HomeMy WebLinkAboutFinal Cross Easement 10-16-2020 2685834
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Er lc Semerad - Gallatin County, MT MISC
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DECLARATION OF CROSS EASEMENTS AND COST SHARING PROVISIONS
FOR ASPEN LAND CO.
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS 4
1.01 ACT 4
1.02 ADMINISTRATIVE ENTITY 4
1.03 ADMINISTRATIVE ENTITY RIGHTS 4
1.04 AE MAINTAINED FACILITIES 4
1.05 AE PROVIDED MAINTENANCE AND SERVICES 4
1.06 BUILDING 4
1.07 BUILDING EXTERIOR 4
1.08 BUILDING PLANS 5
1.09 COMMERCIAL CONDOMINIUM 5
1.10 COMMERCIAL CONDOMINIUM ASSOCIATION 5
1.11 COMMERCIAL CONDOMINIUM DECLARATION 5
1.12 CONDOMINIUM 5
1.13 COST SHARING PERCENTAGE 5
1.14 COUNTY 5
1.15 DECLARATION 5
1.16 DEPOSITARY 5
1.17 EMERGENCY SITUATION 5
l.l 8 FIRST MORTGAGE 5
1.19 FIRST MORTGAGEE 5
1.20 MUNICIPALITY 5
1.21 OWNER 5
1.22 PERSON 5
1.23 PREMISES 5
1.24 RECORD 5
1.25 RESIDENTIAL CONDOMINIUM 5
1.26 RESIDENTIAL CONDOMINIUM ASSOCIATION 6
1.27 RESIDENTIAL DECLARATION 6
1.28 RESPONSIBLE ENTITY 6
ARTICLE TWO SCOPE OF DECLARATION 6
2.01 REAL ESTATE SUBJECT TO DECLARATION 6
2.02 CONVEYANCES SUBJECT TO DECLARATION 7
2.03 REAL ESTATE TAXES 7
ARTICLE THREE EASEMENTS 7
3.01 IN GENERAL 7
3.02 ENCROACHMENTS 7
3.03 SUPPORT EASEMENT 7
3.04 FACILITIES 7
3.05 PARCEL EASEMENTS 7
3.06 ADMINISTRATIVE ENTITY EASEMENTS 8
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3.07 PUBLIC AND UTILITY EASEMENTS 8
3.08 PARTYWALLS 9
ARTICLE FOUR MAINTENANCE/SERVICES/COST SHARING 9
4.01 AE PROVIDED MAINTENANCE AND SERVICES AND COSTS 10
4.02 CAPITAL RESERVE 10
4.03 MAINTENANCE BY CONTRIBUTING PARCEL RESPONSIBLE ENTITIES 10
4.04 DAMAGE BY OWNER OR RESIDENT 11
4.05 PAYMENT OF COSTS/ENFORCEMENT 11
4.06 FINANCIAL STATEMENTS 11
ARTICLE FIVE INSURANCE 11
5.01 HAZARD INSURANCE 11
5.02 LIABILITY INSURANCE 12
5.03 POLICYPROVISIONS 12
5.04 LIMITS OF LIABILITY 12
5.05 WAIVER 12
ARTICLE SIX CONDEMNATION 13
6.01 IN GENERAL 13
6.02 TAKING OF TEMPORARY USE 13
6.03 TAKING FROM ONE PARCEL 13
6.04 TAKING OF PORTIONS OF SEVERAL PARCELS 13
6.05 USE OF AWARDS 14
6.06 RESTORATION 14
6.07 TAKING OF ENTIRE PREMISES 14
ARTICLE SEVEN DEPOSITARY DISBURSEMENT 14
7.01 APPOINTMENT 14
7.02 DAMAGE TO ONE PORTION OF PARCEL 15
7.03 DAMAGE TO BOTH CONDOMINIUMS 15
7.04 OTHER DAMAGE 15
7.05 EXPENSES 15
7.06 AUTHORIZATIONTOPROSECUTE 15
7.07 INTEREST 15
7.08 RESIGNATION 16
7.09 AWARD LESS THAN $100,000 16
7.10 DISBURSEMENT REQUEST 16
7.11 USE OF FUNDS 17
ARTICLE EIGHT RIGHTS AND POWERS OF ADMINISTRATIVE ENTITY 18
8.01 IN GENERAL 18
8.02 PROMOTION OF PREMISES 18
8.03 CONSTRUCTION ON PREMISES 18
8.04 GRANT OF EASEMENTS 18
8.05 OTHER RIGHTS 18
8.06 APPROVAL OF REGULATED WORK 18
8.07 MAINTENANCE STANDARDS 19
8.08 BUDGETS, ASSESSMENTS AND OTHER FINANCIAL POWERS 19
8.09 SPECIAL AMENDMENT 19
8.10 ASSIGNMENT BY THE ADMINISTRATIVE ENTITY 20
ARTICLE NINE MISCELLANEOUS 21
9.01 SEVERABILITY 21
9.02 NOTICES 21
9.03 CAPTIONS/CONFLICTS 21
9.04 PERPETUITIES AND OTHER INVALIDITY 21
9.05 AMENDMENT BY RESPONSIBLE ENTITLES 21
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This Declaration is made by Aspen Land Co., LLC a Montana limited liability
company ("Administrative Entity"):
RECITALS
Capitalized terms used herein are defined in Article One.
The Administrative Entity holds title to the Premises, which are commonly known as Aspen
Crossing, Bozeman, Montana, located at 515 West Aspen Street, Bozeman, Montana, 59715. By
Recording this Declaration, the Administrative Entity shall make the Premises subject to this
Declaration. Immediately after Recording this Declaration,the Administrative Entity will Record the
Residential Condominium Declaration and the Commercial Condominium Declaration. The
Residential Condominium Declaration will be Recorded with respect to that portion of the Premises
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, which horizontal plane is legally described in Exhibit A hereto and
depicted in Exhibit B hereto. The Commercial Condominium Declaration will be Recorded with
respect to the portion of the Premises which is below such horizontal plane. Thus, after the Recording
of this Declaration, the Residential Condominium Declaration, and the Commercial Condominium
Declaration, each portion of the Premises will be subject to the terms of this Declaration and will also
be subject to the terms of either the Residential Condominium Declaration or the Commercial
Condominium Declaration, but not both. In the event of a conflict between the terms of this
Declaration and the terms of the Residential Condominium Declaration or the Commercial
Condominium Declaration then in such event, to the extent not prohibited by applicable law, the terms
of this Declaration shall prevail.
The units in the Residential Condominium will be residential units. The units in the
Commercial Condominium will be offices and retail space units. It is anticipated that all of the units in
the Residential Condominium will be conveyed to an affiliate of the Administrative Entity and that all
of the units in the Commercial Condominium will be conveyed to a different affiliate of the
Administrative Entity. Each such entity will then lease, sell and convey units in its discretion.
The Residential Condominium Association will be the Responsible Entity hereunder for the
Residential Condominium and the Commercial Condominium Association will be the Responsible
Entity for the Commercial Condominium.
The purpose of this Declaration is to provide a mechanism for the maintenance, repair, and
operation of the Premises by allocating responsibility for the furnishing of certain services with
respect to portions of the Premises to the Administrative Entity and the allocation of the cost of
furnishing such services among the Responsible Entities. The Administrative Entity shall be
responsible for furnishing what is defined herein as AE Provided Maintenance and Services, which
will generally consist of maintenance, repair and replacement of various systems and facilities which
serve portions of the Premises, as well as providing services which benefit the Condominiums. Each
Responsible Entity will pay to the Administrative Entity a share of the cost of furnishing the AE
Provided Maintenance and Services, as more fully provided in Article Four and Exhibit C.
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In Section 8.09, the Administrative Entity is reserved and granted the power and right to
unilaterally make Special Amendments to this Declaration and Exhibits, as more fully provided in
Section 8.09.
NOW, THEREFORE, the Administrative Entity, as record title holder of the Premises,
hereby declares as follows:
ARTICLE ONE
DEFINITIONS
For the purpose of brevity and clarity, certain words and terms used in this Declaration are
defined as follows:
1.01 ACT: The Montana Unit Ownership Act, as amended from time to time.
1.02 ADMINISTRATIVE ENTITY OR AE: Aspen Land Co. LLC, a Montana limited
liability company, its successors and assigns.
1.03 ADMINISTRATIVE ENTITY RIGHTS: The rights and powers reserved or granted
to the Administrative Entity hereunder, as such rights and powers may be assigned or transferred as
provided in Section 8.10 hereof.
1.04 AE MAINTAINED FACILITIES: Those facilities listed in Exhibit C hereto from
time to time and designated as AE Maintained Facilities, and which may include, without limitation,
those improvements and components which are part of a system which serves one or both
Condominiums, and may include, without limitation,the plumbing, electrical, elevator, security,
communications, and trash removal systems, which serve both Condominiums and such other systems
or facilities as are designated as AE Maintained Facilities in Exhibit C from time to time and/or in a
written notice from the Administrative Entity to the Responsible Entities.
1.05 AE PROVIDED MAINTENANCE AND SERVICES: The following, which will be
furnished by the Administrative Entity and the cost of which will be shared by the Responsible
Entities as provided in Section 4.01:
(a) Maintenance, repair and replacement of, and alterations or improvements to, the AE
Maintained Facilities; and
(b) Services set forth in Exhibit C which are designated as part of the AE Provided
Maintenance and Services, and may include, without limitation, utility services, snow removal from
sidewalks and driveways which serve the Premises, and planting, replanting and maintenance of
exterior landscaping on the Premises
1.06 BUILDING: The building from time to time located on the Premises as
delineated on the Building Plans.
1.07 BUILDING EXTERIOR: The exterior surfaces of the exterior walls of the Building;
however, the Building Exterior shall not include windows, window frames, doors, door frames, or
balconies.
1.08 BUILDING PLANS: The building plans or drawings attached hereto as Exhibit B,
as Exhibit B may be amended or supplemented from time to time, which identifies and delineates
those portions of the Premises which are part of which Condominium and other areas referred to
in this Declaration.
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1.09 COMMERCIAL CONDOMINIUM: The condominium created by the
Commercial Condominium Declaration.
1.10 COMMERCIAL CONDOMINIUM ASSOCIATION: The ACC Commercial
Condominium Association, a Montana non-profit association, which administers the Commercial
Condominium.
1.11 COMMERCIAL CONDOMINIUM DECLARATION: The Declaration of
Condominium Ownership for Aspen Crossing Commercial Condominium which will be
Recorded immediately after this Declaration.
1.12 CONDOMINIUM: The Residential Condominium or the Commercial
Condominium or, if the context requires, both ofthem.
1.13 COST SHARING PERCENTAGE: The Cost Sharing Percentage, if any, assigned
from time to time to each Condominium on Exhibit C with respect to each AE Provided Maintenance
and Service, as Exhibit C may be amended from time totime.
1.14 COUNTY: Gallatin County, Montana
1.15 DECLARATION: This instrument with all Exhibits hereto, as amended or
supplemented from time to time.
1.16 DEPOSITARY: As defined in Article Seven.
1.17 EMERGENCY SITUATION: A situation impairing or imminently likely to impair
structural support of the Building or causing or imminently likely to cause bodily injury to persons
or substantial physical damage to the Premises or any property in, on, under, within, upon or about
the Premises. The duration of an Emergency Situation shall be deemed to include the time
reasonably necessary to remedy the Emergency Situation.
1.18 FIRST MORTGAGE: A bona fide first mortgage, first trust deed or equivalent
security interest covering the ownership of a portion of the Premises.
1.19 FIRST MORTGAGEE: The holder of a First Mortgage.
1.20 MUNICIPALITY: The City of Bozeman, Montana.
1.21 OWNER:The legal title holder from time to time of a unit in a Condominium.
1.22 PERSON: A natural individual, corporation, partnership, trustee or other legal
entity capable of holding title to real property.
1.23 PREMISES:The real estate described in Exhibit A hereto with all improvements
thereon and rights appurtenant thereto, as amended from time to time.
1.24 RECORD: To record with the Clerk and Recorder for the County.
1.25 RESIDENTIAL CONDOMINIUM:The condominium created by the Residential
Condominium Declaration.
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1.26 RESIDENTIAL CONDOMINIUM ASSOCIATION: The ACR Residential
Condominium Association, a Montana non-profit association, which administers the Residential
Condominium.
1.27 RESIDENTIAL CONDOMINIUM DECLARATION: The Declaration of
Condominium Ownership for ACR Residential Condominium which will be Recorded
immediately after this Declaration.
1.28 RESPONSIBLE ENTITY: The Commercial Condominium Association or the
Residential Condominium Association, or, as the context requires, one or both of such
associations.
ARTICLE TWO
Scope of Declaration
2.01 REAL ESTATE SUBJECT TO DECLARATION: The Administrative Entity, as the
owner of fee simple title to the Premises, expressly intend to and, by Recording this Declaration,
does hereby subject the Premises to the provisions of this Declaration.
2.02 CONVEYANCES SUBJECT TO DECLARATION: All easements, restrictions,
conditions, covenants, reservations, liens, charges, rights, benefits, and privileges which are
granted, created, reserved or declared by this 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 Premises, and their respective heirs,
successors, personal representatives or assigns regardless of whether the deed or other instrument
which creates or conveys theinterest or estate makes reference to this Declaration.
2.03 REAL ESTATE TAXES: In the event that a real estate tax bill is issued for a
particular year (the "Tax Year") with respect to portions of the Premises which, as of December
31 of the Tax Year, consisted of more than one Condominium then the following provisions shall
apply:
(a) If the bill for the Tax Year covers more than one Condominium, the bill shall
be apportioned between the Condominiums by the Administrative Entity in its reasonable
judgment upon review of the relevant records of the County Assessor, to the extent
available;
(b) Each Responsible Entity shall be responsible for the payment (orcausing the
payment) of that portion, if any, of the bill for the Tax Year which is apportioned to the
Condominium administered by such Responsible Entity;
(c) The Administrative Entity shall use its best efforts to collect amounts due
hereunder prior to the due date of the installments of the tax bill for the Tax Year;
provided, that, if insufficient funds are received from the Responsible Entities to pay the
portion of the bill allocated to the portion of the Premises administered by the
Responsible Entity, the Administrative Entity may advance the difference. If the
Administrative Entity advances funds for a Responsible Entity as permitted in the
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preceding sentence, any amounts so advanced shall be a charge hereunder and, if not paid
when due,the Administrative Entity shall have all remedies provided for in Section 4.08.
ARTICLE THREE
Easements
3.01 IN GENERAL: The easements provided for in this Article Three shall extend to
each Responsible Entity and their respective Owners, occupants, agents, tenants, employees,
guests and invitees. The beneficiary of an easement hereunder shall exercise its rights in a
manner as to cause as little disturbance in the use and enjoyment of the affected portion of the
Premises and surrounding areas as may be practical under the circumstances and shall be
responsible for repairing any damage caused by such party in the course of exercising such
easement. The exercise of easements provided for in this Article shall be subject to rules,
regulations and restrictions from time to time adopted by the Administrative Entity.
3.02 ENCROACHMENTS: In the event that, by reason of the construction, repair,
reconstruction, settlement or shifting of the Building any part of one Condominium
("Encroaching Property") encroaches upon any part of another Condominium ("Encroached
Property"), then, in any such case, there shall be deemed to be an easement in favor of the
Responsible Entity which administers the Encroaching Property and the Owners in such
association, for the exclusive use of any portion of the Encroaching Property which shall
encroach upon the Encroached Property; provided, however, that in no event shall an easement
for any encroachment be created in hereunder if such encroachment occurred due to the
intentional, willful or negligent conduct of the Encroaching Responsible Entity or any of its
Owners, as the case maybe.
3.03 SUPPORT EASEMENT: A non-exclusive easement in and to the land and all
structural members, footings, caissons, foundations, columns and beams and other supporting
components located within or comprising part of the Premises is hereby declared for the benefit
of and support of all improvements from time to time located on or in portions of each
Condominium, asapplicable.
3.04 AE MAINTAINED FACITITIES: Each Responsible Entity shall have the non-
exclusive easement for the use for their intended purposes of those AE Maintained Facilities
which are part of the Condominium administered by the Responsible Entity with utilities or other
services which are necessary or desirable to the operation, use and enjoyment of the
Condominium.
3.05 CONDOMINIUM EASEMENTS: Each Responsible Entity, its Owners, occupants,
employees, agents and invitees, shall have the following perpetual easements:
(a) A non-exclusive easement for access over and across driveways, walkways,
corridors, elevators and stairways from time to time located in the Premises which
provide access to and from the Condominium and a public way.
(b) A non-exclusive easement for access to and from the Responsible Entity's
Condominium over and across the walkways, driveways, stairways and elevators on the
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Premises and such other portions of the Premises designated from time to time by the
Administrative Entity, subjectto such reasonable rules, regulations or restrictions adopted
or imposed from time to time by the AdministrativeEntity.
(c) An exclusive easement for the continued existence, use, maintenance, repair
and replacement of components located in the Premises which are part of a system which
serves the Condominium exclusively.
(d) A non-exclusive easement to use the loading area, if any, which serves the
Condominium to make deliveries to and pick-ups from the Condominium and to have
access between the loading area and the Condominium over corridors, elevators and
stairways in the Premises, subject to reasonable rules and regulations adopted from time
to time by the Administrative Entity.
(e) Subject to the approval of the Administrative Entity, a non-exclusive
easement for the installation, continued existence, use, maintenance, repair and
replacement of components located, or to be installed in,the Premises which are, or will
be, part of a system which serves the Condominium exclusively. Without limiting the
foregoing, a Responsible Entity shall have a non-exclusive easement for (1) the
installation, maintenance, repair and replacernent of pipes, wires, conduit and
communication lines in or on the Building, and/or (2) the installation, maintenance, repair
and replacement of satellite dishes, antennae, towers, chillers, exhaust fans and other
portions of operating systems, which serve only the Condominium, including those, if
any, on the roof of the Building or outside of the Building, subject to any approvals
required from the Administrative Entity or conditions imposed by the Administrative
Entity.
3.06 ADMINISTRATIVE ENTITY EASEMENTS: The Administrative Entity, its
employees, agents and invitees, shall have the following perpetual easements with respect to the
Premises:
(a) A non-exclusive perpetual easement over and across the driveways,
walkways, corridors, elevators and stairways in the Premises.
(b) A non-exclusive easement to use the loading area to make deliveries to and
pick-ups from the loading area.
(c) A non-exclusive perpetual easement to come upon any portion of the
Premises (i) for access to any other portion of the Premises or a public way, (ii) to
perform any inspection, maintenance, repairs,replacements alterations, improvements to
portions of the Premises permitted or required to be performed by the Administrative
Entity, including, without limitation, AE Provided Maintenance, or(iii)to install,
modify, use, maintain, repair and replace components located anywhere on the
Premises which are part of the AE Maintained Facilities.
3.07 PUBLIC AND UTILITY EASEMENTS:
(a) All public and private utilities serving the Premises are hereby granted the
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right to lay, construct, renew, operate, and maintain conduits, cables, pipes, wires,
transformers, switching apparatus and other equipment, into and through the Premises,
for the purpose of providing utility services to the Premises.
(b) Any governmental authority which has jurisdiction over the Premises or
which undertakes to provide services (including, without limitation, emergency services)
to the Premises is hereby declared, granted and reserved access easements for ingress and
egress to, over and across the Premises for the purpose of providing any such services.
(c) Each Responsible Entity, Owner, occupant or authorized user of a portion of
the Premises shall have a non-exclusive easement for pedestrian ingress and egress in an
Emergency Situation to and from, over, on, across and through the Premises.
3.08 PARTY WALLS:
(a) At any time or from time to time of the Condominiums may share a common
wall, floor divider or other barrier. Any such common wall, floor divider or other barrier
shall constitute and be a "Party Wall" and the Responsible Entities (each an "Adjacent
Entity") shall have the obligation and be subject to the provisions of this Section and, to
the extent not inconsistent herewith, the general rules of law regarding party walls. Each
Adjacent Entity shall have the right to use the Party Wall for support of the structure
constructed thereon and all replacements thereof and shall have the right to keep,
maintain, repair and replace therein all facilities originally located therein and all
replacements thereof.
(b) If any Party Wall is damaged or destroyed by reason of any act or omission
committed or caused, or resulting from a condition existing, caused or permitted to exist,
by an Adjacent Entity whether such act, omission or condition is the result of willfulness,
neglect or accident, such Adjacent Entity shall diligently proceed to rebuild or repair the
Party Wall to the same condition in which such Party Wall existed prior to such damage
or destruction, without costs therefor to the other Adjacent Entity, as promptly as is
reasonably possible. Any Party Wall damaged or destroyed by some act, event or
condition, other than as above described, shall be rebuilt or repaired by both Adjacent
Entities to the same condition in which such Party Wall existed prior to such damage or
destruction at the joint and equal expense of such Adjacent Entities, and as promptly as is
reasonably possible. The repair of a damaged Party Wall shall be subject to conditions or
requirements imposed by the Administrative Entity.
(c) If an Adjacent Entity proposes to modify or otherwise make additions to the
structure of a Party Wall in any manner which requires the extension, alteration or
modification of the Party Wall, it shall first obtain the written consent of the other
Adjacent Entity and the Administrative Entity; provided that the Administrative Entity
shall have the right and power to modify any Party Wall as it deems appropriate or
pursuant to powers granted or reserved to it hereunder (including without limitation, to
make openings and install doors or to install pipes, wires, conduit and communication
lines), without the approval of any Adjacent Entity.
ARTICLE FOUR
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Maintenance/Services/Cost Sharing
4.01 AE PROVIDED MAINTENANCE AND SERVICES AND COSTS: Except as
otherwise specifically provided for herein, the Administrative Entity shall be responsible for
determining, in its sole judgment, what AE Provided Maintenance and Services are necessary or
advisable and for furnishing such AE Provided Maintenance and Services at such times and
using such methods, contractors, employees or agents as the Administrative Entity deems to be
appropriate, in its sole judgment. No later than October 31" of each year, the Administrative
Entity shall furnish to each Responsible Entity a budget for the proposed cost of furnishing AE
Provided Maintenance and Services and building up appropriate reserves therefor ("Budget") for
the coming year; provided, that, if no Budget is delivered by November 30t" of such year, the
prior year's Budget shall apply to the coming year. The Budget shall identify by line item the
anticipated cost for each AE Provided Maintenance and Service hereunder and the share of such
cost which shall be allocable to each Responsible Entity ("Cost Sharing Percentage"). Each
Budget line item shall include an allocable portion of overhead, labor costs and the cost of
materials and supplies which the Administrative Entity, in its reasonable judgment, allocates to
the AE Provided Maintenance and Services and shall also include a factor for building up
reserves as provided in 4.02 below. Each Responsible Entity shall pay to the Administrative
Entity each year an amount equal to the Budgeted costs for the year multiplied by the
Responsible Entity's allocable Cost Sharing Percentage in effect as of the first day of the year
with respect to each line item with respect to which a Cost Sharing Percentage is assigned to the
Responsible Entity and such amount shall be paid in annual, quarterly or monthly installments,
as determined from time to time by the Administrative Entity.
4.02 CAPITAL RESERVES: The Administrative Entity shall segregate and maintain
special reserve accounts to be used solely for making capital expenditures in connection with the
AE Maintained Facilities (each a "Capital Reserve"). The Administrative Entity shall determine
the appropriate level of each Capital Reserve based on a periodic review of the useful life of
improvements to the AE Maintained Facilities and periodic projections of the cost of anticipated
major repairs or replacements to the AE Maintained Facilities, and the purchase of other property
to be used by the Administrative Entity in connection with its duties hereunder. Each Capital
Reserve shall be funded from line items provided for in the Budget. Special accounts set up for
portions of a Capital Reserve to be used to make capital expenditures with respect to the AE
Maintained Facilities shall be held by the Administrative Entity as agent and trustee for the
Responsible Entity or Entities with respect to which the Capital Reserve is held.
4.03 MAINTENANCE BY RESPONSIBLE ENTITIES: Each Responsible Entity shall
be responsible for keeping at all times in good condition and repair all improvements, fixtures
and components in the Condominium which the Responsible Entity administers and which are
not maintained by the Administrative Entity as a part of the AE Provided Maintenance and
Services. The Administrative Entity shall have the right to inspect any portion of the Premises in
order to verify compliance with the provisions of this Section. If the Administrative Entity
determines, in its reasonable judgment, that a Responsible Entity is in violation of this Section, it
may direct the Responsible Entity which is responsible for such maintenance to correct the
situation at its sole cost and expense and if such party fails or refuses to correct the situation in a
reasonable amount of time, or immediately in an Emergency Situation, then the Administrative
Entity shall have the right and power to either (i) correct the situation or (ii) seek injunctive relief
to cause the Responsible Entity to correct the situation. A Responsible Entity which fails or
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refuses to correct a situation under this Section shall pay to the Administrative Entity any and all
costs incurred by the Administrative Entity to correct the situation or cause the situation to be
corrected, including, without limitation, attorney's fees and court costs.
4.04 DAMAGE BY OWNER OR RESIDENT: If, due to the act or omission of an
Responsible Entity or tenant, agent or invitee of an Owner, damage shall be caused to the
Premises and maintenance, repairs or replacements shall be required thereby, which would
otherwise be provided by the Administrative Entity, then the Responsible Entity shall pay for
such damage and such maintenance, repairs and replacements, as may be determined by the
Administrative Entity, to the extent not covered by insurance.
4.05 PAYMENT OF COSTS/ENFORCEMENT: For purposes of this Section, a
Responsible Entity which owes money to the Administrative Entity shall be referred to as a
"Payor". Each Payor shall pay to the Administrative Entity amounts provided for herein based
on invoices, statements or budgets prepared from time to time by or on behalf of the
Administrative Entity and delivered to the Payor. If the Payor fails to make any required
payment hereunder within thirty (30) days after it is due, the amount thereof shall be a
continuing lien against each unit in the Payor's Condominium in an amount equal to the amount
due multiplied by the undivided interest attributable to the unit; provided, that, any such lien
against a unit shall be subordinate to the First Mortgage, if any, on the unit from time to time.
Any payment hereunder which is not paid within thirty (30) days after the due date shall bear
interest at the rate of twelve percent (12%) per annum from the due date until paid and the
Administrative Entity (i) may bring an action against the Payor or Owner, as applicable, for the
amount of the payment due from such party, plus interest, costs and reasonable attorneys' fees
incurred in connection with its collection efforts, which amount shall be added to the amount of
the payment and shall be included in any judgment rendered in such action and (ii) may enforce
and foreclose the lien provided for herein.
4.06 FINANCIAL STATEMENTS:Each year the Administrative Entity shall cause to
be prepared and furnished to each Responsible Entity such financial statements as the
Administrative Entity deems necessary or appropriate and the cost of preparation thereof shall be
allocated per the Budget, as reasonably determined by the Administrative Entity.
ARTICLE FIVE
Insurance
5.01 HAZARD INSURANCE: Each Responsible Entity shall maintain insurance
against loss or damage by fire and other risks and hazards in an arnount of not less than the full
insurable replacement cost of the Condominium administered by the Responsible Entity. To the
extent available for a reasonable premium, the Responsible Entities shall cooperate with the
Administrative Entity to jointly purchase an insurance policy or policies covering the portions of
the Building administered by each such Responsible Entity against loss or damage by fire and
other risks and hazards naming all Responsible Entities and the Administrative Entity, as their
interest may appear, as insured parties. The premium for any such insurance shall be allocated
between the Responsible Entities, as agreed upon between them. To the extent possible, each
insurance policy obtained by a Responsible Entity shall contain waivers of the insurer's rights of
subrogation against Administrative Entity, the Owners, each Responsible Entity and their
respective members, employees and agents for claims arising from or relating to damage with
respect to portions of the Building which are covered by such insurance.
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5.02 LIABILITY INSURANCE: Each Responsible Entity shall maintain Commercial
General Liability Insurance covering claims for personal and bodily injury or property damage
occurring in, on, under, within, upon or about the portion of the Premises owned or administered
by such Responsible Entity, or as a result of operations thereon, in such amounts as may be
required by law and as from time to time shall be carried by prudent owners of first-class, mixed
use buildings in the Municipality, but in all events for limits of not less than $1,000,000
combined single limit per occurrence with a general policy aggregate of$2,000,000 for personal
and bodily injury or property damage with at least an additional $5,000,000 for umbrella
coverage. Each Responsible Entity shall cause the Administrative Entity and the other
Responsible Entity and their respective managing agents to be named as an additional insured
on such policies.
5.03 POLICY PROVISIONS: To the extent available at a commercially reasonable cost,
each policy described in Section 5.01 and Section 5.02 hereof: (i) shall provide, if available, that
the knowledge or acts or omissions of any insured party shall not invalidate the policy as against
any other insured party or otherwise adversely affect the rights of any other insured party under
any such policy; (ii) shall provide, except for liability insurance described in Section 5.02, by
endorsement or otherwise, that the insurance shall not be invalidated should any of the insureds
under the policy waive in writing prior to a loss any or all rights of recovery against any party for
loss occurring to the property insured under the policy, if such provisions or endorsements are
available and provided that such waiver by the insureds does not invalidate the policy or
diminish or impair the insured's ability to collect under the policy, or unreasonably increase the
premiums for such policy unless the party to be benefited by such endorsement or provision pays
such increase; and (iii) shall provide for a minimum of thirty (30)days' advance written notice of
cancellation, non-renewal or material modification thereof to all named insureds and additional
insureds thereunder, unless such cancellation is for non-payment of premium, in which case only
ten (10) days, advance written notice shall be sufficient. Nothing contained in this Section 5.03
shall prevent the naming of any persons (in addition to those mentioned in clause (ii)
hereinabove), as an additional insured in any policy or as prohibiting the inclusion in any policy
of a usual and customary form of mortgage clause.
5.04 LIMITS OF LIABILITY: Limits of liability or types of insurance specified in this
Article Five or carried by the Responsible Entities shall be reasonable and prudent for a
Responsible Entity of a first-class residential, commercial or garage facility, as applicable, and
shall be reviewed by the Responsible Entities and Administrative Entity at least annually to
determine if such limits, deductible amounts and types of insurance are reasonable and prudent
in view of the type, place and amount of risk to be transferred, and to determine whether such
limits, deductible amounts and types of insurance comply with the requirements of all applicable
statutes, laws, ordinances, codes, rules, regulations or orders and whether on a risk management
basis, additional types of insurance or endorsements against special risks should be carried or
whether required coverages or endorsements should be deleted. Deductible amounts for
insurance required under Sections 5.01 and 5.02 shall be in such amounts as are customary or
prevalent for a Responsible Entity of a first-class residential, commercial or garage facility, as
applicable. Such limits shall be increased or decreased, deductible amounts increased or
decreased, or types of insurance shall be modified, if justified, based upon said annual review.
5.05 WAIVER: Provided that such a waiver does not invalidate the respective policy or
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policies or diminish or impair the insured's ability to collect under such policy or policies or
unreasonably increase the premiums for such policy or policies unless the party to be benefited
by such waiver pays such increase, and without limiting any release or waiver of liability or
recovery contained elsewhere in this Declaration, each Responsible Entity hereby waives all
claims for recovery from the other Responsible Entities or any Owners for any loss or damage to
any of its property insured (or required hereunder to be insured) under valid and collectible
insurance policies to the extent of any recovery actually collected under such insurance policies.
ARTICLE SIX
Condemnation
6.01 IN GENERAL: In the event of a taking by the exercise of the power of eminent
domain or deed in lieu of condemnation of all or any part of the Premises by any competent
authority for any public or quasi-public use, the award, damages or just compensation
(hereinafter in this Article Six, the"Award") resulting from any such taking shall be allocated
and disbursed, and any repair and restoration of the improvements shall be performed, in
accordance with the requirements of this Article Six.
6.02 TAKING OF TEMPORARY USE: All awards resulting from the taking of all or
any part of the Premises, other than damages resulting from a taking of the temporary use of
space as hereinafter described, shall be paid to the Depositary and disbursed by the Depositary as
hereinafter provided. In the event of a taking of a temporary use of any portion of the Premises,
each Responsible Entity shall be entitled to receive directly from the taking authority any Award
resulting from such temporary taking within its respective portion of the Premises.
6.03 TAKING FROM ONE CONDOMINIUM: In the event of a taking (other than a
temporary taking) of a part of one Condominium, then, subject to the provisions of Section 6.06
hereof, the Responsible Entity which administers the Condominium shall repair and restore the
remainder of its portion of the improvements to form an architectural and functional whole.
Such repair and restoration shall be commenced and pursued to completion in as timely a manner
as practicable under the circumstances and shall be at the sole cost and expense of the
Responsible Entity.
6.04 TAKING OF PORTIONS OF BOTH CONDOMINIUMS: In the event of a taking
other than (a) a temporary taking described in Section 6.02 hereof, (b) a taking described in
Section 6.03 hereof, or (c) a taking of all or substantially all of the Premises, then, subject to the
provisions of Section 6.06 hereof, the Responsible Entities shall cooperate to repair and restore
the remainder of the improvements in accordance with plans and specifications (hereinafter
described)jointly approved by the Responsible Entities and the Administration Entity. Such
plans and specifications shall provide for repair and restoration of the remainder ofthe
improvements to form an architectural and functional whole with such changes in the
improvements as shall be required by reason of such taking. Such repair and restoration shall be
commenced and pursued to completion in as timely a manner as practicable under the
circumstances and the costs of such work shall be paid by the Responsible Entities in such
shares as the Responsible Entities and the Administrative Entity may agree and shall be
performed on behalf of the Responsible Entities by a contractor jointly selected by the
Responsible Entities and the Administration Entity. In the event the Responsible Entity and the
Administration Entity fail to agree upon the sharing of the costs or the selection of a contractor,
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then the decision shall be made by the Administrative Entity. If such repair and restoration is to
be performed solely in the portion of one Condominium, then, provided that the plans and
specifications do not require or provide for a material alteration of the Condominium, the
approval of the other Responsible Entity and the Administration Entity other of shall not be
required with respect to the plans and specifications therefor. If as a result of such taking, any
easements or covenants under this Declaration are extinguished or materially impaired, then
changes shall be made to provide for easements of access, ingress and egress and use of
facilities and for furnishing of services comparable, to the extent commercially practicable, to
easements created hereunder and for the furnishing of services hereunder and the
Administrative Entity shall record a Special Amendment to reflect any such changes.
6.05 USE OF AWARDS: The Award for any taking described in Section 6.04 shall first
be used to pay for the repair and restoration (including any demolition, repair or restoration
under Section 6.06 hereof). Each portion of the Award attributable to a particular portion of the
Premises shall only be utilized to repair and restore that portion of the Premises to which it is
attributed. Any excess of the Award attributed to a particular portion of the Premises over the
cost of repair and restoration to that portion of the Premises shall then be allocated to the
Responsible Entity which administers such portion.
6.06 RESTORATION: Notwithstanding any other provision to the contrary, if, as a
result of a taking (other than a temporary taking or a taking described in Section 6.07 hereof),
either Responsible Entity reasonably determines, with the concurrence of the Administrative
Entity, that a portion of the Condominium which it administers which is affected by the taking
no longer can be operated on an econornically feasible basis, then such Responsible Entity shall
not be obligated to repair or restore the affected portion. However, in such case, such
Responsible Entity shall demolish, repair or restore the affected improvements by it to the extent,
if any, as may be necessary to provide essential services or structural support for the other
portions of the Premises, but only if all the other Responsible Entity or the Administrative Entity
requests that it perform such demolition, repair or restoration. Furthermore, such Responsible
Entity shall weatherproof any exposed portions of the Premises owned by it and shall restore its
portion of the Premises to a slightly and safe condition and in such a manner as to safeguard the
other portions of the Premises, and to preserve the use of the easements granted hereunder. Such
demolition, repair or restoration shall be deemed to be a repair or restoration to which the
provisions of Paragraph 6.03 hereof are applicable.
6.07 TAKING OF ENTIRE PREMISES: In the event of a taking of all or substantially
all of the Premises, the Award for such taking shall be allocated to the Responsible Entities in
accordance with the apportionment made in any final judicial or administrative proceedings in
connection with the taking and paid to the Responsible Entities in accordance with said
apportionment.
ARTICLE SEVEN
Depositary/Disbursement
7.01 APPOINTMENT: A depositary (the "Depositary") shall be appointed to receive
from the payor or payee thereof of certain insurance proceeds and condemnation awards, to
disburse such monies and to act otherwise in accordance with the terms and provisions of this
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Declaration. The Depositary shall be a bank or other financial institution designated from time
to time by the Administrative Entity. Except as otherwise provided hereunder or required under
applicable law, any insurance proceeds under the insurance policies required to be carried
pursuant to Section 5.01 hereof, where damage occurs which affects both Condominiums, shall
be paid to the Depositary. Any condemnation awards arising in connection with a portion or
portions of the Premises shall be paid to the Depositary. With respect to insurance proceeds, the
Depositary shall act as an insurance trustee under Montana law and custom.
7.02 DAMAGE TO ONE CONDOMINIUM: As used hereinafter in this Article, the
phrase "Damaged Condominium" shall refer to any portion of the Premises as to which a
casualty loss shall have occurred. In the event of any casualty loss which affects only a portion
of one Condominium, the provisions of the applicable Condominium Declaration and the Act
shall apply.
7.03 DAMAGE TO BOTH CONDOMINIUMS: In the event of any casualty loss which
affects portions of both Condominiums then the insurance proceeds shall be paid to the
Depositary.
7.04 OTHER DAMAGE: if none of the provisions of Sections 7.02 or 7.03 are
applicable, or if none of the rights of election or appointment conferred by said Sections are
exercised within thirty (30) days after the casualty loss has been finally adjusted, then the
insurance proceeds shall be paid to the Depositary.
7.05 EXPENSES: Each Responsible Entity whose Condominium is the subject of any
such casualty loss or condemnation, where the proceeds are deposited with the Depositary, shall
be obligated to pay the reasonable fees and expenses of the Depositary in proportion to the
proceeds from their respective insurance policies or respective condemnation awards, as the case
may be. Any Depositary appointed to act hereunder shall execute an agreement with the affected
Responsible Entity or Entities and the Administrative Entity accepting said appointment in form
and content acceptable to each Responsible Entity and in accordance with the provisions of this
Declaration.
7.06 AUTHORIZATION TO PROSECUTE: The Depositary shall have no affirmative
obligation to prosecute a determination of the amount of, or to effect the collection of, any
insurance proceeds or condemnation award or awards unless the Depositary shall have been
given an express written authorization from the Responsible Entities and the Administrative
Entity.
7.07 INTEREST: The monies on deposit may be held in an interest-bearing account
pursuant to an agreement among the Depositary and the Responsible Entities whose portion of
the Premises has been the subject of any casualty loss or condemnation. The Depositary, within
thirty (30) days after receipt of funds, shall purchase with such monies, to the extent feasible,
United States Government securities payable to bearer and maturing within one (1)year from
the date of purchase thereof, except insofar as it would, in the good faith judgment of the
Depositary, be impracticable to invest in such securities by reason of any disbursement of such
monies which the Depositary expects to make shortly thereafter, and the Depositary shall hold
such securities in trust in accordance with the terms and provisions of this Declaration. Any
interest paid or received by the Depositary on monies or securities held in trust, and any gain
15
and the redemption or sale of any securities, shall be added to the monies or securities so held
in trust by the Depositary. Unless the Depositary shall have undertaken to pay interest thereon,
monies received by the Depositary pursuant to any of the provisions of this Declaration shall
not be mingled with the Depositary's own funds and shall be held by the Depositary in trust for
the uses and purposes herein provided.
7.08 RESIGNATION: The Depositary may resign by serving written notice to the
Responsible Entities and Administrative Entity. Within thirty (30) days after receipt of such
notice or in case of failure or inability to act, Administrative Entity shall appoint a substitute who
qualifies under Section 7.01 hereof, and the Depositary shall transfer all funds, together with
copies of all records held by it as Depositary, to such substitute, at which time its duties as
Depositary shall cease. If a substitute Depositary is not appointed within said additional thirty
(30) day period, then the Depositary may deposit such funds with either a court of competent
jurisdiction or with a bank or trust company which qualifies under Section 7.01 hereof.
7.09 AWARD LESS THAN $100,000: Notwithstanding anything contained herein to
the contrary, any insurance proceeds arising out of the policies required to be carried pursuant to
Section 5.01 hereof or condemnation awards of less than $100,000 shall be paid directly to the
party so entitled rather than to the Depositary.
7.10 DISBURSEMENT REOUEST:
(a) Each request by a Responsible Entity for disbursement of insurance proceeds,
any condemnation award or other funds for application to the cost of repair, restoration or
demolition (the "Work") shall be accompanied by a certificate of the applicable
Responsible Entity, dated not more than ten (10) days prior to the date of the request for
any such disbursement, setting forth the following:
(1) That the sum requested has either (i) been paid by or on behalf of one
of the Responsible Entities (in which event the certificate shall name such
Responsible Entity) or by or on behalf of both Responsible Entities (in which
event the certificate shall specify the amount paid by each respective Responsible
Entity), or(ii)is justly due to contractors, subcontractors,materialmen, engineers,
architects or other persons (whose names and addresses shall be stated) who have
rendered or furnished certain services or materials for the Work; such certificate
shall also give a brief description of such services and materials and the principal
subdivisions or categories thereof, the respective amounts so paid or due to each
of said persons in respect thereof and shall state the progress of the Work up to
the date of said certificate and any other information required by the Montana
construction lien statute and any title insurer affording coverage against
mechanics liens;
(2) That the sum requested, plus all sums previously disbursed, doesnot
exceed the cost of the Work actually in place up to the date of such certificate,
plus the cost of materials supplied and actually stored on site (which materials
shall be adequately insured against fire, theft and other casualties);
(3) That no part of the cost of the services and materials described in the
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certificate has been the basis of the withdrawal of any funds pursuant to any
previous request or is the basis of any other pending request for funds;and
(4) That the cost to complete the unfinished Work will not exceed the
funds or security therefor held by the Depositary after payment of the then current
request.
(b) Upon compliance with the provisions of Section 7.10(a) (but not more
frequently than once in each calendar month); and
(1) upon receipt of contractors', and subcontractors' sworn statements
required under the Montana construction lien statute accompanied by partial or
final waivers of lien, as appropriate, and any other information required by any
title insurer affording coverage against mechanics liens from the persons named
in the sworn statement; and
(2) approval by the title insurer, and the Responsible Entities which
administer portions of the Premises on which or for the benefit of which Work is
being performed, of the lien waivers and other documentation, and the willingness
of the title insurer to issue an endorsement (satisfactory to such parties) insuring
over possible mechanics lien claims relating to Work in place, the Depositary
shall, out of the monies so held by the Depositary and subject to such reasonable
retention as may be reasonably required in the circumstances and is customary in
similar construction matters, pay or cause to be paid to the Responsible Entities,
contractors, subcontractors, materialmen, engineers, architects and other persons
named in the owner's certificate and contractors, and subcontractors' sworn
statements the respective amounts stated in said certificate and statements due
them. Notwithstanding the foregoing, either or both of the Responsible Entities or
the Depositary may require that disbursements be made through the usual form of
construction escrow then in use in Montana, with such changes as may be
required to conform to the requirements or provisions of this Declaration. The
Depositary may rely conclusively, with respect to the information contained
therein, on any certificate furnished by the Responsible Entity to the Depositary
in accordance with the provisions of Section 7.10(a) hereof and shall not be liable
or accountable for any disbursement of funds made by it in reliance upon such
certificate or authorization.
7.11 USE OF FUNDS: No contractor, subcontractor, materialmen, engineer, architect or
any other person whatsoever, other than a Responsible Entity, shall have any interest in or right
to any funds held by the Depositary; provided, that such funds shall only be used for repair,
restoration or demolition as required by this Declaration, except as hereinafter set forth. The
Responsible Entities and Administrative Entity may jointly at any time provide for a different
disposition of funds than that provided for in this Declaration, without the necessity of obtaining
the consent of any contractor, subcontractor, materialman, engineer, architect or any other
person whatsoever. If at any time the Responsible Entities and Administrative Entity, shall
jointly instruct the Depositary in writing with regard to the disbursement of any funds held by
the Depositary, then the Depositary shall disburse such funds in accordance with said
instructions and the Depositary shall have no liability to anyone by reason of having so
disbursed said funds in accordance with said instructions.
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ARTICLE EIGHT
Administrative Entity Rights
8.01 IN GENERAL: The Administrative Entity Rights shall consist of and include all
rights and powers reserved or granted to the Administrative Entity under the provisions of this
Declaration, including, without limitation, the rights and powers set forth in this Article.
Anything in this Declaration to the contrary notwithstanding, the provisions set forth in this
Article shall govern.
8.02 PROMOTION OF PREMISES: The Administrative Entity 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 Premises as the Administrative Entity may, from
time to time, determine to be necessary or advisable, (ii) construct and maintain construction,
management, sales and/or leasing offices, advertising signs, lighting and banners, or other
promotional facilities at such locations and in such forms as the Administrative Entity may deem
advisable in its sole discretion.
8.03 CONSTRUCTION ON PREMISES: The Administrative Entity, its agents and
contractors, shall have the right, at the Administrative Entity's own expense or at the expense of
applicable Responsible Entities (as determined by the Administrative Entity's in its sole
discretion), to make such alterations, additions or improvements to any part of the Premises
owned, leased maintained or otherwise controlled by the Administrative Entity, including,
without limitation, AE Maintained Facilities.
8.04 GRANT OF EASEMENTS: The Administrative Entity shall have the right to
reserve or grant easements over the Premises or portions thereof(i) to any governmental
authority, public utility, private utility for the installation and maintenance of electrical,
telephone, cable or internet conduit and lines, gas, sewer or water lines, or any other utility
services serving either Condominium or(ii)to a Responsible Entity for any purpose which the
Administrative Entity deems necessary or advisable.
8.05 OTHER RIGHTS: The Administrative Entity shall have the right and power to
execute all documents and do all other acts and things affecting the Premises which, in the
Administrative Entity's opinion, are necessary or desirable in connection with the rights of the
Administrative Entity under this Declaration.
8.06 APPROVAL OF REGULATED WORK: No temporary or permanent alteration of
or additions to a Condominium which (i) are visible from outside the improvements on the
Building and/or (ii) affect the use, operation, maintenance or enjoyment of AE Maintained
Facilities, including a change of exterior color ("Regulated Work") shall be commenced or
maintained with respect to either Condominium without the prior written consent of the
Administrative Entity to the plans therefor, which consent may be granted or withheld in the
Administrative Entity's sole and absolute discretion. The Administrative Entity reserves the
right and power to promulgate and amend from time to time standards, policies, procedures and
guidelines in order to implement the foregoing. If any Regulated Work which requires the
Administrative Entity approval as provided above is commenced without obtaining the required
18
written consent of the Administrative Entity, then the Administrative Entity may seek any
remedy or take any action provided for herein or permitted at law or in equity in order to enforce
the provisions hereof, including injunctive relief to stop work and/or restore the portion of the
Condominium to its condition prior to the commencement of the work. The Administrative
Entity's decision to approve or disapprove Regulated Work in one instance shall not in any way
create or establish a precedent for how the Administrative Entity must respond to a request for
Regulated Work subsequently made, it being understood that circumstances, situations and
standards may change and the Administrative Entity reserves the right and power to grant or
deny requests as the Administrative Entity believes are appropriate in the Administrative
Entity's sole and absolute discretion.
8.07 MAINTENANCE STANDARDS_The Administrative Entity shall have the right
and power from time to time to adopt rules, regulations, guidelines, and standards governing the
maintenance and upkeep of the Condominiums, including without limitation, improvements
thereto, signs, and advertising thereon. If in the sole judgment of the Administrative Entity a
Condominium is not being maintained in good condition and repair or the appearance of any
such portion of the Premises is not of the character and quality of that of other portions of the
Premises or is not in compliance with rules, regulations, guidelines, and standards adopted from
time to time by the Administrative Entity, then without limiting any rights or remedies available
to the Administrative Entity hereunder, at law or in equity, the Administrative Entity shall have
the right to enter upon the Condominium and perform any maintenance or repair work which it
deems necessary or appropriate. The cost of any such work shall be charged to the Responsible
Entity, shall be payable to the Administrative Entity upon demand subject to the provisions of
Section 4.08.
8.08 BUDGETS, ASSESSMENTS AND OTHER FINANCIAL POWERS: The rights
and power to set budgets and assessments, collect assessments, maintain accounts, pay expenses,
record liens against Condominiums for non-payment of assessments and otherwise exercise all
rights and powers of the Administrative Entity set forth in Article Four hereof.
8.09 SPECIAL AMENDMENT: The Administrative Entity reserves the right and power
to Record an amendment ("Special Amendment") to this Declaration at any time and from time
to as determined by the Administrative Entity in its reasonable judgment to be necessary or
appropriate to:
(a)Amend Exhibit C to (i) add to, delete from or change the list of AE Provided
Maintenance and Services, (ii)assign and/or change the Cost Sharing Percentages, and (iii)
amend or supplement Exhibit B to reflect the amendments made pursuant to (i)above.
(b) Bring this Declaration into compliance with applicable governmental laws,
ordinances, regulations, orrequirements;
(c) Correct or clarify errors, ambiguities, omissions or inconsistencies in this Declaration
or any Exhibit hereto or any supplement or amendment hereto;
(d) Provide for the organization of a non-profit corporation as provided in Section 8.10
below to accept an assignment of AdministrativeEntity Rights;
(e) Make changes in easements as authorized under Section 6.04; or
19
(f) Otherwise amend this Declaration in ways not specifically provided for above in order
to adjust to changes in economic or market conditions or technological advances, as long as the
amendment does not materially change the character of the development or materially increase
the burdens on the Responsible Entities.
In furtherance of the foregoing, a power coupled with an interest is hereby reserved and granted
to the Administrative Entity to make or consent to a Special Amendment on behalf of each
Owner and Responsible Entity as attorney-in-fact. Each deed, mortgage, trust deed, other
evidence of obligation, or other instrument affecting a Condominium and the acceptance thereof
shall be deemed to be a grant and acknowledgment of, and a consent to the reservation of, the
power to the Administrative Entity to make, execute and Record Special Amendments.
8.10 ASSIGNMENT BY THE ADMINISTRATIVE ENTITY:
(a) Administrative Entity Rights are severable and personal and do not run with the land.
The holder from time to time of any Administrative Entity Right may mortgage, pledge, assign
(collaterally, conditionally, or absolutely), or transfer the right to another Person, who may, but
need not, own or control title to any portion of the Premises. Any assignment of an
Administrative Entity Right shall specifically provide that either all Administrative Entity Rights
then held by the assignor are being assigned or, if less than all, specifically provide which
Administrative Entity Rights are being assigned and any such assignment shall only become
effective upon the Recording thereof. Any assignment of Administrative Rights may be made
subject to such conditions or limitations as the assignor and assignee agree to and which are set
forth in the assignment instrument.
(b) Without limiting the foregoing, the Administrative Entity may cause to be
incorporated a non-profit corporation whose members will be the Responsible Entities and which
shall be governed by Articles of Incorporation and Bylaws adopted by the Administrative Entity
(and referred to or included as part of a Special Amendment pursuant to Section 8.09 hereof)and
assign some or all of the Administrative Entity Rights to such non-profit corporation.
(c) Any successor to, or assignee of, any Administrative Entity Rights (whether as the
result of voluntary assignment, foreclosure, assignment in lieu of foreclosure, or otherwise) shall
hold or be entitled to exercise such Administrative Entity Right as fully as if named as such party
herein. No such successor to or assignee of an Administrative Entity Right shall have or incur
any liability for the acts of any other party which previously exercised, or subsequently shall
exercise, such rights.
(d) If and to the extent that the Administrative Entity Rights under Article Four hereof are
assigned (other than an assignment for collateral purposes), all funds and accounts being held by
the Assignor pursuant to Article Four relating to such rights shall be transferred to the assignee
together with any records relating thereto in the possession or control of the assignor.
ARTICLE NINE
Miscellaneous
9.01 SEVERABILITY: Invalidation of all or any portion of any of the easements,
20
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
Declaration, which shall remain in full force and effect.
9.02 NOTICES: Any notice required to be sent to a Responsible Entity under the
provisions of this Declaration shall be deemed to have been properly given (i)two days after it is
mailed, postage prepaid to the last known mailing address, or (ii) when transmitted by facsimile
or e-mail to its last known facsimile number or e-mail address and mailed on the same day,
postage prepaid to the last known address.
9.03 CAPTIONS/CONFLICTS: The Article and Section headings herein are intended
for convenience only and shall not be construed with any substantive effect in this Declaration.
In the event of any conflict between the statements made in the recitals to this Declaration and
the provisions contained in the body of this Declaration, the provisions contained in the body of
this Declaration shall govern.
9.04 PERPETUITIES AND OTHER INVALIDITY/DURATION: If any of the options,
privileges, covenants or rights created by this 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 such provisions shall continue only until twenty-one (21) years after the death
of the survivor of the living lawful descendants of the former President of the United States
George H. Bush at the time of Recording of this Declaration. Except as otherwise specifically
provided herein the covenants, conditions, restrictions, easements, reservations, liens, and
charges, which are granted, created, reserved or declared by this Declaration shall be appurtenant
to and shall run with and bind the land for a period of forty (40)years from the date of Recording
of this Declaration and for successive periods often (10) years each unless revoked, changed or
amended in whole or in part by a recorded instrument executed by both Responsible Entities and
the Administrative Entity.
9.05 AMENDMENT BY RESPONSIBLE ENTITIES AND ADMINISTRATIVE
ENTITY: Subject to the provisions of Article Eight, any provision of this Declaration hereof
may only be amended by an instrument executed by both Responsible Entities and the
Administrative Entity. No amendment shall become effective until Recorded.
DATED this 77day of +cL••, , 2020.
Aspen land Co., a Montana limited liability company
By: Aspen Land Co., LLC, a Montana limited
liability company
ITS: Manager
21
STATE OF MOTANA )
. SS.
County of Gallatin )
i
On this�t ay 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 ZIA* NADINE C ZIKMUND Notary Public for the State of
NOTARY PUBLIC for the
' SEAL State of Montana Residing at:
N� r Residing at Manhattan,Montana My Commission Expires:
MY Commission Expires
January 18,2023
22
EXHIBIT A TO DECLARATION OF CROSS EASEMENTS AND COST SHARING
PROVISIONS FOR ASPEN CROSSING
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'/4 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-21F).
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).
23
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EXHIBIT C and C-1 TO DECLARATION OF CROSS EASEMENTS AND COST SHARING
PROVISIONS FOR ASPEN CROSSING
SERVICES RESPONSIBLE CONDO COST SHARING%
Utilities Residential and Commercial TBD
-Common Area Electric
-Common Water and sewer
-Common Area Gas Residential Residential TBD
-Common Area Storm Water Pad Residential and Commercial TBD
Building Facilities Residential and Commercial TBD
-Elevator
-Elevator Maintenance and Repairs
-Mail Room
-Bike Room
-Storage Units
-Fire Suppression
-Security Systems
Common Area Maintenance
for Development Residential and Commercial TBD
-Landscaping
-Roof Top Residential 100.00%
-Snow Removal
-Window Washing
-Parking Lot Maintenance Pad Residential and Commercial
Insurance Residential and Commercial TBD
ESTIMATED SHARED EXPENSES ATTACHED HERETO AS EXHIBIT C-1
AE MAINTAINED FACILITIES:
1. Ground Level Lobby and Elevator Lobby
2. Elevators
3. Mailroom
4. Stairwells
5. Landscaping
6. Fire Suppression system
7. Bike Room
8. Storage Rooms
9. Common Area HVAC Systems
10. Fourth Floor Roof Top(Residential)
11. Parking Lot
12. Sidewalks
13. Basement
24
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