HomeMy WebLinkAboutAspen Crossing Residential Condo Documents 10-16-2020 2 a .
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DECLARATION OF CONDOMINIUM OWNERSHIP FOR
ASPEN CROSSING RESIDENTIAL CONDOMINIUMS
TABLE OF CONTENTS 1-5
DECLARATION 5-6
ARTICLE ONE
Definitions 7
1.01 ACT 7
1.02 BOARD 7
1.03 BUILDING 7
1.04 BY-LAWS 7
1.05 COMMON ELEMENTS 7
1.06 COMMON EXPENSES 7
1.07 CONDOMINIUM ASSOCIATION OR ASSOCIATION 7
1.08 CONDOMINIUM DECLARATION OR DECLARATION 8
1.09 COUNTY 8
1.10 DECLARANT 8
1.1 1 DECLARATION OF CROSS EASEMENTS AND COST
SHARING PROVISIONS or CSP 8
1.12 DEVELOPMENT AREA 8
1.13 ELIGIBLE MORTGAGEE 8
1.14 EXCLUSIVE LIMITED COMMON ELEMENTS 8
1.15 FIRST MORTGAGE 8
1.16 FIRST MORTGAGEE 8
1.17 FLOORPLANS 8
1.18 LIMITED COMMON ELEMENTS, STORAGE UNITS, PARKING SPACES ROOF
TOP,AND BIKE ROOM 8
1.19 MUNICIPALITY 9
1.20 OWNER 9
1.21 PERSON 9
1.22 PROPERTY OR CONDOMINIUM PROPERTY 9
1.23 RECORD 9
1.24 RESIDENT 9
1.25 TURNOVER DATE 9
1.26 UNDIVIDED INTEREST 9
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1.27 UNIT 9
1.28 UNIT OWNERSHIP 9
1.29 VOTING MEMBER 9
ARTICLE TWO
Scope of Condominium Declaration and Certain Property Rights 10
2.01 REAL ESTATE SUBJECT TO CONDOMINIUM DECLARATION 10
2.02 CONVEYANCES SUBJECT TO CONDOMINIUM DECLARATION 10
2.03 ENCROACMENTS 11
2.04 OWNERSHIP OF COMMON ELEMENTS 11
2.05 OWNERS'RIGHTS TO USE THE COMMON ELEMENTS 11
2.06 LEASE OF COMMON ELEMENTS 12
2.07 UTILITY EASEMENTS 12
2.08 ADDITIONAL EASEMENTS 12
2.09 BOARD'S RIGHT OF ENTRY 12
2.10 SEPARATE MORTGAGES 13
2.11 LEASE OF UNITS AND GARAGE SPACES 13
2.12 MECHANICS LIENS 13
2.13 SHARING OF EXPENSES 13
ARTICLE THREE
Use, Occupancy and Maintenance of the Property 14
3.01 MAINTENANCE, REPAIR AND REPLACEMENT BY CONDOMINIUM ASSOCIATION
14
3.02 MAINTENANCE, REPAIR AND REPLACEMENT OF UNITS AND EXCLUSIVE LIMITED
COMMON ELEMENTS 14
3.03 ADDITIONS,ALTERATIONS OR IMPROVEMENTS 15
3.04 DAMAGE CAUSED BY OWNER 16
3.05 USE RESTRICTIONS 16
3.06 SPECIAL SERVICES 16
3.07 USE AFFECTING INSURANCE 17
3.08 SIGNS 17
3.09 ANIMALS 17
3.10 ANTENNAE 17
3.11 STRUCTURAL IMPAIRMENT 18
3.12 PROSCRIBED ACTIVITIES 18
3.13 NO UNSIGHTLY USES 18
3.14 RULES AND REGULATIONS 18
3.15 CERTAIN UTILITY COSTS 18
3.16 WINDOW TREATMENTS 18
3.17 NOISE TRANSMISSION 18
3.18 AUTO AND BICYCLE PARKING SPACES 19
3.17 INSPECTION& MAINTENANCE PLAN FOR MANAGEMENT OF STORM
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WATER FACILITIES 19
ARTICLE FOUR
The Condominium Association 21
4.01 THE CONDOMINIUM ASSOCIATION 21
4.02 MEMBERSHIP 21
4.03 THE BOARD 21
4.04 VOTING RIGHTS 22
4.05 MANAGING AGENT 22
4.06 DIRECTOR AND OFFICER LIABILITY 22
ARTICLE FIVE
Insurance/Condemnation 23
5.01 HAZARD INSURANCE 23
5.02 INSURANCE TRUSTEE/USE OF PROCEEDS 23
5.03 OTHER INSURANCE 23
5.04 OWNER'S RESPONSIBILITY 24
5.05 WAIVER OF SUBROGATION 24
5.06 REPAIR OR RECONSTRUCTION 25
5.07 CONDEMNATION 25
5.08 INDEMNIFICATION OF CITY• STORM WATER 25
ARTICLE SIX
Assessments 26
6.01 CREATION OF LIEN AND PERSONAL OBLIGATION 26
6.02 PURPOSE OF ASSESSMENTS 26
6.03 ASSESSMENTS 26
6.04 PAYMENT OF ASSESSMENTS 27
6.05 REVISED ASSESSMENT 27
6.06 SPECIAL ASSESSMENT 27
6.07 ANNUAL REPORT 27
6.08 CAPITAL RESERVE 27
6.09 INITIAL CAPITAL CONTRIBUTION 28
6.10 NON-PAYMENT OF ASSESSMENTS 28
6.11 CONDOMINIUM ASSOCIATION'S LIEN SUBORDINATED TO MORTGAGES 28
6.12 STATEMENT OF ACCOUNT 29
ARTICLE SEVEN
Remedies for Breach or Violation 29
7.01 BOARD'S RIGHT TO CURE 29
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7.02 OTHER REMEDIES OF THE BOARD 29
7.03 ENFORCEMENT BY THE BOARD 30
7.04 COSTS AND EXPENSES 30
7.05 ENFORCEMENT BY OWNERS 30
ARTICLE EIGHT
Amendments 30
8.01 SPECIAL AMENDMENT 30
8.02 AMENDMENT BY OWNERS 31
ARTICLE NINE
Rights of First Mortgagees 31
9.01 NOTICE TO FIRST MORTGAGEES 31
9.02 CONSENT OF ELIGIBLE MORTGAGEES 33
9.03 INSURANCE PROCEEDS/CONDEMNATION AWARDS 34
ARTICLE TEN
Declarants Reserved Rights 34
10.01 IN GENERAL 34
10.02 PROMOTION OF PROJECT 34
10.03 CONSTRUCTION 34
10.04 CONTROL OF BOARD 35
ARTICLE ELEVEN
The CSP 35
11.01 IN GENERAL 35
11.02 ANNUAL BUDGET 35
I1.03 ADMINISTRATIVE ENTITY REMEDY FOR NON-PAYMENT 35
11.04 SUBORDINATION TO CSP 35
ARTICLE TWELVE
Miscellaneous 35
12.01 SEVERABILITY 35
12.02 NOTICES 36
12.03 CAPTIONS/CONFLICTS 36
12.04 PERPETUITIES AND OTHER INVALIDITY 36
12.05 TITLE HOLDING LAND TRUST 36
12.06 ASSIGNMENT BY THE DECLARANT 37
12.07 ATTORNEY FEES AND COSTS 37
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DECLARATION OF CONDOMINIUM OWNERSHIP FOR ASPEN
CROSSING RESIDENTIAL CONDOMINIUMS
This Condominium Declaration is made by and entered into this day of
2020, by Aspen Land Co., LLC, a Montana limited liability company,
with address of 211 East Main Street, Bozeman MT 59715 ("Declarant"), whereby lands and
property hereinafter described are submitted to the provisions of Chapter 23, Title 70, M.C.A.,
also known as the "Unit Ownership Act" as a Condominium.
The Declarant holds title to the Development and land. Declarant intends to submit and
subject the Property to this Condominium Declaration and the Act.
The Declarant holds title to the Development and land, which is commonly known as
Aspen Crossing, located at 515 West Aspen Street, Bozeman, Gallatin County, Montana 59715.
Immediately prior to the Recording of this Declaration, the Declarant, as the "Administrative
Entity", Recorded that certain Declaration of Cross Easements and Cost Sharing Provisions for
Aspen Land Co., LLC ("CSP") with respect to the Development. The property subject to this
Declaration shall be known as the ASPEN CROSSING RESIDENTIAL CONDOMINIUMS as
is more particularly described on Exhibit A. To be used for residential purposes only and more
particularly described herein.
Municipal Facilities Exclusion
Declarant certifies that ASPEN CROSSING RESIDENTIAL CONDOMINIUMS is
excluded from review by the Department of Environmental Quality pursuant to §76-4-125 and
§76-3-203, M.C.A.
76-4-125. Land divisions excluded from review. (1)A subdivision excluded
from the provisions of chapter 3 must be submitted for review according to the provisions
of this part, except that the following divisions or parcels, unless the exclusions are used
to evade the provisions of this part, are not subject to review:
(d) as certified pursuant to 76-4-127(iii)divisions of parcels of land that are
exempt from the Montana Subdivision and Platting Act review under 76-3-203.
76-3-203. Exemptions for certain condominiums and townhouses.
Condominiums,townhomes,townhouses, or conversions, as those terms are defined in
70-23-102, constructed on land subdivided in compliance with parts 5 and 6 of this
chapter or on lots within incorporated cities and towns are exempt from the provisions of
this chapter if:
(2)the condominium,townhome, or townhouse proposal is in conformance with
applicable local zoning regulations when local zoning regulations are in effect.
By Recording this Declaration, the Declarant shall make the Property hereunder subject
to this Declaration and the Act as the "Residential Condominium" (as that term is defined in the
CSP). Immediately after Recording of the CSP and this Declaration, the Administrative Entity
will also Record the "Commercial Condominium Declaration" (as that term is defined in the
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CSP), which will create the "Commercial Condominium" (as that term is defined in the CSP).
This Residential Condominium Declaration will be Recorded with respect to that portion of the
Development, which is above a horizontal plane between the ceiling of the second floor of the
Building and the floor of the third floor of the Building. The Commercial Condominium
Declaration will be Recorded with respect to the portion of the Development, which is below
such horizontal plane. The portion of the Development which will be subject to each of this
Residential Declaration and the Commercial Declaration is legally described in Exhibit A to the
CSP and depicted on Exhibit B to the CSP. Thus, after the Recording of the CSP and this
Residential Condominium Declaration, the Property hereunder will be subject to the terms of the
CSP and will also be subject to the terms of this Residential Condominium Declaration.
Similarly, after the Recording of the CSP and the Commercial Condominium
Declaration, the Commercial Condominium will be subject to the terms of the Commercial
Condominium Declaration and the CSP. In the event of a conflict between the terms of this
Declaration or the terms of this Residential Condominium Declaration and the terms of the CSP,
to the extent not prohibited by applicable law, the terms of the CSP shall prevail.
Pursuant to the terms of the CSP, the Administrative Entity shall be responsible for the
maintenance, repair and replacement of certain portions of the Development and the Building,
including portions of the Common Elements hereunder. The Condominium Association shall be
responsible for the administration of the condominium and the maintenance, repair and
replacement of the Common Elements (other than those maintained, repaired and replaced by the
Administrative Entity pursuant to the CSP), and shall set budgets and fix assessments to pay the
expenses incurred in connection with such duties and for the payment of amounts due to the
Administrative Entity pursuant to the terms of the CSP. Each Owner of a Unit shall be assessed
to pay the Owner's proportionate share of the Common Expenses required to operate the
condominium and amounts due to the Administrative Entity, all as more fully provided for in this
Condominium Declaration and the CSP.
The Declarant shall retain certain rights set forth in this Condominium Declaration with
respect to the Condominium Property and the Condominium Association including, without
limitation, the right, prior to the Turnover Date, to appoint all members of the Board, the right to
come upon the Property in connection with efforts to promote the sale or rental of Units and
other rights reserved in Article Eleven.
The Declarant hereby reserves its right to annex in and add additional parcels of land
and/or common area to the Development. After the turnover date of the entire project, no
additional land and/or common areas shall be added or removed from the Development. All
additional parcels of land or common areas added subsequent to this Declaration shall be subject
to these Covenants and CSP.
NOW, THEREFORE, Declarant as record title holder of the Property, hereby declares as
follows:
ARTICLE ONE
Definitions
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For the purpose of clarity, certain words and terms used in this Condominium Declaration are
defined as follows, these definitions, restrictions, and obligations are specifically incorporated
into these Declarations and are considered binding upon all Unit Owners:
1.01 ACT: The Unit Ownership Act of the State of Montana, as amended from time to time.
1.02 BOARD: The board of directors of the Condominium Association, as constituted at any
time or from time to time.
1.03 BUILDING: The building from time to time located on the Development, a portion of
which is part of the Condominium Property.
1.04 BY-LAWS: The By-Laws of the Condominium Association which are attached hereto as
Exhibit E.
1.05 COMMON ELEMENTS: All of the Condominium Property, except the Units.
1.06 COMMON EXPENSES: The expenses of administration (including management and
professional services) of the Property; except as otherwise specifically provided herein, the cost
of maintenance, repair, and replacement of the Common Elements; except as specifically
provided herein, the cost of additions, alterations, or improvements to the Common Elements;
the cost of insurance required or permitted to be obtained by Board under Article Five; utility
expenses for the Common Elements; any expenses designated as Common Expenses by the Act,
this Condominium Declaration, or the By-Laws; if not separately metered or charged to the
Owners, the cost of waste removal, water, sewer, or other necessary utility services to the
Property; and any other expenses lawfully incurred by or on behalf of the Condominium
Association for the common benefit of all of the Owners. The Common Expenses shall include
any amounts payable by the Association to the Administrative Entity under the CSP. Gas is not
separately metered and will be split equally amongst the unit owners.
1.07 CONDOMINIUM ASSOCIATION OR ASSOCIATION: The Aspen Crossing
Residential Condominium Association, a Montana non-profit corporation, its successors and
assigns. ("ACR").
1.08 CONDOMINIUM DECLARATION OR DECLARATION: This instrument with all
Exhibits hereto, as amended or supplemented from time to time.
1.09 COUNTY: Gallatin County, Montana, or any political entity which may from time to
time be empowered to perform the functions or exercise the powers vested in the County as of
the Recording of this Condominium Declaration.
1.10 DECLARANT: Aspen Land Co., LLC, a Montana limited liability company, its
successors and assigns. Declarant shall also mean the "Administrative Entity" for purposes of
these covenants as well as the Cross Easements Agreement and Cost Sharing Provisions.
1.11 DECLARATION OF CROSS EASEMENTS AND COST SHARING PROVISIONS or
CSP: That certain Declaration of Cross Easements and Cost Sharing Provisions Recorded with
respect to the Development immediately before the Recording of this Declaration.
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1.12 DEVELOPMENT: The real estate described in Exhibit A hereto with all improvements
thereon and rights appurtenant thereto. Including the Building Pad described in Exhibit A.
1.13 ELIGIBLE MORTGAGEE: A First Mortgagee who requests to be treated as an "Eligible
Mortgagee" pursuant to Section 10.01 of the Declaration.
1.14 EXCLUSIVE LIMITED COMMON ELEMENTS: With respect to each Unit, the
following Limited Common Elements shall be Exclusive Limited Common Elements:
(a) Perimeter doors and door frames, windows and window frames which serve the
Unit;
(b) The interior surface of the perimeter walls, ceilings and floors which define the
boundary planes of the Unit;
(c) Any system or component part thereof which serves the Unit exclusively to the
extent that such system or component part is located outside the boundaries of the Unit,
including the air conditioning units which are located on the roof of the Building;
1.15 FIRST MORTGAGE: A bona fide first mortgage, first trust deed or equivalent security
interest covering a Unit Ownership.
1.16 FIRST MORTGAGEE: An institutional holder, insurer or guarantor of a First Mortgage.
1.17 FLOOR PLANS: The floor plans attached hereto as Exhibit C, as such exhibit maybe
amended or supplemented from time to time, which sets forth the measurements, elevations, and
locations of the Condominium Property, the location of the planes which constitute the perimeter
boundaries of each Unit, a distinguishing number or other symbol to identify each Unit and such
other data as may be required by the Act or this Condominium Declaration.
1.18 LIMITED COMMON ELEMENTS: A portion or portions of the Common Elements
which are designated by this Declaration or the Floor Plans as being a Limited Common Element
appurtenant to and for the exclusive use of Owners of one or more, but less than all, of the Units.
See Section 1.14 for the definition of those Limited Common Elements which shall be Exclusive
Limited Common Elements hereunder. Including but not limited to:
(a) STORAGE UNITS: There are storage units available for rental from the
Declarant for each Unit Owner. The Unit Owner has the option to rent one (1) Storage Unit. The
Declarant or Administrative Entity shall assess and collect the monthly rental of each Storage
Unit. Each Unit Owner shall have the first right of refusal to the exclusive use of a storage unit
located on the Property. Each Unit Owner may opt out of renting a storage unit. A Unit Owner
shall have the right to one (1) storage unit and may be given, by written notice, the option to rent
an additional Storage Unit if available. If storage units are vacant after all Condominiums are
sold, then the vacate storage units shall be available on a first come first serve basis to the Unit
Owners, then to the Commercial Unit Owners or Lessees.
(b) Parking spaces are available for use to both the Unit Holders and the Commercial
Owners/Lessees,parking is on a first come first serve basis and are considered non-exclusive.
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However, both Residential Unit Owners and Commercial Owners/Lessees (and their customers)
shall all have the right to park in the parking spaces if available. The Unit Owners and
Commercial Owners do NOT have assigned parking. The Parking Lot maintenance, repairs, and
upkeep shall be assessed against all Unit Owners and Commercial Owners/Lessees as
determined by the Administrative Entity and CSP.
(c) Exclusive use of the 41" Floor Roof Top common area as described in the Floor
Plans attached hereto as Exhibit C. The Residential Unit Owners shall be assessed the cost for
maintenance, repairs, and upkeep of the 4th Floor Roof Top.
(d) BIKE ROOM: Declarant shall provide a Bike Room for storage of the
Residential Unit Owners' bicycles. The Residential Unit Owners shall be assessed the cost for
maintenance, repairs, and upkeep of the Bike Room by the Administrative Entity.
1.19 MUNICIPALITY: The City of Bozeman, Montana.
1.20 OWNER: A Record owner, whether one or more Persons, of fee simple title to any Unit,
including contract sellers, but excluding those having such interest merely as security for the
performance of an obligation.
1.21 PERSON: A natural individual, corporation, partnership, trustee or other legal entity
capable of holding title to real property.
1.22 PROPERTY OR CONDOMINIUM PROPERTY: All the property and space legally
described in Exhibit B hereto, all improvements and structures erected, constructed or contained
therein and thereon, and all easements, rights and appurtenances belonging thereto, and all
fixtures and equipment intended for the mutual use, benefit or enjoyment of the Owners, hereby
or hereafter submitted and subjected to the provisions of this Condominium Declaration and the
Act as part of the Condominium Property.
1.23 RECORD: To record with the Clerk and Recorder of Deeds of the County.
1.24 RESIDENT: An individual who resides in a Unit and who is either an Owner, a tenant of
the Owner, a contract purchaser of the Unit, or a relative of any such Owner, tenant or contract
purchaser.
1.25 TURNOVER DATE: The Administrative Entity shall determine the Turnover Date.
However, the Declarant or its assign shall remain on the Board of the ACR while it owns a
portion of the project. If the Administrative Entity unanimously agrees to completely turnover
the ACR's Board to the Unit Holders of the Residential Condominiums, then the Turnover date
may occur on the date of one of the following:
(a) Sixty (60) days after Declarant has conveyed 100% of the number of Units which
are subject to this Condominium Declaration;
(b) The expiration of Twenty (20)years from the date of the Recording of this
Condominium Declaration;
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(c) The date designated in written notice from the Declarant to all of the Owners as
being the Turnover Date; or
(d) As determined by the Administrative Entity.
1.26 UNDIVIDED INTEREST: The percentage of ownership interest in the Common
Elements appurtenant to a Unit as herein and hereafter allocated on Exhibit D hereto, as Exhibit
D may be amended from time to time.
1.27 UNIT: A part of the Condominium Property designed or intended for independent use
and having lawful access to a public way. Each Unit shall consist of the space enclosed and
bounded by the planes constituting the boundaries of such Unit as shown on the Floor Plans and
the fixtures and improvements located wholly within such boundaries which serve such Unit
exclusively. Commonly referred to as "studs in."A Unit shall not include the following,
wherever located:
(a) any structural components of the Condominium Property; or
(b) any component of a system which serves more than one Unit where such
component is an integral part of such system and is not intended to serve the Unit exclusively.
Each Unit is identified on the Floor Plans by a distinguishing number or other symbol. The legal
description of each Unit shall refer to such identifying number or symbol and every such
description shall be deemed good and sufficient for all purposes, as provided in the Act.
1.28 UNIT OWNERSHIP: A part of the Condominium Property consisting of one Unit and its
Undivided Interest.
1.29 VOTING MEMBER: The individual who shall be entitled to vote in person or by proxy
at meetings of the Owners, as more fully set forth in Article Four.
ARTICLE TWO
Scope of Condominium Declaration and Certain Property Rights:
2.01 REAL ESTATE SUBJECT TO CONDOMINIUM DECLARATION: Declarant, as the
owner of fee simple title to the Property, expressly intends to and, by Recording this
Condominium Declaration, does hereby subject and submit the Property to the provisions of the
Act and this Condominium Declaration.
2.02 CONVEYANCES SUBJECT TO CONDOMINIUM DECLARATION: All easements,
restrictions, conditions, covenants, reservations, liens, charges, rights, benefits, and privileges
which are granted, created, reserved or declared by this Condominium Declaration shall be
deemed to be covenants appurtenant, running with the land and shall at all times inure to the
benefit of and be binding on any Person having at any time any interest or estate in the
Condominium Property, and their respective heirs, successors, personal representatives or
assigns, regardless of whether the deed or other instrument which creates or conveys the interest
makes reference to this Condominium Declaration.
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2.03 ENCROACHMENTS: In the event that, by reason of the construction, repair,
reconstruction, settlement or shifting of the Condominium Property or any part thereof, (i) any
part of the Common Elements encroaches or shall hereafter encroach upon any part of any Unit,
or(ii) any part of any Unit encroaches or shall hereafter encroach upon any part of any other
Unit or the Common Elements, then, in any such case, there shall be deemed to be an easement
in favor of the Owners for the maintenance and use of any of the Common Elements which may
encroach upon a Unit and there shall be deemed to be an easement in favor of any Owner for the
exclusive use of any part of his Unit which shall encroach upon the Common Elements or any
other Unit; provided, however, that in no event shall an easement for any encroachment be
created in favor of any Owner if such encroachment occurred due to the intentional, willful or
negligent conduct of such Owner or the Owner's agent.
2.04 OWNERSHIP OF COMMON ELEMENTS: Each Owner shall own an undivided interest
in the Common Elements as a tenant in common with all the other Owners. Each Unit's
corresponding percentage of ownership in the Common Elements (Undivided Interest) has been
determined by Declarant, as required under the Act, and is set forth in Exhibit D attached hereto.
Exhibit D may not be changed without unanimous written approval of all Owners and all First
Mortgagees, except as hereinafter provided in Section 5.06 or 5.07, or as permitted under the
Act. The Common Elements shall remain undivided and no Owner shall bring any action for
partition.
2.05 OWNERS' RIGHTS TO USE THE COMMON ELEMENTS:
(a) Each Owner shall have the right to use the Common Elements (except the Limited
Common Elements or portions occupied pursuant to leases, licenses or concessions made by the
Board) in common with all other Owners, as may be required for ingress and egress to and from
his respective Unit, and for such other purposes not prohibited hereunder. These rights include
but are not limited to; the use of the 4th Floor Roof Top, Bike Room, and Elevator.
(b) Each Owner shall have the right to the exclusive use and possession of the
Exclusive Limited Common Elements which serve his Unit. Each Owner shall have the right to
the non-exclusive use, in common with other Owners, of the Limited Common Elements which
serve his Unit and the Units of such other Owners. The Administrative Entity shall retain a
possessory ownership in both the Exclusive Limited Common Elements as well as the Common
Elements in accordance with the DOR.
(c) The rights to use and possess the Common Elements, including the Limited
Common Elements, as herein provided, shall extend to each Owner, and the agents, servants,
tenants, and invitees of each Owner and such rights and easements shall be subject to and
governed by the provisions of the Act, this Condominium Declaration, the By-Laws, and the
reasonable rules and regulations of the Board.
(d) Declarant shall retain a possessory interest, that may be assignable to third parties
for the operation of certain commercial and/or residential purposes in the limited and Common
Elements. This includes a possessory interest in all Common Elements as required by the DOR
for service of CSP alcoholic beverages under a liquor license agreement or concession.
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2.06 LEASE OF COMMON ELEMENTS: The Board and Administrative Entity shall have
the right and authority, subject to the provisions of this Condominium Declaration and the By-
Laws, to lease or grant licenses or concessions with regard to parts of the Common Elements
(other than Limited Common Elements). The rental, fees and terms of any such lease, license or
concession shall be determined by the Board and any and all proceeds therefrom shall be used to
pay the Common Expenses and shall be taken into account in the preparation of the annual
budget. The rental fees for the Storage Units shall be paid the Declarant or Administrative Entity
as determined by Declarant per separate invoicing.
2.07 UTILITY EASEMENTS: All public utilities serving the Condominium Property are
hereby granted the right to lay, construct, renew, operate, and maintain conduits, cables, pipes,
wires, transformers, switching apparatus and other equipment, into and through the
Condominium Property for the purpose of providing utility services to the Development.
2.08 ADDITIONAL EASEMENTS: In addition to the easements provided for herein, the
Board, on behalf of all of the Owners, shall have the right and power (a) to grant such easements
with respect to the Common Elements (except the Limited Common Elements) as the Board
deems necessary and proper, including, without limitation, access easements for emergency and
service vehicles operated by any governmental authority or private enterprise and/or easements
related to the installation and operation of a cable or satellite televisions system or other
communication systems and/or(b) to agree to cancel, alter, change or modify any easement
which affects the Condominium Property and does not benefit an Owner, as the Board shall, in
its discretion, determine. Without limiting the foregoing, until such time as the Declarant no
longer holds title to a portion of the Development, the Board shall grant such easements as the
Declarant may from time to time request including, but not limited to, such easements as may be
required to construct, keep and maintain improvements upon the Common Elements or to
provide owners of portions of the Development with necessary utility services.
Each Person, by acceptance of a deed, mortgage, trust deed, other evidence of obligation,
or other instrument relating to a Unit Ownership, shall be deemed to grant a power coupled with
an interest to the Board, as attorney-in-fact, to grant, cancel, alter or otherwise change the
easements provided for in this Section. Any instrument executed pursuant to the power granted
herein shall be executed by the President and attested to by the Secretary of the Condominium
Association and duly Recorded. The County, the Municipality and any other governmental
authority which has jurisdiction over the Condominium Property or which undertakes to provide
services to the Condominium Property are hereby granted a non-exclusive, perpetual easement
for access over and across the Condominium Property for police, fire, ambulance, waste
removal, snow removal services, or for the purpose of furnishing other municipal or emergency
services to the Condominium Property. The Administrative Entity shall have a non-exclusive,
perpetual easement for access over and across the Condominium Property for the purpose of
furnishing services, as permitted under the CSP.
2.09 BOARD'S RIGHT OF ENTRY: The Board or its agents, upon reasonable notice or, in
the case of an emergency, without notice, shall have the right to enter any Unit, including any of
the appurtenant Limited Common Elements, when necessary in exercise of its authority under
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Section 3.02, or in connection with any maintenance, repair and replacement for which the Board
is responsible. Such entry shall be made with as little inconvenience to the Owners as
practicable, and any damage caused thereby shall be repaired by the Board, as a Common
Expense.
2.10 SEPARATE MORTGAGES: Each Owner shall have the right, subject to the provisions
herein, to make a separate mortgage or encumbrance or other lien on his respective Unit
Ownership. No Owner shall have the right or authority to make or create, or to cause to be made
or created, any mortgage or encumbrance or other lien on or affecting the Condominium
Property or any part thereof, except only to the extent of the Owner's Unit Ownership.
2.11 LEASE OF UNITS: Any Owner shall have the right to lease all (and not less than all) of
his Unit subject to Section 10.02 and to the provisions of subsections (a), (b) and (c):
(a) No Unit shall be leased for less than three (3) days or for hotel or transient
purposes. If leased, said lease shall be in accordance with the Bozeman City Zoning restrictions
for Short-Term Rentals (refer to Bozeman City Zoning Restrictions).
(b) Any lease shall be in writing and shall provide that such lease shall be subject to
the terms of this Condominium Declaration and that any failure of the lessee to comply with the
terms of this Condominium Declaration shall be a default under the lease. All lessees shall be
bound by the provisions hereof regardless of whether the lease specifically refers to this
Condominium Declaration. Lessor shall provide a copy of these Declarations to any Lessee.
(c) Each Owner who leases a Unit shall be required to furnish the Condominium
Association with a copy of the lease and shall promptly notify the Condominium Association of
any change in status of the lease. The Condominium Association shall maintain a record of such
information with respect to all leased Units. Administrative entity shall have the ability to
charge for its services to be invoiced to the Residential Unit Owners as well as the
Commercial Unit Owners and Lessees of the Commercial spaces as determined by the
Administrative Entity. The Costs of maintenance and services either performed by Declarant or
the Administrative Entity may be invoiced based upon square footage of ownership and/or usage
as determined by the Administrative Entity.
2.12 MECHANIC'S LIENS: The Board may cause to be discharged any mechanic's lien or
other encumbrance which, in the opinion of the Board, may constitute a lien against the
Condominium Property or Common Elements, rather than against a particular Unit Ownership.
When less than all the Owners are responsible for the existence of any such lien, the Owners
responsible shall be jointly and severally liable for the amount necessary to discharge the same
and for all costs and expenses (including attorney's fees and expenses) incurred by reason of such
lien.
2.13 SHARING OF EXPENSES: To the extent possible and where economies of scale may be
realized, the Condominium Association, the Administrative Entity, and/or other condominium
associations established to administer, or other owners of, portions of the Development, from
time to time, may agree to share certain expenses in connection with the administration,
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operation and maintenance of the Condominium Property and other portions of the
Development, on terms agreed to by the Condominium Association, the Administrative Entity,
and/or other condominium associations established to administer, or owners of, other portions of
the Development. Exterior Window cleaning expenses, as one example, shall be shared by the
respective Associations and their Unit Owners and/or lessees.
ARTICLE THREE
Use, Occupancy and Maintenance of the Property:
3.01 MAINTENANCE, REPAIR AND REPLACEMENT BY CONDOMINIUM
ASSOCIATION:
(a) Except as otherwise specifically provided in the CSP or this Condominium
Declaration, decorating, maintenance, repair and replacement of the Common Elements, and
improvements located thereon, shall be furnished by the Condominium Association as part of the
Common Expenses.
(b) Except as hereinafter provided, with respect to a particular category or class of
Limited Common Elements (other than the Exclusive Limited Common Elements appurtenant to
a Unit), instead of furnishing the maintenance, repair or replacement of such category or class of
Limited Common Elements as a Common Expense, the Board may, in its discretion, (i) require
each Owner to furnish such services to the Limited Common Elements which are appurtenant to
his Unit at his own expense, or (ii) furnish such services to the Limited Common Elements but
assess the cost thereof directly to the Owners of Units benefited thereby on the basis of
Undivided Interests, in equal shares or such other reasonable basis as the Board shall deem
appropriate.
(c) Subject to the terms of the CSP, the maintenance, repair and replacement of the
elevators (shared by all Owners), balconies, decks, and fourth floor roof-top area, shall be
furnished by the Board and the cost thereof shall be assessed directly to the Owners of the Units,
or Exclusive Limited Common Elements appurtenant thereto, with respect to which the work is
done, on the basis of Undivided Interests, equal shares or such other reasonable basis as the
Board and Administrative Entity shall deem appropriate.
3.02 MAINTENANCE, REPAIR AND REPLACEMENT OF UNITS AND EXCLUSIVE
LIMITED COMMON ELEMENTS:
(a) Each Owner shall furnish and be responsible, at his expense, for all of the
maintenance, repairs and replacements within the Owner's Unit and the Exclusive Limited
Common Elements appurtenant to the Owner's Unit and shall keep them in good condition and
repair. The Board may, in its discretion, cause maintenance services to be performed within a
Unit or to the Exclusive Limited Common Elements appurtenant thereto upon the request of an
Owner and may charge a reasonable fee for such services. Without limiting the foregoing, to the
extent that insurance carried by the Condominium Association covers damage to a Unit or the
Exclusive Limited Common Elements appurtenant thereto (including, without limitation, broken
windows, window frames, doors and door frames), the Condominium Association shall make
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any insurance proceeds received by the Condominium Association as a result of any such
damage available to the Owner to pay for or reimburse the Owner for payment of the cost of
repairing the damage.
(b) Whenever the Board shall determine, in its discretion, that any maintenance,
repair, or replacement of any Unit or the Exclusive Limited Common Elements is necessary to
protect the Common Elements or any other portion of the Condominium Property (i) if such
work is made necessary through the fault of the Owner, then the Board may direct the Owner
thereof to perform such maintenance, repair, or replacement and pay the cost thereof to the
extent not covered by insurance, if any, carried by the Condominium Association, including,
without limitation, the deductible amount under any applicable insurance policy, or (ii) if such
work is made necessary through no fault of the Owner, then the Board may cause the work to be
done and may, in its discretion, assess the cost thereof directly to the Owners of the Units, or
Exclusive Limited Common Elements appurtenant thereto, with respect to which the work is
done on the basis of Undivided Interests, equal shares or such other reasonable basis as the
Board shall deem appropriate. If an Owner fails or refuses to perform any such maintenance,
repair, or replacement within a reasonable time after being so directed by the Board pursuant to
the preceding sentence, then the Board may cause such maintenance, repair, or replacement to be
performed at the expense of such Owner. The determination of whether or not the work is made
necessary through the fault of the Owner shall be made by the Board and such determination
shall be final and binding.
3.03 ADDITIONS, ALTERATIONS OR IMPROVEMENTS:
(a) Subject to the terms of the CSP, the Board may authorize and charge as a
Common Expense (or in the case of Limited Common Elements may charge the Owners
benefited thereby) any additions, alterations, or improvements to the Common Elements. Subject
to the provisions of Section 6.06, the cost of any such work to the Common Elements may be
paid out of a special assessment. -
(b) Without the prior written consent of the Board and the Administrative Entity, an
Owner shall not (i) make any additions, alterations or improvements (including, without
limitation, installation of storm windows, storm doors, plantings, landscaping, or painting,
staining, or changes to the color of exterior surfaces of the Building) to any part of the Common
Elements which is visible from outside of the Unit or (ii) make any additions, alterations or
improvements to the Owner's Unit or to the Exclusive Limited Common Elements appurtenant
thereto where such work alters the structure of the Unit or the Building or increases the cost of
insurance required to be carried by the Condominium Association hereunder. The Board or the
Administrative Entity may (but shall not be required to) condition its consent to the making of an
addition, alteration or improvement by an Owner (i) upon the Owner's agreement that any
addition, alteration or improvement will be substantially similar in quality of construction and
design to any similar addition, alteration or improvement then on the Condominium Property and
(ii) upon Owner's agreement either(A) to be solely responsible for the maintenance of such
addition, alteration or improvement, subject to such standards as the Board may from time to
time set, or(B) to pay to the Condominium Association from time to time the additional cost of
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maintenance and/or insurance as a result of the addition, alteration or improvement. If an
addition, alteration or improvement is made by an Owner without the prior written consent of the
Board and the Administrative Entity, then the Board or the Administrative Entity may, in its
discretion, take any of the following actions:
(1) Require the Owner to remove the addition, alteration or improvement and restore
the Condominium Property to its original condition, all at the Owner's expense; or
(2) If the Owner refuses or fails to properly perform the work required herein then the
Board or the Administrative Entity may cause such work to be done and may charge the Owner
for the cost thereof as determined by the Board or the Administrative Entity; or
(3) Ratify the action taken by the Owner, and the Board or the Administrative Entity
may (but shall not be required to) condition such ratification upon the same conditions which it
may impose upon the giving of its prior consent under this Section.
3.04 DAMAGE CAUSED BY OWNER: If, due to the act of or the neglect of a Resident of a
Unit, a household pet, guest or other occupant or invitee of such Resident, damage shall be
caused to a part of the Condominium Property and maintenance, repairs or replacements shall be
required which would otherwise be a Common Expense, then the Owner of the Unit in which
such Resident resides shall pay for such damage and such maintenance, repairs, and
replacements, as may be determined by the Board, to the extent not covered by insurance, if any,
carried by the Condominium Association, including, without limitation, the deductible amount
under any applicable insurance policy.
3.05 USE RESTRICTIONS:
(a) Except as provided in Article Eleven or in subsections (b) and (c) of this Section,
each Unit shall be used only as a residence and no industrial business, trade, occupation or
profession of any kind shall be conducted, maintained or permitted on any part of the
Condominium Property.
(b) No Resident shall be precluded with respect to his Unit, from
(i) maintaining a personal professional library,
(ii) keeping his personal business records or accounts therein, or
(iii) handling his personal business or professional calls or correspondence
therefrom.
(c) To the extent permitted under applicable laws and ordinances or rules and
regulations adopted from time to time by the Board, a Resident may conduct an in-home
business in a Unit; provided that, without limiting the foregoing, the rules and regulations may
prohibit certain in- home businesses which, in the sole judgment of the Board, create or cause
unacceptable traffic to and from the Unit or unacceptable noise or other distractions from the
Unit.
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3.06 SPECIAL SERVICES: The Board may furnish to a Unit Owner or Unit Owners special
services relating to the use and occupancy of a Unit or Units and may charge the cost of
providing such services to the Owner or Owners who benefit from the service. Without limiting
the foregoing, the Condominium Association may contract with a provider of a special service,
such as satellite TV service, cable TV service, internet access or other similar service, either
make such service available to all Units or offer such service to each of the Owners on a
voluntary basis. The Board may charge the Owner of each Unit which receives any such service
for the reasonable cost of providing such service, which may be allocated in equal shares for
each of the Units which is served, on the basis of Undivided Interests or on such other reasonable
basis as the Board may deem appropriate. Any amount charged to an Owner for services
furnished pursuant to this Section shall be due and payable at such time or times as designated by
the Board and failure to pay any such amount shall give rise to a lien provided for in Section
6.01. Each Unit Owner shall be responsible to set-up and pay for their own water, sewer, power,
gas, electrical, and internet services and the like. Garbage removal shall be provided by the ACR
and assessed as determined by the Administrative Entity to all Unit Owners.
3.07 USE AFFECTING INSURANCE: If in the judgment of the Board the use or contents of
a Unit causes an increase in any insurance premium required to be obtained by the Condominium
Association, the Board may require the Owner to pay the amount of the increase. No Owner shall
permit anything to be done or kept in his Unit or in the Common Elements which will result in
the cancellation of insurance on the Condominium Property, or the contents thereof, or which
would be in violation of any applicable law, ordinance or regulation.
3.08 SIGNS: Except as provided in Article Eleven, no "For Sale", "For Rent" or any other sign
of any kind or other form of solicitation or advertising or window display shall be maintained or
permitted on the Condominium Property unless approved, in writing, by the Board and the
Administrative Entity. The Unit Owners hereby agree and understand that the windows and
window coverings shall be uniform to insure curb appeal for the project.
3.09 ANIMALS: No animals shall be kept or raised in the Common Elements. No more than
two (2)pets may be kept in any Unit. No pet may be kept or raised for commercial purposes. The
Board may from time to time adopt rules and regulations governing the keeping of pets in the
Units. Such rules and regulations may, without limitation, (i) prohibit certain species of pets or
pets of more than a specified weight from being kept in the Units, including, but not limited,to
exotic or dangerous species or(ii) require leases or other approved restraints while a pet is on the
Common Elements. Dogs shall not be left unattended in a Unit for periods of more than four(4)
consecutive hours. Any pet causing or creating a nuisance or unreasonable disturbance shall be
permanently removed from a Unit upon three (3) days' written notice from the Board to the
Owner of the Unit containing such pet, and the decision of the Board shall be final. Dogs shall be
kept on leashes and other pets shall be kept in appropriate carriers while on the Common
Elements. All Unit Owners that have animals shall promptly pick up any and their respective
pet's feces. Failure to do so may cause a fine to be levied against the pet's Owner. PETS shall
not be permitted on the 41h Floor Roof Top Area.
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3.10 ANTENNA: Subject to applicable federal, state or local laws, ordinances or regulations,
no mast, satellite dish, antennae or other structure for transmitting or receiving messages or
programs by radio or television shall be erected, permitted or maintained in or upon any part of
the exterior of the Condominium Property without the prior written approval of the Board and
the Administrative Entity.
3.11 STRUCTURAL IMPAIRMENT: Nothing shall be done in, on or to any part of the
Condominium Property which would impair the structural integrity of the Building.
3.12 PROSCRIBED ACTIVITIES: No noxious or offensive activity shall be carried on in the
Condominium Property and nothing shall be done in the Condominium Property, either willfully
or negligently, which may be or become an annoyance or nuisance to the Owners or occupants of
any Units within the project.
3.13 NO UNSIGHTLY USES: No clothes, sheets, blankets, laundry of any kind, or other
similar articles shall be hung out on any part of the Common Elements except as permitted by
rules and regulations of the Board. The Condominium Property shall be kept free and clear of all
rubbish, debris and other unsightly materials and no waste shall be committed thereon. All
rubbish shall be deposited in such areas and such receptacles as shall be designated by the Board.
3.14 RULES AND REGULATIONS:
(a) The use and enjoyment of the Condominium Property shall be subject to
reasonable rules and regulations duly adopted by the Board from time to time.
(b) Without limiting the foregoing, the Board may levy a reasonable fine upon the
Owners for a violation of a rule or regulation, in accordance with the procedures set forth in
Section 7.05.
3.15 CERTAIN UTILITY COSTS: Certain utility costs incurred in connection with the use,
operation and maintenance of the Common Elements may not be separately metered and billed to
the Condominium Association. If the charges for any such utilities are metered to individual
Units rather than being separately metered for the Common Elements, then the following shall
apply:
(a) If in the opinion of the Board, each Owner is sharing in a fair and equitable
manner the cost for such service, then no adjustment shall be made and each Owner shall pay his
own bill; or
(b) If in the opinion of the Board, the Owner of a Unit is being billed
disproportionately for costs allocable to the Common Elements, then the Condominium
Association shall pay, or reimburse such Owner, an amount equal to the portion of the costs
which, in the reasonable determination of the Board, is properly allocable to the Common
Elements and the amount thereof shall be Common Expenses hereunder.
3.16 WINDOW TREATMENT: In order to achieve uniformity in the exterior appearance of
the Property and the Building, each Owner shall install in all windows of his/her Unit visible
from the exterior of the Building full height shades, curtains or other window coverings having a
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white colored lining or surface. The curtains shall be roller shades and approved in writing by the
Administrative Entity prior to installation, to insure conformity.
3.17 NOISE and SMOKING:
(a) An Owner who desires to install or replace flooring in his or her Unit must first
apply for and receive approval from the Board. The Board may from time to time adopt rules and
regulations governing the installation or replacement of floor covering, including, without
limitation noise transmission standards.
(b) An Owner shall not install, or permit to be installed, recessed speakers in a wall or
ceiling which is shared with an adjoining Unit.
(c) Unless otherwise provided in a rule or regulation adopted by the Board, the
applicable noise transmission standards of the City of Bozeman and Fannie Mae in effect from
time to time shall apply.
(d) Unit Holders are NOT permitted to smoke any substance within their Units, nor
any area located within their Unit or the building, including the 0' Floor Roof Top Area. The
Unit Owners agree and understand that this building is a NON-SN-10KING Building.
3.18 AUTO AND BICYCLE PARKING SPACES and STORAGE ROOMS -
AVAILABILITY
Residential Parking Spaces are available both the Unit Owners Aspen Crossing and the lessees of
the Aspen Crossing Commercial Condominiums ("ACC") referred to as the parking area.
STORAGE UNITS: There are storage units available for rental from the Declarant for each Unit
Owner. The Unit Owner has the option to rent one (1) Storage Unit. The Declarant or
Administrative Entity shall assess and collect the monthly rental of each Storage Unit. Each Unit
Owner shall have the first right of refusal to the exclusive use of a storage unit located on the
Property. Each Unit Owner may opt out of renting a storage unit. A Unit Owner shall have the
right to one (1) storage unit and may be given by written notice the option to rent an additional
Storage Unit if available. If storage units are vacant after all Condominiums are sold, then the
vacate storage units shall be available on a first come first serve basis to the Unit Owners, then to
the Commercial Unit Owners or Lessees.
PARKING SPACES: Parking spaces are available for use to both the Unit Holders and the
Commercial Owners/Lessees, parking is on a first come first serve basis and are considered non-
exclusive. However, both Residential Unit Owners and Commercial Owners/Lessees (and their
customers) shall all have the right to park in the parking spaces if available. The Unit Owners
and Commercial Owners do NOT have assigned parking. The Parking Lot maintenance, repairs,
and upkeep shall be assessed against all Residential Unit Owners and Commercial
Owners/Lessees as determined by the Administrative Entity.
4t' FLOOR ROOF TOP: Unit Owners have the exclusive use of the 4"' Floor Roof Top common
area as described in the Floor Plans attached hereto as Exhibit C. The Residential Unit Owners
shall be assessed the cost for maintenance, repairs, and upkeep of the 4t" Floor Roof Top.
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BIKE ROOM: Declarant shall provide a Bike Room for storage of the Residential Unit Owners'
bicycles. The Residential Unit Owners shall be assessed the cost for maintenance, repairs, and
upkeep of the Bike Room by the Administrative Entity. Access to said Bike Room is granted.
3.19 INSPECTION AND MAINTENANCE PLAN FOR MANAGEMENT OF STORM
WATER FACILITIES SHALL BE THE RESPONSIBILITY OF THE ASSOCIATION:
Inspection and Maintenance Plan for Management of Storm Water Facilities.
The subsurface infiltration of stormwater storage and disposal shall be inspected annually with
any and all identified deficiencies being corrected within thirty (30) days of identification. Clean-
out must include the removal and legal disposal of any accumulated sediments and debris from
the entire storm water management system.
Storm Water Facilities:
A. Collection tanks and directional drainage: The conveyance of stormwater shall be conducted
by the piping to the gutter system to the down spouts. The conveyance system and the collection
tanks installed consistent with the Final Storm Water Drainage Report, shall be inspected
annually with clean-out including the removal and legal disposal of any accumulated sediments
and debris from the entire storm water management system being removed to ensure the system
functions properly.
Semi-Annual Inspection:
Check infiltration basin following three days of dry weather after a storm event. Failure for water
to percolate within this time period indicates clogging. Remove grass clippings, litter, and debris
from drainage swales and infiltration basin.
Standard Maintenance:
Remove sediment and oil/grease from infiltration system. Inspect and remove debris from the
conveyance system, infiltration system and the collection tanks. Control mosquitoes as
necessary. Monitor health of vegetation (if any) and replace as necessary. Inspect for the
following issues: differential accumulation of sediment, drain time, signs of petroleum
hydrocarbon contamination(odors), percolation, trash and debris.
Sump pump and manhole to be monitored according to the manufacturer's recommendations. In
general, check semi-annually to ensure sump pump is operating correctly and sump manhole is
draining.
Vegetated Areas: Inspect vegetated surfaces, slopes and embankments early in the growing
season to identify active or potential erosion problems. Replant bare areas or areas with sparse
growth. Where rill erosion is evident, armor the area with an appropriate lining or divert the
erosive flows to on-site areas able to withstand the concentrated flows. The facilities will be
inspected after major storms and any identified deficiencies will be corrected.
Standard Maintenance Summary:
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A. Remove sediment and oil/grease from facilities.
B. Inspect and remove debris from systems.
C. Monitor health of vegetation and revegetate as necessary to maintain full vegetative
cover.
D. Inspect for the following issues: differential accumulation of sediment, drain time, signs
of petroleum hydrocarbon contamination(odors, oil sheen in pond water), standing water, trash
and debris blockage.
ARTICLE FOUR
The Condominium Association:
4.01 THE CONDOMINIUM ASSOCIATION: Declarant shall cause the Condominium
Association to be incorporated as a Montana non-profit corporation. The Condominium
Association shall be the governing body for all of the Owners and for the administration and
operation of the Property as provided in the Act, this Condominium Declaration and the By-
Laws. All agreements and determinations lawfully made by the Condominium Association and
approved by the Administrative Entity shall be deemed to be binding on all Owners and their
respective successors and assigns.
4.02 MEMBERSHIP:
(a) The Owner of each Unit shall be a member of the Condominium Association.
There shall be one membership per Unit Ownership. Membership shall be appurtenant to and
may not be separated from ownership of a Unit. Ownership of a Unit shall be the sole
qualification for membership. The Condominium Association shall be given written notice of a
proposed change of ownership of a Unit within ten (10) days prior to such change.
(b) One individual shall be designated as the "Voting Member" for each Unit
Ownership. The Voting Member or his proxy shall be the individual who shall be entitled to vote
at meetings of the Owners.
4.03 THE BOARD: From and after the Turnover Date, the Board shall consist of the number
of individuals provided for in Section 5.01 of the By-Laws, each of whom shall be an Owner or a
Voting Member. Directors shall be elected at each annual meeting of the Owners as provided in
the By-Laws. The Administrative Entity and/or Declarant shall be a Board Member on the Board
of Directors and shall have equal voting rights based upon his ownership within the project,
unless Declarant has Turned Over the Board.
4.04 VOTING RIGHTS: Whenever a vote of the Owners of the Condominium Association is
required, at any meeting of such Owners or otherwise, such votes shall be cast by the Voting
Members or their proxies; provided that a contract purchaser of a Unit from a contract seller
other than the Declarant, shall have the right to vote for directors of the Condominium
Association after the Turnover Date unless such contract seller expressly retains such right in
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writing. Except as otherwise specifically required under the Act, this Condominium Declaration
or the By-Laws, each Voting Member shall have one (1) vote per unit owned.
4.05 MANAGING AGENT: The term of any management agreement, not including the
Administrative Entity management, covering the management of the Condominium Property
entered into prior to the Turnover Date shall not exceed two years, and shall be terminable for
cause by the Condominium Association on thirty (30) days written notice and without cause or
payment of a termination fee by either party on ninety (90) days written notice.
4.06 DIRECTOR AND OFFICER LIABILITY: None of the directors or officers of the
Condominium Association whether elected or designated by the Declarant shall be personally
liable to the Owners or the Condominium Association for any mistake of judgment or for any
other acts or omissions of any nature whatsoever as such directors or officers, except for any acts
or omissions found by a court to constitute criminal conduct, gross negligence or fraud. The
Condominium Association shall indemnify and hold harmless each of the directors and each of
the officers, his heirs, executors or administrators, against all contractual and other liabilities to
the Condominium Association, the Owners or others arising out of contracts made by or other
acts of the directors and the officers on behalf of the Owners or the Condominium Association or
arising out of their status as directors or officers unless any such contract or act shall have been
made criminally, fraudulently or with gross negligence. It is intended that the foregoing
indemnification shall include indemnification against all costs and expenses (including, but not
limited to, counsel fees, amounts of judgments paid and amounts paid in settlement) actually and
reasonably incurred in connection with the defense of any claim, action, suit or proceeding,
whether civil, administrative, or other, in which a director or officer may be involved by virtue of
such person being or having been a director or officer; provided, however, that such indemnity
shall not be operative with respect to (i) any matter as to which such person shall have been
finally adjudged in such action, suit or proceeding to be liable for criminal conduct, gross
negligence or fraud in the performance of his duties as a director or officer, or(ii) any matter
settled or compromised, unless, in the opinion of independent counsel selected by or in a manner
determined by the Board, there is not reasonable ground for such person being adjudged liable
for criminal conduct, gross negligence or fraud in the performance of his duties as a director or
officer.
ARTICLE FIVE
Insurance/Condemnation/ stormwater:
5.01 HAZARD INSURANCE: The Board shall have the authority to and shall obtain
insurance, from a generally acceptable insurance carrier, for the Condominium Property against
loss or damage by fire and such other hazards as may be required under the Act, as the Board
may deem desirable, or as reasonably required by First Mortgages, for the full insurable
replacement cost of the Common Elements and the Units; provided that the Association shall
cooperate with the Administrative Entity to obtain in conjunction with the Commercial
Condominium Association(as those terms are defined in the CSP) to obtain and maintain one
insurance policy for the Development, with the premiums allocated between and among the
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Responsible Entities by the Administrative Entity, in its reasonable judgment. Anything herein to
the contrary notwithstanding, unless otherwise determined by the Board or required by the Act,
the insurance obtained by the Condominium Association shall only cover restoration of a Unit to
the condition of bare walls and floors, before the installation of any Improvements and
Betterments. For purposes hereof"Improvements and Betterments" are hereby defined to consist
of and include any and all decorating, fixtures and furnishings installed or added to, and located
within, the boundaries of the Unit. Such insurance coverage shall be written in the name of,
losses under such policies shall be adjusted by, and the proceeds of such insurance shall be
payable to, the Board as trustee for each of the Owners in accordance with their Undivided
Interests. All such policies of insurance (i) shall contain standard mortgage clause endorsements
in favor of the First Mortgagees as their respective interests may appear, (ii) shall provide that
the insurance, as to the interests of the Board, shall not be invalidated by any act or neglect of
any Owner, (iii) shall provide that notwithstanding any provision thereof which gives the insurer
an election to restore damage in lieu of making a cash settlement thereof, such option shall not be
exercisable if the Owners elect to sell the Condominium Property or remove the Condominium
Property from the provisions of the Act, (iv) to the extent possible, shall provide that such policy
shall not be cancelled or substantially modified (including cancellation for nonpayment of
premium) without at least thirty (30) days' written notice to the First Mortgagee of each Unit
Ownership, (v) shall contain waivers of subrogation with respect to the Condominium
Association and its directors, officers, employees and agents (including the managing agent),
Owners, occupants of the Unit, First Mortgagees, the Declarant and shall name all such parties as
additional insured parties as their interests may appear, and (vi) shall comply with applicable
requirements of the Act and of Fannie Mae.
5.02 INSURANCE TRUSTEE/USE OF PROCEEDS: Subject to the terms of the CSP, the
Board may engage the services of any bank or trust company authorized to do trust business in
Montana to act as trustee, agent or depository on behalf of the Board for the purpose of receiving
and disbursing the insurance proceeds resulting from any loss, upon such terms as the Board
shall determine consistent with the provisions of the CSP, the Act and this Condominium
Declaration. The fees of such corporate trustee shall be Common Expenses. In the event of any
loss in excess of$100,000.00 in the aggregate, the Board shall engage a corporate trustee as
aforesaid. In the event of any loss resulting in the destruction of the major portion of one or more
Units, the Board shall engage a corporate trustee as aforesaid upon the written demand of the
First Mortgagee or any Owner of any Unit so destroyed. The rights of First Mortgagees under
any standard mortgage clause endorsement to such policies shall, notwithstanding anything to
the contrary therein contained, at all times be subject to the provisions in the Act and this
Condominium Declaration with respect to the application of insurance proceeds to the repair or
reconstruction of the Units or Common Elements. Payment by an insurance company to the
Board or to such corporate trustee of the proceeds of any policy, and the receipt of a release from
the Board of the company's liability under such policy, shall constitute a full discharge of such
insurance company, and such company shall be under no obligation to inquire into the terms of
any trust under which proceeds may be held pursuant hereto, or to take notice of any standard
mortgage clause endorsement inconsistent with the provisions hereof, or see to the application of
any payments of the proceeds of any policy by the Board or the corporate trustee. In the event of
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a loss which affects portions of both Condominiums under the CSP, the provisions of Article
Seven of the CSP shall apply.
5.03 OTHER INSURANCE: The Board shall also have the authority to and shall obtain such
other insurance as the Board and Administrative Entity deems necessary or appropriate or which
is required under the CSP, the Act or under applicable requirements or guidelines of Fannie Mae,
including, without limitation, the following:
(a) Comprehensive public liability and property damage insurance against claims for
personal injury or death or property damage suffered by the public or by any Owner occurring in,
on or about the Condominium Property or upon, in or about the streets,private drives and
passageways and other areas adjoining the Condominium Property, in such amounts as the Board
shall deem desirable (but not less than $1,000,000.00 covering all claims for personal injury
and/or property damage arising out of a single occurrence).
(b) Such workers compensation insurance as may be necessary to comply with
applicable laws.
(c) Employer's liability insurance in such amount as the Board shall deem desirable.
(d) Fidelity bond indemnifying the Condominium Association, the Board and the
Owners for loss of funds resulting from fraudulent or dishonest acts of any employee of the
Condominium Association or of any other person handling the funds of the Condominium
Association, the Board or the Owners in such amount as the Board shall deem desirable or as
required by the Act or the applicable requirements of Fannie Mae.
(e) Directors' and officers' liability insurance.
(f) Such insurance shall be in such amounts and with such deductible amounts as are
required by applicable law or the requirements of Fannie Mae and shall include cross liability
claims of one or more insured parties against other insured parties. To the extent possible, all of
such policies shall provide that they may not be cancelled or substantially modified (including
cancellation for nonpayment of premium) without at least 30 days' prior written notice to the
Condominium Association and First Mortgagees who specifically request such notice. The
premiums for such insurance shall be Common Expenses.
5.04 OWNER'S RESPONSIBILITY: Unless expressly advised to the contrary by the Board,
each Owner shall obtain his own insurance on the Improvements and Betterments within the
Owner's Unit (as defined in Section 5.01) and the contents of the Owner's Unit and furnishings
and personal property therein, and the Owner's personal property stored elsewhere on the
Condominium Property, and the Owner's personal liability to the extent not covered by the
liability insurance for all of the Owners obtained as part of the Common Expenses as above
provided, and the Board shall have no obligation whatsoever to obtain any such insurance
coverage on behalf of the Owners. Except as expressly determined by the Board, the Board shall
not be responsible for obtaining insurance on Improvements and Betterments and shall not be
obligated to apply any insurance proceeds from policies it is obligated to maintain hereunder to
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restore the affected Unit to a condition better than the condition existing prior to the making or
installation of the Improvements and Betterments.
5.05 WAIVER OF SUBROGATION: The Condominium Association and each Owner hereby
waive and release any and all claims which it or he may have against any other Owner, the
Condominium Association, its directors and officers, the Declarant, the manager and the
managing agent, if any, and their respective employees and agents, for damage to the Common
Elements, the Units, or to any personal property located in the Units or Common Elements,
caused by fire or other casualty, to the extent that such damage is covered by fire or other form
of casualty insurance, and to the extent this release is allowed by policies for such fire or other
casualty insurance.
5.06 REPAIR OR RECONSTRUCTION:
(a) In the case of damage by fire or other disaster to a portion of the Condominium
Property (a "Damaged Improvement") where the insurance proceeds are sufficient to repair or
reconstruct the Damaged Improvement, then the proceeds shall be used by the Condominium
Association to repair or reconstruct the Damaged Improvement.
(b) In the case of damage by fire or other disaster to a portion of the Condominium
Property where the insurance proceeds are insufficient to repair or reconstruct the Damaged
Improvement or the Damaged Improvement cannot be reconstructed as originally designed and
built because of zoning, building or other applicable laws, ordinances or regulations, the
following procedure shall be followed:
(1) A meeting of the Owners shall be held not later than the expiration of sixty (60)
days after the occurrence which caused the damage.
(2) At the meeting, the Board shall present a plan for the repair or reconstruction (to
comply with existing law) of the Damaged Improvement and an estimate of the cost of repair or
reconstruction, together with an estimate of the amount thereof which must be raised by way of
special assessment and a proposed schedule for the collection of a special assessment to pay the
excess cost.
(3) A vote shall then be taken on the question of whether or not the Damaged
Improvement shall be repaired or reconstructed based on the information provided by the Board
under(2) above, including the proposed special assessment. Subject to the provisions of Section
9.02(a), the Damaged Improvement shall be repaired or reconstructed, and the proposed special
assessment shall be levied only upon the affirmative vote of Voting Members representing at
least 51% of the votes cast.
(4) If the Voting Members do not vote to repair or reconstruct the Damaged
Improvement at the meeting provided for in (1) above, then the provisions of the Act
shall apply.
(c) If the Damaged Improvement is repaired or reconstructed, it shall be done in a
workmanlike manner and the Damaged Improvement, as repaired or reconstructed, shall be
2S
substantially similar in design and construction to the improvements on the Condominium
Property as they existed prior to the damage, with any variations or modifications required to
comply with applicable law.
(d) If the Damaged Improvement is not repaired or reconstructed, then the damaged
portion of the Building shall be razed or secured and otherwise maintained in conformance with
the rules or standards adopted from time to time by the Board or the Administrative Entity.
5.07 CONDEMNATION: In the case of a taking or condemnation by competent authority of
any part of the Condominium Property, the terms of the CSP shall govern.
5.08 INDEMNIFICATION OF CITY- STORMWATER: The Association acknowledges that
Assignment and Assumption of the Agreement for Access to Storm Sewer System between City
of Bozeman and Declarant as recorded in the office of Gallatin County Montana Clerk and
Recorder as Doc. No, and further agrees that the Association assumes all
responsibilities and obligations as set forth therein from the date of occupancy of a unit in
perpetuity.
ARTICLE SIX
Assessments:
6.01 CREATION OF LIEN AND PERSONAL OBLIGATION: The Declarant, for each Unit
Ownership, hereby covenants, and each Owner of a Unit Ownership, by acceptance of a deed
therefor, whether or not it shall be so expressed in any such deed or other conveyance, shall be
and is deemed to covenant and hereby agrees to pay to the Condominium Association such
assessments or other charges or payments as are levied pursuant to the provisions of this
Condominium Declaration. Such assessments, or other charges or payments, together with
interest thereon and costs of collection, if any, as herein provided, shall be a charge on the Unit
Ownership and shall be a continuing lien upon the Unit Ownership against which each such
assessment is made. Each such assessment, or other charge or payment, together with such
interests and costs, shall also be the personal obligation of the Owner of such Unit Ownership at
the time when the assessment or other charge or payment is due.
6.02 PURPOSE OF ASSESSMENTS: The assessments levied by the Condominium
Association shall be exclusively for the purposes of promoting the recreation, health, safety, and
welfare of members of the Condominium Association, to administer the affairs of the
Condominium Association, and to pay the Common Expenses.
6.03 ASSESSMENTS: Each year at least sixty (60) days before the end of the Condominium
Association's fiscal year, and at least thirty (30) days before final adoption thereof, the Board
shall furnish each Owner with a proposed budget for the ensuing fiscal year which shall show the
following, with reasonable explanations and itemizations:
(a) The estimated Common Expenses;
(b) The estimated amount, if any, to maintain adequate reserves for Common
Expenses;
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(c) The estimated net available cash receipts from sources other than assessments,
including, without limitation, receipts from any leases, licenses or concessions;
(d) The amount of the "Annual Assessment", which is hereby defined as the amount
determined in (a) above, plus the amount determined in (b) above, minus the amount determined
in (c) above, minus excess funds, if any, from the current year's operation;
(e) That portion of the Annual Assessment which shall be payable by the Owner with
respect to his/her Unit each month until the next Annual Assessment or revised Annual
Assessment becomes effective, which monthly portion shall be equal to 1/23rd of the Annual
Assessment divided by 12 months. (Each Unit is assessed equally on a monthly basis based
upon the Annual Budgeted Assessment). The per Unit monthly assessment shall be
approximately $100.00 per month, subject to change as provided in the CSP and any meeting of
the Members. The ACR may charge the annual assessment monthly or quarterly.
6.04 PAYMENT OF ASSESSMENTS: On or before the first day of the fiscal year, and on or
before the first day of each and every month thereafter until the effective date of the next Annual
Assessment, each Owner of a Unit shall pay to the Condominium Association, or as it may
direct, that portion of the Annual Assessment, which is payable by such Owner.
6.05 REVISED ASSESSMENT: If the Annual Assessment proves to exceed funds reasonably
needed, then the Board may decrease the assessments payable under Section 6.03 as of the first
day of a month by the giving of written notice thereof(together with a revised budget for the
balance of the year and reasons for the decrease) not less than ten (10) days prior to the effective
date of the decreased assessment.
6.06 SPECIAL ASSESSMENT: The Board or Administrative Entity may levy a special or
separate assessment (i) to pay (or build up reserves to pay) extraordinary expenses incurred (or to
be incurred) by the Condominium Association for a specific purpose including, without
limitation, to make major repairs, additions, alterations or improvements to the Common
Elements, or (ii)to cover an unanticipated deficit under the current or prior year's budget. A
separate or special assessment shall be approved, in advance, by action of the Unit Owners. Each
Owner shall be responsible for the payment of the amount of the special assessment. Unit
Owners shall pay their 1/23 portion of the special assessment. The Board shall serve notice of a
separate or special assessment on all Owners who will be required to pay such separate or special
assessment by a statement in writing giving the amount and reasons therefor, and the separate or
special assessment shall be payable in such manner and on such terms as shall be fixed by the
Board. Any assessments collected pursuant to this Section(other than those to cover an
unanticipated deficit under the current or prior year's budget) shall be segregated in a special
account and used only for the specific purpose set forth in the notice of assessment.
6.07 ANNUAL REPORT: Within a reasonable time after the close of the Condominium
Association's fiscal year, the Board shall furnish each Owner with a financial statement and
balance sheet for the fiscal year.
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6.08 CAPITAL RESERVE: Subject to the terms of the CSP, the Condominium Association
shall segregate and maintain a special reserve accounts to be used solely for making capital
expenditures in connection with the Common Elements, including a reserve fund for
replacements (the "Capital Reserve"). The Board shall determine the appropriate level of the
Capital Reserve based on a periodic review of the useful life of improvements to the Common
Elements and equipment owned by the Condominium Association as well as periodic projections
of the cost of anticipated major repairs or improvements to the Common Elements or the
purchase of equipment to be used by the Condominium Association in connection with its duties
hereunder. The Capital Reserve may be built up by separate or special assessments or out of the
Annual Assessment as provided in the budget. Special accounts set up for portions of the Capital
Reserve to be used to make capital expenditures with respect to the Common Elements shall be
held by the Condominium Association as agent and trustee for the Owners of Units with respect
to which the Capital Reserve is held and such accounts shall be deemed to have been funded by
capital contributions to the Condominium Association by the Owners. The budgets which will
be adopted from time to time by the Boards appointed by the Declarant prior to the Turnover
Date shall include reserve buildups which the Board deems to be appropriate based on
information available to the Board. Boards elected by the Unit Owners after the Turnover Date
may use different approaches from those used by Boards appointed by the Declarant for the
buildup of reserves or as, permitted under the Act, may choose not to provide for the buildup of
reserves for certain capital expenditures or deferred maintenance for repairs or replacements of
the Common Elements. If the Board chooses not to provide for the buildup of reserves for a
particular anticipated expenditure or if the buildup of reserves that the Board does provide for in
its budgets does not result in sufficient funds to pay for the expenditure when the expenditure
must be made, then (i) neither the Board nor any of its past or present members shall be liable to
the Condominium Association or the Unit Owners for failing to provide for sufficient reserves
and (ii) the Board shall have the right and power(subject to the procedural requirements of the
Act, this Condominium Declaration or the Bylaws) to either levy a separate or special
assessment to raise the funds to pay the expenditure or to borrow funds to pay the expenditure
and repay the borrowed funds out of future Annual Assessments, separate assessments or special
assessments.
6.09 INITIAL CAPITAL CONTRIBUTION: Upon the closing of the sale of each Unit by the
Declarant to a purchaser for value, the purchasing Owner shall make a capital contribution to the
Condominium Association in an amount equal to three (3) months of the current year's Annual
Assessment for the Unit, which amount shall be held and used by the Condominium Association
for its working capital needs and start-up costs.
6.10 NON-PAYMENT OF ASSESSMENTS: Any assessments or other charges or payments
which an Owner is required to make or is liable for hereunder which are not paid when due shall
be deemed delinquent. If an assessment or other charge or payment is not paid within fifteen (15)
days after the due date, it shall bear interest from the due date at the contract rate permitted in
Montana, but not to exceed twelve percent (12%) per annum, and the Board (i) may bring an
action against the Owner personally obligated to pay the same, together with interest, costs and
reasonable attorney fees of any such action, which shall be added to the amount of such
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assessment or other charge or payment and shall be included in any judgment rendered in such
action and (ii) may enforce and foreclose any lien which it has or which may exist for its benefit.
In addition, the Board may in its discretion charge reasonable late fees for the late payment of
assessments or other charges. No Owner may waive or otherwise escape liability for the
assessments, other charges or payment provided for herein by nonuse, abandonment or transfer
of his Unit.
6.11 CONDOMINIUM ASSOCIATION'S LIEN SUBORDINATED TO MORTGAGES: The
lien on each Unit Ownership provided for in Section 6.01 for assessments or other charges or
payments shall be subordinate to the lien of any First Mortgage on the Unit Ownership Recorded
prior to the date that any such assessments or other charges or payments become due. Except as
hereinafter provided, the lien provided for in Section 6.01 shall not be affected by any transfer of
title to the Unit Ownership. Where title to the Unit Ownership is transferred pursuant to a decree
of foreclosure or by deed or assignment in lieu of foreclosure of a First Mortgage, such transfer
of title shall to the extent permitted by law extinguish the lien for any assessments or other
charges or payments under Section 6.01 which became due prior to (i)the date of the transfer of
title or(ii)the date on which the transferee comes into possession of the Unit, whichever occurs
first. However, the transferee of a Unit Ownership shall be liable for his share of any assessments
or other charges or payments with respect to which a lien against his Unit Ownership has been
extinguished pursuant to the preceding sentence which are reallocated among the Owners
pursuant to a subsequently adopted annual, revised or special assessment, and nonpayment
thereof shall result in a lien against the transferee's Unit Ownership as provided in Section 6.01.
If for any reason the Owner of a Unit is permitted to remain in possession of his Unit during the
pendency of a foreclosure action with respect to the Unit, the Owner shall be required to pay a
reasonable rental for such right and the plaintiff in the foreclosure action shall be entitled to the
appointment of a receiver to collect such rental.
6.12 STATEMENT OF ACCOUNT: Upon seven (7) days' notice to the Board and the
payment of a reasonable fee, if any, which may be set by the Board, any Owner shall be
furnished with a statement of his account setting forth the amount of any unpaid assessments or
other charges due and owing from the Owner as of the date of the statement. The statement shall
be executed by a duly authorized officer or agent of the Condominium Association and shall be
binding on the Condominium Association.
ARTICLE SEVEN
Remedies for Breach or Violation:
7.01 BOARD'S RIGHT TO CURE: Subject to the provisions of Section 7.05, in the event of a
violation by an Owner of the provisions, covenants or restrictions of the Act, this Condominium
Declaration, the By-Laws, or rules or regulations of the Board, where such violation or breach
may be cured or abated by affirmative action, the Board, upon not less than ten (10) days prior
written notice, shall have the right to enter upon that part of the Condominium Property where
the violation or breach exists and summarily abate, remove or do whatever else may be necessary
to cure such violation or breach, provided, however, that where the violation or breach involves
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an improvement located within the boundaries of a Unit,judicial proceedings shall be instituted
before any items of construction can be altered or demolished. Any and all expenses in
connection with the exercise of the right provided by this section shall be charged to and
assessed against the violating Owner.
7.02 OTHER REMEDIES OF THE BOARD: In addition to or in conjunction with the
remedies set forth above, in the event of a violation by an Owner of the Act, this Condominium
Declaration, the By-Laws, or rules and regulations of the Board, the Board may levy reasonable
fines or the Board or its agents shall have the right to bring an action at law or in equity against
the Owner and/or others as permitted by law including, without limitation, (i) to foreclose a lien
against the Unit Ownership, (ii) for damages, injunctive relief, or specific performance, (iii) for
judgment or for the payment of money and the collection thereof, (iv) for any combination of the
remedies set forth in this Article or(v) for any other relief which the Board may deem necessary
or appropriate. Any and all rights and remedies provided for in this Article may be exercised at
any time and from time to time cumulatively or otherwise by the Board in its discretion. The
failure of the Board to enforce any provisions of this Condominium Declaration, the By-Laws or
rules and regulations of the Board shall in no event be deemed a waiver of the right to do so
thereafter.
7.03 ENFORCEMENT BY BOARD: Prior to the imposition of any fine and concurrently with
the sending of a notice described in Section 7.01 and 7.02, the Board shall notify the Owner or
Resident, as the case may be, in writing of the violation of the rule or regulation and the Board's
proposed remedy. Any Owner or Resident who receives such notice may, within three (3) days
after receipt of such notice, demand a hearing before the Board or its authorized committee. At
such hearing a member of the Board shall present to the Owner or Resident the grounds for the
notice and the Owner or Resident shall have an opportunity to challenge such grounds and to
present any evidence on his behalf subject to such reasonable rules of procedure as may be
established by the Board or its authorized committee, which rules shall adhere to the generally
accepted standards of due process. If the Owner or Resident demands a hearing as herein
provided, such hearing shall be held within four(4) days after the Board receives the demand
and no action shall be taken by the Board until the hearing has been held and notice of the
decision of the Board or its authorized committee and the terms thereof has been delivered to the
Owner or Resident. The decision of the Board or its authorized committee shall be rendered
within three (3) days after the hearing and such decision shall be final and binding on the parties.
7.04 COSTS AND EXPENSES: All expenses incurred by the Board and/or Administrative
Entity in connection with the enforcement of the provisions of this Condominium Declaration or
in connection with the exercise of its rights and remedies under this Article, including without
limitation, court costs, attorney fees and all other fees and expenses, and all damages, liquidated
or otherwise, together with interest thereon at the contract rate of interest then permitted in
Montana until paid but not to exceed twelve percent (12%) per annum, shall be charged to and
assessed against the defaulting Owner, and the Condominium Association shall have a lien for
all the same upon such Owner's Unit Ownership, as provided in Section 6.01.
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7.05 ENFORCEMENT BY OWNERS: Enforcement of the provisions contained in this
Condominium Declaration and the rules and regulations adopted hereunder may be by any
proceeding at law or in equity by any aggrieved Owner against the Association and/or any
person or persons violating or attempting to violate any such provisions, either to restrain such
violation or to recover damages.
ARTICLE EIGHT
Amendments:
8.01 SPECIAL AMENDMENT: Declarant reserves the right and power to Record a special
amendment ("Special Amendment")to this Condominium Declaration at any time and from time
to time which amends this Condominium Declaration (i) to comply with requirements of Fannie
Mae,the Government National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Department of Housing and Urban Development, the Federal Housing
Administration,the Veterans Administration, or any other governmental agency or any other
public, quasi-public or private entity which performs (or may in the future perform) functions
similar to those currently performed by such entities, (ii) to induce any of such agencies or
entities to make, purchase, sell, insure, or guarantee First Mortgages covering Unit Ownerships,
(iii)to bring this Condominium Declaration into compliance with the Act, (iv) to correct errors,
omissions, inconsistencies or ambiguities in this Condominium Declaration or any Exhibit
thereto or any supplement or amendment thereto, (v) to amend this Declaration to conform to the
provisions of the CSP and, if the Declarant deems it necessary or appropriate, grant easements or
establish cost sharing provisions between the Administrative Entity and/or other condominium
associations which administer, or other owners of, portions of the Development, and (vi)to
comply with the requirements of the Municipality or any governmental authority which has
jurisdiction over the Property. In furtherance of the foregoing, a power coupled with an interest
is hereby reserved and granted to the Declarant to vote in favor of, make, or consent to a Special
Amendment on behalf of each Owner as proxy or attorney-in-fact, as the case may be. Each
deed, mortgage, trust deed, other evidence of obligation, or other instrument affecting a Unit and
the acceptance thereof shall be deemed to be a grant and acknowledgement of, and a consent to
the reservation of, the power to the Declarant to vote in favor of, make, execute and Record
Special Amendments. The right of the Declarant to act pursuant to rights reserved or granted
under this Section shall terminate five (5)years from such time as the Declarant no longer holds
or controls title to a portion of the Development.
8.02 AMENDMENT BY OWNERS: Subject to the provisions of Article Eight, Section 9.01
and Article Ten, and except as otherwise provided in Sections 2.04, 4.07, 5.06 and 5.07 and the
Act, the provisions of this Condominium Declaration may be amended, modified, enlarged or
otherwise changed in whole or in part by the affirmative vote of Voting Members (either in
person or by proxy), or by an instrument executed by Owners, representing at least seventy-five
percent (75%)of the Undivided Interests; except that(i)the provisions relating to the rights of
Declarant may be amended only upon the written consent of the Declarant, (ii) the provisions of
Article Ten and the provisions of this Article may be amended only with the written consent of
Eligible Mortgagees as provided in Section 10.02 and (iii) any provision which grants rights to
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the Municipality may be amended only with the written consent of the Municipality. No
amendment shall become effective until Recorded.
ARTICLE NINE
Rights of First Mortgagees:
9.01 NOTICE TO FIRST MORTGAGEES: Each Owner shall notify the Condominium
Association of the name and address of his First Mortgagee or its servicing agent, if any, and
shall promptly notify the Condominium Association of any change in such information. The
Condominium Association shall maintain a record of such information with respect to all Units.
Each First Mortgagee shall have the right to examine the books and records of the Condominium
Association at any reasonable time and to have an audited statement of the Condominium
Association's operations prepared for a fiscal year at its own expense. Upon the specific written
request of a First Mortgagee to the Board, the First Mortgagee shall receive some or all of the
following as designated in the request:
(a) Copies of the Condominium Declaration, By-Laws, rules and regulations,
budgets, notices of assessment, or any other notices or statements provided under this
Condominium Declaration by the Condominium Association to the Owner of the Unit covered
by the First Mortgagee's First Mortgage;
(b) Any audited or unaudited financial statements of the Condominium Association
which are prepared for the Condominium Association and distributed to the Owners;
(c) Copies of notices of meetings of the Owners and the right to be represented at any
such meetings by a designated representative;
(d) Notice of any proposed action which would require the consent of a specified
percentage of Eligible Mortgagees pursuant to Section 10.02;
(e) Notice of any proposed amendment to the Declaration effecting a change in (i) the
boundaries of a Unit or the exclusive easement right appurtenant thereto, (ii) the allocation of
interests in the Common Elements (including Limited Common Elements) or rights to their use,
(iii) voting rights, (iv) the purposes to which any Unit or the Common Elements are restricted;
(f) Notice of substantial damage to or destruction of any Unit (in excess of$1,000) or
any part of the Common Elements (in excess of$10,000);
(g) Notice of the commencement of any condemnation or eminent domain
proceedings with respect to any part of the Condominium Property;
(h) Notice of any default of the Owner of the Unit which is subject to a First
Mortgagee's First Mortgage, where such default is not cured by the Owner within thirty (30)
days after the giving of notice by the Condominium Association to the Owner of the existence of
the default;
(i) The right to be treated as an "Eligible Mortgagee" for purposes of Section 10.02;
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(j) Copies of any written notice received by the Condominium Association of lapse,
cancellation or material change in any insurance policy or fidelity bond carried by the
Condominium Association.
(k) Notice of a delinquency in the payment of assessments owed by an Owner of the
Unit where such delinquency has continued for a period of sixty (60) days; and
(1)Notice of any proposed termination of the condominium.
The request of a First Mortgagee shall specify which of the above it desires to receive and shall
indicate the address to which any notices or documents shall be sent by the Condominium
Association. Failure of the Condominium Association to provide any of the foregoing to a First
Mortgagee who has made a proper request therefor shall not affect the validity of any action
which is related to any of the foregoing. The Condominium Association need not inquire into the
validity of any request made by a First Mortgagee hereunder and in the event of multiple
requests from purported First Mortgagees of the same Unit Ownership, the Condominium
Association shall honor the most recent request received.
9.02 CONSENT OF ELIGIBLE MORTGAGEES:
(a) In addition to any requirements or prerequisite provided for elsewhere in this
Condominium Declaration, the consent of Eligible Mortgagees holding, in the aggregate, First
Mortgages on at least Seventy-Five percent (75%) of the Unit Ownerships (by number) which
are subject to First Mortgages held by Eligible Mortgagees will be required for the
Condominium Association to do or permit to be done any of the following:
(1) Adoption of an amendment to this Condominium Declaration which changes any
provisions which expressly benefit First Mortgagees;
(2) The abandonment, partition, subdivision, encumbrance, sale or transfer of the Common
Elements, (except for the granting of easements for public utilities or for other purposes
consistent with the intended use of the Condominium Property and except for the encumbrance,
sale or transfer of an Undivided Interest in connection with the encumbrance, sale or transfer of a
Unit Ownership);
(3) The sale of the Condominium Property;
(4) The removal of a portion of the Condominium Property from the provisions of the Act
and this Condominium Declaration;
(5) Restoration or repair of the Condominium Property (after a hazard damage or partial
condemnation) in a manner other than as specified in this Condominium Declaration or the use
of hazard insurance proceeds for losses to the Condominium Property (whether to Units or to the
Common Elements) for other than the repair, replacement, or reconstruction of the damaged
portion of the Condominium Property;
(6) Termination of the condominium after substantial destruction or condemnation of the
Condominium Property; provided that, if the termination is for any reason other than substantial
33
destruction or condemnation of the Condominium Property, the consent of at least seventy-five
percent (75%) of eligible Mortgagees shall be required; and
(7) The effectuation of a decision by the Association to terminate professional management
and assume self-management of the condominium when professional management had been
required hereunder or by an Eligible Mortgagee;
(b) Whenever required, the consent of an Eligible Mortgagee shall be deemed granted
unless the party seeking the consent is advised to the contrary in writing by the Eligible
Mortgagee within thirty (30) days after making the request for consent by Registered or Certified
Mail, Return Receipt Requested.
9.03 INSURANCE PROCEEDS/CONDEMNATION AWARDS: In the event of(i) any
distribution of any insurance proceeds hereunder as a result of substantial damage to, or
destruction of, any part of the Condominium Property or(ii) any distribution of the proceeds of
any award or settlement as a result of condemnation or eminent domain proceedings with respect
to any part of the Condominium Property, any such distribution shall be made to the Owners and
their respective First Mortgagees, as their interests may appear, and no Owner or other party
shall be entitled to priority over the First Mortgagee of a Unit with respect to any such
distribution to or with respect to such Unit; provided, that, nothing in this Section shall be
construed to deny to the Condominium Association or the Administrative Entity under the CSP
the right to apply any such proceeds to repair or replace damaged portions of the Condominium
property or to restore what remains of the Condominium Property after condemnation or taking
by eminent domain of a part of the Condominium Property.
ARTICLE TEN
Declarant's Reserved Rights:
10.01 IN GENERAL: In addition to any rights or powers reserved or granted to the Declarant
under the Act, this Condominium Declaration or the By-Laws, the Declarant shall have the rights
and powers set forth in this Article. In the event of a conflict between the provisions of this
Article and any other provisions of this Condominium Declaration or the By- Laws, the
provisions of this Article shall govern. Except as otherwise provided in this Article, the rights of
Declarant under this Article reserved or granted shall terminate at such time as the Declarant is
no longer vested with or in control title to any portion of the Development.
10.02 PROMOTION OF PROJECT: The Declarant shall have the right and power, within its
sole discretion, to (i) construct such temporary or permanent improvements, or to do such acts or
other things in, on, or to the Condominium Property as the Declarant may, from time to time,
determine to be necessary or advisable, or (ii) construct and maintain model units, sales or
leasing offices, lighting and banners, or other promotional facilities at such locations and in such
forms as the Declarant may deem advisable and to use such model units (including model units
which are sold and leased back to the Declarant), sales or leasing offices or other facilities for the
purpose of selling or leasing Units on the Condominium Property or at other properties in the
general location of the Condominium Property which are being offered for sale by the Declarant
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or any of its affiliates. The Declarant shall have the power and right to lease and/or sell and
convey any Unit owned by the Declarant to any person or entity which it deems appropriate in its
sole discretion and it need not comply with the provisions of Section 2.12.
10.03 CONSTRUCTION: Declarant, its agents and contractors shall have the right to come
upon the Condominium Property to construct improvements thereon and to make alterations,
repairs or improvements to the Condominium Property and shall have the right to maintain a
construction office and store equipment and materials used in connection with such work on the
Condominium Property without payment of any fee or charge whatsoever. The rights of the
Declarant reserved or granted under this Section shall terminate at one (1) year from such time as
the Declarant no longer holds or controls title to a portion of the entire Development.
10.04 CONTROL OF BOARD: Until the initial meeting of the Owners (which shall occur no
later than the Turnover Date) and the election of the initial Board as provided for in the By-
Laws, the rights, titles, powers, privileges, trusts, duties and obligations vested in or imposed
upon the Board by the Act, this Condominium Declaration or the By-Laws shall be held and
performed by the Declarant. The Declarant may hold and perform such rights and obligations
through the Board which, prior to the Turnover Date, shall consist of three (3) individuals
designated by the Declarant from time to time. Prior to the Turnover Date the Declarant may
appoint from among the Owners non-voting counselors to the Board who shall serve at the
discretion of the Declarant.
ARTICLE ELEVEN
The CSP:
11.01 IN GENERAL: The Declarant Recorded the Cross Easement and Cost Sharing Program
with respect to the Development prior to the Recording of this Declaration. The CSP provides,
among other things, that the Administrative Entity shall furnish what are defined in the CSP as
"AE Provided Maintenance and Services" to the Development, including portions of the Property
which is subject to this Declaration. The Administrative Entity shall charge the Association for a
share of the cost of providing those AE Provided Maintenance and Services which benefit the
Condominium, in the amounts determined as provided in the CSP.
11.02 ANNUAL BUDGET: The Administrative Entity shall prepare annual budgets for the cost
of providing AE Provided Maintenance and Services and building up reserves for such costs.
Each year prior to October 31, the Administrative Entity shall furnish to the Association a
"Budget" as more fully provided in the CSP and the Association shall include the amounts
payable by the Association under the Budget in its annual budget as part of the Common
Expenses. The Association shall pay to the Administrative Entity each month any amounts due
and owing for costs and expenses incurred by the Administrative Entity for maintenance and
upkeep of the Common Areas, elements, and other costs associated with the Residential
Condominium Units. The annual amount of costs payable by the Association to the
Administrative Entity with respect to the year shall be determined at the annual meeting.
35
11.03 ADMINISTRATIVE ENTITY REMEDY FOR NON-PAYMENT. If the Association
fails to make any required payment due to the Administrative Entity, the Administrative Entity
shall have a cause of action therefor and the unpaid amount shall be a continuing lien against
each Unit as more fully set forth in the CSP.
11.04 SUBORDINATION TO CSP. To the extent not prohibited bylaw, this Declaration shall
be subject to and subordinate in all respects to the CSP and in the event of a conflict between the
terms of the CSP and the terms hereof, to the extent not prohibited by applicable law, the terms
of the CSP shall prevail.
ARTICLE TWELVE
Miscellaneous:
12.01 SEVERABILITY: Invalidation of all or any portion of any of the easements, restrictions,
covenants, conditions and reservations, by legislation,judgment or court order shall not affect
any liens, charges, rights, benefits and privileges and other provisions of this Condominium
Declaration, which shall remain in full force and effect.
12.02 NOTICES: Any notice required to be sent to any Owner under the provisions of this
Condominium Declaration or the By-Laws shall be deemed to have been properly sent if(i)
mailed, postage prepaid, to his or its last known address as it appears on the records of the
Condominium Association at the time of such mailing, (ii) transmitted by facsimile or e-mail to
his or its facsimile number or e-mail address as either appears on the records of the
Condominium Association at the time of such transmittal, or(iii) when personally delivered to
his or its Unit. The date of mailing, or the date of transmission if the notice is sent by facsimile or
e-mail, shall be deemed the date of service.
12.03 CAPTIONS/CONFLICTS: The Article and Section headings herein are intended for
convenience only and shall not be construed with any substantive effect in this Condominium
Declaration. In the event of any conflict between the statements made in the recitals to this
Condominium Declaration and the provisions contained in the body of this Condominium
Declaration, the provisions contained in the body of this Condominium Declaration shall govern.
12.04 PERPETUITIES AND OTHER INVALIDITY: If any of the options, privileges,
covenants or rights created by this Condominium Declaration would otherwise be unlawful or
void for violation of(a) the rule against perpetuities or some analogous statutory provisions, (b)
the rule restricting restraints on alienation, or(c) any other statutory or common law rules
imposing time limits, then all other clauses shall remain enforceable independently.
12.05 TITLE HOLDING LAND TRUST: In the event title to any Unit Ownership is conveyed
to a title holding trust, under the terms of which all powers of management, operation and control
of the Unit remain vested in the trust beneficiary or beneficiaries, then the beneficiaries
thereunder from time to time shall be responsible for payment of all assessments, charges or
payments hereunder and for the performance of all agreements, covenants and undertakings
chargeable or created under this Condominium Declaration against such Unit Ownership. No
claim shall be made against any such title holding trustee personally for payment of any lien or
36
obligation hereunder created and the trustee shall not be obligated to sequester funds or trust
property to apply in whole or in part against such lien or obligation. The amount of such lien or
obligation shall continue to be a charge or lien upon the Unit Ownership and the beneficiaries of
such trust notwithstanding any transfers of the beneficial interest of any such trust or any
transfers of title to such Unit Ownership.
12.06 ASSIGNMENT BY THE DECLARANT: All rights which are specified in this
Condominium Declaration to be rights of the Declarant are assignable or transferable. Any
successor to, or assignee of, the rights of the Declarant hereunder (including, whether by
foreclosure or deed-in-lieu of foreclosure) shall hold or be entitled to exercise the rights of
Declarant hereunder as fully as if named as such party herein. No party exercising rights as
Declarant hereunder shall have or incur any liability for the acts of any other party which
previously exercised or subsequently shall exercise such rights.
12.07 ATTORNEY FEES AND COSTS: Any breach by any party subject to these Covenants
shall allow the prevailing or non-breaching party to recover all reasonable attorney fees and costs
associated with any mediation, arbitration, litigation, administrative proceeding, governmental
proceeding or court proceeding.
DATED this 7 day of 92020.
Aspen land Co., a Montana limited liability company
By: Aspen Land Co., LLC, a Montana limited
liability company
BY:_
ITS:_Manager
STATE OF MOTANA )
ss.
County of Gal Wa
in )
On this� y of February 2020, before me, a Notary Public for the State of Montana,
personally appeared Michael L Hope, known to me to be the Manager of Aspen Land Co, LLC
whose name is subscribed to the within instrument and acknowledged to me he executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of
the day and year first above written.
C Z/ky NADINE C ZIKMUND
Po a„�, Gym NOTARY PUBLIC for the Notary Public for the State of
* SEAL State of Montana
Residing at Manhattan,Montana Residing at:
My Commission Expires My Commission Expires:
January 18,2023
37
EXHIBIT A
PROJECT SITE/PREMISES:
Lots 6B,7B,8B,and 9B,Block 2 of the Amended Subdivision Plat of Block 2,North Seventh
Addition to the City of Bozeman,Located in the SE 1/4 of Section 1,T02 S,R05 E,P.M.M,City of
Bozeman, Gallatin County,Montana. (Plat Ref: E-21F).
PAD SITE: LOT 6B Building Pad:
A tract of land being a portion of Lot 6B,Block 2 of the Amended Subdivision Plat of Block 2,
North Seventh Addition to the City of Bozeman,Located in the southeast'/a of Section 1,Township
2 South,Range 5 east,P.M.M.,City of Bozeman,Gallatin County,Montana. (Plat Ref. E-21F).
RESIDENTIAL UNITS:
Units 301-323 located on the Third Floor,including the Common Areas located on the Fourth
Floor,of the Building located on a Tract of Land being a portion of Lot 9B,of Block 2 of the
Amended Subdivision Plat of Block 2,North Seventh Addition to the City of Bozeman,Located in
the SE 1/4 of Section 1,T02 S,R05 E,P.M.M,City of Bozeman,Gallatin County,Montana. (Plat
Ref: E-2117).
COMMERICAL UNITS:
Unit 201 located on the Second Floor of the Building located on a Tract of Land being a portion of
Lot 9B,of Block 2 of the Amended Subdivision Plat of Block 2,North Seventh Addition to the City
of Bozeman,Located in the SE 1/4 of Section 1,T02 S,R05 E,P.M.M,City of Bozeman,Gallatin
County,Montana. (Plat Ref: E-21F).
GROUND LEVEL COMMERICAL: Units 101 and 102 on the First Floor of the Building located
on a Tract of Land being a portion of Lot 9B,of Block 2 of the Amended Subdivision Plat of Block
2,North Seventh Addition to the City of Bozeman,Located in the SE 1/4 of Section 1,T02 S,R05 E,
P.M.M, City of Bozeman,Gallatin County,Montana. (Plat Ref: E-21F).
38
EXHIBIT B
SPECIFIC LEVELS OF BUILDING
(See Attached)
39
EXHIBIT C
FLOOR PLANS
(Scc Attached)
40
CERTIFICATE OF FLOOR PLAN
The undersigned, being a duly registered professional architect in the State of
Montana, herewith certifies the following:
That the floor plans for Units 301-323 located on the Third Floor, including the Common
Areas located on the Fourth Floor, of the Building located on a Tract of Land being a
portion of Lot 9B, of Block 2 of the Amended Subdivision Plat of Block 2, North Seventh
Addition to the City of Bozeman, Located in the SE 1/4 of Section 1, T02 S, R05 E, P.M.M,
City of Bozeman, Gallatin County, Montana. (Plat Ref: E-21 F). As duly filed with the
Declaration and Bylaws thereof, fully and accurately depict the layout, location, unit
designation and dimensions of these units of ASPEN CROSSING RESIDENTIAL
CONDOMINIUMS and that such floor plans are an accurate copy of the plans filed with
and approved by the officials and officers of the City of Bozeman having jurisdiction to
issue building permits.
The floor plans accurately depicting the layout, location, unit designation and
dimensions of each unit as built, shall be recorded by the Declarant thirty (30) days from
the date of completion of the building or from the date of occupancy of the building,
whichever first occurs.
DATED: 02/28/20 _
REGISTERED PROFESSIONAL ARCHITECT
Number: arc-lic-3980
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EXHIBIT D
unit unit sq ft common sq ft total sq ft ownership percentage Rounded ownership%
301 904 111,3478 1015.348 0.038612254 3.90%
302 1332 111.3478 1443.348 0.054888494 5.50%
303 888 111.3478 999.3478 0.038003796 3.80%
304 1308 111.3478 1419.348 0.053975807 5.40%
305 888 111.3478 999.3478 0.038003796 3.80%
306 1308 111.3478 1419.348 0.053975807 5.40%
307 583 111.3478 694.3478 0.026405074 2.60%
308 1071 111.3478 1182.348 0.04496303 4.50%
309 583 111.3478 694.3478 0.026405074 2,60%
310 1071 111.3478 1182,348 0.04496303 4.50%
311 583 111.3478 694.3478 0.026405074 2.60%
312 1308 111.3478 1419.348 0.053975807 5.40%
313 888 111.3478 999.3478 0.038003796 3.80%
314 1308 111.3478 1419.348 0.053975807 5,40%
315 888 111.3478 999.3478 0.038003796 3.80%
316 1308 111.3478 1419.348 0.053975807 5.40%
317 888 111.3478 999.3478 0.038003796 3.80%
318 1308 111.3478 1419.348 0.053975807 5.40%
319 888 111,3478 999.3478 0.038003796 3.80%
320 1308 111.3478 1419.348 0.053975807 5.40%
321 888 111.3478 999.3478 0.038003796 3.80%
322 1332 111.3478 1443.348 0.054888494 5.50%
323 904 111.3478 1015,348 0.038612254 3.90%
Total Sq ft 23735 2560.9994 26296 1 1
Common Space
1 396
3 1874
3 291
Total 2561
41
EXHIBIT E
42
DE
Montana Department QQmh,
of Environmental Quality
June 4, 2020
Rhett B Memelka
Nemelka Law P.C.
2078 Stadium Drive Suite 103
Bozeman MT 59715
RE: Aspen Crossing Residential Condominiums
Municipal Facilities Exclusion
EQ# 20-2260
City of Bozeman
Gallatin County
Dear Mr. Memelka;
This is to certify that the information and fees received by the Department of Environmental Quality relating to
this subdivision are in compliance with 76-4-127, MCA. Under 76-4-125(1)(d), MCA, this subdivision is not
subject to review, and the Declaration can be filed with the county clerk and recorder.
Plans and specificatiors must be submitted wben extensions of municipal facilities for the supply of water or
disposal of sewage are proposed 76-4-131. Construction of water or sewer extensions prior to DEQ,Public Water
Supply Section's approval is prohibited, and is subject to penalty as prescribed in Title 75, Chapter 6 and Title
76, Chapter 4.
Aspen Crossing Residential Condominiums Municipal Facilities Exclusion will consist of 23 Single Family Units.
Sincerely,
De0Wi�rrietf)if ental Quality
Enguie�eri Bur
e�il:
Public?Wa Review
(406) 4,-6722
emaiC• �� ' s`��
cc: City Engineer
County Sanitarian
Owner
file
Steve Bullock,Governor I Shaun McGrath,Director I P.O.Box 200901 1 Helena,MT 59620-0901 1 (406)444-2544 1 www.deq.mt.gov
BOZ E MAN MT
Community Development
CONDOMINIUM REVIEW DECISION
APPLICATION
Date: 03/123/2020
File Number: Original Project File
20-066 Number, 19190 & 19191
If applicable:
Condominium
Name: Aspen Crossing Condominium
Legal
Description: 505 West Aspen Street, Being a Portion of Lot 9B, Block 2, of the Amended Plat of Block 2, North
Seventh Addition to the City of Bozeman, Located in SE 1/4 of Section 1,T02 S, R05 E, P.M.M, City
of Bozeman, Gallatin County, Montana.
STATUTE
Senate Bill 527 amending §76-3-203, M.C.A. was signed into law on April 17, 2007. This bill revised
the exemption for the creation of new condominiums from the Subdivision and Platting Act. The
amendment had an immediate effective date. The text of the amended section is now as follows:
Section 1. Section 76-3-203, M.C.A., is amended to read:
"76-3-203. Exemption for certain condominiums. Condominiums constructed on land subdivided
in compliance with parts 5 and 6 of this chapter or on lots within incorporated cities and towns are
exempt from the provisions of this chapter if:
(1) the approval of the original subdivision of land expressly contemplated the construction of
the condominiums and any applicable park dedication requirements in 76-3-621 are
complied with; or
(2) the condominium proposal is in conformance with applicable local zoning regulations when
local zoning regulations are in effect."
FINDINGS — 11am Im
Pursuant to the above statute, the Department of Community Development has determined that the
condominium development noted above:
aDoes not require subdivision review and has satisfied the exemption criteria.
❑ Has completed review as a subdivision.
DIRECTOR SIGNATURE
'>4 L
Martin Matsen, AICP, Director, City of Bozeman Department of Community Development
CONTACT US
Alfred M. Stiff Professional Building phone 406-582-2260
20 East Olive Street 59715 (FED EX and UPS Only) fax 406-582-2263
PO Box 1230 planning@bozeman.net
Bozeman, MT 59771 www.bozeman.net
CONDOMINIUM REVIEW DECISION Page 1 of 1 Revision Date 05-10-16
CERTIFICATE OF NAME
The undersigned being the duly authorized agent of the Department of Revenue
of the State of Montana within the County of Gallatin, herewith executes the following
certificate relating to the ASPEN CROSSING RESIDENTIAL CONDOMINIUM
ASSOCIATION, situated as follows:
Lot 6A-10A of Block 2 of the North Seventh Addition to the City of Bozeman, Section 1,
Township 2 South, Range 5 east, P.M.M., City of Bozeman, Gallatin County, Montana.
(Plat Ref. E-21A).
And
Lot 11-15 of Block 2, 310' x 150' Proj 94-307 plus vac alley less RW Parcel 3, of the North
Seventh Addition to the City of Bozeman, Section 1, Township 2 South, Range 5 East,
P.M.M, City of Bozeman, Gallatin County, Montana. (Plat Ref: E-21A).
(Also see Amended Plat Ref: E-21 F)
1 . That the name ASPEN CROSSING RESIDENTIAL CONDOMINIUM
ASSOCIATION is not the same as, similar to, or pronounced, the same as
a word in the name of any other property or subdivision within Gallatin
County, except for the word "Condominiums"; and
2. All taxes and assessments due and payable for the said ASPEN
CROSSING RESIDENTIAL CONDOMINIUM ASSOCIATION have been
paid to date.
DATED:
CA—J
A6V-1-
'\-�OUNTY ASSESSOR
EXHIBIT E TO
DECLARATION OF CONDOMINIUM OWNERSHIP FOR
ASPEN CROSSING RESIDENTIAL CONDOMINIUMS
The By-Laws of
Aspen Crossing Residential
Condominium Association, a Montana
non-profit corporation
ARTICLE I
NAME OF CORPORATION
The name of this corporation is ASPEN CROSSING RESIDENTIAL
CONDOMINIUM ASSOCIATION, INC.
ARTICLE II
PURPOSE AND POWERS
2.01 PURPOSES: The purposes of this Condominium Association are to act on
behalf of its members collectively, as their governing body for civic functions and other
purposes,with respect to the preservation, care, maintenance, replacement,
improvement, enhancement, operation and administration of both real and personal
property and for the promotion of the health, safety and welfare of the members of the
Condominium Association, all on a not-for- profit basis. These By-Laws are attached as
Exhibit E to the Declaration of Condominium Ownership for Aspen Crossing
Residential Condominium ("Condominium Declaration"). All terms used herein shall
have the meanings set forth in the Condominium Declaration.
2.02 POWERS: The Condominium Association shall have and exercise all
powers as are now or may hereafter be granted by the Non-Profit Corporation Act of the
State of Montana, the Act, the Condominium Declaration and these By-Laws.
2.03 PERSONAL APPLICATION: All present or future Owners, tenants, future
tenants, and their agents and employees, and any other person that might use the facilities
of the Condominium Property in any manner, shall be subject to the provisions of the
Condominium Declaration and these By-Laws. The acquisition or rental of a Unit or the
act of occupancy of a Unit will signify that the Condominium Declaration and these By-
Laws are accepted, ratified and will be complied with.
ARTICLE III
OFFICES
3.01 REGISTERED OFFICE: The Condominium Association shall have and
continuously maintain in this state a registered office and a registered agent whose
office is identical with such registered office, and may have other offices within or
without the State of Montana as the Board may from time to time determine.
3.02 PRINCIPAL OFFICE: The Condominium Association's principal
office shall be maintained on the Development or at the office of the managing
agent engaged by the Condominium Association.
ARTICLE IV
MEETINGS OF MEMBERS
4.01 VOTING RIGHTS: The Condominium Association shall have one class
of membership. There shall be one individual with respect to each Unit who shall be
entitled to vote at any meeting of the Owners (the "Voting Member"). If the Owner of
a Unit is one individual, then such individual shall be the Voting Member. If the
Record ownership of a Unit shall be in more than one individual or if the Owner is a
trustee, corporation, partnership or other legal entity, then the Voting Member shall
be designated by the Owner or Owners in writing to the Board, and if in the case of
multiple individual Owners no designation is given, then the Board may, at its
election, recognize an individual Owner of the Unit as the Voting Member for such
Unit. Any or all Owners may be present at any meeting of the Owners, but the voting
rights shall be vested exclusively in the Voting Members; provided, however, that a
Voting Member may vote either in person or by proxy executed in writing by the
Voting Member or his duly authorized attorney-in-fact and filed with the secretary
before the meeting. No proxy shall be valid after eleven (11) months from the date of
its execution. Each Voting Member shall have one (1) vote for each unit he or she
owns.
4.02 PLACE OF MEETING; QUORUM: Meetings of the Owners shall be held on
the Condominium Property or at such other place in the County in which the
Condominium Property is located and convenient to the Owners as may be designated in
any notice of a meeting. All meetings shall be conducted in accordance with the rules and
provisions set forth in Roberts Rules of Order, as from time to time published. Voting
Members holding fifty percent (50%) of the votes, represented in person or by proxy,
shall constitute a quorum. The vote of a majority of the votes entitled to be cast by the
Voting Members present or represented by proxy at a meeting at which a quorum is
present, shall be necessary for the adoption of any matter voted upon by the Voting
Members, unless a greater proportion is required by the Act, the Condominium
Declaration, the CSP or these By-Laws.
4.03 ANNUAL MEETINGS: The initial meeting of the Owners shall be
held upon not less than twenty-one (21)days'written notice given by the Declarant.
If not called earlier by the Declarant, the initial meeting of the Owners shall be held
not more than thirty (30)days after the Turnover Date. Thereafter there shall be an
annual meeting of the Owners within thirty (30) days from the anniversary date of
the initial annual meeting at such time and on such date designated by the Board.
4.04 SPECIAL MEETINGS: Special meetings of the Owners may be called
at any time for the purpose of considering matters which, by the terms of the
Condominium Declaration, require the approval of all or some of the Voting
Members or the Administrative Entity, or for any other reasonable purpose. Said
meetings shall be called by written notice, authorized by the President, a majority of
the Board or by Voting Members representing at least fifty percent(50%) of the
votes.
4.05 NOTICE OF MEMBERSHIP MEETINGS: Written notice of any
membership meeting shall be emailed, mailed or personally delivered and posted
conspicuously on the Condominium Property, giving Owners not less than ten(10)
nor more than thirty (30) days' notice of the time, place, and purpose of the meeting.
ARTICLE V
BOARD OF DIRECTORS
5.01 fN GENERAL: The affairs of the Condominium Association and the
direction and administration of the Condominium Property shall be vested in the Board,
which (after the Turnover Date) shall consist of three (3) persons ("Directors"). The
Board shall have all of the powers granted to it under the Act, the Condominium
Declaration, these By-Laws, the CSP and the Non- Profit Corporation Act of the State of
Montana.
5.02 DECLARANT DESIGNATED BOARDS: Anything herein to the
contrary notwithstanding, until the first meeting of the Owners after the Turnover Date,
the Board shall consist of three(3)individuals from time to time designated by the
Declarant. Such individuals may, but need not, be Owners and shall serve at the
discretion of the Declarant.
5.03 BOARDS AFTER TURNOVER DATE: At the first meeting of the Owners
(which shall be held no later than the Turnover Date) the Voting Members shall elect a
Board in the manner hereinafter provided to replace the Declarant designated Board
established under Section 5.02. From and after such meeting, each member of the Board
shall be an Owner or a Voting Member, or both. Within sixty (60)days after the election
of a majority of the Board other than those designated by the Declarant, the Declarant
shall deliver to the Board the following documents and others as required by the Act:
(a) Original copies of the Condominium Declaration,these By-
Laws, the CSP,the Condominium Association's Articles of Incorporation
and the Condominium Association's minute book.
(b) An accounting of all receipts and expenditures made or received on
behalf of the Condominium Association by the Declarant designated Boards.
(c) All Condominium Association funds and bank accounts.
(d) A schedule of all personal property, equipment and fixtures
belonging to the Condominium Association including documents transferring
the property to the Condominium Association.
5.04 ELECTION: At each election for members of the Board, each Voting
Member for each Unit which he represents shall be entitled to the number of votes equal
to the number of Directors to be elected and cumulative voting shall not be permitted;
provided that a Resident who is a contract purchaser of a Unit from a contract seller
other than the Declarant shall have the right to vote for Directors after the Turnover
Date unless such contract seller expressly retains such right in writing. At the initial
meeting of the Owners, a full Board of three (3) Directors shall be elected, two(2)of
whom shall serve a two-year term and one(1)of whom shall serve a one-year term. The
candidates receiving the two (2) highest number of votes shall be elected to serve a two-
year term and the candidates receiving the third highest number of votes shall serve a
one-year term. Thereafter, all Directors shall serve two-year terms. Each Director shall
serve until his term expires or is terminated or until his successor shall have been elected
and qualified. A Director may succeed himself/herself in office.
5.05 ANNUAL MEETINGS: The Board shall hold an annual meeting within ten
(10) days after the annual meeting of the Owners at such place as shall be fixed by the
Directors at the annual meeting of the Owners.
5.06 REGULAR MEETINGS: Regular meetings of the Board shall be held at
such time and place as shall be determined at the annual meeting or, from time to time, by
a majority of the Directors, provided that from and after the Turnover Date, not less than
four such meetings shall be held during each fiscal year.
5.07 SPECIAL MEETINGS: Special meetings of the Board may be called
by the Administrative Entity, the President or by at least one-third (1/3) of the
Directors then serving.
5.08 NOTICE OF BOARD MEETINGS: Notice of each meeting of the Board
shall be emailed, mailed or personally delivered to each Director at least forty-eight (48)
hours prior to the meeting and notice of any meeting of the Board concerning the
adoption of the proposed annual budget or any increase or establishment of an assessment
shall be given to each Owner in the same manner as provided in Section 4.05 of these By-
Laws, unless a written waiver of such notice is signed by the person or persons entitled to
such notice before the meeting is convened. Notice of each meeting of the Board shall
also be conspicuously posted on the Condominium Property at least forty-eight (48)
hours prior to the meeting.
5.09 OPEN MEETINGS: Each meeting of the Board, to the extent required by
law, shall be open to any Owner and, if required under the Act, notice of such meeting
shall be mailed or personally delivered and posted conspicuously upon the Condominium
Property at least 48 hours prior thereto, unless a written waiver of such notice is signed by
the person or persons entitled to such notice before the meeting is convened. The Board
may adopt reasonable rules governing the conduct of Owners who attend meetings and
Owners who do not comply with such rules may be removed from the meeting. Without
limiting the foregoing, the Board may adjourn the public portion of a meeting to go into
private, executive session to discuss sensitive or confidential matters, including
contemplated or proposed litigation.
5.10 QUORUM: A majority of the Directors serving from time to time shall
constitute a quorum for the election of officers and for the transaction of business at any
meeting of the Board. Except as otherwise expressly provided herein or in the
Condominium Declaration, any action may be taken upon the affirmative vote of a
majority of the Directors present at a meeting at which a quorum is present.
5.11 COMPENSATION/REIMBURSEMENT FOR EXPENSES: No Director
shall be compensated by the Condominium Association for services rendered to the
Condominium Association, except as expressly provided in a resolution duly adopted by
the Voting Members. Upon the presentation of receipts or other appropriate
documentation, a Director shall be reimbursed by the Condominium Association for
reasonable out-of-pocket expenses incurred in the course of the performance of his duties
as aDirector.
5.12 REMOVAL OR RESIGNATION OF DIRECTOR: Any Director may be
removed from office, with or without cause, by action of the Voting Members at any
annual meeting or at a special meeting called for such purpose. Any Director whose
removal has been proposed by the Owners shall be given an opportunity to be heard at the
meeting. Any Director may resign at any time by submitting his written resignation to
the Board. If a Director ceases to be an Owner or a Voting Member, he shall be deemed
to have resigned as of the date of such cessation. A successor to fill the unexpired term of
a Director who resigns or is removed may be appointed by a majority of the remaining
Directors at any regular meeting or at any special meeting called for such purpose and
any successor so appointed shall serve the balance of his predecessor's term.
5.13 POWERS AND DUTIES OF THE BOARD: Subject to the provisions of
Section 11.04 of the Condominium Declaration,the Board shall have all of the powers and
duties granted to it or imposed upon it by the Act, the Condominium Declaration, these
By Laws, and the Montana General Not-For-Profit Corporation Act, including, without
limitation, the following powers and duties:
(a) Subject to the provisions of Sections 4.05 of the Condominium Declaration,
to engage the services of a manager or managing agent to assist the Condominium
Association in performing and providing such services as the Condominium
Association is required to provide to its members under the Condominium
Declaration;
(b) To provide for the designation, hiring and removal of such employees and
such other personnel, including attorneys and accountants, as the Board may, in its
discretion, deem necessary or proper for the effective administration of the
Condominium Association;
(c) To provide for any maintenance, repair, alteration, addition, improvement
or replacement of the Common Elements for which the Condominium Association
is responsible under the Condominium Declaration and these By-Laws;
(d) To estimate and provide each Owner with an annual budget as provided for
in the Condominium Declaration;
(e) To set, give notice of, and collect assessments from the Owners as provided
in the Condominium Declaration;
(f) To pay the Common Expenses;
(g) To adopt rules and regulations as provided in the Condominium Declaration;
(h) To delegate the exercise of its power to committees appointed pursuant
to Section 7.01 of these By-Laws;
(i) To own, convey, encumber, lease, or otherwise deal with Units or other
real property conveyed to or purchased by the Condominium Association;
0) To keep detailed, accurate records of the receipts and expenditures affecting
the use and operation of the Condominium Property; and.
(k) To borrow money and pledge the assets of the Condominium Association,
including the right to receive future assessments, as collateral for repayment thereof.
ARTICLE VI
OFFICERS
6.01 OFFICERS: The officers of the Condominium Association shall be a President,
one or more Vice Presidents, a Secretary, a Treasurer, and such assistants to such officers as
the Board may deem appropriate. All officers shall be elected at each annual meeting of the
Board and shall hold office at the discretion of the Board. Officers may succeed themselves in
office. The President, Secretary and Treasurer shall be Directors and all other officers may, but
need not be, Directors.
6.02 VACANCY OF OFFICE: Any officer may be removed at any meeting of
the Board by the affirmative vote of the majority of the Directors in office, either with or
without cause, and any vacancy in any office may be filled by the Board at any meeting
thereof.
6.03 POWERS OF OFFICERS: The respective officers of the Condominium
Association shall have such powers and duties as are from time to time prescribed by the
Board and as are usually vested in such officers of any Montana Not-For-Profit Corporation
including without limitation, the following:
(a) The President shall be the Chief Executive Officer of the
Condominium Association and shall preside at all meetings of the Owners and at all
meetings of the Board and shall execute amendments to the Condominium Declaration
and these By- Laws, as provided for in the Act,the Condominium Declaration and these
By-Laws;
(b) The Vice President shall, in the absence or the disability of the President,
perform the duties and exercise the powers of such office and other duties assigned by the
Board. If neither the President nor the Vice President is able to act, the Board shall appoint
some other member of the Board to act in the capacity of President on an interim basis;
(c) The Secretary shall keep minutes of all meetings of the Owners and of
the Board and shall have custody of the corporate seal of the Condominium Association and
have charge of such other books, papers and documents as the Board may prescribe, and shall
be responsible for giving and receiving all notices to be given to or by the Condominium
Association under the Act, the Condominium Declaration or these By- Laws;
(d) The Treasurer shall be responsible for Condominium Association funds
and securities and for keeping full and accurate accounts of all receipts and disbursements in
the Condominium Association books of accounts kept for such purpose. The Treasurer shall
be responsible for the deposit of all moneys and other valuable effects in the name, and to the
credit, of the Condominium Association in such depositories as may from time to time be
designated by the Board.
6.04 OFFICERS' COMPENSATION: The officers shall receive no compensation
for their services except as expressly provided by a resolution duly adopted by the Voting
Members.
ARTICLE VII
COMMITTEES DESIGNATED BY BOARD
7.01 BOARD COMMITTEES: The Board, by resolution adopted by a majority of
the Directors in office, with written consent from the Administrative Entity, may designate
one or more committees, each of which shall consist of two or more Directors, which
committees, to the extent consistent with law and as provided in said resolution, shall have
and exercise the authority of the Board in the management of the Condominium Association;
but the designation of such committees and delegation thereto of authority shall not operate to
relieve the Board, or any individual Director, of any responsibility imposed upon it or him by
law.
7.02 SPECIAL COMMITTEES: Other committees not having and exercising the
authority of the Board in the management of the Condominium Association may be
designated by a resolution adopted by a majority of the Directors present at a meeting at
which a quorum is present. Except as otherwise provided in such resolution, members of each
such committee shall be Owners and the President of the Condominium Association shall
appoint the members thereof. Any member thereof may be removed by the person or persons
authorized to appoint such member whenever in their judgment the best interests of the
Condominium Association shall be served by such removal.
7.03 TERM: Each member of a committee shall continue as such until the next
annual meeting of the Board and until his successor is appointed, unless the committee shall
be sooner terminated, or unless such member shall be removed from such committee, or
unless such member shall cease to qualify as a member thereof.
7.04 CHAIRMAN: One member of each committee shall be appointed chairman.
7.05 VACANCIES: Vacancies in the membership of any committee may be filled
by appointments made in the same manner as provided in the case of the original
appointments.
7.06 QUORUM: Unless otherwise provided in the resolution of the Board
designating a committee, a majority of the whole committee shall constitute a quorum and the
act of a majority of the members present at a meeting at which a quorum is present shall be
the act of the committee.
7.07 RULES: Each committee may adopt rules for its own government not
inconsistent with the Condominium Declaration, these By-Laws, the CSP or with rules
adopted by the Board.
ARTICLE VIII
INSTRUMENTS, CHECKS, DEPOSITS AND FUNDS
8.01 EXECUTION OF INSTRUMENTS: The Board may authorize any officer or
officers, agent or agents of the Condominium Association, in addition to the officers so
authorized by these By-Laws, to enter into any contract or execute and deliver any
instrument (including amendments to the Condominium Declaration or these By-Laws
which must be executed by the Condominium Association) in the name of and on behalf of
the Condominium Association and such authority may be general or confined to specific
instances. In the absence of any such authorization by the Board, any such contract or
instrument shall be executed by the President or a Vice President and attested to by the
Secretary or an Assistant Secretary of the Condominium Association.
8.02 PAYMENTS: All checks, drafts, vouchers or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the Condominium
Association shall be signed by such officer or officers, agent or agents of the Condominium
Association, and in such manner as shall from time to time be determined by resolution of
the Board. In the absence of such determination by the Board such instruments shall be
signed by the Treasurer or an Assistant Treasurer and countersigned by the President or a Vice
President of the Condominium Association.
8.03 BANK ACCOUNTS: All funds of the Condominium Association not
otherwise employed shall be deposited from time to time to the credit of the Condominium
Association in such banks, trust companies or other depositaries as the Board shall elect.
8.04 SPECIAL RECEIPTS: The Board may accept on behalf of the Condominium
Association any contribution, gift,bequest,or devise for the general purposes or for any
special purpose of the Condominium Association.
ARTICLE IX
FISCAL MANAGEMENT
9.01 FISCAL YEAR: The fiscal year of the Condominium Association shall be
determined by the Board and may be changed from time to time as the Board deems
advisable.
9.02 ANNUAL STATEMENT: Within a reasonable time after the close of each
fiscal year the Board shall furnish each Owner with financial statements and a balance
sheet for the Condominium Association for the fiscal year.
9.03 ASSESSMENT PROCEDURE: Annual assessments and special assessments
shall be made and collected as provided in Article Six of the Condominium Declaration, and
the provisions of Article Six are incorporated herein by reference.
ARTICLE X
BOOKS AND RECORDS
The Condominium Association shall keep correct and complete books and records of
account and shall also keep minutes of the proceedings of its members, the Board, and
committees having any of the authority of the Board, and shall keep at the registered or
principal office of the Condominium Association a record giving the names and addresses of
the members. All books and records of the Condominium Association may be inspected by
any Owner, or his agent, mortgagee or attorney, for any proper purpose at any reasonable
time.
ARTICLE XI
SEAL
The Board may provide for a corporate seal which shall be in the form of a circle
and shall have inscribed thereon the name of the Condominium Association and the
words "Corporate Seal, Montana".
ARTICLE XII
AMENDMENTS
These By-Laws may be amended or modified at any time, or from time to time by the
affirmative vote of Owners representing at least 75% of the Undivided Interests; provided,
that no provision of these By-Laws may be amended or modified so as to conflict with the
provisions of the Condominium Declaration, the CSP, or the Act. These By-Laws may also
be amended by the Declarant for the purposes and by the procedure set forth in Section 8.01
of the Condominium Declaration. No amendment to these By-Laws shall become effective
until Recorded.
FURTHER AFFIANT SAYETH NOT.
Dated this 2 7day of F.,�,4 2020.
Aspen Land Co., LLC a Montana limited liability
company
BY: Mike Hope
ITS: President of Aspen Crossing Residential
Condominium Association
STATE OF MONTANA )
SS.
County of Gallatin )
On this �? ay of February 2020 before me, a Notary Public for the State of Montana,
personally appeared Mike Hope, President of Aspen Crossing Residential Condominium
Association known to me to be the person whose name is subscribed to the within instrument
and acknowledged to me he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal as of the day and year first above wr
/12o C' 7iiL�a C
C z/A-� NADINE c ZIKMUND r Notary Public for the State of Montana
Gyo NOTARY PUBLIC for the Residing at:
SEAT State of Montana My Commission Expires
N Residing at Manhattan,Montana
MY Commission Expires
�� M0 January 18,2023