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HomeMy WebLinkAboutH - NWX PH-2 CCRs and Bylaws 1 Please return to: WH NORTHWEST CROSSING LLC 387 Gallatin Park Dr., Ste 102 Bozeman, MT 59715 DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS FOR NORTHWEST CROSSING SUBDIVISION PHASE 2 AND BYLAWS OF NORTHWEST CROSSING RESIDENTIAL OWNERS SUBASSOCIATION – PHASE 2. 2 DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS FOR NORTHWEST CROSSING SUBDIVISION PHASE 2 AND BYLAWS OF NORTHWEST CROSSING RESIDENTIAL OWNERS SUBASSOCIATION – PHASE 2. WH NORTHWEST CROSSING LLC, a Delaware limited liability company ("Declarant") is the present owner in fee simple of all the property included within the boundaries of Northwest Crossing Subdivision Phase 2, situated in the NE¼ of Section 4, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record with the Clerk and Recorder of Gallatin County, Montana (Plat Reference: _________). The following Declaration of Protective Covenants, Conditions and Restrictions for Northwest Crossing Subdivision Phase 2 is hereby adopted. The following Bylaws of Northwest Crossing Residential Owners Subassociation – Phase 2, a Montana nonprofit mutual benefit corporation, are also adopted by the Board of Directors of Northwest Crossing Residential Owners Subassociation – Phase 2. ARTICLE I - DEFINITIONS Association or Subassociation. Northwest Crossing Residential Owners Subassociation – Phase 2, a Montana nonprofit mutual benefit corporation, which is all of the Lot Owners of Phase 2 acting as a group and in accordance with these duly adopted Bylaws and this Declaration. Board of Directors or Board. The body responsible for administration of the Association serving as the board of directors under Montana law. Bylaws. The Bylaws adopted by the Association as set forth in Article IV herein. Common Areas. Land within Phase 2 designated as Open Space on the Plat and all stormwater infrastructure located outside of public street rights-of-way, street lighting, street boulevards, alley rights-of-way, auto courts, common parking areas located adjacent to alley rights-of-way, public trails and paths, sidewalks adjacent to open space and parks, all land designated as common hereunder, and all real property in Phase 2 owned by or conveyed to the Association. Common Expenses. All costs associated with maintenance, repair, and replacement of the Common Areas, all administrative expenses of the Association, all costs incurred by the Association for the general benefit and welfare of the Property, and all costs designated as common herein. Covenants. The Protective Covenants, Conditions and Restrictions set forth in this Declaration. 3 Declarant or Developer. WH NORTHWEST CROSSING LLC, a Delaware limited liability company and its designated successors and assigns. Design Regulations and Guidelines for Phase 2. Guidelines applicable to all development activities on the Property within Phase 2 as more specifically described and set forth in Article III of this Declaration. Fiscal Year. From the beginning of January through the end of December. Lot or Lots. A parcel of real property in Phase 2 as depicted on the Plat not including any Common Areas or roadways. A condominium unit shall be considered as a Lot for purposes of this Declaration. Lot Owner or Owner. One or more persons who hold the record title to any Lot, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If a Lot is sold under a contract for deed, the purchaser (rather than the fee owner) will be considered the Lot Owner. An owner of a condominium unit shall be considered a Lot Owner for purposes of this Declaration. Member. A person entitled to membership in the Association. Northwest Crossing Residential Architectural Committee (NWXRAC). The body responsible for approval of Lot Owners' plans for improving, building, or remodeling on any Lot as more specifically described and set forth in Article III of this Declaration. Plat. The official plat of Northwest Crossing Subdivision Phase 2 on file and of record with the Clerk and Recorder of Gallatin County, Montana. Phase 2. All the real property located within the boundaries of Northwest Crossing Subdivision Phase 2, situated in the NE¼ of Section 4, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana Project. All real property included in all phases of Northwest Crossing Subdivision located in the NE¼ of Section 4, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana. Project Association. Northwest Crossing Residential Owners Association, a Montana non- profit mutual benefit corporation as more particularly described and defined in the Project Covenants. 4 Project Covenants. The Declaration of Covenants, Conditions, and Restrictions and Reservation of Easements for Northwest Crossing Subdivision Residential Development that was recorded as Document No. _____________ in the office of the Clerk and Recorder of Gallatin County, Montana, as may be amended, that governs all residential development in all phases of the Project, the terms and conditions of which are hereby incorporated herein by reference. Property. All the real property included within the boundaries of Phase 2, as designated on the official plat on file and of record with the Clerk and Recorder of Gallatin County. ARTICLE II - PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS A. PURPOSE These Protective Covenants, Conditions and Restrictions are adopted to preserve and maintain the scenic values of the Property for the benefit of the owners thereof. It is the purpose of these Protective Covenants and Restrictions to preserve and protect the environment, the natural beauty, view, and surroundings of the Property, and to preserve and protect the interests and investment of the individual property owners. B. BENEFIT AND BURDEN - RUN WITH THE LAND These Protective Covenants, Conditions and Restrictions shall attach to and run with the Property and shall constitute an equitable servitude upon the Property and every part of it, including all titles, interest and estates as may be held, conveyed, owned, claimed, devised, encumbered, used, occupied and improved. These Protective Covenants, Conditions and Restrictions are declared for the benefit of the entire Property and every part of it and for the benefit of each Lot Owner. They shall constitute benefits and burdens to Declarant and to all persons or entities hereafter acquiring any interest in the Property. C. LAWS, ZONING ORDINANCES, AND REGULATIONS No unlawful use shall be made of the Property nor any part thereof, and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereof shall be observed and followed. All Lot Owners and prospective purchasers are advised to consult all zoning ordinances and regulations. Where the provisions of any valid law, zoning ordinance and/or regulation of any governmental bodies having jurisdiction is in conflict with the covenants, requirements and conditions set forth in this Declaration, the more restrictive shall control. D. PROJECT COVENANTS 5 The Property is not only subject to these Covenants but to the Project Covenants which are applicable to the entire Project. Lot Owners are advised to carefully consult the Project Covenants and the rules and regulations of the Project Association, of which each Lot Owner shall be a member in addition to being a member of the Association. These Covenants and the Association shall be deemed to be supplemental to the Project Covenants and the Project Association. In the event of any conflict between a covenant and/or condition set forth in these Covenants and a covenant and/or condition set forth in the Project Covenants, the more restrictive covenant and/or condition shall control. The Association shall have standing (but not the obligation) to enforce the covenants, conditions, rules and regulations of the Project Covenants and the Project Association, subject to the ultimate authority of the Project Association. E. GENERAL DESIGN STANDARDS AND USE RESTRICTIONS No structure shall be placed, erected, or installed upon any Lot, no improvements (including staking, clearing, excavating, grading and other site work, exterior alteration of existing improvements, and planting or removal of landscaping materials), and no additions, changes (including remodeling) of any portions of the Lot except the interior structures shall take place except in compliance with the Design Regulations and Guidelines for Phase 2 and with the approval of the Northwest Crossing Residential Architectural Committee (NWXRAC) as more specifically set forth in Article III herein. All structures, improvements, and changes shall also comply with the current Uniform Building Codes and the laws of the City of Bozeman, Gallatin County and the State of Montana. The Design Regulations and Guidelines for Phase 2 must be carefully consulted and followed to ensure the requirements of these Covenants and Restrictions are met. F. COMMON AREAS As set forth in Article IV below, the Association is charged with the maintenance and repair of the Common Areas and the regulation of the use of the Common Areas. The Association shall maintain and repair the Common Areas in Phase 2 including those areas designated as Open Space on the Plat, all stormwater infrastructure located outside of public street rights-of-way, street boulevards, street lighting, public trails and paths, fencing around Open Space, and all other Common Areas and all real property owned by or conveyed to the Association. No improvements shall be constructed on the Common Areas except as determined by the Association and in compliance with the laws and regulations of the City of Bozeman. Maintenance, repairs, and replacements of Common Areas and improvements shall be at the expense of the Association provided, however, if damage is caused by a negligent or tortious act 6 of any Lot Owner, members of his or her family, guest, invitee or employee, then such Lot Owner shall be responsible and liable for all such damage. G. SPECIAL PROVISIONS RELATED TO BLOCKS 4 AND 5 The Association may elect to undertake landscape maintenance, fence maintenance, driveway maintenance and other maintenance services for the Lots within Block 4 and Block 5 of Phase 2, and the Association shall have an easement across said Lots for such purposes and the authority to levy additional and special assessments against such Lots in the same manner as assessing against Lots generally as set forth in this Declaration. H. AUTO COURTS, ALLEY RIGHTS-OF-WAY AND COMMON PARKING AREAS The Association shall maintain, as Common Areas, the Auto Courts, the Alley Rights-of- Way and the Common Parking Areas located adjacent to the Alley Rights-of-Way as shown on the Plat. The Association shall be responsible for snow removal, maintenance, repaving and striping and shall keep the Auto Courts, the Alley Rights-of-Way and the Common Parking Areas in good condition and repair, and the cost thereof such shall be a Common Expense of the Association assessable to all Lot Owners. The Association shall make such repairs and improvements to the Auto Courts, the Alley Rights-of-Way and the Common Parking Areas as may be directed by the City of Bozeman Transportation & Engineering Department. I. COMPLIANCE Every Lot Owner and occupier of any structure on the Property shall comply with this Declaration, the Bylaws, the rules and regulations of the Association, the Project Covenants, and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereof. Failure to comply shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or equity, by the Association, the Declarant, or in the proper case, by any aggrieved Lot Owner. ARTICLE III - DESIGN REVIEW A. GENERAL No structure shall be placed, erected, or installed upon any Lot, and no improvements (including staking, clearing, excavation, grading and other site work, exterior alteration of existing improvements, and planting or removal of landscaping materials) shall take place except in compliance with the Design Regulations and Guidelines for Phase 2 and the design review process set forth in the Project Covenants, including obtaining approval by the Northwest Crossing 7 Architectural Committee (NWXRAC) as more particularly set forth and described in the Project Covenants. B. DESIGN REGULATIONS AND GUIDELINES Section 1. General. All structures, improvements, landscaping, and changes shall comply with the Design Regulations and Guidelines for Phase 2 attached hereto as Exhibit “A”, which are specifically applicable to the Property and have been approved by the Project Association and the Northwest Crossing Residential Architectural Committee (NWXRAC). The Design Regulations and Guidelines for Phase 2 attached hereto as Exhibit “A” shall be applied and administered by the Northwest Crossing Residential Architectural Committee (NWXRAC) rather than the general design regulations and guidelines for the Project attached to the Project Covenants. Section 2. Amendment of Design Regulations and Guidelines for Phase 2. The Design Regulations and Guidelines for Phase 2 may be amended by the mutual consent of the Northwest Crossing Residential Architectural Committee (NWXRAC) and the Board of Directors of the Association. Any amendment to the Design Regulations and Guidelines for Phase 2 shall not be effective until recorded in the office of the Clerk and Recorder of Gallatin County, Montana. Any amendment shall apply only to construction and modifications commenced after the effective date of said amendment. ARTICLE IV - BYLAWS OF NORTHWEST CROSSING RESIDENTIAL OWNERS SUBASSOCIATION – PHASE 2 A. ASSOCIATION Declarant has organized an Association of all Lot Owners. The Association has been organized under the name of Northwest Crossing Residential Owners Subassociation – Phase 2, as a nonprofit Montana mutual benefit corporation. The Association shall have powers and obligations as set forth in the Articles of Incorporation, the Declaration and these Bylaws for the benefit of the Property and the Members. The Articles of Incorporation of the Association provide for its perpetual existence. In the event the Association is at any time dissolved, whether inadvertently or deliberately, it shall automatically be succeeded by an unincorporated association of all Lot Owners of the same name. In such event, all of the property, powers, and obligations of the incorporated Association existing immediately prior to its dissolution shall thereupon automatically vest in the successor unincorporated association, and such vesting shall, thereafter, be confirmed and evidenced by appropriate conveyances and assignments. To the greatest extent possible, any successor unincorporated association shall be governed by the Articles of Incorporation and the Bylaws of the Association as if they had been made to constitute 8 the governing documents of the unincorporated association. The Articles of Incorporation of the Association adopted shall be deemed covenants running with the ownership of the Lots and shall be binding upon the Lot Owners as if recited verbatim herein. The Association shall be governed by a Board of Directors elected in the manner set forth in these Bylaws. B. MEMBERSHIP Section 1. Qualifications. Every Lot Owner shall automatically be a Member of the Association and shall remain a Member until such time as he or she no longer owns a Lot at which point his or her membership in the Association shall automatically cease. Membership shall be appurtenant to and may not be separated from the ownership of a Lot. No person who is not a Lot Owner shall be a Member of the Association. Section 2. Voting. Unless otherwise required by Montana law or this Declaration and these Bylaws, the affirmative vote of the majority voting interest of the Lot Owners shall be the act of the Lot Owners and the Members. Each Lot shall be allocated one (1) vote. If any Lot Owner fails to pay any assessments, fines or other amounts due to the Association within thirty (30) days after such payment is due or if any Lot Owner violates any other provision of this Declaration or the Board’s rules and regulations and such violation is not cured within fifteen (15) days after the Association notifies the Lot Owner of the violation, the Board shall have the right to suspend the vote for such Lot until such time as all payments, including interest and attorney’s fees, are brought current, and until any other infractions or violations are corrected to the Board’s satisfaction. When more than one person holds an ownership interest in any Lot, all such persons shall be Members, but the designated voting interest for such Lot must be collectively cast as the Members holding an interest in such Lot determine among themselves. Section 3. Annual Members Meeting. The date, time, and place of the annual meeting of the Members shall be noticed by the Board, which meetings may coincide with the Board’s annual meeting. At such annual meeting of the Members occurring after the Turnover Meeting, the Members shall elect directors to the Board and conduct such other business as permitted by this Declaration and these Bylaws. A vote may be cast either in person, by proxy, or by written ballot. All proxies shall be in writing and shall be filed with the secretary, and entered in the minutes of the meeting. No proxy shall be valid after eleven (11) months from the date it was made, unless otherwise provided in the proxy. Notice of the time, place, and description of the items to be considered shall be mailed by the Association to all Members not less than thirty (30) nor more than ninety (90) days in advance of the annual members meeting. A quorum for the transaction of business at any meeting shall consist of a majority of the voting interest of the Lots, but the Members present at any meeting where less than a quorum is present, may adjourn the meeting to a future time. Action may be taken without a meeting if the action is taken by all the Members and the action is evidenced by one or more written consents describing the action 9 taken, signed by all the Members, and delivered to the Association for filing with the Association records. All meetings of the Members shall be presided over by the President, or in his or her absence the Secretary, and shall be conducted in accordance with the most recent version of Robert’s Rules of Order. The first annual meeting of the Members shall be the Turnover Meeting as set forth below in Section 5. Section 4. Special Members Meeting After the Turnover Meeting (as defined below), special meetings of the Members may be called for any purpose at any time by the President of the Association, the Board of Directors, or by a petition signed by not less than owners of forty percent (40%) of the voting interest of the Lots. If a special meeting is called by any person or persons other than the Board of Directors, a written request to notice the meeting, specifying the time of the meeting and the general nature of the business to be transacted, shall be delivered personally or sent by registered mail or facsimile transmission to the Association. The officer receiving the request shall cause notice to be promptly given, personally or by mail to each Member’s last known address, that a meeting will be held at the time requested by the person or persons calling the meeting, not less than ten (10) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after receipt of the request, the person or persons requesting the meeting may give the notice. Section 5. Turnover Meeting. Declarant shall call a meeting for the purposes of turning over administrative control of the Association from Declarant to the Members (the "Turnover Meeting") within ninety (90) days of the date when ninety percent (90%) of the Lots have been conveyed by Declarant. However, Declarant may elect to call the Turnover Meeting at an earlier date in Declarant's sole discretion. Declarant shall give notice of the Turnover Meeting to each Lot Owner in the manner prescribed in this Article. If the Declarant does not call the Turnover Meeting within the required time, any Lot Owner may call the Turnover Meeting by giving notice to the other Lot Owners in the manner prescribed in this Article. The Declarant shall not be responsible for the failure of the Lot Owners to elect the number of directors sufficient to constitute a quorum of the Board and assume control of the Association in accordance with this section. After the Turnover Meeting, the Declarant shall be relieved of any further responsibility for the administration of the Association (except in Declarant’s capacity as a regular Lot Owner). At the Turnover Meeting, the Declarant shall deliver to the Association: (1) The original or a photocopy of the recorded Declaration and copies of the Bylaws and the Articles of Incorporation of the Association and any supplements and amendments to the Articles or Bylaws; (2) A deed to the Common Areas (if applicable); (3) The minute books, including all minutes, and other books and records of the Association and the Board of Directors; (4) All rules and regulations adopted by the Declarant; 10 (5) Resignations of officers and members of the Board of Directors who are concurrently resigning; (6) A report on the present financial position of the Association, consisting of a balance sheet and an income and expense statement for the previous twelve (12) month period; (7) All funds of the Association and control of the funds; (8) All tangible personal property that is property of the Association, and an inventory of the property; (9) Records of all property tax payments for the Common Areas to be administered by the Association, if applicable; (10) Copies of any income tax returns filed by the Declarant in the name of the Association, and supporting records for the returns; (11) All bank signature cards; (12) Any reserve account established in the name of the Association; (13) An operating budget for the Association and a budget for replacement and maintenance of the Common Areas; (14) Insurance policies; (15) A roster of Lot Owners and their addresses and telephone numbers, if known, as shown on the records of the Association; (16) Employment or service contracts in which the Association is one of the contracting parties or service contracts in which the Association or the Lot Owners have an obligation or responsibility, directly or indirectly, to pay some or all of the fee or charge of the person performing the service; and (17) Any other contracts to which the Association is a party. C. BOARD OF DIRECTORS Section 1. Powers and Duties. The business and affairs of the Association shall be managed by the Board. The Board is authorized to manage the business of the Association and is authorized to take such actions as shall be necessary and reasonable to carry out the functions and purposes of the Association. Pursuant to the provisions of this Declaration and these Bylaws, the Board shall have the power and duty to: (1) Prepare an annual budget and levy assessments; (2) Adopt rules and regulations; (3) Regulate, restrict, or limit Lot Owners’ use of the Common Areas for reasons set forth in this Declaration; (4) Call annual and special meetings of the Association and give due notice thereof; (5) Enforce provisions of this Declaration and any duly adopted rules and regulations, including the levying of fines; 11 (6) Deny a Lot Owner the right to access the Common Areas in the event the Lot Owner is delinquent in the payment of assessments or has failed to cure any default of his or her obligation under this Declaration for a period of thirty (30) days after written notice thereof; (7) Make provisions for the general management, improvement, repair and maintenance of the Common Areas and all improvements thereon; (8) Enter into contracts or hire personnel for the management of the affairs of the Association and the maintenance, management, improvement, and repair of the Common Areas; (9) Provide a means of hearing grievances of Lot Owners and to respond appropriately thereto; (10) Meet at regularly scheduled times and to hold such meetings open to all Lot Owners or their agents; (11) Defend in the name of the Association any and all lawsuits wherein the Association is a party defendant; (12) Take appropriate legal action to collect delinquent assessments; (13) Initiate legal action for purposes other than collection of delinquent assessments if two-thirds of the voting interest of the Lots approve; (14) Enter into contracts necessary to carry out the duties herein set forth; (15) Establish a bank account for the Association and handle Association funds; (16) Arrange, keep, maintain and renew insurance for the Association as provided for herein; and (17) In general, to act for and carry on the administration and affairs of the Association as authorized and prescribed by this Declaration, and to do all those things which are necessary and reasonable in order to carry out the governance and operation of the Property. Section 2. Number, Selection, Vacancy. Prior to the Turnover Meeting, the Board of Directors shall consist of three (3) directors appointed by the Declarant who need not be Members. Subsequent to the Turnover Meeting, there shall be three (3) directors elected by the Members via non-cumulative voting by majority of the voting interest of the Lots at the annual members meeting. In the event there is an insufficient quorum to elect the directors at the annual meeting, the directors then serving shall continue to serve until new directors are elected. The number of directors may be expanded by resolution adopted and approved by at least sixty percent (60%) of the voting interest of the Lots at a meeting duly called for that purpose. Should a vacancy occur on the Board, the Board shall appoint a Member to serve until the next annual or special meeting at which time the Members shall elect a director to fill the vacancy (subject to Declarant’s rights herein). If a director appointed by the Declarant dies, resigns or otherwise vacates his or her Board position, the replacement director shall be appointed by the Declarant. Section 3. Removal and Resignation. At any annual or special meeting of the Members, any directors on the Board elected by the Members may be removed by the vote of a majority of the voting interest of the Lot Owners. Upon termination of membership in the 12 Association, a director elected by the Members is automatically removed from the Board. A director may resign at any time by giving written notice to the Board, the President or the Secretary of the Association. A member of the Board of Directors appointed by the Declarant may only be removed by the Declarant. Section 4. Annual Board Meetings. The annual meeting of the Board shall be held at a time and place designated by the Board. The annual meeting of the Board is open to all Lot Owners. Notice of the time, place, and description of the items to be considered shall be mailed by the Association to all Members not less than thirty (30) nor more than ninety (90) days in an advance of the annual meeting of the Board. All meetings of the Board of Directors shall be presided over by the President, or in his or her absence the Secretary, and shall be conducted in accordance with the most recent version of Robert’s Rules of Order. Section 5. Other Board Meetings. Other meetings of the Board may be called by the written request of the President or any of the directors. The President shall fix the time and place of the meeting and send notice to each director at least three (3) days in advance of the meeting, setting forth the date, time, and place of the meeting. Directors may participate by means of a conference telephone or similar communication equipment through which all persons participating in the meeting may communicate with the other participants. Participation in a meeting pursuant to this section constitutes presence in person at the meeting. Section 6. Quorum and Voting. A quorum for the transaction of business of any meeting of the Board shall consist of a majority of the Board, but in no event less than two members of the Board. At every Board meeting, each director shall be entitled to one vote. Unless otherwise required by Montana law or this Declaration and these Bylaws, the affirmative vote of the majority of the directors present at a duly held meeting at which a quorum is present shall be the act of the Board and of the Association. Section 7. Action Without Meeting. Action may be taken without a Board meeting if the action is taken by all the directors. The action must be evidenced by one or more written consents describing the action taken, signed by all the directors, and delivered to the Association for filing with the Association records. Section 8. Compensation. No director shall receive any compensation for acting as such. Nothing herein, however, shall be construed to preclude compensation being paid for any services rendered in any other capacity for the Association, whether as employees, independent contractors or otherwise. D. OFFICERS 13 Section 1. Selection, Removal, Vacancy. There shall be a President, a Secretary, and a Treasurer elected by and from the Board. An officer may be removed at any time by a majority vote of the Board at an annual or special meeting. Any vacancy shall be filled by the directors. Section 2. Duties of the President. The President shall be the principal executive officer of the Association and, subject to the control of the Board, shall in general supervise and control all the business and affairs of the Association, including the filing of liens for unpaid assessments in accordance with this Declaration and the enforcement of activities of the Association. The President shall preside at all meetings, shall sign all written contracts, deeds, mortgages, bonds or other instruments of the Association which the Board has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board or this Declaration to some other officer or agent of the Association or shall be required by law to be otherwise signed or executed. The President shall perform all such other duties as are incidental to the office of President; in case of the absence or disability of the President, the presidential duties may be performed by the Secretary. Section 3. Duties of the Secretary. The Secretary shall issue notice of all meetings and shall: attend and keep the minutes of the same; maintain the names and addresses of all Members; have charge of all Association records and papers; and perform all such other duties as are incidental to the office of Secretary. Section 4. Duties of Treasurer. The Treasurer shall be the custodian of the Association’s monies and securities, shall deposit the same in the Association’s name as directed by the Board, and shall keep legal books of account, and shall submit them, together with all vouchers, receipts, records and other papers, to the Board for their examination and approval, as often as they may require, and shall perform all such other duties as may be incidental to this office. The Treasurer shall be bonded if directed by the Board. Section 5. Compensation. No officer shall receive any compensation for acting as such. Nothing herein, however, shall be construed to preclude compensation being paid for any services rendered in any other capacity for the Association, whether as employees, independent contractors or otherwise. E. OFFICES AND REGISTERED AGENT The address of the Association’s initial registered office 387 Gallatin Park Drive, Ste 102 Bozeman, Montana 59715. The name of the Association’s initial registered agent at such address is Marc Smith. The Board shall maintain accurate and current registered agent records with the Montana Secretary of State. 14 F. ANNUAL REPORT The Association shall file with the Montana Secretary of State or other proper state administrator a duly executed annual report as required by the Montana Nonprofit Corporation Act. G. PERSONAL AND REAL PROPERTY FOR COMMON USE. The Association, through action of its Board, may acquire, hold, and dispose of tangible or intangible personal property and real property. The Declarant may convey to the Association improved or unimproved real estate located on the Property, personal property and leasehold and other property interests. Such property shall be accepted by the Association and thereafter shall be maintained by the Association at its expense for the benefit of its Members, subject to any restrictions set forth in the deed. H. REPAIRS AND MAINTENANCE The Association shall maintain and keep in good repair (1) all storm drainage areas and all stormwater infrastructure located outside of public street rights-of-way as identified on the Plat; (2) all street boulevards and street lighting in Phase 2; (3) all designated open space, and public trails and trails in Phase 2 as delineated on the Plat; (4) all fencing around the Common Areas installed by Declarant or the Association; and (5) all other Common Areas. All costs associated with the foregoing duties shall be a Common Expense of the Association subject to the right of the Association to seek reimbursement for any damage caused by a Lot Owner or his/her agents. Repairs, replacement and maintenance shall be performed on an "as needed" basis and the President of the Association is authorized to initiate all repairs, replacements and maintenance which are estimated at less than THREE THOUSAND DOLLARS ($3,000.00) in expense. All repairs, replacements and maintenance estimated at THREE THOUSAND DOLLARS ($3,000.00) or more in expense shall be initiated by the President of the Association only after the Board has adopted a resolution specifically authorizing the expense. Expenses shall be paid by the Treasurer of the Association from Association funds received as assessments consistent with this Declaration. In order to implement maintenance, repair or replacement resolutions, the President shall employ any personnel reasonably necessary to properly effect said maintenance, repair, or replacement. The Lot Owners hereby grant an easement to the Association for purposes of maintenance, replacement and repair as set forth herein. 15 The Association shall maintain and clean all storm water drains and systems within Phase 2 as follows: 1. The Association shall clear all catch basins, storm drain inlets, curbs, storm-water mains, gutters, and culverts of all sediment and debris in the spring and fall of every calendar year and as may be necessary. 2. The Association shall periodically inspect all catch basins, storm drain inlets, curbs, storm-water mains, gutters, and culverts for erosion. 3. The Association shall maintain all infiltration chambers according to the instructions and specifications of the manufacturer. I. ASSESSMENTS Section 1. Authority and Obligation. The Board shall have the authority to levy assessments equally on each Lot for Association expenses as the Board may specifically authorize from time to time. Assessments shall be made for the repair, replacement, insurance, general maintenance, management and administration, fees, costs and expenses of the Association, taxes for Common Areas (if any), weed control and any other purpose authorized herein. No Member may exempt him or herself from liability for assessments by non-use of the Common Areas, abandonment of his or her Lot, or by any other means. The obligation to pay assessments is a separate and individual covenant on the part of each Lot Owner. No diminution or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the Association or the Board to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or improvements, or from any other action it takes. Section 2. Regular Assessments. At least thirty (30) days prior to the annual member’s meeting, the Board shall prepare a budget covering the estimated Common Expenses during the coming year. The regular assessments shall be levied equally against each Lot and shall be set at a level which is reasonably expected to produce total income for the Association equal to the total budgeted Common Expenses, including reserves and administrative overhead. The regular assessments shall be payable monthly, quarterly or annually, as determined by the Board. The Board shall be responsible to adjust the assessment to meet changed needs. The Board shall send a copy of the budget and notice of the amount of the annual assessment for the upcoming year and the due date to each Member at least ten (10) days prior to the date for the Annual Meeting. Such budget and assessment shall become effective unless disapproved at an annual or special meeting of the Members by at least eighty percent (80%) of the voting interest of the Lots. If the proposed budget is disapproved or if the Board fails for any reason to determine the budget for any year, then until such time as a budget is determined, the budget shall be increased 16 by ten percent (10%) over the budget in effect for the immediately preceding year. Failure of the Board to levy an annual assessment shall not be deemed a waiver, modification, or a release of any Member or Lot from the obligation to pay the annual assessment. Section 3. Reserve Fund. The Association may, but is not required to, establish a reserve account for repair and replacement of Common Areas as needed to keep such in good condition and repair. Any reserve account established under this section shall be funded by separate reserve assessments against the Lots in such amount as the Board may approve as a part of the annual Association budget. Any reserve account shall be established in the name of the Association. The Association shall be responsible for administering the account. Assessments paid into the reserve account are the property of the Association and are not refundable to sellers or Lot Owners. Section 4. Special Assessments. In addition to other authorized assessments, the Association may levy Special Assessments equally against each Lot from time to time to cover unbudgeted expenses or expenses in excess of those budgeted. After the Turnover Meeting, any Special Assessments shall require the affirmative vote or written consent of a majority of the voting interest Lots present at a duly held meeting. Special assessments shall be payable in such manner and at such times as determined by the Board, and may be payable in installments extending beyond the fiscal year in which the special assessment is approved. Section 5. Enforcement and Recovery. All assessments shall be a charge upon the land and shall be a continuing lien upon the Lot upon which the assessments are made. Each assessment shall also be a personal obligation of the person who is the owner of the Lot at the time the assessment falls due. Upon delivery to the Lot Owner of the notice of assessment, the assessment shall be a lien upon the Lot Owner’s Lot until paid. The Association may record a notice of the lien with the Clerk and Recorder of Gallatin County, Montana. In the event of nonpayment within thirty (30) days after recording the notice of the lien, the Association may foreclose the lien in a manner set forth under Montana law for the foreclosure of liens against real property. The Association may also bring an action at law or equity against the persons personally obligated to pay the delinquent assessments. A suit to recover a money judgment for assessments may be maintainable without foreclosing or waiving the lien securing the same. In the event of action to collect a past due assessment, the Association shall be entitled to recover its costs, the maximum interest allowable by law, and its reasonable attorney’s fees in addition to the amount of the past due assessment. The Association may bid for the Lot at a foreclosure sale and acquire, hold, lease, mortgage, and convey the Lot. While a Lot is owned by the Association following foreclosure no right to vote shall be exercised on its behalf and no assessment shall be levied on it. 17 The sale, transfer, or encumbrance of any Lot shall not affect the assessment lien or the personal liability of the Lot Owner. No sale, transfer or encumbrance shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. After an assessment becomes more than thirty (30) days overdue, the Board shall have the authority to exclude the delinquent Lot Owner from use of any or all of the Association’s property. J. RULES AND REGULATIONS The Association may adopt such additional rules and regulations as shall be reasonable and necessary to carry out its authority and duties under the terms of this Declaration and these Bylaws, provided such rules and regulations are consistent with and are in compliance with this Declaration and these Bylaws. The Association may also adopt rules and regulations regarding use of the Common Areas. Originals of all duly adopted rules and regulations shall be kept by the Secretary and copies thereof shall be provided to each Lot Owner and prospective purchaser of a Lot upon request. In the event of a conflict between any new rule or regulation and this Declaration and these Bylaws (as subsequently amended), the terms of this Declaration and these Bylaws shall control. New rules and regulations may be adopted by: (1) the affirmative vote of eighty percent (80%) of the voting interest of the Lots present at any duly called meeting of the Association; or (2) the Board if the proposed rule or regulation is not overturned within 90 days by a vote of eighty percent (80%) of the voting interest of the Lots at a duly called meeting of the Association. K. NOTICES Each Member shall register with the Association, a current mailing address and telephone number and shall promptly notify the Association of any change in said address or telephone number. All notices, demands, and other communication to any Member shall be sufficient for all purposes if personally served or mailed to the Member at the last mailing address on file with the Association. L. INSURANCE The Association, acting through its Board or its duly authorized agent, may obtain appropriate liability insurance coverage for all Association personal and real property, including for the Common Areas. The Association may obtain directors’ and officers’ liability coverage if reasonably available. Premiums for all Association insurance coverage shall be a Common Expense and shall be included in the annual assessment. The Association, acting through its Board or its duly authorized agent, has the sole authority for filing and adjusting all insurance claims and applying the proceeds thereto. 18 M. CONTRACTS, LOANS, AND DEPOSITS The Board may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Association, and such authority may be general or confined to specific instances. No loans shall be contracted on behalf of the Association and no evidence of indebtedness shall be issued in its name unless properly authorized by a majority vote of the Board. All funds of the Association not otherwise employed shall be deposited from time to time in such banks, trust companies or other depositories as the directors may select. N. INDEMNIFICATION The Association shall indemnify each of its directors, officers, employees or agents against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred by such person by reason of such person having been made or having been threatened to be made a party to a proceeding because said person was or is a director, officer, employee or agent of the Association if said individual conducted him or herself in good faith and reasonably believed that his or her conduct was in the Association’s best interests or, in the case of any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The Association may not indemnify a director, officer, employee, or agent if said person is adjudged liable to the Association in an action brought by the Association or if in any action said person has been found to have received disallowed personal benefit at the expense of the Association. If the Board determines the person qualifies for indemnification under this paragraph, the Association shall advance the expenses reasonably expected to be incurred. ARTICLE V - DECLARANT’S ADDITIONAL RIGHTS A. TRANSFER OF RIGHTS Any or all of the special rights and obligations of the Declarant set forth in this Declaration and these Bylaws may be transferred to other persons or entities, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that contained in this Declaration and these Bylaws. No such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the office of the Gallatin County Clerk and Recorder. B. USE OF COMMON AREAS So long as Declarant shall own any Lot within Phase 2, Declarant, builders authorized by Declarant, and other agents authorized by Declarant may maintain and carry on upon portions 19 of the Common Areas such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the sale of such Lots or construction of such structures. Declarant, builders authorized by Declarant, and other agents authorized by Declarant shall have easements for access to and use of such facilities. So long as Declarant shall own any Lot within Phase 2, Declarant may construct, reconstruct, refinish or alter any improvement upon or make or create any excavation on or fill upon or change the natural or existing drainage of or plant any trees, shrubs or ground cover upon the Common Areas if Declarant shall determine that any such work is reasonably necessary for any utility installation serving Phase 2, is reasonably necessary for the construction of any facility for use by the Owners, is desirable in order to provide or improve access to or to enhance the use and enjoyment of the Common Areas or is desirable to protect, support or preserve any land which constitutes a part of the Property. C. THIRD-PARTY EASEMENTS When requested by the Declarant, the Association shall grant and convey, without payment to the Association, to any third-party designated by Declarant, easements and/or rights- of-way in, on, over or under any portion of the Common Areas. D. ANNEXATION OF PROPERTY Until December 31, 2052, Declarant may from time to time unilaterally annex, subject to the provisions of this Declaration, any real property that is contiguous, adjacent or across a public right-of-way from the real property submitted to this Declaration. Annexation shall be accomplished by filing a supplemental Declaration or an amendment to this Declaration. Upon such annexation, the owners of the annexed real property shall be afforded the same rights, and shall have the same obligations, as the Owners of the Lots hereunder unless specifically excluded or limited by the Declarant. E. CHANGE OF DEVELOPMENT Declarant reserves the right to change the size, configuration and/or permitted use of any Lot owned by Declarant. All Lot Owners, upon their acquisition of a Lot, hereby waive any right to protest to any governing body, or otherwise, Declarant’s proposed and actual change in the size, configuration and/or permitted use of any Lot owned by Declarant. ARTICLE VI - ENFORCEMENT A. NON-CONFORMANCE 20 Any structure or improvement placed or made in violation of these Covenants, the Design Regulations and Guidelines for Phase 2, the Project Covenants or additional duly adopted covenants and rules and regulations shall be deemed non-conforming. In the event any Lot Owner shall violate any provision of the Covenants, the Design Regulations and Guidelines for Phase 2, the Bylaws or other rules adopted by the Association, then the Association, acting through the Board of Directors, shall notify the Lot Owner in writing that the violation exists and that the Lot Owner is responsible for the violation, and may (a) notify the Lot Owner in writing that his or her voting rights and his or her rights to use the Common Areas are suspended for the time that the violations remain unabated, (b) impose fines upon the Lot Owner pursuant to a fine schedule approved by the Board, which fines shall become liens against the Lot, (c) enter the offending Lot (but not any structure) and remove the cause of such violation, or alter, repair, or change the item which is in violation of this Declaration in such a manner as to make it conform thereto, in which case the Association may assess such Lot Owner for one hundred and twenty percent (120%) of the entire direct or indirect cost of the work done, which amounts shall immediately be payable to the Association, (d) bring suit or action against the Lot Owner on behalf of the Association and other Lot Owners to enforce the provisions of the Covenants, the Project Covenants, the Design Regulations and Guidelines for Phase 2, the Bylaws or other rules adopted by the Association, or (e) do any of the above in conjunction with any others. However, before the Association takes any of the actions described in (a) - (c) above, the Lot Owner shall have the right to a hearing before the Board of Directors to contest their determination. If a hearing is requested by written notice delivered to the Association not more than fifteen (15) days from the Lot Owner’s receipt of the notice of violation, imposition of the applicable remedies will be withheld pending the Board’s decision after hearing the Lot Owner’s testimony or evidence. If an emergency exists and is so determined by the Board of Directors, they may proceed with the remedies specified in (c) above pending the hearing or decision on the hearing. If a hearing is requested, it shall be held within fourteen (14) days of the date of receipt of the Lot Owner’s request by the Board at a location designated by the Board in a timely notice to the Lot Owner. The Board of Directors shall make a decision on whether to proceed with the specified remedy or to abate their action and provide notice thereof to the Lot Owner. All assessed fines shall be paid immediately to the Association and deposited into the Association’s general account. B. STANDING, COSTS AND ATTORNEY’S FEES This Declaration, the Design Regulations and Guidelines for Phase 2, and additional rules and regulations adopted by the Association pursuant to the Bylaws set forth in Article IV, may be enforced by the Association, the Declarant, or in the proper case, by an aggrieved Lot Owner. Should the Association for any reason not take responsibility for compliance and enforcement of this Declaration, the governing body with jurisdiction may (but is not required to) take 21 responsibility for such enforcement. In the event of any suit or action to enforce the Protective Covenants and Restrictions, Design Regulations and Guidelines for Phase 2, or additional covenants, rules, and regulations, the prevailing party shall be entitled to recover all costs and expenses incurred by him or her in connection with such suit or action, including the cost of a foreclosure title report, expert witness fees and such amounts as the court may determine to be reasonable as costs and attorneys’ fees at trial and upon any appeal thereof. In addition to being the personal obligation of the Lot Owner, the Association shall have a lien upon any Lot owned by the losing party to secure payment of such costs and expenses. The Northwest Crossing Residential Architectural Committee (NWXRAC) may also enforce compliance with the Design Regulations and Guidelines for Phase 2. C. NO LIABILITY Neither the Declarant, the Association, the Association’s Board of Directors, the Northwest Crossing Residential Architectural Committee (NWXRAC), nor any member thereof, shall be liable to any person or entity for any entry, self-help or abatement of a violation or threatened violation of the Covenants or Design Regulations and Guidelines for Phase 2. All Lot Owners, invitees and guests shall be deemed to have waived any and all rights or claims for damages for any loss or injury resulting from such action except for intentionally wrongful acts. D. NO WAIVER No delay or failure by the Declarant or its successors or assigns, the Association, or Northwest Crossing Residential Architectural Committee (NWXRAC) to enforce the Covenants, the Design Regulations and Guidelines for Phase 2, or additional duly adopted covenants and rules and regulations shall be deemed a waiver or in any way prejudice the right to enforce the Covenants, the Design Regulations and Guidelines for Phase 2, or additional duly adopted covenants and rules and regulations at any time against any person breaching the same or to collect damages for any subsequent breach. No right of action shall accrue nor shall any action be brought or maintained by anyone whatsoever against the Declarant and no right of action except specific performance shall accrue nor shall any other right of action be brought or maintained by anyone whatsoever against the Association on account of their failure to bring any action on account of any breach of these covenants, conditions or restrictions, or for imposing restrictions herein which may be unenforceable by the Declarant or the Association. E. NON-EXCLUSIVENESS AND ACCUMULATION OF REMEDIES An election by the Association to pursue any remedy provided for violation of the Covenants, the Design Regulations and Guidelines for Phase 2, or additional duly adopted covenants and rules and regulations shall not prevent concurrent or subsequent exercise of any 22 remedy permitted herein. The remedies provided herein are not exclusive but shall be in addition to all other remedies, including actions for damages and suits for injunctions and specific performance, available under applicable laws. F. EFFECT OF BREACH The breach of any of the covenants, conditions, or restrictions contained in the Covenants and/or the Design Regulations and Guidelines for Phase 2, or additional duly adopted covenants and rules and regulations shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith for value as to any Lot or Lots or portions of Lots, but these covenants, conditions and restrictions shall be binding upon and effective against any such mortgagee or trustee or Lot Owner thereof, whose title thereto is or was acquired by foreclosure, trustee’s sale or otherwise. ARTICLE VII - AMENDMENT The provisions of this Declaration and these Bylaws shall remain in effect until amended or terminated. The provisions of this Declaration and these Bylaws, or any portion thereof, may only be amended, terminated or supplemented at any time by the execution of a written document containing the terms of the amendment, supplement or termination of any of the provisions of this Declaration or these Bylaws, duly acknowledged by a Notary Public, and recorded with the office of the Gallatin County Clerk and Recorder, executed by at least seventy- five percent (75%) of the voting interest of the Lots. Any right or privilege granted to the Declarant in this instrument may only be amended or deleted with the signed written consent of the Declarant or its successors and assigns. Notwithstanding anything herein to the contrary, Declarant reserves the right to amend any provision set forth herein so long as Declarant owns at least ten percent (10%) of the Lots subject to this Declaration. ARTICLE VIII – CITY OF BOZEMAN REQUIRED COVENANTS The covenants set forth in this Article VIII were required by Gallatin County for final plat approval of Phase 2. In the event that the covenants and restrictions set forth under this Article VIII conflict or are inconsistent with any other covenant or restriction set forth in this Declaration, the more restrictive covenant or restriction shall control. Any covenant or restriction set forth in this Article VIII may not be amended or revoked without the written consent of the City of Bozeman and also in accordance with Article VII of this Declaration. 1. Noxious Weeds. The control of noxious weeds by the Association on those areas for which the Association is responsible and the control of noxious weeds by individual Lot Owners on their respective Lots shall be as required by the Montana Noxious Weed Control Act 23 (§ 7-22- 2101, MCA through § 7-22-2153, MCA as amended) and the rules, regulations and management plans of the Gallatin County Weed District. Both unimproved and improved Lots shall be managed for noxious weeds. In the event an Owner does not control the noxious weeds after 10 days' notice from the Association, the Association may cause the noxious weeds to be controlled. The cost and expense associated with such weed management shall be assessed to the Lot and such Assessment may become a lien if not paid within thirty (30) days of the mailing of such Assessment. The Association is responsible for control of state and county declared noxious weeds in the community parks, open spaces, community areas, trails, roadways and Common Areas. Nothing herein shall require or obligate the Gallatin County Weed District to undertake any management or enforcement on behalf of the Association or Owners that is not otherwise required by law of the Gallatin County Weed District Management Plan. 2 Agricultural Use of Neighboring Properties. Lot Owners are informed that nearby uses may be agricultural. Lot Owners accept and are aware that standard agricultural and farming practices can result in smoke, dust, animal odors, flies and machinery noise. Standard agricultural practices feature the use of heavy equipment, burning, chemical sprays and the use of machinery early in the morning and sometimes late into the evening. All fences bordering agricultural lands must be maintained by the landowners in accordance with MCA Title 70 Chapter 16 Part 2, Title 81 Chapter 4 Part 1, or other relevant state law. ARTICLE IX - MISCELLANEOUS PROVISIONS A. SEVERABILITY Invalidation of any provision of this Declaration and these Bylaws, in whole or in part, or any application of a provision of this Declaration and these Bylaws by judgment or court order shall in no way affect other provisions or applications. B. PERPETUITY The provisions of this Declaration and these Bylaws shall continue in full force and effect and shall run with land as legal and equitable servitudes in perpetuity unless amended as set forth herein. C. APPLICATION All of the Property shall be subject to the provisions of this Declaration and these Bylaws whether or not there is a reference to the same in a deed or conveyance. [SIGNATURES ON FOLLOWING PAGE] 24 DECLARED AND ADOPTED BY DECLARANT: WH NORTHWEST CROSSING LLC, a Delaware limited liability company, by ___________________________________ ______________________,_____________ STATE OF MONTANA ) : ss. County of Gallatin ) On this ____ day of ____________, 2022, before me, a Notary Public in and for said State, personally appeared _______________________of WH NORTHWEST CROSSING LLC, a Delaware limited liability company, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that the corporation executed the same. _________________________________________ Printed Name: _____________________________ Notary Public for the State of Montana Residing at _______________________, Montana My commission expires: _____________________ APPROVED BY: NWX, LLC, by ______________________________________ Bryan Klein, Manager STATE OF MONTANA ) : ss. County of Gallatin ) On this ____ day of ____________, 2022, before me, a Notary Public in and for said State, personally appeared BRYAN KLEIN, Manager of NWX, LLC known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that the company executed the same. _________________________________________ Printed Name: _____________________________ Notary Public for the State of Montana Residing at _______________________, Montana My commission expires: _____________________