose of exercising all
privileges of membership in the Association
• “Percent Membership Interest” means the membership interest in the Association allocated by this
Declaration to a Lot. See Section 4.3.
• “Person” means a natural person, corporation, limited liability company, partnership, association,
trust, other entity or any combination thereof.
• “Property” shall have the meaning set forth in Recital A and additionally means the land, buildings,
improvements and structures thereon, and all easements, rights and appurtenances belonging
thereto, which is hereby subjected to the provisions of this Declaration.
• “Public Records” means the records on file and of record in the office of the Clerk and Recorder,
Gallatin County, Montana.
• “Supplemental Declaration” means an amendment or supplement to this Declaration executed by or
consented to by Declarant that subjects Additional Property to this Declaration. The Supplemental
Declaration may impose, expressly or by reference, additional restrictions and obligations to the
Additional Property described therein.
• “Tenant” means the owner of a leasehold interest in a part or all of the Property, or any
Improvements located thereon.
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SECTION 2 PROJECT SUBJECT TO DECLARATION; PROPERTY RIGHTS
2.1 The Property; General Declaration. Declarant is the present record titleholder of the Property.
Upon recording of this Declaration in the Public Records, the Property shall be owned, held,
transferred, leased, sold, conveyed, hypothecated, encumbered and occupied by Declarant, and
any subsequent Owner, Tenant or Occupant of all or any part thereof, subject to the Covenants.
2.2 Property Rights. Every Owner shall have a right and nonexclusive easement of use, access and
enjoyment in and to the Common Property. The scope of the easement and the restrictions and
limitations on its use and enjoyment are set forth in Section 14.7.
2.3 Delegation. Any Owner may delegate such Owner’s right of use and enjoyment of the Common
Property to its Tenants, employees and invitees, as applicable, subject to reasonable regulation by
the Board of Directors and in accordance with procedures the Board may adopt.
2.4 Transfer of Common Property to Association. The initial Common Property shall be conveyed
to the Association within one (1) year of the first conveyance of a Lot to any purchaser other than
(i) Declarant or (ii) an entity controlled by Declarant.
2.5 Subdivision and Consolidation of Lots. After its initial conveyance by Declarant, no Lot may
either be subdivided into two or more parcels or be consolidated with a contiguous Lot without
the prior written approval of the Association. If the proposed subdivision or consolidation occurs
during the Declarant Control Period, Declarant’s prior written approval shall also be required.
Further, an Owner desiring to subdivide a Lot or consolidate Lots must comply with all Laws,
particularly those governing land subdivision and platting.
SECTION 3 DECLARANT’S RIGHTS
3.1 Right to Transfer. Any or all of the rights and obligations of Declarant set forth in this
Declaration or the Bylaws may be transferred or assigned in whole or in part to another Person.
Such Person will then assume the position of Declarant pertaining to the particular rights, powers,
easements and reservations assigned, 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 or assignment shall be effective unless it is in a written instrument signed by Declarant
and duly recorded in the Public Records. If Declarant conveys all of its interest in the Property to
another Person, Declarant shall be relieved of the performance of any further duty or obligation
hereunder, and such Person shall be obligated to perform all such duties and obligations of
Declarant.
3.2 Limitations on Declarant. Declarant is developing the Property for business, commercial, and
mixed-use commercial and residential purposes. Completion of that work and sale or other
disposition of such developed land is essential to the establishment and welfare of the Property as
a commercial, business, and mixed-use development. To facilitate rapid completion of the
Property’s development, nothing in this Declaration shall be understood or construed to:
(a) Prevent Declarant, its contractors or subcontractors from doing to the Property whatever is
reasonably necessary or advisable in connection with the completion of said work;
(b) Prevent Declarant or its representatives from constructing and maintaining structures on the
Property as may be reasonable and necessary for completing the work of establishing the
Property as a commercial, business, and mixed use residential park and disposing of the
same in parcels by sale, lease or otherwise;
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(c) Prevent Declarant from conducting on any part or parts of the Property such business as
may be necessary to complete work and establish the Property as a commercial, business,
and mixed use residential park; or
(d) Prevent Declarant from installing and maintaining signs on any part of the Property as may
be necessary for the sale, lease or disposition thereof.
No action taken by Declarant pursuant to any provision of this Section 3.2 shall unreasonably
interfere with the Owner’s rights and use of such Owner’s Lot.
3.3 Authorization Required.
(a) No person shall record any declaration of covenants, conditions and restrictions or similar
instrument purporting to affect any portion of the Property during the Declarant Control
Period without Declarant’s review and consent. Any attempted recordation without
Declarant’s 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. Any additional covenants or restrictions recorded by any Person other than
Declarant may not be less restrictive than the terms of this Declaration.
(b) Notwithstanding any contrary provision of this Declaration, no amendment to or
modification of any use restriction or Design Guideline shall be effective without prior
notice to and the written approval of Declarant so long as Declarant owns any portion of
the Property.
SECTION 4 CANNERY DISTRICT PROPERTY OWNERS ASSOCIATION.
4.1 Creation and Purpose. Declarant shall incorporate the Association as a non-profit mutual
benefit corporation. Such incorporation shall occur within one (1) year of the initial conveyance
of a Lot to a purchaser other than Declarant and prior to Declarant’s transfer and conveyance of
any real or personal property interest to the Association. The Association shall be formed for the
purpose of administering, implementing, and enforcing this Declaration and operating the
Association for the benefit of its Members.
4.2 Membership in Association. All Owners shall be Members of the Association. Each Owner
shall be deemed to have an automatic, mandatory, non-severable membership interest and voting
right in the Association. No Owner, whether one or more Persons, shall have more than one
membership interest per Lot owned. Members may exercise the rights and privileges of
membership subject to the provisions of this Declaration and the Bylaws. Membership rights held
by multiple individuals, a corporation, limited liability company, partnership, other entity or trust
shall be exercised by an individual designated from time to time by the Owner in a written
instrument provided to the Association’s secretary.
4.3 Membership Interest The Association shall have a single class of membership. Each Owner
shall have the membership interest (“Percent Membership Interest”) assigned by this Declaration
to such Owner’s Lot. The Percent Membership Interest shall (i) correlate to the votes that each
Owner will have in matters that come before the Association for a vote and (ii) be used as a basis
in determining, among other things, each Owner’s liability for Assessments. The Percent
Membership Interest for each Lot is as shown in the following table:
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Lot Number Percent Membership Interest
Votes
[To be determined – see Table 3.01 of Preliminary PUD Application (Proposed Building Uses)]
Declarant reserves the right to alter the Percent Membership Interest allocated to each Lot at any
time before a Lot is conveyed to a purchaser other than Declarant. Declarant further reserves the
right to redistribute and reassign equitably the Percent Membership Interest allocated to each Lot
if (i) Lot boundary lines for the PUD are subsequently adjusted; (ii) the square footage of
buildings constructed on the Lots materially departs from Declarant’s estimates; (iii) the use of a
Lot or building is materially different from the use planned by Declarant or (iii) the Additional
Property, or any portion of it, is annexed to the Property as provided in Section 12.1.
4.4 Voting Rights. The total number of votes in the Association (“Member Votes”) shall be
_____________. Unless a Member’s vote is expressly excluded in a particular matter by this
Declaration, Each Member shall be entitled to cast the number of Member Votes allocated to such
Member’s Lot in any matter that comes before the Association for a vote. The initial number of
Member Votes allocated to each Lot is shown in Section 4.3. In any situation where a Member is
entitled to exercise the Members Votes for a Lot and more than one Person holds the membership
interest in such Lot, such Member Votes shall be cast as those Persons determine among
themselves, and they shall advise the Secretary in writing at or prior to any meeting as to who is
authorized to case such votes. In the absence of such advice, the Lot’s vote shall be suspended if
more than one individual seeks to exercise it. The Member Votes allocated to each Lot may not
be split.
4.5 Voting; Quorum. Meetings of the Association shall only be conducted when a quorum is
present, as defined in the Bylaws. Except as specifically provided otherwise in this Declaration or
the Bylaws, when Members vote to take action on a matter, a Majority of Member Votes shall
carry.
4.6 Declarant’s Right to Appoint Majority of Board. Until December 31, 20___, or until
______ (___) Lots have been conveyed to a purchaser other than Declarant (or an entity
controlled by or under common control with Declarant), whichever first occurs (“Declarant
Control Period”), Declarant reserves the right (but shall not have the obligation) to appoint and
remove all of the members of the Board. This right shall exist notwithstanding the provisions of
this Declaration and the Bylaws governing the election and removal of directors. Board members
appointed by Declarant may be Members, officers, employees or agents of Declarant and need
not be Lot Owners. Declarant may, in its sole discretion, temporarily or permanently relinquish
its right to appoint and remove all of the Board at any time during the Declarant Control Period.
4.7 Powers and Duties of the Association. In addition to the powers and duties provided for
elsewhere in this Declaration and the Bylaws, the Association, acting through its Board for the
mutual benefit of the Owners, shall generally have the powers and duties necessary or incidental
to the operation and management of the Association and the Common Property including, without
limitation, the following powers and duties:
(a) Take such action to enforce the terms and provisions of this Declaration by appropriate
means, including, but not limited to:
(i) Expenditure of funds;
(ii) Employment of legal counsel, accounting services and management services; and
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(iii) Commencement and prosecution of legal or equitable causes of action.
(b) Maintain and otherwise manage the Common Property and its facilities, improvements, and
landscaping;
(c) Obtain landscape maintenance services and other services which in the opinion of the
Association shall be necessary and proper for the benefit of the Common Property;
(d) Borrow funds to pay costs of operation secured by assignment or pledge of its rights against
delinquent Owners;
(e) Enter into contracts for legal, management and accounting services
(f) Maintain one or more accounts in banks or other financial institutions;
(g) Enter into contracts for security services for all or portions of the Property.
(h) In order to not unduly impede the further development of the Property, monitor existing
and potential future use of the Property.
(i) Take action to protect or defend the Property from loss or damage by suit or otherwise;
(j) Establish and maintain a working capital and contingency fund;
(k) Make an annual report available to each Owner and any Mortgagee within a reasonable
time after receipt of a written request;
(l) Delegate its powers and duties to committees, officers or employees; and
(m) Employ a manager or contract with independent contractors or managing agents who have
professional experience to perform all or any part of the duties and responsibilities of the
Association; provided, that any contract with a person or entity appointed as manager or
managing agent shall be terminable without cause or penalty on not more than 30 days
written notice by the Association.
SECTION 5 ASSESSMENTS, BUDGETS & LIENS
5.1 Assessments and Owners’ Obligation to Pay.
(a) Creation of Assessments. Assessments are hereby created for Association expenses as may
from time to time specifically be authorized by the Board of Directors, to be commenced at
the time and in the manner set forth in Section 5.6 hereof. Each Owner, by acceptance of a
deed or recorded contract of sale for any portion of the Property, is deemed to covenant and
agree to pay these Assessments.
(b) Types of Assessments. There shall be three types of assessments: (i) General Assessments to
fund General Common Expenses for the benefit of all Members of the Association; (ii)
Limited Assessments for Limited Common Expenses benefiting fewer than all Members of
the Association, and (iii) Special Assessments as described in Section 5.4 below. General
Assessments shall be levied on all Lots from time to time subject to this Declaration, as
provided in Section 5.2 below. Limited Assessments shall be levied against all Lots
benefiting from the services supported thereby as provided in Section 5.3 below. Special
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Assessments shall be levied as provided in Section 5.4 below. The Board of Directors shall
have the final authority to determine which type of assessment will be used to cover
particular Association expenses.
(c) Manner of Payment. Assessments shall be paid in such manner and on such dates as may be
fixed by the Board of Directors and, if the Board so elects, Assessments may be paid in two
or more installments. Unless the Board otherwise provides, the General Assessment and
any Limited Assessment shall be due and payable in advance on the first day of each fiscal
year. Assessments or any portion thereof not paid 30 days after the due date shall be
deemed delinquent. If any Owner is delinquent in paying any Assessment or other charge
levied on its Lot, the Board may require any unpaid installments of the annual Assessment
and/or any other Assessments to be paid in full immediately.
(d) Certificate of Payment. The Association shall, upon demand at any time, furnish to any
Owner liable for any type of Assessment a certificate in writing signed by an officer of the
Association setting forth whether such Assessment has been paid as to any particular Lot.
Such certificate shall be conclusive evidence of payment to the Association of any
Assessments therein stated to have been paid. The Association may require the advance
payment of a reasonable processing fee for the issuance of such certificate.
(e) No Waiver or Setoff. No Owner may waive or otherwise exempt itself from liability for
Assessments by non-use of the Common Property, abandonment of a Lot or any other
means. The obligation to pay Assessments is a separate and independent covenant on the
part of each Owner. No diminution or abatement of Assessment or set-off shall be claimed
or allowed by reason of any alleged failure of the Association or Board to take some action
or perform some function required to be taken or performed by the Association or Board
under this Declaration or the Bylaws, or for inconvenience or discomfort arising from the
making of repairs or improvements that are the responsibility of the Association, or from
any action taken to comply with any applicable Law.
5.2 Computation of General Assessment.
(a) Preparation of Budget. The Board shall, at least 60 days before the beginning of each fiscal
year, prepare a budget covering the estimated General Common Expenses of the
Association during the coming year. The budget shall include a capital contribution
establishing a reserve fund in accordance with a budget separately prepared, as provided in
Section 5.5 hereof.
(b) Content of Budget. The budget may include, but shall not be limited to, the following
expenses:
(i) Cost of maintenance and operation of the Common Property;
(ii) Expenses of management;
(iii) Taxes and special governmental assessments;
(iv) Insurance premiums for insurance coverage as deemed desirable or necessary by the
Association;
(v) Landscaping, care of grounds, common lighting;
(vi) Repairs and renovations of the Common Property;
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(vii) Common water and utility charges;
(viii) Legal and accounting fees;
(ix) Management fees;
(x) Property security;
(xi) Expenses and liabilities incurred by the Association under or by reason of this
Declaration;
(xii) Payment of any deficit remaining from a previous assessment period; and
(xiii) Within the limitations of this Declaration, the creation of a reasonable contingency or
other reserve or surplus fund for maintenance, repair and replacement of Common
Property improvements on a periodic basis, as needed.
(c) Computation of Individual Lot General Assessments. The General Assessment to be levied
for the coming year against each Lot subject to Assessment shall be computed by
multiplying the budgeted General Common Expenses by the Percent Membership Interest
allocated to each Lot.
(d) Approval of Budget. The Board shall cause a copy of the General Common Expense budget
and notice of the amount of the General Assessment to be levied against each Lot for the
following year to be delivered to each Owner at least 30 days prior to the beginning of the
fiscal year. Such budget and Assessment shall become effective unless (i) disapproved at a
meeting of the Members by Members representing at least a Majority of the Member Votes
in the Association, or (ii) disapproved by Declarant during the Declarant Control Period.
There shall be no obligation to call a meeting for the purpose of considering the budget
except on petition of the Members for a special meeting made in accordance with the
Bylaws. The petition must be presented to the Board within 10 days of delivery of the
notice of Assessments. Notwithstanding the foregoing, however, if the proposed budget is
disapproved or the Board fails for any reason so to determine the budget for any year, then
and until such time as a budget shall have been determined as provided herein, the budget
in effect for the immediately preceding year shall continue for the current year, and the
General Assessment for the current year shall be based on the preceding year budget.
5.3 Computation of Limited Assessments.
(a) Separate Budget for Limited Common Expenses. The Board shall, at least 60 days before
the beginning of each fiscal year, prepare a separate budget covering the estimated Limited
Common Expenses to be incurred by the Association during the coming year. Limited
Common Expenses may be levied by the Association against particular Lots where the
Board has determined that certain Association expenditures benefit only such Lots. Such
budget may include a capital contribution establishing a reserve fund for repair and
replacement of capital items, as appropriate.
(b) Computation of Individual Lot Special Assessments. Limited Common Expenses shall be
allocated among all Lots benefited thereby proportionately based upon each Lot’s relative
Percent Membership Interest or in such other manner as the Board determines is more
equitable. The Assessment for Limited Common Expenses shall be levied as a Limited
Assessment.
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(c) Approval of Limited Common Expenses Budget. The Board shall cause a copy of such
budget and notice of the amount of the Limited Assessment to be levied on each Lot for the
coming year to be delivered to each Owner of a Lot subject to a Limited Assessment at
least 30 days prior to the beginning of the fiscal year. Such budget and assessment shall
become effective unless (i) disapproved at a meeting of the Members by Members
representing at least two-thirds of the Member Votes allocated to the Lot(s) subject to the
Assessment, or (ii) disapproved by Declarant during the Declarant Control Period. There
shall be no obligation to call a meeting for the purpose of considering the budget except on
petition of Owners of at least one of the Lots subject to the Limited Assessment. If the
proposed budget for any Limited Common Expense is disapproved or the Board fails for
any reason so to determine the budget for any year, then and until such time as a budget
shall have been determined as provided herein, the budget in effect for the immediately
preceding year shall continue for the current year.
5.4 Special Assessments.
(a) Purpose. The Association, acting through its Board of Directors, may levy Special
Assessments against all or less than all of the Lots for the following purposes: (i) to cure
insufficiencies in the General Assessments due to extraordinary expenses not contemplated
in the General Assessment Budget for a fiscal year; (ii) for additional capital improvements
or acquisitions of Common Property; (iii) for major repairs or renovations of existing
Common Property within the PUD (other than those contemplated by the reserve budget
created under Section 5.5); and/or (iv) to offset an extraordinary expense created by an
Owner’s particular use of one or more Lots.
(b) Special Assessments Affecting the Entire Membership. The Board may levy Special
Assessments against all Lots from time to time, provided that the total amount of the
Special Assessment levied during any fiscal year shall not exceed the greater of (i) $10,000
or (ii) twenty-five (25%) percent of the General Common Expense budget for such fiscal
year. Any Special Assessment in excess of such limitation shall be effective only upon
approval by a Majority of the Member Votes and, if the Special Assessment is made during
the Declarant Control Period, the written consent of Declarant. Special Assessments levied
against the entire membership shall be allocated among the Lots proportionately based
upon the Percent Membership Interest allocated to each Lot.
(c) Special Assessments Affecting Less Than All Members. The Association may levy a Special
Assessment against any one or more (but less than all) Lots (i) to offset an extraordinary
expense created by a particular use of one or more Lots; or (ii) to reimburse the Association
for costs incurred in bringing a Lot or Member into compliance with the provisions of the
Declaration, Bylaws or Association rules. A Special Assessment may be levied upon the
vote of the Board after notice to the Member and an opportunity for a hearing.
5.5 Reserve Budget and Capital Contribution. The Board of Directors shall annually prepare a
reserve budget to take into account the number and nature of replaceable assets, the expected life
of each asset, and the expected repair or replacement cost. The Board shall set the required capital
contribution in an amount sufficient to permit meeting the projected needs of the Association, as
shown on the budget, with respect both to amount and timing by annual General Assessments
over the period of the budget. The capital contribution required, if any, shall be fixed by the
Board and included within and distributed with the applicable budget and notice of Assessments,
as provided in this Section 5.
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5.6 Date of Commencement of Assessments. The obligation to pay Assessments shall commence as
to each Lot on the first day of the month following the month in which the Lot is made subject to
this Declaration. Until the Association makes such Assessments, Declarant shall pay all the
expenses of the Association. Assessments shall be due and payable in a manner and on a schedule
as the Board of Directors may provide. The first Assessment levied on a Lot shall be adjusted
according to the number of months remaining in the fiscal year at the time Assessments
commence on the Lot.
5.7 Lien of Assessments; Foreclosure. All Assessments, together with interest at a rate of 10.0% per
annum computed from the date a delinquency first occurs, late charges, costs, and reasonable
attorney’s fees, shall be a charge on the land and shall be a continuing lien upon the Lot against
which each Assessment is made until paid. Each such Assessment, together with interest, late
charges, costs, and reasonable attorney’s fees, shall also be the personal obligation of the Owner
of the Lot at the time the Assessment arose, and, if title is transferred, such Owner’s grantee shall
be jointly and severally liable for such portion thereof as may be due and payable at the time of
conveyance, except no first Mortgagee who obtains title to a Lot pursuant to the remedies
provided in the Mortgage shall be liable for unpaid Assessments that accrued prior to such
acquisition of title. The Association may record a notice of lien against the Lot(s) and (i) bring a
claim for relief against the Owner personally obligated to pay the same and/or (ii) foreclose the
lien against the Lot(s) in the same manner as provided by law for the foreclosure of a mortgage
on real property. The Association shall be entitled in any such proceedings to recover its costs
and expenses, including but not limited to reasonable attorney’s fees. If a default for which a
notice of lien was filed is cured, the Association shall file a release of such notice; provided,
however, that the defaulting Owner shall be responsible for the costs (including reasonable
attorney’s fees) of preparing and filing such release.
5.8 Subordination of the Lien to First Mortgages. The lien of Assessments, including interest, late
charges, and costs (including reasonable attorney’s fees) provided for herein, shall be superior to
all other liens and encumbrances, except for taxes, assessments and special assessment liens
imposed on the Property by a statutory authority, other statutory liens, and the lien of a first
Mortgage upon any Lot. The sale or transfer of any Lot shall not affect the Assessment lien,
except that the sale or transfer of any Lot pursuant to judicial or non-judicial foreclosure of a first
Mortgage shall extinguish the lien of such Assessments as to payments that became due prior to
such sale or transfer. No sale or transfer shall relieve such Lot from lien rights for any
Assessments thereafter becoming due. Where the Mortgagee holding a first Mortgage of record or
other purchaser of a Lot obtains title pursuant to judicial or non-judicial foreclosure of the
Mortgage, it shall not be liable for the share of the Common Expenses or Assessments by the
Association chargeable to such Lot which became due prior to such acquisition of title. Such
unpaid share of Common Expenses or Assessments shall be deemed to be Common Expenses
collectible from Owners of all the Lots, including such acquirer, its successors and assigns.
5.9 Exempt Property. Notwithstanding anything to the contrary herein, the following property shall
be exempt from payment of Assessments:
(a) All Common Property; and
(b) Unless otherwise determined by the Association, all property dedicated to and accepted by
any governmental authority or public utility.
5.10 Assessment Obligation of Declarant. After the commencement of General Assessments,
Declarant, on behalf of itself and its successors and assigns, covenants and agrees to pay the full
amount of Assessments provided herein for each Lot that it owns. Notwithstanding anything to
the contrary herein, Declarant may contribute Assessments due from it in services or materials or
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a combination of services and materials, rather than in money (collectively, an “in kind
contribution”). The amount by which Assessments shall be decreased as a result of any in kind
contribution shall be the fair market value of the contribution. If Declarant and the Association
agree as to the value of any contribution, the value shall be as agreed. If the Association and
Declarant cannot agree as to the value of any contribution, Declarant shall supply the Association
with a detailed explanation of the service performed and material furnished, and the Association
shall acquire bids for performing like services and furnishing like materials from three
independent contractors approved by Declarant who are in the business of providing such
services and materials. If the Association and Declarant are still unable to agree on the value of
the contribution, the value shall be deemed to be the average of the bids received from the
independent contractors.
SECTION 6 MAINTENANCE
6.1 Association’s Maintenance Responsibility. The Association shall maintain the Common
Property and keep it in good repair. Maintenance shall be funded by Assessments as provided
herein. The Association shall be responsible for maintenance, repair and replacement of all
landscaping, structures and improvements now or hereafter located upon the Common Property,
including, without limitation, the following:
(a) Irrigation of lawn and landscaped areas;
(b) Maintenance of lawn and landscaped areas for attractive appearance;
(c) Maintenance of irrigation systems;
(d) Maintenance of driveways and parking areas, including cleaning, curb repair, striping,
resurfacing, etc.;
(e) Maintenance of walkways;
(e) Snow removal from parking areas, roadways, and walkways;
(f) Maintenance of area lighting systems;
(g) Maintenance of common signs; and
(h) Maintenance of garbage and trash containers in common refuse disposal areas.
Performance by the Association shall in no way relieve an Owner or Occupant from primary
responsibilities for maintenance referred to in Section 6.2 hereof. Easements over the Property as
are reasonably necessary to enable the Association, and its agents, contractors, and employees, to
access and inspect the Property and to fulfill responsibilities under this Section are hereby
reserved to the Association.
6.2 Owners’ Maintenance Responsibility.
(a) Owners’ Maintenance. Each Owner shall at all times maintain its Lot and all structures and
other Improvements located thereon in good order and repair, in a safe clean and
wholesome condition, and free of debris. Such maintenance obligation shall include, but
shall not be limited to:
(i) Promptly removing all litter, trash, refuse, and wastes;
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(ii) Maintaining the exterior of all structures and other Improvements in good condition
and repair;
(iii) Keeping Improvements, exterior lighting and maintenance facilities in good repair
and working order;
(iv) Repainting of Improvements;
(v) Keeping lawn and landscaped areas alive, free of weeds, and attractive;
(vi) Keeping parking and loading areas, and driveways in good repair;
(vii) Removing snow from walkways, driveways and parking areas;
(viii) Complying with all applicable governmental, health, fire, and safety regulations,
codes, regulations, requirements and directives;
(b) Maintenance of Common Property Damaged by Misuse. Except to the extent that such
damage is covered by the Association’s insurance, each Owner shall be responsible for the
costs of making all repairs and replacements to the Common Property proximately caused
by the willful misuse or the negligence of such Owner, or its Tenants, Occupants,
employees, agents, and invitees.
(c) Destruction of Improvements on Lots. If the Improvements on any Lot are totally or
partially damaged or destroyed by fire or any other cause, each Lot Owner covenants and
agrees to commence all necessary repairs, reconstruction or complete removal of the
damaged Improvements within three months of the date that the damage occurs and to
continue diligently such repairs, reconstruction or removal until completed within a
reasonable time from the commencement of such work. Delays in commencement of
construction may be granted for good cause at the sole discretion of the Association.
(d) Repairs, Replacements. All repairs, alterations, replacements or additions to Improvements
shall be at least equal to the original work in class and quality. The adequacy of such
repairs shall be measured by the same standards required for the original construction.
Maintenance work shall be in compliance with the Design Guidelines and, depending upon
the scope of work, may be subject to prior review and approval of the Cannery District
Architectural Review Committee.
(e) Enforcement; Remedies. If an Owner fails properly to perform such Owner’s maintenance
responsibilities, the Association may perform them and assess all costs incurred by the
Association against the Lot and the Owner. However, except where entry is required due to
an emergency situation, the Association shall afford the Owner reasonable notice and an
opportunity to cure the problem prior to entry. The notice shall set forth with reasonable
particularity the maintenance, repairs or replacements deemed necessary. The Owner shall
have 10 days within which to complete such maintenance, repairs or replacements. If the
maintenance, repairs or replacements are not reasonably capable of completion within the
10-day period, the Owner shall commence such work promptly and diligently proceed to
complete it within a reasonable time. If the Owner does not comply with the provisions
hereof, the Association shall have the right and power to enter onto the Lot and perform
such maintenance, repairs or replacements without any liability to any person for damages
for wrongful entry, trespass or otherwise. The Owner of the Lot on which the work is
performed shall be liable (jointly and severally, if more than one) for the cost of such work
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and shall promptly reimburse the Association for such cost, together with interest at the
same rate as provided for delinquent assessments, costs and expenses of collection, court
costs, and reasonable attorney’s fees (collectively “charges”). The charges shall also be a
continuing lien against the Lot on which the work was performed. If the Owner fails to
reimburse the Association within 30 days after receipt of a statement for such work from
the Association, the Association may record a notice of lien against the Lot. The
Association may foreclose the lien in the same manner as a lien for Assessments, and it
shall be entitled to recover, in addition to the charges, all costs and expenses of lien
enforcement, including court costs and reasonable attorney’s fees.
6.3 Noxious Weeds. The control of noxious weeds by the Association on those areas for which the
Association is responsible and the control of noxious weeds by each Owner on its respective Lot
shall be as set forth and specified under the Montana Noxious Weed Control Act (Montana Code
Annotated Sections 7-22-2101 through 7-22-2153) and the rules and regulations of the Gallatin
County Weed Control District. The Association is responsible for control of state and county
declared noxious weeds in and on the Common Space Tract. Each Owner shall be responsible for
the control of the state and county declared noxious weeds on its Lot. Both unimproved and
improved Lots shall be managed for noxious weeds. If an Owner fails to control the noxious
weeds after 10 days notice from the Association (given in accordance with the provisions of
Subsection 6.2(e) above), the Association may cause the noxious weeds to be controlled, and the
Association shall have the enforcement authority and remedies provided in Subsection 6.2(e) of
this Declaration.
SECTION 7 COMMON PROPERTY
7.1 Description of Common Property Declarant intends to convey to the Association the tracts
delineated as the “Common Space Tracts” on the Final Plat of the Cannery District Subdivision,
together with the improvements located thereon. Upon Declarant’s conveyance of such property
to the Association, such property shall be Common Property to be maintained by the Association
for the use and benefit of its members, and Declarant shall have no further obligation to improve
or maintain any portion of the Common Property.
7.2 Intent. Declarant intends to develop the Common Property prior to conveying it to the
Association by installing certain improvements, amenities, and facilities thereon that will serve to
enhance the appearance and enjoyment of the Property for Owners, Tenants, and Occupants. Such
improvements may include parking areas, walkways, curbs, a lighting system, landscaped areas,
signs or structures intended to identify and promote occupancy of the Property, and other similar
or related improvements. Notwithstanding the foregoing, Declarant does not warrant by this
Declaration that it will construct any specific improvements on the Common Property.
7.3 Right of Access. In order for Declarant to construct, place or maintain structures and
improvements on the Common Property as contemplated by the provisions of this Declaration,
Declarant reserves for itself the free and unrestricted right of access upon and across each Lot.
Each Owner of a Lot, by accepting title thereto, shall be deemed to have consented to the
foregoing reservation and to have granted the foregoing right, and shall give notice of Declarant’s
reservation of right of access to any Tenant or Occupant of any Lot. The rights of Declarant
pursuant to this reservation shall be exercised with diligent efforts to avoid interfering with the
normal operations and activities of any Owner, Tenant or Occupant.
SECTION 8 USE RESTRICTIONS AND RULES
8.1 Generally. The Property shall be used only for the uses hereinafter set forth. Any Supplemental
Declaration may impose stricter standards than those contained in this Section 8. The
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Association, acting through its Board of Directors, shall have standing and the power to enforce
such standards. The Association, acting through its Board of Directors, shall have authority to
make and enforce rules governing the use of the Common Property, in addition to those contained
herein.
8.2 Laws and Ordinances. No Owner shall permit anything within Owner’s control to be done or
kept in any building or on such Owner’s Lot that would violate any Laws or that will result in the
cancellation of, or increase the premiums for, any insurance carried by the Association, or that
would be in violation of any rule or regulation promulgated by the Association. The Owner shall
obtain any and all governmental permits, approvals, and authorizations prior to beginning any
construction If there are differences between restrictions imposed by the Covenants or by
applicable Law, the more restrictive shall apply.
8.3 Inspection. Authorized representatives of the Association may from time to time, during
reasonable hours and with reasonable notice, enter upon and inspect any Lot to ascertain whether
or not the Declaration has been or is being complied with. Such person or persons shall not be
deemed guilty of trespass by reason of such entry.
8.4 Operations and Uses. Lawful operations and uses that are neither specifically prohibited nor
specifically authorized by this Declaration may be permitted in specific cases if operational plans
and specifications are submitted to and approved in writing by the Association.
8.5 Prohibited Uses.
(a) In addition to uses which are inconsistent with municipal zoning for the Property or are
prohibited or restricted by other covenants, conditions, restrictions or easements that are
recorded in the chain of title respecting the Property, or are otherwise prohibited pursuant
to this Declaration, and not as an exhaustive list, the following uses and activities are
prohibited within the Property:
• Adult-oriented establishments (see Section 8.5(b))
• Automobile body shop
• Automobile parking garage
• Automobile service and/or repair facility
• Bus or taxi terminal
• Carwash
• Casinos
• Dumping, disposal, incineration, treatment, processing or reduction of garbage,
sewage, offal; dead animals or refuse
• Frozen food storage and locker rental
• Gasoline sales or sales of other flammable and dangerous materials
• Large scale industrial, manufacturing or agricultural uses. Small scale industrial and
manufacturing uses such brewing or distilling facilities or product assembly are
allowed with any and all necessary governmental approvals
• Laundromat, laundry or dry cleaning facility
• Mortuary
• Theater
• Recycling facility
• Vehicle, mobile home, and boat sales and rental
• Warehousing or indoor storage of goods or material in quantities greater than
normally incidental to the uses permitted in this Declaration
• Any other use, that in the sole judgment of the Board of Directors (i) is incompatible
with the specifically permitted uses or the desired mix of uses; (ii) adversely affects
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market value of other Lots; or (iii) may interfere with the expectation of other
Owners’ quiet enjoyment of their Lots
(b) Adult-Oriented Establishments. For purposes of this Declaration, the term “adult-oriented
establishments” shall include, without limitation:
(i) Adult bookstore. Adult bookstores are establishments having a substantial or
significant portion of their stock and trade in, or an establishment which, as one of its
principal business purposes, offers for sale, books, films, video cassettes or
magazines and other periodicals which are distinguished or characterized by their
emphasis on matters depicting, describing or relating to specified sexual activities or
specified anatomical areas.
(ii) Adult Entertainment studios. Any premises to which the public, patrons or members
are invited or admitted and which are so physically arranged as to provide booths,
cubicles, rooms, studios, compartments or stalls separate from the common areas of
the premises for the purpose of viewing adult oriented motion pictures, or where an
entertainer provides adult entertainment to a member of the public, a patron or
member. An adult entertainment studio shall include any such premises, whether
advertised or represented as an adult entertainment studio, rap studio, exotic dance
studio, encounter studio, sensitivity studio, modeling studio, massage parlor or any
other term of like import. This section shall not be deemed to bar premises offering
therapeutic, sports or other types of massage provided on the assigned order of a
licensed physician, osteopath, chiropractor or physical therapist.
(iii) Other businesses. The operation of any business that involves, in whole or in
significant part, the sale, lease, trade, gift or display for sale of any obscene materials.
For purposes of this Declaration, “Adult Entertainment” shall mean: (A) an exhibition of
any adult oriented motion pictures, meaning those distinguished or characterized by an
emphasis on matter depicting, describing or relating to specified sexual activities or
specified anatomical areas; and/or (B) a live performance, display or dance of any type,
which as a significant or substantial portion of the performance, includes any actual or
simulated performance of specified sexual activities or exhibition and viewing of specified
anatomical areas, removal of articles of clothing or appearing unclothed, pantomiming,
modeling or any other person services offered customers.
8.6 Permitted Uses. Unless a use is prohibited or limited in the previous Section or elsewhere in this
Declaration, the Property may be used for any use allowed or conditionally allowed by the
municipal zoning of the Property. The Property is presently zoned B-2 (Community Business
District). Commercial, business, professional, and certain compatible, light industrial uses are
encouraged on the Property
8.7 General use provisions. The following general provisions shall apply to all Lots, unless
otherwise provided herein:
(a) Building Size and Height. No building shall be constructed, other than incidental or
accessory structures, which contain less than the minimum square feet of gross floor area
designated in the Design Guidelines, unless otherwise approved by the Cannery District
Architectural Review Committee and the Association. The footprint of such building shall
occupy at least the minimum building envelope designated in the Design Guidelines. No
building, structure or other Improvement shall exceed the height limitation designated in
the Design Guidelines.
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(b) Building Occupancy. No building shall be occupied by more Tenants than specified in the
Design Guidelines, unless otherwise approved by the Cannery District Architectural
Review Committee and the Association.
(c) Temporary Structures, Tents, Trailers and Storage. No temporary structure, tent or trailer
of any kind shall be erected or placed upon any Lot, except for temporary construction
offices during a construction period. All construction offices must be removed within
30 days after completion of construction.
(d) Landscaping. To the extent any Lot may have open space, such space shall be landscaped
in accordance with a plan submitted to and approved in writing by the Cannery District
Architectural Review Committee. The plan shall be approved prior to any development of
the Lot. The plan shall include information regarding the type of seeding and/or sodding,
types of trees, hedges and shrubs, and information regarding other landscape treatment for
the entire site, such as fences, walls, and screening. All landscaping shall be undertaken and
completed in accordance with the approved plan, and the plan may not be substantially
modified without submitting a revised landscape plan for prior written approval by the
Cannery District Architectural Review Committee. All landscaping required hereunder or
otherwise to be provided on any Lot shall be completed within the time frame established
by the Cannery District Architectural Review Committee.
(e) Signs. No exterior signs shall be permitted anywhere on the Property without prior written
approval of the Cannery District Architectural Review Committee. All signs shall comply
with this Declaration and all applicable Laws.
(f) Architectural Design and Materials. No building, structure or other Improvement may be
constructed, erected, placed, altered or permitted on any Lot until plans and specifications
detailing exterior elevations, architectural style, materials and colors have been submitted
to and approved in writing by the Cannery District Architectural Review Committee. Such
approval shall be subject to the Design Guidelines governing architectural styles and
quality of building design, appearance, siding, materials and other attributes that will
enhance the overall appearance and environment of the Property.
(g) Outdoor Storage. No outdoor storage shall be permitted anywhere on the Property without
prior written approval of the Association.
(h) Outside Storage Tanks. No outside storage tanks shall be permitted on the Property.
(i) Exterior Lighting. No exterior lighting shall be permitted on any Lot without prior written
approval of the Cannery District Architectural Review Committee. No flashing or
intermittent light of any kind shall be permitted.
(j) Air Conditioning Units. No window air conditioning units may be installed in any
renovation or new construction, except as may be permitted by the Cannery District
Architectural Review Committee.
(k) Antennas, Towers, and Satellite Dishes. No exterior antennas, towers, satellite dishes or
other apparatus for sending or receiving of radio, television, electromagnetic or microwave
signals shall be placed upon any Lot, building, structure or Improvement without the prior
written approval of the Cannery District Architectural Review Committee. The Cannery
District Architectural Review Committee may give or deny approval subject to applicable
Law. The Cannery District Architectural Review Committee may impose size limitations
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on such equipment and screening, location and placement requirements as conditions of
approval.
(l) Fences. Unless approved in writing by the Cannery District Architectural Review
Committee, no fences, ornamental screens or walls of any nature shall be erected or
maintained on or around any portion of any Lot.
(m) Utility Lines. All utility easements must be observed, the location of which are available
from the Association. All new and extended utility lines shall be placed underground,
unless otherwise approved by the Association.
(n) Tree Removal. No trees shall be removed from the Property without the prior written
consent of the Cannery District Architectural Review Committee, except for dead trees and
trees posing imminent safety concerns.
(o) Drainage. No Owner or Occupant may obstruct or rechannel drainage flows after location
and installation of drainage swales, storm sewers or storm drains. Declarant hereby reserves
a perpetual easement across all the Property for itself and the Association for the purpose of
inspecting drainage and water flow.
(p) Explosives and Combustible Materials. All activities carried out in buildings and
Improvements that conform to the standards of the National Board of Fire Underwriters.
No highly flammable or explosive liquids, solids or gases shall be stored in bulk on the
Property. All materials or wastes that might cause fumes, constitute a fire hazard or attract
rodents or insects may be stored on the Property only if they are enclosed in approved
containers that are adequate to eliminate such hazards and if such storage is in accordance
with applicable Law.
(q) Animals and Pets. Unless otherwise permitted by the Association, no animals, livestock or
poultry of any kind may be raised, bred, kept or permitted on any Lot. This restriction does
not apply to personal assistance animals accompanying disabled persons on the Property.
(r) Nuisance and Unsightly or Unkempt Conditions. Each Owner and Occupant shall have the
responsibility to prevent the development of any unclean, unhealthy, unsightly or unkempt
condition on its Lot. No Lot shall be used in whole, or in part, for the storage of any
property or thing that will cause the Lot to appear to be in an unclean or untidy condition or
that will be obnoxious to the eye. No nuisances shall be permitted to exist or operate on any
Lot so as to be offensive or detrimental to another Lot or its Occupants. Nuisances include,
but are not limited to, the following conditions insofar as they may disturb the peace, quiet,
safety, and comfort of the Occupants of other Lots or neighboring property: foul or
obnoxious odors, noise, vibration, electro-mechanical disturbance and radiation, electro-
magnetic disturbance and radiation, air or water pollution, and dust. There shall not be
maintained any plants or animals or device or thing of any sort whose activities or existence
in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or
destroy the enjoyment of the Property. Trash, garbage, debris or other waste matter of any
kind may not be burned within the Property. No speaker, horn, whistle, siren, bell,
amplifier or other sound device, except such devices as may be used exclusively for
security purposes, shall be located, installed or maintained upon the exterior of any
structure unless approved by the Association.
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8.8 Construction.
(a) Construction Vehicular Traffic. During the course of construction activity on any Lot, the
Lot Owner shall keep all Common Property free of dirt, debris, etc. and shall repair any
construction vehicle damage to any Common Property at the Lot Owner’s sole expense.
(b) Completion of Construction. When a Lot is sold or leased by Declarant to speculative
builders or developers, the Association may require a performance bond to ensure that such
builder or developer will conform to this Declaration and the Design Guidelines and that
within a specified period of time such builder or developer will (i) finish all exterior walls
and complete installation of all windows and doors; (ii) complete all driveways and
walkways on the Lot; (iii) remove all construction debris; and (iv) complete all required
landscaping on the Lot. Upon completion of any on-site construction improvements, the
Lot Owner shall notify the Association. The Association, or its designee shall inspect the
Lot for compliance with this Declaration and the Design Guidelines.
(c) Excavation and Grading. No site preparation shall be permitted until all approvals and
permits are in place and approved by the Association. No excavation shall be made except
in conjunction with the construction of an improvement.
8.9 Parking. Vehicles shall be parked only in designated parking spaces on the Property. All parking
on the Common Property shall be subject to such rules and regulations as the Board may adopt.
Owners, Occupants and Tenants of Lots shall be responsible for enforcing this requirement with
respect to their employees and visitors.
SECTION 9. DESIGN REVIEW PROCESS AND PROCEDURES.
9.1 Cannery District Architectural Review Committee. The Cannery District Architectural
Review Committee (“CDARC”) shall consist of no less than 3 or more than 5 members appointed
by the Board. CDARC Members need not be Board members, Owners or affiliates of Owners.
Until the Board acts to appoint CDARC members, the CDARC shall be comprised of Board
members, and their CDARC terms shall be concurrent with their terms as directors. The CDARC
shall be responsible for the design review duties and functions specified in this Declaration.
9.2 CDARC Review Required. No exterior construction, alteration, addition or renovation of any
building, structure, parking lot, sign, wall or other Improvement of any kind or nature shall be
commenced on the Property, except such as is (a) installed by Declarant, (b) reviewed by the
CDARC and approved by the Board in accordance with this Section 9, or (c) otherwise expressly
permitted in this Declaration. No such construction, alteration, addition or renovation shall be
made unless and until plans and specifications detailing at least the nature, kind, shape, height,
materials, and location shall have been properly submitted in writing to and approved by the
Association after recommendation from the CDARC.
9.3 Employment of Architects, Engineers or Other Persons. The Association may employ
architects, engineers or other persons necessary to enable the CDARC to perform its review. The
CDARC may, from time to time, delegate any of its rights or responsibilities hereunder to one or
more duly licensed architects or other qualified persons, which shall have full authority to act on
behalf of the CDARC for all matters delegated.
9.4 Review Fee and Address. The Association may establish a review fee to cover the cost of review
of plans and specifications consistent with the type of review being conducted. Plans and
specifications shall not be deemed submitted to the CDARC unless and until the review fee has
been paid to the Association. The address of the CDARC shall be the office of the Association.
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9.5 Design Guidelines. The initial Design Guidelines and procedures have been created and are
hereby adopted by Declarant. The initial Design Guidelines are attached to this Declaration as
Exhibit B. The Design Guidelines shall be explanatory and illustrative of the general intent of the
development of the Property, and they are intended as a guide to assist the CDARC in reviewing
plans and specifications. Except for those Design Guidelines required as a condition of PUD plat
approval, the Design Guidelines shall not be binding upon the CDARC and shall not constitute in
every event the basis for a recommendation of approval or disapproval of plans, specifications or
other materials submitted to the CDARC for review. The Design Guidelines may be amended
from time to time by the Association; provided, however that if a guideline proposed for
amendment was required as a condition of PUD plat approval, then the City of Bozeman must
approve the amendment before it is effective. No improvements constructed in accordance with
plans and specifications approved by the CDARC and Association in accordance with the then
applicable Design Guidelines shall be required to be changed because such standards are
thereafter amended.
9.6 Plan Review and Approval. All development plans shall be reviewed and approved in
accordance with procedures established by the Association.
9.7 Right to Inspect. Authorized Association representatives may from time to time, during
reasonable hours and with reasonable notice, enter upon and inspect any Lot to ascertain whether
or not the site development approval has been, or is being, complied with. Such person or persons
shall not be deemed guilty of trespass by reason of such entry.
9.8 Construction Compliance. The Association may require, in writing, any Owner to restore such
Owner’s improvements to the condition existing prior to the construction thereof (including,
without limitation, the demolition and removal of any unapproved improvement) if such
improvements were commenced or constructed in violation of this Section 9. In addition, the
Association may (but has no obligation to) with due notice cause such restoration, demolition,
and removal and levy the amount of the cost thereof as a Special Assessment against the Lot upon
which such improvements were commenced or constructed. The Association shall take no action
with respect to nonconforming or unapproved improvements until completion of the following
review and appeal process if the Owner elects by written notice to the Association to institute
such process:
(a) Within 15 days of written notice of appeal by the Owner, such Owner and the Association
shall each appoint a duly licensed architect to determine whether a violation exists. These
two architects shall then choose a mutually acceptable third architect within 10 days after
the expiration of the 15-day period.
(b) Within 30 days after the appointment of the third architect, a majority of the three architects
shall determine whether a violation exists. A written determination shall be filed with the
Association and provided to the Owner.
(c) If a violation is determined to exist, the Association shall, in its reasonable discretion,
determine the manner in which the violation shall be remedied, which remedy may include
reasonable fines and fees for architectural services. The Association shall make such
determination within 15 days of the above determination of a violation. The Owner shall be
notified in writing of any required remedial action.
9.9 Notice of Noncompliance or Noncompletion. Notwithstanding anything to the contrary
contained herein, after expiration of one (1) year from the date of substantial completion of
construction of any Improvements on the Property, the Improvements shall be deemed to be in
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compliance with all provisions of this Section 9, unless actual notice of such noncompliance and
noncompletion, executed by the Association or its designated representatives, has been delivered
to the Owner. For the purposes of this Section, “substantial completion” shall be defined in the
manner adopted by the American Institute of Architects. Subsequent improvements, alterations or
repairs to a Lot shall not entitle the CDARC to review for compliance any Improvements
substantially completed more than one (1) year prior to the more recent improvements, alterations
or repairs that are subject to review.
9.10 No Liability. Plans and specifications are not reviewed or approved for engineering or structural
design, code compliance or quality of materials. By approving such plans and specifications
neither the CDARC, the Association, or Declarant assumes liability or responsibility therefor, nor
for any defect in any structure constructed from such plans and specifications. To the fullest
extent permitted by Law, neither Declarant, the Association, the CDARC, nor officers, directors,
members, employees and agents of any of them, shall be liable for damages to anyone submitting
plans and specifications to any one of them for approval, or to any Owner of property affected by
these restrictions by reason of mistake in judgment, negligence or nonfeasance arising out of or in
connection with the approval or disapproval or failure to approve or disapprove any such plans or
specifications. Every person who submits plans and specifications and every Owner agrees to
refrain from bringing any action or suit against Declarant, the Association, the CDARC, the
Board, or officers, directors, members, employees and agents of any of them, to recover any such
damages and hereby waives and releases all claims, demands, and causes of action arising out of
or in connection with any judgment, negligence or nonfeasance and hereby further waives the
provision of any law which provides that a general release does not extend to claims, demands,
and causes of action not known at the time the release is given.
SECTION 10. INSURANCE AND CASUALTY LOSSES.
10.1 Insurance on Common Property.
(a) Property Insurance. The Association’s Board of Directors, or its duly authorized agent,
shall have the authority to and shall obtain blanket “all-risk” property insurance, if
reasonably available, for all insurable improvements on the Common Property. If blanket
“all-risk” coverage is not reasonably available, then at a minimum an insurance policy
providing fire and extended coverage shall be obtained. The face amount of such insurance
shall be sufficient to cover the full replacement cost of any repair or reconstruction of the
Common Property if it is damaged or destroyed from any insured hazard.
(b) Liability Insurance. The Board shall also obtain a public liability policy covering the
Common Property, insuring the Association and its Members for all damage or injury
caused by the negligence of the Association, any of its Members, employees or agents, or
any other Person who has a right to occupy a Lot. The public liability policy shall initially
have limits of liability of at least $2,000,000 (combined single limit) covering all claims for
death and personal injury (including medical payments) and/or property damage arising out
of a single occurrence. If, in the opinion of the Board based on industry and local standards,
the insurance coverage limits of the public liability policy become inadequate, the Board
may increase the insurance coverage limits as reasonably determined by the Board to be
adequate.
(c) Premiums, Deductible. Premiums for all insurance on the Common Property shall be
Common Expenses of the Association and shall be included in the General Assessment.
The policies may contain a reasonable deductible, and the amount thereof shall not be
subtracted from the face amount of the policy in determining whether the insurance at least
equals the coverage required hereunder. The deductible shall be paid by the party who
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would be liable for the loss or repair in the absence of insurance and if there are multiple
parties shall be allocated in relation to the amount each party’s liability for loss bears to the
total.
(d) Insurance Criteria. All insurance coverage obtained by the Board of Directors shall be
written in the name of the Association as trustee for the respective insurance beneficiaries,
as further identified in subsection (ii) below. The following provisions shall govern such
insurance:
(i) All policies shall be written with a company authorized to do business in the State of
Montana that holds a Best’s rating of B+ or better and is assigned a financial size
category of VI or larger as established by A. M. Best Company, Inc., if reasonably
available, or, if not available, the most nearly equivalent rating that is available.
(ii) All policies on the Common Property shall be for the benefit of the Association and
its Members.
(iii) Exclusive authority to adjust losses under policies obtained by the Association on the
Common Property shall be vested in the Association’s Board of Directors; provided,
however, no Mortgagee having an interest in such losses may be prohibited from
participating in the settlement negotiations, if any, related thereto.
(iv) In no event shall the insurance coverage obtained and maintained by the
Association’s Board of Directors hereunder be brought into contribution with
insurance purchased by individual Owners, Occupants, or their Mortgagees.
(v) All property insurance policies shall have an inflation guard endorsement, if
reasonably available, and, if the policy contains a co-insurance clause, it shall also
have an agreed amount endorsement.
(vi) The Association’s Board of Directors shall be required to use reasonable efforts to
secure insurance policies that will provide the following:
• A waiver of subrogation by the insurer as to any claims against the Association’s
Board of Directors, officers, employees and manager, the Owners and Occupants
of Lots, and their respective Tenants, servants, agents, and guests;
• A waiver by the insurer of its rights to repair and reconstruct, instead of paying
cash;
• A statement that no policy may be canceled, invalidated, suspended or subject to
nonrenewal on account of any one or more individual Owners;
• A statement that no policy may be canceled, invalidated, suspended or subject to
nonrenewal on account of any curable defect or violation without prior demand
in writing delivered to the Association to cure the defect or violation and the
allowance of a reasonable time thereafter within which the defect may be cured
by the Association, its manager, any Owner, or Mortgagee;
• A statement that any “other insurance” clause in any policy exclude individual
Owners’ policies from consideration; and
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• A statement that the Association will be given at least 30 days prior written
notice of any cancellation, substantial modification or non-renewal.
10.2 Other Insurance. In addition to the insurance required in Section 10.1 and to the extent required
by law, the Board shall obtain worker’s compensation insurance, and the premium shall be a
Common Expense. The Board may also, in its discretion, obtain directors’ and officers’ liability
coverage, if reasonably available, and a fidelity bond or bonds on directors, officers, employees,
and other persons handling or responsible for the Association’s funds, if reasonably available.
The amount of fidelity coverage shall be determined in the Boards’ best business judgment but, if
reasonably available, may not be less than one-sixth (1/6) of the annual General Assessments on
all Lots plus reserves on hand. Bonds shall contain a waiver of all defenses based upon the
exclusion of persons serving without compensation and shall require at least 30 days’ prior
written notice to the Association of any cancellation, substantial modification or non-renewal.
10.3 Damage and Destruction.
(a) Adjustment, Estimates. Immediately after damage or destruction by fire or other casualty to
all or any part of the Common Property covered by insurance written in the name of the
Association, the Board of Directors or its duly authorized agent shall proceed with the
filing and adjustment of all claims arising under such insurance and obtain reliable and
detailed estimates of the cost of repair or reconstruction of the damaged or destroyed
Common Property. Repair or reconstruction, as used in this paragraph, means repairing or
restoring the Common Property to substantially the same condition in which it existed prior
to the fire or other casualty, allowing for any changes or improvements necessitated by
changes in applicable building codes.
(b) Decision to Repair. Any damage or destruction to the Common Property shall be repaired
or reconstructed unless the Members representing at least seventy-five (75%) percent of the
Member Votes of the Association shall decide within 60 days after the casualty not to
repair or reconstruct. No Mortgagee shall have the right to participate in the determination
of whether the damage or destruction to Common Property shall be repaired or
reconstructed.
(c) Failure to Repair. If it should be determined in the manner described above that the
damage or destruction to the Common Property shall not be repaired or reconstructed and
no alternative improvements are authorized, then the affected portion of the Common
Property shall be cleared of all debris and ruins and maintained by the Association in a neat
and attractive landscaped condition.
10.4 Disbursement of Proceeds. If the damage or destruction for which the proceeds of insurance
policies held by the Association are paid is to be repaired or reconstructed, the proceeds, or such
portion thereof as may be required for such purpose, shall be disbursed in payment of such repairs
or reconstruction as hereinafter provided. Any proceeds remaining after defraying such costs of
repair or reconstruction shall be retained by and for the benefit of the Association and placed in a
capital improvements account. If no repair or reconstruction is made, the proceeds shall be
retained by and for the benefit of the Association and placed in a capital improvement account.
10.5 Repair and Reconstruction. If the damage or destruction to the Common Property for which
insurance proceeds are paid is to be repaired or reconstructed, and such proceeds are not
sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote
of the Members, levy a Special Assessment against the Owners.
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10.6 Property Insured by Owners; Damage and Destruction. Each Owner acknowledges and
agrees that neither Declarant nor the Association shall have any obligation to insure the Owner’s
Lot. Each Owner shall carry appropriate liability and casualty insurance or cause such insurance
to be carried by another entity. Each Owner fully covenants and agrees that if Improvements on
the Owner’s Lot are damaged or destroyed, the Owner shall proceed promptly either (a) to repair
or reconstruct the damaged Improvement in a manner consistent with the original construction or
in such manner as may be approved in accordance with the provisions of Section 9 hereof; or (b)
to clear the Lot of all debris and return it to substantially the natural state in which it existed prior
to the beginning of construction and thereafter to maintain the Lot in a neat and attractive
landscaped condition.
SECTION 11 CONDEMNATION.
Whenever all of any part of the Common Property shall be taken by any authority having the
power of condemnation or eminent domain, the Association shall represent the Owners. The
award made for such taking shall be payable to the Association.
SECTION 12 ANNEXATION AND WITHDRAWAL OF PROPERTY.
12.1 Annexation by Declarant. Declarant shall have the unilateral right, privilege, and option, from
time to time at any time until all Additional Property has been subjected to this Declaration or
December 31, 2015, whichever is earlier, to subject to the provisions of this Declaration and the
jurisdiction of the Association all or any portion of the Additional Property. Annexation shall be
accomplished by recording a Supplemental Declaration annexing such property in the Public
Records. The Supplemental Declaration shall not require the consent of Members, but shall
require the consent of the owner of such Additional Property, if other than Declarant. The
Supplemental Declaration may create additional Lots and additional Common Property, and it
may change the Percent Membership Interest and relative number of Member Votes allocated to
each Lot. Each Owner and Mortgagee, by accepting any right, title or interest in a Lot, grants
Declarant, and its successors in interest, a limited irrevocable power of attorney, coupled with an
interest, to change the Percent Membership Interest and relative number of Member Votes
allocated to each Lot in accordance with the plan set forth in the Supplemental Declaration.
Recording of a Supplemental Declaration adding additional Lots and modifying the Percent
Membership Interest and Member Votes allocated to pre-existing Lots shall be deemed a
assignment and conveyance of membership interests and voting rights in the Association in
accordance with the Supplemental Declaration. Any such annexation shall be effective upon the
recording of such Supplemental Declaration unless otherwise provided therein. Declarant shall
have the unilateral right to transfer to any other person the right, privilege, and option to annex
the Additional Property that is herein reserved to Declarant, provided that such transferee or
assignee shall be the owner of at least a portion of the Property or Additional Property and that
such transfer is memorialized in a written, recorded instrument executed by Declarant.
12.2 Annexation by Association. Subject to the consent of the owner thereof, the Association may
annex real property (or any interest therein) other than the Additional Property, and following the
expiration of the right in Section 12.1 hereof, the Additional Property, to the provisions of this
Declaration and the jurisdiction of the Association. Such annexation shall require (a) the
affirmative vote of Members representing two-thirds of the Member Votes of the Association
present at a meeting duly called for such purpose and (b) the written consent of Declarant if the
proposed annexation will occur during the Declarant Control Period. Annexation shall be
accomplished by recording a Supplemental Declaration describing the property being annexed in
the Public Records. Any such Supplemental Declaration shall be signed by the president and the
secretary of the Association and by the owner of the property being annexed, and any such
annexation shall be effective upon recording unless otherwise provided therein. The relevant
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provisions of the Bylaws dealing with regular or special meetings, as the case may be, shall apply
to determine the time required for and the proper form of notice of any meeting called for the
purpose of considering annexation of property pursuant to this Section 12.2 and to ascertain the
presence of a quorum at such meeting.
12.3 Additional Covenants and Easements. Declarant may unilaterally subject any portion of the
Additional Property submitted to this Declaration by Supplemental Declaration under Section
12.1 to additional covenants and easements. Such additional covenants and easements shall be set
forth in a Supplemental Declaration filed either concurrent with or after the annexation of the
subject property, and shall require the written consent of the owner(s) of such property, if other
than Declarant.
12.4 Withdrawal of Property. Subject to the consent of the Owner thereof, the Association may
withdraw real property from the provisions of this Declaration. Such withdrawal shall require (a)
the affirmative vote of Members representing two-thirds of the Member Votes of the Association
present at a meeting duly called for such purpose and (b) the written consent of Declarant if the
proposed withdrawal will occur during the Declarant Control Period. Withdrawal shall be
accomplished by recording a Supplemental Declaration describing the property being withdrawn
in the Public Records. Any such Supplemental Declaration shall be signed by the president and
the secretary of the Association and by the Owner of the property being withdrawn, and any such
withdrawal shall be effective upon recording unless otherwise provided therein. The relevant
portions of the Bylaws dealing with regular or special meetings, as the case may be, shall apply to
determine the time required for and the proper form of notice of any meeting called for the
purpose of considering withdrawal of property pursuant to this Section 12.4 and to ascertain the
presence of a quorum at such meeting.
12.5 Amendment. This Section 12 shall not be amended without the prior written consent of
Declarant, so long as Declarant or an entity controlled by Declarant owns any portion of the
Property or Additional Property.
SECTION 13 MORTGAGEE PROVISIONS.
13.1 Priority of First Mortgages. Notwithstanding any other provisions of this Declaration or any
provisions of the Bylaws, a breach of this Declaration by any Owner shall not defeat or invalidate
the lien of a first Mortgage made in good faith and value as to a Lot or any portion thereof. As
provided in Section 5, any lien which the Association may have on any Lot for the nonpayment of
Assessments allocated to such Lot will be subordinate to the lien or equivalent security interest of
any first Mortgage on the Lot recorded prior to the date any such Assessments became due. No
provision of this Declaration shall be construed as giving any Owner or other party priority over
any rights of the first Mortgagee of any Lot in the case of distribution to such Owner of insurance
proceeds or condemnation awards for losses to or taking of property.
13.2 Notices to Eligible Lenders. Any lender holding a first Mortgage on a Lot (“Eligible Lender”)
shall be given notice of the following events if it delivers to the Association a written request that
it receive such notices, together with a complete and accurate description of the Lot subject to its
Mortgage and an accurate address for such Eligible Lender:
(a) Any delinquency in the payment of Assessments or charges owed and any other default in
the performance of an obligation set forth in this Declaration by an Owner of a Lot subject
to a first Mortgage held by such Eligible Lender which remains uncured for a period of 60
days;
(b) Any proposed action that would require the consent of an Eligible Lender.
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13.3 Notice to Association. Upon request, each Owner shall be obligated to furnish to the Association
the name and address of the holder of any Mortgage encumbering such Owner’s Lot.
13.4 Failure of Mortgagee to Respond. Any Mortgagee who receives a written request as herein
provided from the Association to respond to or consent to any action shall be deemed to have
approved such action if the Association does not receive a written response from the Mortgagee
within 15 days of the date of such Mortgagee’s receipt of notice of the Association’s request.
SECTION 14. EASEMENTS.
14.1 Easements Reserved to Declarant. Declarant shall have the right to assign and convey, in whole
or in part, the easements reserved by it hereunder to one or more public utility companies, quasi-
public companies or relevant governmental authorities. The following easements shall be
reserved to Declarant, its successors and assigns:
(a) Easements, licenses, franchises, permits for installation, maintenance, repair and removal of
utilities, public rights-of-way, drainage facilities, and access rights for fire protection
services and other similar services over, under and across the Property, as specifically set
forth on recorded plats of the Property and portions thereof, or as set forth in other
documents of record in the Public Records.
(b) Full right of ingress and egress at all times over the Property to the extent reasonably
necessary for the installation, operation, maintenance, repair or removal of any utility or
drainage facility contained within any of the aforesaid easements.
(c) Full right of ingress and egress at all times over the Property as may be reasonably required
to remove any obstruction that may be placed in such easements without the approval of
Declarant or the owner of the relevant easement, where such unauthorized obstruction
would constitute interference with the use of such easement or with the use, maintenance,
operation or installation of such utility or other services.
(d) Full rights of ingress and egress shall be held by the Association at all times over and upon
each Lot for emergency, security, and safety in accordance with the provisions hereof, for
carrying out the Association functions, duties and obligations hereunder. Such rights may
be exercised by all policemen, firemen, ambulance personnel, and similar emergency
personnel in the performance of their respective duties. Except in an emergency situation,
entry shall only be during reasonable hours, after notice to the Owner, shall be made with
as little inconvenience to the Owner as practical, and the entering party shall repair any
damage caused thereby. This right of entry shall include the right of the Association to
enter to cure any condition that may increase the possibility of a fire or other hazard if the
Owner or Occupant fails or refuses to cure the condition upon the Association’s written
request.
14.2 Easements for Encroachment. If any portion of the Common Property encroaches upon a Lot or
Lots as of the date of this Declaration, a valid easement for the encroachment and for the
maintenance of the same, so long as it stands, shall and does exist. If any portion of a Lot
Improvement encroaches upon the Common Area Tract as of the date of this Declaration, a valid
easement for the encroachment and for the maintenance of the same, so long as it stands, shall
and does exist. Further, there shall be reciprocal appurtenant easements for encroachment
between each Lot and such portion or portions of the Common Area Tract adjacent thereto due to
the unintentional placement or settling or shifting of the improvements constructed, reconstructed
or altered thereon (in accordance with the terms of this Declaration) to a distance of not more
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than two (2) feet along a line perpendicular to such boundary at such point; provided, however, in
no event shall an easement for encroachment exist if such encroachment occurred due to willful
conduct on the part of an Owner, Occupant or the Declarant.
14.3 Easements for Overhang. Each Lot shall have an appurtenant easement for overhang between
such Lot and the portion of the Common Space Tract adjacent thereto for balconies, awnings,
eaves, beams, and other similar structures projecting from buildings, structures, and other
improvements situated on the Lot (collectively “projections”). Such projections may overhang the
Common Space Tract a distance of not more than five (5) feet, as measured from any point on the
common boundary between each Lot and the adjacent portion of the Common Space Tract along
a line perpendicular to the boundary at such point. All projections shall have sufficient ground
clearance so as not to interfere with walkways, driveways or parking areas located on either the
Common Space Tract or other Common Property.
14.4 Easement for Maintenance and Repair of Lot Improvements. Each Lot shall have appurtenant
easements over and across adjacent portions of the Common Space Tract and other Common
Property for the purpose of accessing and maintaining structures and other Improvements on such
Lot. The Owner of such Lot shall not exercise such easement in a manner that interferes
unreasonably with other Owners’ and Occupants’ use of the Common Property
14.5 Easements for Installation of Common Property. Easements over and across each Lot are
hereby reserved for the installation, construction, and reconstruction of walkways, driveways,
parking areas, curbs, lighting fixtures, signs, and other similar improvements intended for the
common use and enjoyment of all Owners, Occupants, Tenants and their respective employees,
guests, and invitees. The location of the easements shall correspond with the locations of such
improvements as shown in the PUD final plat and any amendments thereto; provided, however,
that if the improvements are constructed prior to the initial conveyance of an affected Lot to
someone other than Declarant and the location of the improvements varies from that shown on
the PUD final plat, the corresponding easements for the improvements on such Lot shall be
located at the improvements’ “as built” locations. The easements described in this Section 14.5
shall be appurtenant to and pass with title to the Common Space Tract, and they shall be part of
the Common Property held by the Association for the use and enjoyment of the Owners.
14.6 Easement for Maintenance and Repair of Common Property. The Association and its
representatives, employees, contractors, and agents, shall have the irrevocable right to access each
Lot from time to time during reasonable hours, or at any time in the case of an emergency, as may
be necessary for the maintenance, repair or replacement of any of the Common Property located
on or accessible from such Lot.
14.7 Easements for Use and Enjoyment of Common Property. Every Owner shall have a
nonexclusive right and easement of ingress and egress, use and enjoyment in and to the Common
Property that shall be appurtenant to and shall pass with the title to such Owner’s Lot, subject to:
(a) The provisions of this Declaration as it may be amended from time to time;
(b) Any restrictions or limitations contained in any deed or assignment conveying such
Common Property to the Association;
(c) The right of the Board of Directors to adopt other rules and regulations regulating the use
and enjoyment of the Common Property;
(d) The right of the Association to limit the number of invitees who may use the Common
Property, to allow persons, such as persons living or working in the vicinity of the Property,
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to use the Common Property on a regular or temporary basis and to charge or not charge
such persons a user fee thereof, and to provide for the exclusive use and enjoyment of
specific portions thereof at certain designated times by an Owner, its Tenants, guests,
Occupants, and invitees;
(e) The right of the Association to suspend the right of an Owner to use the Common Property
(other than for ingress and egress to the Owner’s Lot) for any period during which any
Assessment that is herein provided for remains unpaid.
(f) The right of the Association to dedicate or transfer all or any part of the Common Property
to any public agency, authority or utility for such purposes and subject to such conditions
as may be agreed to by the Members. No such dedication or transfer shall be effective
unless an instrument signed by the Association certifying that seventy-five percent (75%)
of the Member Votes has approved such dedication or transfer has been recorded. If such
proposed dedication or transfer is to occur within the Declarant Control Period, the written
consent of Declarant shall also be required.
An Owner’s right of use and enjoyment in and to the Common Property and facilities located
thereon shall extend to the Owner’s Tenants, invitees and guests. An Owner shall be deemed to
have made a delegation of all such rights to the Occupants of such Owner’s Lot, if leased.
SECTION 15. ENFORCEMENT.
15.1 Owner’s Compliance. Every Owner, Tenant or Occupant of a Lot shall comply with the
provisions of this Declaration, the Bylaws and any rules and regulations of the Association, all as
may be amended or modified from time to time. Failure to comply shall be grounds for an action
to recover sums due, for damages and fines, for injunctive relief, or for any other remedy
available at law or in equity maintainable by the Association or, in a proper case, by an aggrieved
Owner. All agreements and determinations lawfully made by the Association shall be deemed to
be binding on all Owners, their successors and assigns.
15.2 Remedies.
(a) Fines and Penalties. The Board may implement a schedule of reasonable fines and
penalties for particular offenses that are common or recurring in nature and for which a
uniform fine schedule is appropriate. A late charge for delinquent assessments or costs of
collection may be added to an Owner’s total Assessment obligation and may be collected
by the Association in the same manner as provided for the collection of Assessments in
Section 5.
(b) Suit. The Association, in its own name and on its own behalf, or on behalf of all Owners,
may enforce the provisions of this Declaration by prosecuting a proceeding at law or in
equity against any persons or persons violating or attempting to violate any of the
Covenants to enjoin or prevent them from doing so, to cause the violation to be remedied,
and/or to recover damages resulting from the violation. The Association may also file suit
to enforce any lien created by this Declaration. The decision as to whether it is necessary or
desirable for the Association to take enforcement action shall rest within the sole discretion
of the Board.
(c) Self-Help; Abatement. In addition to any other remedies provided for herein and available
under law, the Association or its duly authorized agent shall have the power to enter upon a
Lot or any portion of the Property to abate or remove, using such force as may be
reasonably necessary, any improvement, structure, thing or condition that violates this
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Declaration. Except in the case of emergency situations and towing, the Association shall
give the violating Owner or Occupant 10 days written notice of its intent to exercise self-
help. All cost of self-help shall be assessed against the violating Owner, shall be a
continuing lien on the violating Owner’s Lot, and shall be collected as provided in this
Declaration for the collection of Assessments.
(d) Nuisance. Without limiting the generality of the remedies elsewhere provided in
Declaration, the result of every act or omission whereby any Covenant is violated in whole
or in part is hereby declared to be a nuisance, and every remedy against nuisance, either
public or private, shall be available to the Association.
(e) Remedies Not Exclusive. The remedies provided in this Section 15 and elsewhere in this
Declaration and the Bylaws shall be cumulative and shall not be exclusive of any other
remedies that may now or in the future be available to the parties as provided for at law or
in equity.
15.3 Attorney’s Fees. In any legal or equitable proceeding for the enforcement of this Declaration,
whether it be an action for damages, declaratory relief or injunctive relief or any other action, the
losing party or parties shall pay the costs and attorney’s fees of the prevailing party or parties, in
such reasonable amount as shall be fixed by the court in such proceedings or in a separate action
brought for that purpose.
15.4 No Waiver. The failure of any Owner, the Association or the Board to enforce a Covenant
contained in this Declaration shall in no event be deemed to be a waiver of the right to enforce
such Covenant or any other Covenant thereafter, nor shall such failure result in or impose any
liability upon Declarant, the Association or the Board.
SECTION 16. GENERAL PROVISIONS.
16.1 Covenants to Run with Land, Duration, Binding Effect The Covenants contained in this
Declaration shall run with the land and bind the Property, including every Lot made subject to
this Declaration, and shall inure to the benefit of and be binding upon the Lot Owners, and the
heirs, personal representatives, nominees, successors and assigns of such Lot Owners, for a term
of 30 years from the date this Declaration is recorded. After such time, the term of the
Declaration shall be automatically extended for successive periods of 10 years, unless an
instrument in writing, signed by Owners representing 75% of the total Member Votes of the
Association, has been recorded within the year preceding the beginning of each successive period
of 10 years, agreeing to change said covenants and restrictions, in whole or in part, or to terminate
the same, in which case this Declaration shall be modified or terminated as specified therein.
16.2 Amendment.
(a) Amendment by Declarant. Prior to the conveyance of the first Lot to a Person other than
Declarant or an entity controlled by Declarant, Declarant may unilaterally amend this
Declaration. After such conveyance, but no later than the expiration of the Declarant
Control Period, Declarant may unilaterally amend this Declaration at any time and from
time to time if such amendment is (i) necessary to bring any provision hereof into
compliance with any applicable governmental statutes, rule or regulation, or judicial
determination; (ii) necessary to enable any reputable title insurance company to issue title
insurance coverage on the Lots; or (iii) necessary to enable any governmental agency or
reputable private insurance company to insure mortgage loans on the Lots; provided,
however, any such amendment shall not adversely affect the title to any Lot unless the
Owner shall consent thereto in writing. The provisions of this Section 16.2 shall be in
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addition to Declarant’s right to annex Additional Property and file a Supplemental
Declaration as provided in Section 12.1.
(b) Amendment by Members. Except as provided in Section 16.2(a), this Declaration or any
Covenant contained in it may be amended only by (i) the affirmative vote of Members
representing seventy-five (75%) percent of the total Member Votes in the Association; and
(ii) the consent of Declarant during the Declarant Control Period. Any amendment to be
effective must be recorded in the Public Records. If an Owner consents to any amendment
to this Declaration or the Bylaws, it will be conclusively presumed that such Owner has the
authority so to consent and no contrary provision in any Mortgage or contract between the
Owner and a third party will affect the validity of such amendment. No amendment may
remove, revoke or modify any right or privilege of Declarant without the written consent of
Declarant or the assignee of such right or privilege.
(c) City of Bozeman as Party to Amendment. No provision of the Covenants or Design
Guidelines that were required by ordinance or as a condition of PUD plat approval shall be
amended or revoked unless the City of Bozeman is made party to such amendment or
revocation and consents thereto.
16.3 Variance and Waiver. Notwithstanding anything to the contrary contained herein, the
Association shall be authorized to grant individual variances or waivers from any of the
provisions of this Declaration, except the provisions of Section 5 hereof regarding Assessments,
if it determines that a variance or waiver of application or enforcement of the provision in a
particular case would not be inconsistent with the overall scheme of development for the
Property; provided that such variance or waiver does not violate any applicable Laws. Such
variance or waiver shall not constitute a variance or waiver from any governmental authority’s
rules and regulations.
16.4 Partition. The Common Property shall remain undivided, and no Owner nor any other person
shall bring any action for partition or division of the whole or any part thereof, without the written
consent of all Owners, the written consent of all the Eligible Mortgagees, and, if such partition or
division occurs within the Declarant Control Period, the written consent of Declarant.
16.5 Cannery District and Northside–Use of Terms. No Person shall use the terms or names
“Cannery District” or “Northside” in the name of any building, condominium or business
enterprise that is built, established or conducted on any Lot or in any printed or promotional
material without the prior written consent of Declarant. Owners and Occupants may use the term
“Cannery District Planned Unit Development” in printed or promotional matter where such term
is used solely to specify that the particular property is located within such PUD.
16.6 Disclaimer. Except as expressly provided in this Declaration, the Bylaws, or in agreements or
instruments pertaining to conveyance of the Lots, Declarant does not intend by this Declaration to
make, and hereby expressly negates and disclaims, any warranties and representations regarding
the value, nature, quality, physical condition, suitability, compliance with Laws, or any other
aspect of the Property or the Lots. Estimates of common expenses made by Declarant are
reasonably believed to be accurate at the time they are made, but Declarant makes no warranty or
representation that such estimates are either correct or may be relied upon by any Person.
16.7 Notice of Sale or Transfer of Title. If any Owner desires to sell or otherwise transfer title to its
Lot, such Owner shall give the Board of Directors at least ten (10) days prior written notice of the
name and address of the purchaser or transferee, the date of such transfer of title, and such other
information as the Board may reasonably require. Until the Board receives such written notice,
the transferor shall continue to be jointly and severally responsible for all obligations of the
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Owner of the affected Lot, including payment of Assessments, notwithstanding the transfer of
title to the Lot.
16.8 Proper Notice to Owner or Mortgagee. Except as set forth, any notice required to be given to
any Owner or Mortgagee under the provisions of this Declaration shall be personally served or
sent by fax with confirmation, overnight courier or certified U.S. mail, return receipt requested,
addressed to the last known address of the Person who appears as the Owner or Mortgagee on the
records of the Association at the time of such service. If there are multiple Owners of a Lot, the
Association shall be obligated to send notice to only one of the multiple Owners, and notice to
one shall be deemed notice to all. Multiple Owners may designate one of them as the Person
entitled to notice by so notifying the Association in writing stating the name and address of such
Person. Notices under this section shall be deemed to have been received: (a) if by personal
delivery, on the date delivered; (b) if by facsimile transmission, on the date confirmed; (c) if by
overnight delivery service, on the date delivered; and (d) if by mail, five (5) days after mailing.
16.9 No Dedication. Nothing contained in this Declaration shall be construed or deemed to constitute
a dedication, express or implied, of any part of the Property or the Common Property to or for any
public use or purpose whatsoever.
16.10 Severability. The provisions of this Declaration shall be deemed independent and severable, and
the invalidity, partial invalidity or unenforceability of any one or more provisions shall not affect
the validity or enforceability of any other provision.
16.11 Captions. The captions, titles and section headings throughout this Declaration are for
convenience and reference only and shall not be deemed or held to explain, modify, amplify or
aid in the interpretation, construction or meaning or the provisions of this Declaration, nor to
define, limit or describe the scope or intent of a particular section.
16.12 Cumulative Effect. The provisions of this Declaration shall be cumulative with the provisions of
any applicable Supplemental Declaration. The Association shall have the standing and authority
to enforce the provisions of any Supplemental Declaration.
16.13 Interpretation. The provisions of the Declaration and of the Bylaws to be promulgated and
recorded herewith shall be liberally construed to effectuate the intent and purpose of the
Declaration and the Bylaws.
[Signatures and acknowledgements on next page.]
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IN WITNESS WHEREOF, Declarant has caused this Declaration to be made and executed as of the date
set forth at the head of this instrument.
Cannery District Partners, LLC
by: CDP Management, LLC
by:_______________________________________
Barry L. Brown, Manager
by:_______________________________________
Scott R. Dehlendorf, Manager
ACKNOWLEDGEMENT
STATE OF MONTANA )
: ss.
County of Gallatin )
This instrument was acknowledged before me on _____________, 2015, by Scott R. Dehlendorf and
Barry L. Brown as Managers of CDP Management, LLC, a Montana limited liability company, the
Manager of Cannery District Partners, LLC, a Montana limited liability company.
_______________________________________
Printed Name: ______________________________
NOTARY PUBLIC for the State of Montana
RESIDING AT _________________, Montana
My Commission Expires ____________, 20___
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EXHIBIT A
ADDITIONAL PROPERTY
The “Additional Property”, all or a portion of which may be annexed to the Property and subjected to the
Covenants pursuant to Section 12.1 of the Declaration, is described as follows:
[To be determined – may include the Northside PUD (if consolidation is approved by
Northside Property Owners Association]