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HomeMy WebLinkAbout009 Appendix D.1 - CCRs DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 1 After recording please return to: Ogburn Law Firm, PLLC P.O. Box 7020 Bozeman, MT 59771 Declaration of Protective Covenants, Conditions and Restrictions For West Park Neighborhood Condominiums DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 2 CERTIFICATE OF NAME The undersigned, being the duly authorized agent of the Department of Revenue of the State of Montana within the County of Gallatin, herewith executes the following certificate relating to WEST PARK NEIGHBORHOOD CONDOMINIUMS, situated as follows: [INSERT LEGAL DESCRIPTION] 1. That the name WEST PARK NEIGHBORHOOD CONDOMINIUMS, is not the same as, similar to or pronounced the same as a word in the name of any other property or subdivision within Gallatin County, except for the word “Condominium,” and 2. All taxes and assessments due and payable for the said WEST PARK NEIGHBORHOOD CONDOMINIUMS have been paid to date. DATED: ____________________ ______________________________________ COUNTY ASSESSOR DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 3 Declaration of Protective Covenants, Conditions and Restrictions for West Park Neighborhood Condominiums This Declaration of Covenants, Conditions and Restrictions for West Park Neighborhood Condominiums (“Declaration”) is made this ________ day of ____________, 20___, by 8FC LLC, a Montana limited liability company (the “Declarant”). WHEREAS, Declarant is the owner of real property situated in Gallatin County, Montana, more particularly described in Exhibit A, attached hereto and incorporated herein; WHEREAS, Declarant intends to develop, sell, and convey the above-described real property, hereinafter referred to as “Property” or “West Park Neighborhood Condominiums”; and WHEREAS, Declarant reserves the right to develop the Property as permitted under the laws of Montana and to expand the Property by annexing additional real property as permitted herein; NOW THEREFORE, Declarant hereby declares that the West Park Neighborhood Condominiums shall be held, sold, conveyed, mortgaged, encumbered, leased, rented, used, occupied, sold, and improved subject to the declarations, limitations, covenants, conditions, restrictions, and easements contained in this Declaration, all of which are imposed as equitable servitudes pursuant to a general plan for the development of the West Park Neighborhood Condominiums and the surrounding property owned by Declarant and for the purpose of enhancing and protecting the value and attractiveness of the West Park Neighborhood Condominiums, and every part of it, in accordance with the plan for development of the West Park Neighborhood Condominiums and its division into condominiums. All of the declarations, limitations, covenants, conditions, restrictions, and easements shall constitute covenants running with the land and are binding upon, and inure to the benefit of, Declarant, the West Park Neighborhood Condominium Owners Association, Inc., and all persons having or acquiring any right, title, or interest in or to any part of the West Park Neighborhood Condominiums. This Declaration shall apply to all the West Park Neighborhood Condominiums and improvements placed or constructed thereon and shall be in existence in perpetuity unless amended or terminated as set forth in the Declaration, the Montana Unit Ownership Act, or by operation of law. Said declarations, limitations, covenants, conditions, restrictions, and easements shall be as follows: /// /// DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 4 Article 1 DEFINITIONS Capitalized terms shall be defined as set forth below: 1.1 Act: means the Montana Nonprofit Corporation Act, § 35-2-113 et seq., MCA, as amended. 1.2 Affirmative Vote of a Majority: means and shall be achieved on any particular matter if (and only if) all of the following occur: (i) before the Turnover Date, the Declarant votes in favor of such matter, and (ii) the Association receives the affirmative vote of at least a majority of the Percentage of Interest present at a meeting or by written ballot (as described in more detail in the Bylaws). 1.3 Affirmative Vote of a SuperMajority: means and shall be achieved on any particular matter if the following occurs: (i) before the Turnover Date, the Declarant votes in favor of such matter, and (ii) the Association receives the affirmative vote of at least 75% of the Percentage of Interest present at a meeting or by written ballot (as described in more detail in the Bylaws). 1.4 Annexable Area: means the real property legally described in Exhibit B. Unless and until a portion or all of the Annexable Area is included as part of the Property pursuant to Section 8.1(b), such portion or all of the Annexable Area is not deemed to be part of the Property. 1.5 Articles of Incorporation or Articles: means the Articles of Incorporation of the Association as filed with the Montana Secretary of State and any amendments and restatements thereto from time to time. 1.6 Assessments: means, collectively, General Common Assessments, Limited Common Assessments, Reserve Assessments, Special Assessments, Default Assessments, and Community Transfer Assessments, as more particularly described in Article 5. 1.7 Association: means the West Park Neighborhood Condominium Owners Association, a Montana nonprofit corporation, and any successor or assign. 1.8 Board of Directors or Board: means the body responsible for the operation and administration of the Association, as set forth in the Declaration and as more particularly described in the Bylaws, and who shall have such privileges, powers, and rights as our set forth in the Declaration and Bylaws. 1.9 Building: means a structure containing a Unit or Units. 1.10 Bylaws: means the Bylaws of the West Park Neighborhood Condominium Owners Association, as the same may be amended, restated, or replaced from time to time. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 5 1.11 City Park: means the park located in Block 3 City Park Lot 1, as shown on Plat __________, recorded in the Office of the Gallatin County Clerk and Recorder, and which is owned by the City and dedicated to the public for public use. The City Park shall be maintained as set forth in the Park and Open Space Maintenance Plan, included in Exhibit C. 1.12 Common Elements: means both the General Common Elements and the Limited Common Elements. (a) General Common Elements: unless otherwise provided in the Declaration, means all those elements within the Property which are for the use of all Owners and their Invitees. Except as otherwise stated in the Declaration, before the Turnover Date the Declarant, and after the Turnover Date 100% of the Percentage of Interest of the Owners, may add or delete General Common Elements by amendments or supplements to this Declaration and/or by the method set forth in the Unit Ownership Act. Any amendment or supplement by the Declarant before the Turnover Date shall be signed by the Declarant. Any amendment by the Association shall be signed by the Chairman and Secretary, who shall certify that the Association received the consent of 100% of the Percentage of Interest of the Owners. The General Common Elements include, but are not limited to, the following to the extent not within a Unit and not otherwise designated as a Limited Common Element: (1) the land on which the Building(s) are located, except any portion of the land included in a Unit or made a Limited Common Element by the Declaration or any amendments or supplements thereto; (2) roads, parking areas, sidewalks, walkways (except that sidewalks leading from a driveway to a Unit are Limited Common Elements), manholes, trails, Common open spaces, City Park, and Stormwater Facilities and stormwater retention facilities and ponds; (3) installations of central services serving all of the Units such as electrical, gas, television, telephone, internet, water and sewer and other utilities and connections to the extent serving all Units (except as otherwise owned by the City of Bozeman or other public or private utility); (4) lawns, landscaping, landscaping irrigation systems, landscape and development lighting, security lighting, and subdivision signage and signage lighting; (5) the roofs, heat tape, siding, gutters, drain pipes, and external trim; (6) exterior stoops, steps, stairs, concrete walls on patios, fencing on decks, and exterior lights; (7) attics and fire riser spaces and the doors leading to the fire riser spaces; (8) bike racks installed within the General Common Elements; DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 6 (9) Mailboxes and dumpsters; (10) any portions of the Property or Units designated on any plat or floor plans as common to all Units; and (11) other elements necessary or convenient for the safety, maintenance and existence of the West Park Neighborhood Condominiums. (b) Limited Common Elements: means those elements that are reserved for the use of a certain Unit or number of Units to the exclusion of other Units. Except as otherwise stated in the Declaration, before the Turnover Date the Declarant, and after the Turnover Date 100% of the Percentage of Interest of the Unit Owners, may add or delete Limited Common Elements by amendments or supplements to this Declaration and/or by the method set forth in the Unit Ownership Act. Any such amendment or supplement by the Declarant shall be signed by the Declarant. Any such amendment by the Association shall be signed by the Chairman and Secretary, who shall certify that the Association received the consent of 100% of the Percentage of Interest of the Unit Owners. Specifically, as to any given Unit, Limited Common Elements shall include, but not be limited to, the following Common Elements which are outside the boundaries of the Unit and which are appurtenant to, affixed to, or provide service or access to the Unit: (1) flues, chimneys, ducts, cables, conduits, electrical heat elements, public utility lines, water, sewer, electrical, natural gas, cable television lines, and hot and cold water pipes (all such utility pipes and lines are Limited Common Elements where they service less than all the Units, where they service all Units they shall be General Common Elements); (2) exterior front doors leading into a Unit, garage doors, patio doors, deck doors, doors leading to storage spaces located off patios and decks, windows, window screens, (3) driveways, sidewalks leading from the driveways to the Units, porches, patios (except that the concrete walls on surrounding the patios are a General Common Element), decks (except that the fencing around the decks is a General Common Element, interior steps and stairs (to the extent not within the boundaries of a Unit); and (4) furnaces, boilers, hot water tanks, heating ducts, cold air returns, and fixtures, the framework, columns, trusses, supports, and other structural components of a Building in which a Unit is located, and other portions in the interior of a Building servicing only a particular Unit or less than all of the Units unless otherwise made a General Common Elements by this Declaration. 1.13 Construction Activity: means any site preparation; landscaping; the construction, reconstruction, repair, replacement, or improvement of any part of the Property located outside the boundaries of a Unit; or the construction, reconstruction, repair, replacement, DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 7 or improvement of any part of any Unit if the same may affect the structural integrity or soundness of any Unit or Building. 1.14 Common Open Spaces: means any part of the Property designated on a Plat as “Open Space” and other common areas that are owned by or required to be maintained by the Association, such as Stormwater Facilities, Roads, boulevard trees and landscaping, street lighting, Trails, etc. 1.15 Declarant: means 8FC LLC, a Montana limited liability company, or any successor, successor-in-title, or assign who is designated as the Declarant pursuant to Section 8.4. 1.16 Declarant’s Special Rights: has the meaning given to it in Article 8. 1.17 Declaration: means the Declaration of Protective Covenants, Conditions and Restrictions for West Park Neighborhood Condominiums, and includes all amendments, restatements, or supplements hereafter recorded in the Public Record. 1.18 Design Guidelines: means any Rules or Regulations or Design Guidelines adopted by Board to regulate Construction Activity. Before performing any Construction Activity, Owners are responsible for obtaining from the Association the most current Design Guidelines and for complying with Article 9 of this Declaration. Notwithstanding anything to the contrary stated in the Declaration, the Declarant shall not be subject to the Design Guidelines. 1.19 General Common Expenses: means all actual or estimated costs, expenses, and liabilities incurred, or anticipated to be incurred, by or on behalf of the Association for: (i) regulating, operating, administering, and managing the Property and the Association and expenses for the benefit of the Association as a whole; (ii) acquiring, leasing, operating, managing, paying taxes on, maintaining, repairing, replacing, and improving the General Common Elements and/or Common Open Spaces; (iii) procuring and maintaining insurance for the Association; (iv) levying, collecting, and enforcing the Assessments and other amounts owed to the Association; (v) administering and enforcing the Governing Documents; (vi) incurring professional fees to assist the Board in performing any rights, privileged, and powers; (vii) performing any and all rights, privileges, powers, duties, or responsibilities expressly or impliedly permitted by the Act, the Unit Ownership, the Declaration, the Bylaws, or other Governing Documents; and (viii) any other costs or expenses reasonable or necessary to perform the duties and responsibilities of the Association or Board or to further the intent and purposes of the Governing Documents. When equity so requires, the Board may, in its sole and absolute discretion, treat a Limited Common Expense as a General Common Expense. For example, if the Board decides to replace substantially all of the windows on the Unit, the Board may treat such an expense as a General Common Expense. 1.20 Good Standing: means that a Member is current on the payment of such Member’s Assessments owed to the Association. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 8 1.21 Governing Documents: means the Declaration, Bylaws, Articles, Rules and Regulations, Design Guidelines, and resolutions of the Board, all as amended, added to, deleted from, restated, or supplemented from time to time. 1.22 Improvements: means all Buildings, outbuildings, stairs, patios, decks, bridges, alleys, roads, trails, pathways, driveways, parking areas, plantings, grass, hedges, trees and shrubs, sprinkler systems, windbreaks, fences, screening walls and barriers, retaining walls, monuments, exterior lighting, solar panels, ponds and water tanks, drainage and drainage facilities, culverts, water lines, sewer lines, electrical, gas, telephone and internet transmission lines, cable television lines, television and radio transmission facilities, poles, signs, and all other structures, installations, and landscaping or every type and kind, whether above or below the land surface. 1.23 Invitee: means any family member, guest, tenant or lessee, agent, representative, contractor, or other invitee of an Owner. 1.24 Limited Common Expenses: means all actual or estimated costs, expenses, and liabilities incurred, or anticipated to be incurred, by or on behalf of the Association for: (i) maintaining, repairing, replacing, and improving the Limited Common Elements. When equity so requires, the Board may, in its sole and absolute discretion, treat a Limited Common Expense as a General Common Expense. 1.25 Manager: means the Board of Directors, a management entity, or other person or group of persons retained or appointed by the Board for the purpose of conducting the day-to- day regulation, operation, administration, and management of the Property and the Association. 1.26 Member: means any Owner of any Unit within the Property. Each Member agrees to abide by and be bound to the Governing Documents. 1.27 Open Space: means those areas designated on the Plat as an “Open Space”. The construction of any structure in an Open Space is subject to Section 7 in Exhibit C, the City Required Covenants. 1.28 Owner: means one or more Persons, including, without limitation, the Declarant, who hold record title to any Unit, but excluding (i) the Association, and (ii) those having an interest merely as security for the performance of an obligation. A tenant or lessee who is leasing the Unit shall not be considered a Unit Owner. 1.29 Percentage of Interest: means each Owner’s undivided interest in the General Common Elements and such Owner’s pro rata liability to the Association for General Common Expenses, and also has the meaning set forth in Section 3.3. 1.30 Person: means any natural person, corporation, partnership, limited liability company, association, trust, or any other legal entity. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 9 1.31 Plat: means the Plat filed on __________ as Document No. __________ in the Public Record, and any amendments thereto filed by the Declarant in the Public Record. 1.32 Property: means the real property described in Exhibit A, and any Buildings and Improvements thereon, which are herewith submitted to the provisions of the Unit Ownership Act. Declarant reserves the right before the Turnover Date to expand the Property and annex additional real property to the Property in accordance with the Declaration. 1.33 Public Record: means the office of the Clerk and Recorder of Gallatin County where land records are recorded or filed. 1.34 Quorum: has the meaning given to it in the Bylaws. 1.35 Roads or Streets: means the interior streets within the Property as shown on the Plat. 1.36 Rules and Regulations: means any rules and regulations adopted by the Board and/or Association for any reason authorized in the Declaration or Bylaws. All Rules and Regulations shall be: (i) signed by the President and Secretary of the Association; (ii) a copy provided to the Members; and (iii) recorded in the Public Record. A Rule and Regulation becomes effective thirty (30) days after it is recorded. 1.37 Stormwater Facilities: means the stormwater facilities described in Exhibit H, the Storm Water Management System Operation & Maintenance Manual. “Stormwater Facilities” does not include the storm sewer mains, inlets, or manholes located in streets dedicated to the City of Bozeman for public use. 1.38 Trails: means those trails shown on the Plat for use by Owners and members of the general public, and such other trails as may be established within the Property by the Declarant and thereafter the Board. The Board shall have the authority to promulgate Rules and Regulations regarding the use of Trails. 1.39 Turnover Date: means the date the Declarant turns the Association over to the Members and shall be the earlier of: (i) December 31, 2042; (ii) when the Declarant determines, in an instrument recorded in the Public Record, that one hundred percent (100%) of the real property that may be annexed into the Property has been annexed and all Units to be constructed on the Property and any Annexable Area have been substantially completed and sold to a Person other than Declarant; or (iii) when the Declarant elects, in an instrument recorded in the Public Record, to turn the Association over to the Members. 1.40 Unit: means a part of the Property including one or more rooms occupying one or more floors or a part or parts of the Property intended for any type of independent use and with a direct exit leading to a public street or to a Common Element leading to a public street whether directly or indirect by way of an easement or private street or way connecting to a public street. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 10 1.41 Unit Ownership Act: means and refers to the Montana Unit Ownership Act, Section 70-23-101, et. seq., MCA (2021), as amended. 1.42 Other definitions may be found throughout this Declaration and those definitions are binding upon all Owners. Any term not specifically defined shall be deemed to have its common and ordinary meaning. Article 2 WEST PARK NEIGHBORHOOD CONDOMINIUMS 2.1 Real Property. The Property which is by this Declaration submitted and subjected to the Unit Ownership Act is described and shown in Exhibit A. 2.2 General Purpose. The purposes of this Declaration are to submit the Property and the Improvements that exist or that are to be constructed on the Property to the condominium form of ownership and use in the manner provided by the Unit Ownership Act; to preserve and maintain the natural, scenic, recreational, economic, wildlife, and wetland values of the Property for the benefit of all Persons owning a Unit therein; to establish a means to provide for and maintain the Property and Improvements thereon as a pleasant and desirable environment for all Persons owning a Unit therein; to permit the Association to maintain, replace, repair, and improve the General Common Elements, and when applicable, the Limited Common Elements; to provide for the collection and enforcement of Assessments and for enforcement of the Governing Documents; and such other purposes as set forth in the Declaration and Bylaws. To further the general purposes herein expressed, Declarant, for itself, its successors and assigns, hereby declares that the Property, and any lands subsequently annexed to the Property and subjected to this Declaration, shall, at all times, be owned, held, used, occupied, sold, and conveyed subject to the provisions of this Declaration, which shall run with the Property and burden and benefit all portions of the Property, the Declarant, the Association, and all other parties having any right, title, or interest in the Property or any portion thereof, and their respective heirs, devisees, personal representatives, successors, and assigns and any occupants and users of the Property. Each Person who obtains any interest in the Property or uses the Property, by accepting or using such interest or using the Property, agrees to abide by the provisions of the Governing Documents and to cooperate with the Association and/or the Declarant in their efforts to enforce such provisions. 2.3 General Description. The project is part of an overall development scheme including land within the Annexable Area, and Declarant reserves the right to develop the Property in any manner consistent with the Unified Development Code of the City of Bozeman, Gallatin County, Montana. The project will be developed in multiple phases. The first phase of the project consists of 3 Building containing 18 residential Units and 4 Buildings containing 12 residential Units (“Phase 1”). Until the Turnover Date, pursuant to Section 8.1(b), the Declarant reserves the right to expand the Property and annex a portion or all of the Annexable Area into the Property. 2.4 Exhibits. For identification and descriptive purposes, the following Exhibits are attached hereto and incorporated herein: DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 11 (a) Exhibit A: The legal description of the Property. (b) Exhibit B: The legal description of the Annexable Area. (c) Exhibit C: City of Bozeman Required Covenants, describing the covenants required by City of Bozeman, Gallatin County, Montana, in order for the Declarant to obtain final plat approval for each phase of the project. (d) Exhibit D: Percentage of Interest in the General Common Elements, showing the Unit designation and Percentage of Interest in the General Common Elements appurtenant to each Unit. (e) Exhibit E: Site Plan, depicting the location of the Property and the location of the Buildings containing Units. (f) Exhibit F: Floor Plans, depicting the layout of each Unit, the Unit designation, the location and dimensions of each Unit, and the common areas to which each Unit has access. (g) Exhibit G: Certificate of Floor Plans, providing a statement of a registered architect, engineer, or land surveyor certifying that the floor plans are an accurate copy of the plans filed with and approved by the City of Bozeman officers having jurisdiction and that the plans fully and accurately depict the layout of the Units, location, Unit designation, and dimensions of each Unit and the date construction of the Buildings was substantially completed. (h) Exhibit H: Storm Water Management System Operation & Maintenance Manual. 2.5 Unit Boundaries. The boundaries of Units contained in Phase 1 are as follows: (a) Upper and Lower Boundaries. The upper and lower boundaries of the Unit shall be the following boundaries extended to an intersection with the perimetrical boundaries: 1. Upper Boundary. The plane of the lowest surface of the upper floor or ceiling joists for all Units. 2. Lower Boundary. The plane of the highest surface of the floor joists. (b) Perimetrical Boundaries. The parametrical boundaries of the Unit shall be the following boundaries extended to an intersection with the upper and lower boundaries: 1. Exterior Building Walls. The plane formed by the center line of the exterior walls of the Buildings. 2. Interior Boundary Walls. The vertical planes of the centerline of the walls bounding a Unit extended to an intersection with other perimetrical DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 12 boundaries. Where walls between Units are of varying thicknesses, the plane of the centerline of a boundary wall shall be the median line drawn between the two outermost boundaries of such wall. (c) Each Unit includes the utility installations located within the boundaries of which the Owner has exclusive use, including, without limitation: hot water heaters, space heaters, lighting fixtures, cabinetry, and air-conditioning equipment that are located entirely within the Unit they serve, except that air-conditioning equipment is part of a Unit even if it is partially outside of the boundaries of a Unit. If applicable, each Unit also includes the storage area located off the patio or deck, but not if such space is being used as a fire riser. (d) The Unit does not include those areas and those things that are defined as Common Elements in Section 1.12 of this Declaration. 2.6 Construction Materials. The principal materials of construction of the Buildings contained in Phase 1 are slab on grade, wood framing, metal, cement board and wood siding and trim, composite and cement decking, metal and asphalt and membrane roofing, concrete walls on patios, and wood fencing on decks. Article 3 OWNERSHIP 3.1 Condominium Unit. Each Unit, together with the appurtenant undivided interest in the General Common Elements, shall together comprise one Unit, shall be inseparable, and may be conveyed, leased, rented, devised or encumbered as a fee simple interest in a parcel of real property. 3.2 Ownership of Units. Each Unit Owner shall be entitled to the exclusive ownership, use, and possession of his/her/its Unit. Owners may use the General Common Elements and a Unit’s respective Limited Common Elements in accordance with the purposes for which they are intended; provided, however, (i) they shall not hinder or encroach upon the lawful rights of other Unit Owners, and (ii) such use is subject to the restrictions set forth in the Declaration and the Rules and Regulations. 3.3 Percentage of Interest. Each Unit Owner shall have a percentage of undivided interest (“Percentage of Interest”) in the General Common Elements of West Park Neighborhood Condominiums. The Percentage of Interest represents each Unit Owner’s ownership interest in the General Common Elements, each Unit Owner’s liability for General Common Expenses, and the voting interest of the Owner in all matters to be decided by the Members of the Association. The Percentage of Interest in the General Common Elements shall be computed by taking square footage of the interior of each Unit as shown on the floor plans for each Unit and dividing it by the then combined square footage of all Units having an interest in the General Common Elements of the West Park Neighborhood Condominiums. Such Percentage of Interest assigned to each Unit shall be according to the percentages set forth in Exhibit D, as may be amended pursuant to the expansion and annexation rights of the Declarant. For further clarification, Unit square footage includes the interior of the Units only; it does not include patios, decks, etc. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 13 Article 4 WEST PARK NEIGHBORHOOD CONDOMINIUM OWNERS ASSOCIATION 4.1 The Association. An association is hereby established known as the “West Park Neighborhood Condominium Owners Association” (“Association”). 4.2 Membership. Upon becoming an Owner of a Unit within the Property, each Unit Owner shall automatically be a Member of the Association and shall remain a Member for the period of the Unit Owner’s ownership of the Unit. Membership shall be appurtenant to and may not be separated from ownership of a Unit. If more than one Unit is owned, the Owner thereof shall have one membership for each separate Unit owned. For purposes of determining membership, a Person shall be deemed to be a Member upon the recording of a deed to that Owner, or upon the recording of a Notice of Purchaser’s Interest or an Abstract of a Contract for Deed showing a contract purchase by the Owner. The legal title retained by the vendor selling under contract shall not qualify such vendor for membership. Foreclosure of a mortgage, trust indenture or the termination or foreclosure of a contract for deed wherein title is vested in the mortgage, beneficiary, or original seller on a contract, or repossession for any reason of a Unit sold under a contract shall terminate the vendee’s membership, whereupon all rights to such membership shall vest in the legal owner. 4.3 Member Contact Information. An Owner shall be responsible for providing a written instrument to the Secretary advising the Secretary of their acquisition of a Unit within the Property. Such written instrument shall also provide the name of Person authorized to receive notices and to vote on all matters coming before the Association and of such Person’s mailing address, telephone number, and email address, and of any changes in ownership or contact information. 4.4 Joint Ownership. Multiple owners of a single Unit are jointly and severally obligated to perform the responsibilities of an Owner. However, multiple Owners shall have only one such membership or voting interest between them. If more than one Owner seeks to exercise the vote, the Association will count only the vote cast by the Person listed in the written instrument required by Section 4.3; and if no such written instrument has been provided, the voting privilege shall be suspended until the multiple interest owners provide a written instrument to the Secretary providing the name of the Person authorized to vote on behalf of the multiple owners. The Association shall not have any obligation to confirm, as among such multiple owners, which of the Persons has the right to exercise a vote. 4.5 Non-Natural Person Ownership. The membership rights of an Owner that is not a natural person may be exercised by any officer, director, partner, trustee, member, or manager, or by an individual designated in a written instrument to the Secretary describing and certifying the authority of such Person. If more than one Person described in this Section seeks to exercise the vote, the Association will count only the vote cast by the Person listed in the written instrument required by Section 4.3; and if no such written instrument has been provided, the voting privilege shall be suspended until a written instrument is provided to the Secretary providing the name of the Person authorized to vote on behalf of the non-natural Person Owner. The Association shall not have any obligation to confirm which of the Persons has the right to exercise a vote. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 14 4.6 Voting. On all matters to be decided by the Members of the Association, each Unit whose Owner(s) are in Good Standing at the time the vote is taken shall be entitled to one vote equal to the Percentage of Interest in the General Common Elements appurtenant to that Unit. The vote for such Unit shall be exercised by the Person designated pursuant to Section 4.3, and in no event shall more than one vote be cast with respect to any Unit. Voting upon matters affecting Limited Common Elements shall only be by Owners having an interest in the Units affected. Except as otherwise required by the Declaration, the Bylaws, or Montana law, the Affirmative Vote of a Majority voting at a meeting or by written ballot (as described in more detail in the Bylaws), shall be sufficient to act on matters brought before the Association. Voting is further addressed in the Bylaws. 4.7 Meetings of the Association. The Bylaws contain provisions regarding Association meetings, notice of meetings, Quorum, voting, actions taken without meetings, etc. 4.8 Board of Directors. The Bylaws contain provisions regarding the Board, including but not limited to appointment or election of directors, number, qualifications, term, resignation, removal, vacancies, officers, meetings, Quorum, voting, actions taken without meetings, indemnification, etc. 4.9 Rights and Powers of Association. The Association shall have and may exercise any power, right, or privilege given to it expressly by the Declaration and Bylaws or reasonably implied from or reasonably necessary to effectuate any such power, right, or privilege. Except where specifically reserved to the Members of the Association in the Declaration, Bylaws, or by Montana law, all powers, rights, and privileges of the Association may be exercised by the Board without a vote of the Members. The powers, rights, and privileges include without limitation: (a) To acquire (by gift, purchase, lease, trade, or any other method), own, regulate, operate, manage, maintain, repair, replace, improve, rent, sell, develop, encumber, dispose of, and otherwise deal in and with real and personal property of every kind and character, tangible and intangible; provided, however, the Association may not convey any real property owned by the Association without the Affirmative Vote of a SuperMajority. (b) To pay real estate taxes and assessments on property owned by the Association and all other taxes, duties, charges, fees and payments required to be made to any governmental or quasi-governmental entity which shall be imposed, assessed or levied upon the Association. (c) To grant easements, leases, licenses, and concessions through or over real property owned by the Association, so long as the same do not unreasonably interfere with the use and enjoyment of an Owner’s Unit, the Active Parks, or the Owners’ Parks. (d) To provide for the care, operation, management, maintenance, repair, replacement, and improvement of the General Common Elements, including without limitation snow removal, control of noxious weeds, landscaping, irrigation, lighting, signage, paving, striping, etc. The Board may cause additional Improvements to be constructed or placed upon the real property owned by the Association or in any General Common Element. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 15 (e) When permitted by other provisions of the Declaration, to provide for the care, operation, management, maintenance, repair, replacement, and improvement of the Limited Common Elements. (f) To enforce the Governing Documents in any manner permitted under the Declaration, Bylaws, or Montana law. (g) To adopt, amend, and enforce Rules and Regulations for the Property to: (i) prevent or reduce fire hazard; (ii) prevent disorder and disturbances of the peace; (iii) regulate pedestrian and vehicular traffic; (iv) regulate animals, home offices, leases, the environment, and environmental practices; (v) regulate signs; (vi) regulate the use of all General Common Elements to assure fullest enjoyment of use by the Persons entitled to enjoy and use the same; (vii) promote the general health, safety, and welfare of persons within the Property; (viii) protect and preserve property and property rights; (ix) to establish a process to hear grievances; (x) to establish fines for violation of the Governing Documents; and (xi) for any other purpose permitted by the Declaration and Bylaws. (h) To adopt, amend, and enforce Design Guidelines applicable within the Property to: (i) establish procedures to be followed by Owners in order to apply for and obtain approval for proposed Construction Activity, including without limitation the information and materials required to be provided and review fees and/or construction deposits to be paid; (ii) establish the design standards to be followed in performing any Construction Activity in order to promote the stable value, character, and architectural design of the Property. (i) To maintain the records of the Association in accordance with applicable Montana law and the Bylaws. (j) To make expenditures, incur liabilities, enter into contracts and agreements, and provide services as are reasonable or necessary to effect the business of the Association or to effect any power, right, or privilege of the Association. (k) To obtain and pay for legal, accounting, and other professional and expert services as are reasonable or necessary to effect the business of the Association or to understand, assess, or effect any power, right, or privilege of the Association. (l) To enter in Unit for: (i) emergency and safety reasons and to protect persons or property; (ii) to perform maintenance, repairs, or replacements in accordance with this Declaration; and (iv) to inspect for the purpose of ensuring compliance with the Governing Documents. The right to enter may be exercised by any member of the Board or its officers, managers, contractors, or representatives, and all policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner of the applicable Unit. This right of entry shall include the right to enter any Unit to cure any condition which may increase the possibility of a fire or other hazard in the event an Owner fails or refuses to cure the condition within a reasonable time after request by the Board, but shall not authorize entry into any Unit without permission of the Owner except by emergency personnel acting in their official capacities. The rights set forth in this provision shall not obligate the Board or the DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 16 Association to exercise any such rights or to undertake any of the actions set forth in this provision. (m) To prepare, adopt, and amend budgets for revenues, expenditures, and reserves and to levy and collect Assessments from Members. (n) To pay the expenses of the Association, and to provide for the use and disposition of any insurance proceeds in the event of loss or damage. (o) To purchase insurance policies to: (i) protect the real and personal property of the Association against casualty or loss; (ii) to protect the Association, officers, directors, and Manager (when acting in their official capacity) from liability; and (iii) for any other purpose deemed advisable by the Board. (p) To provide for the indemnification of the Association’s officers, directors, Manager, and other agents of the Association as required or permitted in the Act; (q) To borrow funds to pay for any expenditure or outlay permitted by the Declaration; to execute all instruments evidencing such indebtedness as may be reasonable, necessary, or advisable; and to assign its right to future income, including without limitation the right to receive Assessments, as security for any borrowed funds. (r) To deal with agencies, officers, boards, commissions, departments, and other governmental bodies on a local, state, and federal basis to carry out the powers, rights, and privileges of the Association; (s) To institute, defend, intervene, or settle litigation, arbitration, mediation, or other administrative proceeding on matters affecting the Property or the Governing Documents, and to take such action it deems reasonable or necessary to enforce the Governing Documents. (t) To appoint a Manager to generally supervise and control the day-to-day business of the Association and to delegate certain powers, duties, and responsibilities to such Manager. (u) To exercise all other powers that may be exercised by a Montana nonprofit corporation under the Act or that are reasonable or necessary to protect the health, safety, and welfare of the Owners. Article 5 Assessments 5.1 Personal Obligation for Assessments and Other Amounts. (a) Each Owner, whether it shall be so expressed in any deed or contract, is deemed to have agreed to the protective and restrictive covenants contained herein, and to pay to the Association all Assessments levied by the Association. Each Owner, by accepting a deed or DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 17 recording a notice of purchaser’s interest or a contract for deed for any Unit within the Property, is deemed to covenant and agree to pay the Assessments levied by the Association. (b) No Owner may exempt himself from liability for any Assessments or any other obligation under the Governing Documents by non-use of or abandonment of such Owner’s Unit or any other reason. The obligation to pay Assessments is a separate and independent covenant on the part of each Member in relation to a Unit. (c) Notwithstanding anything stated in this Declaration to the contrary, the Declarant shall not be required to pay Assessments on any Unit it owns unless such Unit is substantially completed and is being occupied for its intended purpose. 5.2 Waiver of Homestead. By purchasing a Unit, each Owner agrees that any filed Homestead Exemption does NOT apply to any Assessments owed to the Association. 5.3 Types of Assessments. The Association may levy any and all of the following types of Assessments: (a) General Common Assessments. General Common Assessments include assessments to pay for the General Common Expenses of the Association. General Common Assessments shall be fixed by the Board based upon and computed by using the Percentage of Interest that each Unit Owner has in the General Common Elements. General Common Assessments shall be paid quarterly, on January 1, April 1, July 1, and October 1 of each year. (b) Limited Common Assessments. Limited Common Assessments include assessments to pay for the Limited Common Expenses. Limited Common Assessments shall be fixed by the Board based upon and computed by using the Percentage of Interest of those Units having use of the Limited Common Element for which the Limited Common Expense is incurred, and distributing among and charging such Unit Owners their proportionate share of such Limited Common Expense. If only one Unit has use of the Limited Common Element for which the Limited Common Expenses is incurred, then the entire expense shall be borne by that Unit. Limited Common Assessments shall be invoiced with General Common Assessments and paid quarterly on January 1, April 1, July 1, and October 1 of each year. (c) Reserve Assessments. Reserve Assessments shall be made for Reserves and distributed and charged to the Owners in the same manner as set forth in Section 5.3 (a)-(b) depending on whether the Reserve is established for General Common Elements or Limited Common Elements. The Reserve Assessments shall fixed by the Board after annually considering the amount in Reserves and taking into account the number and nature of depreciable assets owned or partially or fully maintained by the Association, the expected life of each asset, and their expected repair, replacement, and improvement cost. Reserve Assessments shall be invoiced with General Common Assessments and paid quarterly on January 1, April 1, July 1, and October 1 of each year. (d) Special Assessments. Special Assessments may be levied from time to time to cover unbudgeted expenses or expenses in excess of those budgeted. Except as otherwise specifically provided in this Declaration, any Special Assessment for the general benefit of all Owners shall require the Affirmative Vote of a Majority. Special Assessments shall be payable DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 18 in such manner and at such times as determined by the Board, but no less than ninety (90) days after notice of the Special Assessment is provided to the Owners, and may be payable in installments extending beyond the fiscal year in which the Special Assessment is approved. (e) Default Assessments. Default Assessments mean (i) any fine imposed upon an Owner because of a violation of any provision of the Governing Documents; (ii) any cost or expense incurred by the Association as a result of an Owner’s or an Owner’s Invitee’s violation of any provision of the Governing Document, including without limitation reasonable attorney and paralegal fees, expert and professional fees, fees to determine the amount of fees, court costs, and all other expenses incurred by the Association; and (iii) any cost or expense incurred by the Association as a result of damage caused by the intentional or negligent act or omission of an Owner or the Owner’s Invitee. Default Assessments should be liberally construed. Default Assessments shall be payable in such manner and at such times as determined by the Board, but no less than thirty (30) days after notice of the Default Assessments is provided to the Owner. (f) Community Transfer Assessments. Upon a Transfer, every Transferee shall pay to the Association a Community Transfer Assessment in an amount equal to $500.00 per Transfer. (1) Definitions. For the purposes of this Section 5.3(f), the following terms are defined as set forth below. (a) “Consideration.” Consideration means the total of money paid or value delivered and the Fair Market Value of any property delivered, or contracted to be paid or delivered, in return for the Transfer of any Unit, and includes the amount outstanding of any note, contract indebtedness, or rental payment assumed, deemed forgiven or received in connection with such Transfer, whether or not secured by any lien, mortgage, or other encumbrance, given to secure the Transfer price, or any part thereof, or remaining unpaid on the Unit at the time of Transfer. The term “Consideration” does not include the amount of any outstanding lien or encumbrance for taxes, special benefits or improvements, in favor of the United States, the state of Montana, or a municipal or quasi-municipal governmental corporation or district. (b) “Entity.” Entity means a corporation, partnership, limited liability company, association, or any other legal entity, but does not include any of the foregoing serving in a trustee capacity or any natural person, whether serving in his individual or trustee capacity. (c) “Fair Market Value.” Fair Market Value means the greater of: (i) the Consideration given by the Transferee to the Transferor in exchange for the Transfer of a Unit, or (ii) the price that a Transferee would pay to a Transferor for a Unit in a bonafide arms’ length Transfer between unrelated Persons, as determined by the Board. The Board may retain a professional to assist the Board in determining the Fair Market DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 19 Value, and such expense shall be reimbursed to the Association by the Transferee at the time the Community Transfer Assessment becomes due. (d) “Transfer.” Transfer means, whether in one transaction or in a series of related transactions, any direct or indirect conveyance, assignment, merger, or other transfer, whether by operation of law or otherwise, of beneficial ownership of any Unit, including but not limited to (i) conveyance of fee simple title to any Unit, (ii) the transfer of more than fifty percent (50%) of the outstanding shares of the voting or control equity interest of any Entity, which, directly or indirectly, owns one or more Units, and (iii) the transfer of more than fifty percent (50%) of the interest in net profits, net losses, or net cash distributions right of any Entity which, directly or indirectly, owns one or more Units, but “Transfer” shall not mean or include the transfers exempted under Section 5.3(f)(2) below. (e) “Transferee.” Transferee (i.e., “Buyer”) means and includes all parties to whom any interest passes by a Transfer, and each party included in the term “Transferee” shall have joint and several liability for all obligation of the Transferee under this Section 5.3(f)(1)(v). (f) “Transferor.” Transferor (i.e., “Seller”) means and includes all parties from whom any interest passed by a Transfer, and each party included in the term “Transferor” shall have joint and several liability for all obligations of the Transferor under this Section 5.3(f)(1)(iv). (2) Exemptions. Notwithstanding anything stated herein to the contrary, the Declarant (including without limitation any entity created by one or more members of the Declarant for the purpose of purchasing, holding, and selling Units within the Property) shall be exempt from having to pay a Community Transfer Assessment on all initial sales of Units. In other words, the Declarant shall only be subject to payment of the Community Transfer Assessment if the Declarant is occupying and using a Unit for its intended purpose and thereafter sells such Unit to a third party for value. (3) Payments and Reports. The Community Transfer Assessment shall be due and payable by the Transferee to the Association at the time of the Transfer giving rise to such Community Transfer Assessment. With such payment, the Transferee shall make a written report to the Board on a form prescribed by the Board, fully describing the Transfer, the names of the parties thereto, and such other information as the Board may reasonably require. If the Community Transfer Assessment is not paid within thirty (30) days after the Transfer, the Community Transfer Assessment shall be delinquent. 5.4 Approving the Budget. So long as the General Common Assessments, Limited Common Assessments, and Reserve Assessments are not increased more than 10% over the DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 20 amount of each such assessments for the preceding year, the Board is not required to obtain Member approval to the adopt the budget. 5.5 Effect of Non-Payment of Assessments; Lien and Remedies of the Association. (a) Any Assessment not paid within thirty (30) days after the due date shall be delinquent and shall incur a fine equal to 10% of the delinquent Assessment. Any Assessment that is still not paid on each anniversary date of the due date shall an additional fine equal to 10% of the delinquent Assessment. (b) In the event an Assessment becomes delinquent, the Association may take any or all of the following actions: (i) record a notice of the lien in the Public Record setting forth the name of the Unit Owner, a description of the Unit, and the Assessments owed to the Association; (ii) bring an action at law to collect all Assessments owed and/or foreclose the lien against the Unit; (iii) send the debt to collections, (iv) apply any deposits held by the Association to the amount due, (v) suspend the Owner’s voting privileges; and (vi) exercise any other remedy permitted under the Declaration or at law or equity. Each Assessment may be recovered by suit for a money judgment by the Association without foreclosing or waiving any lien securing the same or may be recovered in any foreclosure, or both. The remedies expressed herein are cumulative and not exclusive, and the Association may take any action permitted under this Declaration or Montana law to collect the Assessments owed to the Association. (c) The recording of this Declaration constitutes record notice and perfection of a lien of the Association on all Units. No further recordation or filing of any claim of any lien is required. The Association may, in its discretion, record or file an additional notice of that lien in the Public Record at the election of the Board. The priority of the lien of the Association shall be determined pursuant to Section 5.5 and shall not be dependent upon the recording or filing date of any notice of lien recorded or filed in the Public Record. The Board, acting on behalf of the Association, shall have the power to bid (which may be a bid on credit, up to and including the amount secured by the lien) for the Unit at a foreclosure sale, and to acquire and hold, lease, mortgage, and convey the same. During the period a Unit is owned by the Association following foreclosure, (i) no right to vote shall be exercised on behalf of the Unit, (ii) no Assessment shall be assessed or levied on the Unit, and (iii) each other Unit shall be charged, in addition to its usual General Common Assessments, its equal pro rata share of the General Common Assessments that would have been charged to or payable by such Unit had it not been acquired by the Association. (d) The sale or transfer of any Unit shall not affect the assessment lien or relieve such Unit from the lien for any subsequent Assessments; provided, however, any Assessments unpaid as a result of a foreclosure shall be deemed to be General Common Expenses collectible from all Owners subject to General Common Assessments under this Declaration, including, without limitation, the acquirer at foreclosure, its successors, assigns and transferees. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 21 5.6 Priority and Non-subordination of the Lien. The lien under this Article 5 shall be superior to all other liens, except for tax and assessment liens and a first mortgage or trust indenture of record. 5.7 Liability of Members, Purchasers and Encumbrancers. Except as set forth in Section 5.4(d), the amount of any Assessment payable under this Article 5 shall be a joint and several obligation to the Association of such Owner and such Owner’s heirs, estates, devisees, personal representatives, successors, and assigns, and any Person acquiring fee simple title to a Unit shall be jointly and severally liable with the former owner of the Unit for all such amounts which had accrued and were payable at the time of the acquisition of the title or interest by such Person, without prejudice to such Person’s right to recover any such amounts paid from the former Owner. 5.8 Verification of Assessments Due. Upon written request, the Association shall furnish to an Owner or such Owner’s title or mortgage company written verification of the amount of such Assessments owing and whether the Owner has paid such Assessments. Article 6 PROPERTY USE AND RESTRICTIONS 6.1 City Required Covenants. The covenants contained in Exhibit C are included as a condition of preliminary and final plat approval and required by the City of Bozeman and may not be amended or revoked without the approval of the governing body of the City of Bozeman. 6.2 Single Family Dwellings. Except as is reserved to the Declarant, the use of all Units shall be for lawful single-family dwelling purposes only; provided, however, home office use is allowed so long as (i) the home office is incidental to the primary use as a residence, (ii) the home office is entirely inside the Unit, including any storage of materials; and (iii) no non- resident employees or excessive traffic or noise are permitted. The Board may adopt additional Rules and Regulations regulating home offices. 6.3 Leasing. An Owner may lease the Owner’s Unit subject to the following: (i) all Unit Owners shall comply with City of Bozeman ordinances regarding leasing; (ii) all Unit Owners shall comply with Rules and Regulations adopted by the Board regarding leasing; (iii) a Unit Owner shall have a written lease with the Owner’s tenants that complies with Montana law and local ordinances; (iv) a Unit Owner shall provide a copy of the Governing Documents to the tenant(s) prior to the beginning of the lease term; (iv) a Unit Owner shall provide the Association with each tenant’s name, telephone number, and email address; and (v) a Unit Owner shall be responsible to the Association for the actions or omissions of their tenants, including without limitation any damage caused by tenants and any violation of the Governing Documents. 6.4 Structural Integrity. The Units and Common Elements shall not be used for any purpose that will impair the structural integrity of the Buildings or Units. 6.5 Peaceful Possession. The Units and Common Elements shall not be used for any purpose that interferes with the peaceful possession and proper use of other Units by other Owners and of the Common Elements by other Owners. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 22 6.6 Hazardous Materials. Within the Units and Common Elements, there shall be no storage of hazardous or dangerous materials, or of materials which will increase the rate of or cancel the insurance on the Property or Buildings. 6.7 Attics and Fire Risers. Owners may not access the attics or fire risers in any Building except upon the written consent of the Board. No Owner may store any item in the attacks or fire risers. 6.8 Obstruction of Common Elements. There shall be no obstruction of the Common Elements, nor shall anything be altered, constructed in, or removed from the General Common Elements, without the prior written consent of the Board. 6.9 Storage in Common Elements. There shall be no storage of items in the General Common Elements without the prior written consent of the Board. Owners of Units which have useable space in a Limited Common Element may use this space to store items such as patio furniture and garden pots, but no Limited Common Element shall be permitted to become unsightly. Notwithstanding anything stated herein, Owners and their Invitees may store bicycles in the bike racks (but not next to or outside of bike rack) originally installed by the Declarant in the General Common Elements, subject to Rules and Regulations adopted by the Board. 6.10 No waste. No waste is permitted on the Common Elements. 6.11 No firearms. No firearms or fireworks of any kind shall be discharged in any Unit or in any Common Element. 6.12 Noise. Sound systems, both interior and exterior, shall be used in a manner than minimizes sound, noise, and base reverberation to any adjacent Owners and to the neighborhood. 6.13 No Noxious or Offensive Activity. No noxious or offensive activity or odors shall take place in any Unit or within the Common Elements, nor shall anything be done thereon which may, or may become, an annoyance to the neighborhood. As used herein, the term “noxious or offensive activity” shall not include any activities of Declarant or its respective contractors or subcontractors which are reasonably necessary to the development of and construction on the Property so long as such activities do not violate the Governing Documents or the statutes or ordinances any governmental or quasi-governmental entity having jurisdiction with respect thereto. 6.14 Pets. In addition to the City Required Covenants regarding animal control, as set forth in Exhibit C, no livestock, poultry, or other animals, except domestic dogs, cats, or small in-house pets and birds (collectively “Permitted Household Pets”), are permitted on the Property. A maximum of two (2) Permitted Household Pets may be kept, provided they are confined to the Unit of their Owner. Permitted Household Pets may not be kept, raised, or bred for any commercial purposes. Permitted Household Pets shall not be allowed to roam free on the Property and shall be restrained or leashed at all times. Permitted Household Pets shall not be allowed to become a nuisance or annoyance to neighboring Owners, nor allowed to bark continuously or uncontrolled at any time. All Permitted Household Pets shall be strictly controlled by the Owners to prevent any interference or harassment of birds or wildlife. Owners DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 23 are responsible for damage caused by any Permitted Household Pet, and Owners shall immediately clean up after their pets on any part of the Property. If any animals are caught or identified chasing or otherwise harassing birds, wildlife, or people, or have become a nuisance or annoyance to neighboring Owners, the Association or any Owner shall have the authority to have such animals(s) impounded in accordance with the City of Bozeman animal control regulations. The Board may adopt Rules and Regulations concerning Permitted Household Pets. Any Owner who causes any animal to be brought or kept on the Property shall indemnify and hold harmless the Association from any loss, damage, or liability that the Association may sustain as the result of the presence of such animal on the Property. 6.15 Hot Tubs. Hot tubs are not permitted in the Common Elements. 6.16 Satellite Dishes and Signs. Except as otherwise provided in this Section, Owners shall not cause or permit anything to be placed, hung, or displayed on the windows or placed outside of a Unit or in the General Common Elements (such as flags, air conditioning units, awnings, etc.), except as follows: (a) Satellite dishes may be installed within the boundaries of a Limited Common Element if the Owner has exclusive use of such Limited Common Element; provided, however, satellite dishes are subject to Rules and Regulations adopted by the Board regarding the size of such satellite dish and other rules permitted by the Over-the-Air Reception Devise (“OTARD”). Satellite dishes are not permitted in or on the General Common Elements. (b) Industry standard size “for sale,” “open house,” or “for rent” signs are permitted in a central kiosk or other common area designated by the Board for temporarily listing Units for sale, for open house, or for rent. All such signs shall be promptly removed when the Unit is sold or leased. Notwithstanding anything stated in this Section to the contrary, during the time the Property is being developed and Units are being sold, the Declarant may erect “for sale” signs. (c) Political signs are permitted in a central kiosk or other Common Element area designated by the Board and subject to Rules and Regulations adopted by the Board regarding the size of political signs and the time period during which political signs are permitted. (d) A sign may be placed at the entrance(s) to the neighborhood to identify the neighborhood, and director signs approved by the Board may be placed within the Area of Common Responsibility. If required by the City of Bozeman, any neighborhood and identification signs must obtain sign permit approval through the Bozeman Planning Department. In addition to any other remedy available, the Board shall have the right to immediately remove any sign that is in violation of the Declaration or Rules and Regulations. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 24 6.17 Mailboxes. Individual mailboxes and newspaper tubes are not be allowed. Community mailboxes and newspaper deliver areas will be clustered at strategic locations approved by the Postmaster to simplify mail and newspaper delivery, and such boxes shall be maintained by the Association. 6.18 Garbage. In addition to the City Required Covenants regarding refuse, as set forth in Exhibit C, all garbage, trash, and rubbish shall be regularly removed from the Unit, and shall not be allowed to accumulate. No incinerator or other device for burning of garbage shall be installed or used. Each Owner shall dispose of their garbage at the location(s) designated by the Board. 6.19 Wildlife Habitat. It is recognized by Declarant, the Association, and the Owners that birds and wildlife live in or migrate through the Property during various times of the year. The following limitations on use and development are intended to protect, preserve and maintain the existing bird and wildlife habitat in the Property and to minimize the adverse effects of development on the bird and wildlife habitat: (a) Hunting, capturing, trapping, or killing of birds or wildlife within the Property is prohibited. Skunks, gophers, and rodents may be trapped by the Board or Manager or their designee, but poison may not be used. (b) No feeding or domestication of any birds or wildlife shall be permitted. No salt licks, bird feeders, or other foods shall be placed upon any Unit or in the Area of Common Responsibility. Items such as bird feed, horse feed, grains, garbage and dog food shall be stored inside the Units. (c) Owners and Owners’ Invitees should avoid areas of birds or wildlife concentration. Loud, offensive, or other behavior that harasses or frightens birds or wildlife is strictly prohibited. 6.20 Waterways and Wetlands. Owners and Owners’ Invitees shall conduct their use and activities in a manner that will preserve the integrity of waterways and wetlands, including the prevention of any degradation of water quality, any reduction or increase in the flow of said waterways or wetland areas, or any damage to the stream bed or banks of said waterways or wetland areas. Owners and Owners’ Invitees shall not: (i) discharge any liquid, solid, or gas into waterways or wetland areas; (ii) pollute the waterways or wetland areas; (iii) use fertilizers, herbicides, or poisons, other than those specifically approved by the board, that would runoff, drain, or discharge into waterways or wetland areas; (iv) cause any erosion to the waterways or wetland areas; or (v) divert any water or drainage from any waterway or wetland area. 6.21 Lights. All exterior lighting shall be subject to approval and regulation by the Board to ensure that it is night-sky compliance, free of glare, and fully shielded or indirect lighting. 6.22 No Unsightliness. No unsightliness shall be permitted on any portion of the Property or the exterior of any Unit. Without limiting the generality of the foregoing: DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 25 (a) No unsightly equipment, objects, or conditions shall be kept outside of a Unit. (b) Clothes, towels, bedding, and other similar items shall not hung outside. 6.23 Parking. Except as otherwise provided in this Declaration, no Person shall park vehicles on or along any Roads, except in areas specifically designated for parking. In addition to any other remedy available, the Board shall have the right to remove any vehicle that is parked on or along any Roads not in compliance with this Section, at the Owner or vehicle owner’s expense. Parking within the Property is further subject to the adoption of Rules and Regulations by the Board. 6.24 Recreational Vehicles and Parking. No Owner or Invitee shall park, store, or maintain in or on the exterior portions of the Property (including driveways) any snowmobiles, boats, trailers, all-terrain recreational vehicles, motor homes, mobile homes, campers, recreational vehicles, commercial type trucks, or other similar vehicles or equipment (collectively, “Recreational Vehicles”). The temporary parking of Recreational Vehicles for periods of short duration, but not exceed four (4) hours within a forty-eight (48) hour period, as an incident to loading and unloading thereof, shall not be deemed a violation of this Section. In addition to any other remedy available, the Board shall have the right to cause any Recreational Vehicle in violation of this Section to be immediately removed from the Property, without notice and at the expense of the owner of such Recreational Vehicle. The Association and the Board shall not be liable for any damages incurred by the Recreational Vehicle owner because of the removal in compliance with this Section, or for any damage to the Recreational Vehicle caused by the removal. 6.25 Vehicles and Parking. Ordinary motorcycles, passenger cars, sports utility vehicles, and three-quarter ton or smaller pick-up trucks (collectively, “Vehicles”) may be parked in designated parking areas or driveways; provided, however, each Unit is limited to one (1) Vehicle per bedroom (for example, a two bedroom Unit may utilize up to two (2) parking spaces and a three bedroom Unit may utilize up to three (3) parking spaces). No inoperable or junk Vehicles may be stored within the Property, and no repairs to any Vehicle may be made on the Property, except in the case of strict emergency. In addition to any other remedy available, the Board shall have the right to cause any Vehicle in violation of this Section to be immediately removed from the Property, without notice and at the expense of the owner of such Vehicle. The Association and the Board shall not be liable for any damages incurred by the Vehicle owner because of the removal in compliance with this Section, or for any damage to the Vehicle caused by the removal. 6.26 Wood Burning Devices and Grills. Wood-burning devises, grills, and smokers are not permitted in any Unit or in the Common Elements. 6.27 Snow Removal. In addition to the City Required Covenants regarding snow removal, as set forth in Exhibit C, the Association shall be responsible for removing snow from the Roads (except Roads maintained by the City), paved areas, and sidewalks (except sidewalks leading from a driveway to a Unit, which shall be the responsibility of the Unit Owner), and may in the Board’s discretion remove snow from other General Common Elements. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 26 6.28 Noxious Weeds. In addition to the City Required Covenants regarding noxious weeds, as set forth in Exhibit C, the Association shall be responsible for controlling noxious weeds on the Property. 6.29 Other Condominium Declarations. Any Unit may be subject to the declaration of a condominium or when legally formed and filed. The additional restrictions and requirements of any such condominium declaration does not, in any way, relieve the Owner from compliance with the Governing Documents. 6.30 Declarant’s Exemption. Notwithstanding any other provision of this Declaration, nothing contained in this Article 6 shall apply to the activities of Declarant. Further, Declarant’s Construction Activity and Declarant’s exercise of any Declarant’s Special Rights are exempt from review by the Board before the Turnover Date. Article 7 EASEMENTS 7.1 Easement for Encroachments. If any portion of the General Common Elements or Limited Common Elements encroaches upon a Unit(s), a valid easement for the encroachment and for the maintenance and repair of the same, so long as it stands, shall and does exist. If any portion of a Unit encroaches upon the General Common Elements, or upon an adjoining Unit(s), a valid easement for the encroachment and for the maintenance and repair of the same, so long as it stands, shall and does exist. Such encroachments and easements shall not be considered or determined to be encumbrances either on the General Common Elements, the Limited Common Elements, or on the Units for the purpose of marketability of title. 7.2 Easements for Utilities. Each Unit may have its air space penetrated by electrical wires and lines, gas lines, and mechanical equipment, including without limitation air handling ducts, hot and cold water lines, waste water lines, vents, and other utility and mechanical lines, pipes, or equipment. There is hereby reserved to the Association a non-exclusive easement through, over, under, and across each Unit for ingress and egress to such lines and equipment for inspection, installation, maintenance, repair, and replacement of such lines and equipment. Such easement rights shall only be exercised by the Board or Manager and the designees of each upon reasonable notice and during reasonable hours, unless an emergency exists in which event any action may reasonably be taken which is justified under the circumstanced to minimize damage which would otherwise occur as a consequence of such emergency. 7.3 Right of Access. There is hereby reserved to the Association a non-exclusive easement through, over, under, and across each Unit or Limited Common Element for access to each Unit or Limited Common Element for inspection, installation, maintenance, repair, and replacement of any Common Element therein or accessible therefrom, or for making emergency repairs therein necessary to prevent damage to the Common Elements or to any other Unit. Such easement rights shall only be exercised by the Board or Manager and the designees of each upon reasonable notice and during reasonable hours, unless an emergency exists in which event any action may reasonably be taken which is justified under the circumstanced to minimize damage which would otherwise occur as a consequence of such emergency. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 27 7.4 Emergency Services Easements. There is hereby reserved to all police, sheriff, fire protection, ambulance, similar emergency agencies or persons, now or hereinafter serving the Property, a non-exclusive perpetual easement across and over the Common Elements and Units for ingress and egress. to enter the General Common Elements and Units in the performance of their duties, subject, however, to limitations generally imposed by local, state, and federal law. 7.5 General Association Easements. There is hereby reserved unto the Association and its successors and assigns a non-exclusive, perpetual easement upon, across, above and under the Property for access, ingress, and egress in order to (i) exercise any right held by the Association under this Declaration or any other Governing Document, and (ii) perform any obligation imposed upon the Association by this Declaration or any other Governing Document. The Association shall not enter any Unit without reasonable prior notice to the Owner of the Unit Owner without the consent of such Owner, unless an emergency exists in which event any action may reasonably be taken which is justified under the circumstanced to minimize damage which would otherwise occur as a consequence of such emergency. 7.6 Damage. Damage to the interior of any Unit or to the Common Elements resulting from the inspection, installation, maintenance, repair, and replacement of Common Elements or as a result of an emergency repair within another Unit at the instance of the Association, shall be designated by the Board as either a General or Limited Common Expense and assessed in accordance with such designation; provided, however, if the damage is the result of the act or omission of a Unit Owner or the Unit Owner’s Invitee, then the expense to repair such damage shall be assessed to the Unit Owner as a Default Assessment. Article 8 DECLARANT’S SPECIAL RIGHTS 8.1 Completion of Buildings and Units and/or Annexation of Land. (a) When a Building and the Unit(s) contained therein are completed without annexation of additional land, Declarant reserves the right to file in the Public Record an amendment or supplement containing such information and documents as are required or permitted under the Unit Ownership Act, including without limitation the following: 1. If there is any change in the square footage, an amended Exhibit D showing the new Percentages of Interest in the General Common Elements appurtenant to each Unit within the West Park Neighborhood Condominiums, based upon the square footage of the interior of the Units as shown on the floor plans. 2. If there is any change in the location of the Building, an amended Exhibit E (Site Plan), depicting the location of the Property and the location of the Buildings containing Units. 3. If there is any change in the floor plans, an amended Exhibit F (Floor Plans), depicting the floor plans of each additional Unit, the area of each additional Unit, and the designation for each additional Unit. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 28 4. An amended Exhibit G (Certificate of Floor Plans), providing a statement of a registered architect, engineer or land surveyor certifying that the floor plans are an accurate copy of the plans filed with and approved by the City of Bozeman officers having jurisdiction and that the plans fully and accurately depict the layout of the Unit(s) and floors of the Building(s) and the date construction of the Building(s) was substantially completed. (b) Until the Turnover Date, Declarant reserves the right from time to time to expand West Park Neighborhood Condominiums by annexing any or all of the lands described in Exhibit B to the Property, including all Buildings, Units, and Common Elements located or to be located on the lands, and subjecting the same to the Declaration and the Unit Ownership Act. However, the Declarant shall not be obligated or required to annex such additional lands to West Park Neighborhood Condominiums and the Declarant may annex a portion or all thereof at Declarant’s discretion. The manner of subjecting the additional lands to the Declaration shall be accomplished by filing in the Public Record an amendment or supplement for each such expansion and annexation containing the following: 1. An amended Exhibit A providing the amended legal description for the Property. 2. An amended Exhibit C providing any additional covenants required by City of Bozeman, Gallatin County, Montana. 3. An amended Exhibit D showing the new Percentages of Interest in the General Common Elements appurtenant to each Unit within the West Park Neighborhood Condominiums, based upon the square footage of the interior of the Units as shown on the floor plans. 4. An amended Exhibit E (Site Plan), depicting the location of the Property and the location of the Buildings containing Units. 5. An amended Exhibit F (Floor Plans), depicting the floor plans of each additional Unit, the area of each additional Unit, and the designation for each additional Unit. 6. An amended Exhibit G (Certificate of Floor Plans), providing a statement of a registered architect, engineer or land surveyor certifying that the floor plans are an accurate copy of the plans filed with and approved by the City of Bozeman officers having jurisdiction and that the plans fully and accurately depict the layout of the Unit(s) and floors of the Building(s) and the date construction of the Building(s) was substantially completed. 7. Such other amendments as shall be necessary to incorporate the annexed land, Building, Units, and Common Elements into the Property and West Park Neighborhood Condominiums. (c) The Declarant shall have the irrevocable right to execute, file, and record any amendment or supplement permitted under Section 8.1, and such other documents DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 29 reasonable or necessary to accomplish expansion and annexation. The Unit Owners, the Association, lien holders, mortgages, and others acquiring any interest in a Unit herein consent to the Declarant amending or supplementing the Declaration (and Bylaws, if required), and their consent is implied to such amendments or supplements by their acceptance or acquisition of any interest or lien in the Units or Common Elements and Declarant is appointed the Unit Owners’ and lien holders’ agent to execute and record such amendments or supplements. (d) Upon the execution and recording or any such amendment or supplement, the Unit Owners, lien holders and mortgages, shall be bound and subject to the terms, provision, and conditions and consequences of such amendment or supplement. (e) The amendment or supplement shall be effective at the time it is recorded in the Public Record. (f) After the recording of such amendment or supplement, any transfer, conveyance deed, encumbrance, lien, and mortgage shall reflect any new or changed Percentage of Interest in the General Common Elements. A Unit or Units’ failure to accurately reflect or state the new Percentage of Interest shall not void any documents, and the error may, at any time, be corrected by the appropriate corrective document. (g) The Declarant’s rights set forth in Section 8.1 are irrevocable and shall be deemed covenants running with the Units and the Common Elements. 8.2 Declarant’s Easements. (a) Until the Turnover Date, Declarant hereby reserves for itself and its successors and assigns, for the benefit of itself and its agents, representatives, successors, assigns, contractors, and subcontractors, a non-exclusive easement through, over, over, under, and across, the General Common Elements as may be reasonable or necessary to (i) discharge Declarant’s obligations under this Declaration; and (ii) exercise any of the Declarant’s Special Rights. (b) Declarant hereby reserves for itself and its successors and assigns, for the benefit of itself and its agents, representatives, successors, assigns, contractors, and subcontractors, a non-exclusive easement through, over, under, and across the General Common Elements for ingress and egress to the General Common Elements for the purpose of inspecting, installing, maintaining, repairing, replacing, relocating, tapping into, tying into, extending, enlarging, and using hot and cold water lines, waste water lines, electrical lines, gas lines, internet lines, cable television systems, master television antenna systems, Roads, Trails, ponds, wetlands, drainage systems, and any other utilities, to further develop the Property and the Annexable Area, whether or not any or all of such land is made subject to this Declaration. Declarant agrees that it and its successors or assigns shall be responsible for any damage caused to the General Common Elements as a result of vehicular traffic connected with development of such Annexable Area. Declarant further agrees that if the easement is exercised for permanent access to all or a portion of such Annexable Area and such Annexable property or any portion thereof is not made subject to this Declaration, the Declarant, its successors or assigns, shall DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 30 enter into a reasonable agreement with the Association to share the cost of maintenance of any access roadway serving such Annexable Area. (c) Until the Turnover Date, Declarant hereby reserves for itself and its successors and assigns the right to establish easements within the Property consistent with developing the West Park Neighborhood Condominiums. 8.3 Other Declarant’s Special Rights. Notwithstanding any other provision expressly or impliedly to the contrary in the Declaration or Bylaws, the Declarant hereby reserves for itself and its successors and assigns the following rights: (a) Until a Unit is substantially completed and is being occupied for its intended purpose, the Declarant shall not be required to pay any Assessments for a Unit. (b) Until the Turnover Date, the right to appoint the Board of Directors. (c) Until the Turnover Date, the right to complete any Improvements on the Property. (d) Until the Turnover Date, the right to construct and maintain sales offices, trailers, booths, Improvements, or other structures used for sales or promotional purposes, management offices, and models on the Property, and the right to construct and maintain signs advertising the Property and the Units contained therein. The number, size, and location of any such sales structures and signage, management offices, or models or the relocation thereof shall be determined by Declarant. (e) Until the Turnover Date, the right to exercise any development right, including, without limitation, the right to add Annexable Area to the Property pursuant to Section 8.1 and to make that Annexable Area subject to this Declaration; the right to change the uses for such Annexable Area, the right to subdivide or combine Lots within the Annexable Area, and the right to record declarations and governing documents of any sub-associations. (f) Until the Turnover Date, the right to maintain construction equipment on the Property that is necessary for the development of the Property. (g) The right to merge and consolidate the Association with a property owners association of the same form of ownership. (h) Until the Turnover Date, the right to not be subjected to the design Guidelines. (i) Any other right set forth within the Declaration and/or the Bylaws as reserved to the Declarant and/or its successors or assigns. 8.4 Transfers of Declarant’s Special Rights. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 31 (a) The Declarant’s Special Rights may be transferred or assigned by the Declarant in whole or in part. Any such transfer or assignment shall only be effective if it is in a written instrument signed by Declarant and recorded in the Public Record. (b) Upon transfer or assignment of the Declarant’s Special Rights, the liability of an assignee is as follows: (a) A assignor is not relieved of any obligation or liability arising before the transfer. (b) A assignor has no liability for any act or omission or any breach of a contractual or warranty obligation arising from and after the date of such transfer. (c) Upon transfer or assignment of the Declarant’s Special Rights, the liability of an assignee is as follows: (a) An assignee of the Declarant’s Special Rights is subject to all obligations and liabilities imposed on the Declarant by this Declaration arising from and after the date of such transfer or assignment. 8.5 Rights of Declarant after the Turnover Date. After the Turnover Date, Declarant will still have the following rights and duties: (i) if still an Owner, Declarant will continue to have all of the rights and duties given to Members under the Governing Documents; and (ii) any right or duty of the Declarant that has not been expressly limited as existing only before the Turnover Date. 8.6 Amendments to Article 8. No provision included in Article shall be amended without the Declarant’s written consent. Article 9 MAINTENANCE, REPAIR, AND REPLACEMENT 9.1 Maintenance of Units. Unit Owners shall maintain and keep in good repair the interior of their own Units. All fixtures, utility lines, and equipment installed in a Unit commencing at a point where the utilities enter the Unit shall be maintained and kept in repair by the Owner. Each Unit Owner shall have the exclusive right to paint, repaint, paper, panel, tile, install flooring, or otherwise remodel, maintain, refinish, and decorate the inner surfaces of the walls, ceilings, floors, and interior doors of Owner’s Unit, without the prior written approval of the Board, subject to the following conditions: (a) Owner shall not do anything which would (i) jeopardize the soundness, safety, or structural integrity of any Unit, Building, or the Common Elements; (ii) reduce the value of any other Unit, or (iii) impair any easement or hereditament; (b) Owner shall pay all costs thereof; DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 32 (c) Any and all interior remodeling, maintenance, and repair shall be subject to and comply with the Governing Documents of the Association, and (d) Any and all interior remodeling, maintenance, and repair shall not change or alter the exterior of the Unit. 9.2 Maintenance of General Common Elements. The Association shall maintain, keep in repair, and replace the General Common Elements and Common Open Spaces; provided, however, in the Board’s sole and complete discretion, and upon prior written approval of the Board and on conditions set by the Board, an Owner may maintain, repair, or replace a General Common Element at the Owner’s sole expense. The City Required Covenants contained in Exhibit C set forth in more detail the Parks and Open Space Maintenance Plan, and the Storm Water Management System Operation & Maintenance Manual contained in Exhibit H sets forth in more detail the Storm Water Management System Operation & Maintenance Manual. 9.3 Maintenance of Limited Common Elements. (a) Exclusive Use by One Unit. (a) Owner Responsibility. In general, if one Unit has exclusive use of a particular Limited Common Element, the Owner of such Unit shall maintain, keep in good repair, and replace such Limited Common Element and keep the same in a neat, clean, and sanitary condition, and such expense arising therefrom shall be paid for by the Owner of the Unit. This includes, for example, patios, decks, exterior doors, garage doors, windows, and window screens. (b) Approval to Perform Construction Activity. Prior to performing any maintenance, repair, replacement or other Construction Activity on a Limited Common Element, the Unit Owner shall receive prior written approval from the Board. (c) Construction Activity to Comply with Design Regulations. Any maintenance, repair, replacement, or other Construction Activity shall be subject to and shall be in compliance with the Design Regulations and/or Rules and Regulations. (d) Board Power to Maintain Exclusive Limited Common Element. (i) The Board may in any instance determine that a Limited Common Element should be maintained, repaired, or replaced by the Association, and such expenses arising therefrom shall be a Limited Common Expense paid by the Owners having use of such Limited Common Element. (ii) If an Owner fails to comply with Section 9.3(a)(1), in addition to any other remedy the Board may have, the Board may, after providing at least 10 days’ written notice to the Owner, cause the Limited Common Element to be maintained, repaired, replaced, and/or cleaned and DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 33 sanitized, and all such expenses incurred by the Association, including without limitation attorney’s fees, shall be a Default Assessment against the Owner’s Unit. (b) Exclusive Use by More than One Unit. In general, if more than one Unit has exclusive use of a particular Limited Common Element, then the Association shall maintain, keep in good repair, and replace such Limited Common Element, and such expenses arising therefrom shall be a Limited Common Expense (except as otherwise permitted to be a General Common Expense) paid by the Owners having use of such Limited Common Element. 9.4 Ability of the Board to Treat Limited Common Expenses as General Common Expenses. The Board, in its sole and complete discretion, may at any time determine that it is in the best interests of the Association to treat any or all of a Limited Common Expense as a General Common Expense. If the Board votes to treat any or all of a Limited Common Expense as General Common Expense, then in that instance the Association will maintain, keep in good repair, and/or replace the Limited Common Element, and such expenses arising therefrom will in that instance be a General Common Expense 9.5 Liens for Alterations. Services and labor performed and materials furnished and incorporated into a Unit with the consent of or at the request of the Unit Owner or the Owner’s agent shall be the basis for the filing of a lien against only the Unit or the Unit Owner consenting to or requesting the same. Each Unit Owner shall indemnify and hold harmless each of the other Owners, the Declarant, the Board, and the Association from and against all liability arising from the claim of any lien against the Building, Unit, or against the Common Elements of the other Unit Owner for construction performed or for labor, materials, services or other products incorporated in the Owner’s Unit at such Owner’s request. 9.6 General Review and Approval. Any Construction Activity to (i) the General Common Elements, (ii) the exterior of Unit or the Limited Common Elements appurtenant to such Unit, or (iii) which will affect the structural integrity of any Building or Unit may not be commenced or maintained, except upon the prior written approval of the Board. The Board has the express authority to review, accept, condition, modify, or deny all plans for any Construction Activity requested by an Owner to the extent such Construction Activity conflicts with the Governing Documents or is not compatible with, or is inappropriate for, the Property or Unit. 9.7 Owner Acknowledgments. Each Owner is hereby advised and acknowledges that, in connection with any Construction Activities performed by or at the request of an Owner, such Owner must comply with the applicable provisions of Governing Documents, which documents may include, among other things, the following: (i) procedures and fees for making application to the Board for design review approval, including, without limitation, the documents and materials to be submitted and the process utilized to approve or disapprove any submission; (ii) time limitations for the completion, within specified periods after approval, of the Improvements for which approval is required under such documents; (iii) conditions to any consent or approval that that the Board deem necessary or appropriate, including, without limitation, fines for failure to comply; (iv) the nature, kind, shape, height, color, materials and location of Improvements, parking, landscaping, open space, signage, skylining, setbacks, DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 34 utilities, storm water management, grading, erosion control, fencing, interaction with wildlife, fault and landslide areas, air contaminants, water quality, heat, lighting and glare, noise, vibration, electrical disturbances, fire and other hazards, permitted uses within specific areas, the scale of development, maximum floor area and other dimensional limitations, impervious surface, density, construction standards and any other matter regulated pursuant to the Declaration. 9.8 Association Use of Consultants. The Board shall have the authority to retain the services of one or more independent consulting architects, landscape architects, engineers, contractors and experts to advise and assist the Board in performing the review functions prescribed in this Article and in carrying out provisions of this Declaration. Such consultants may be retained to advise the Board on a single or number of projects or on a continuing basis. 9.9 Fees and Deposits. The Board shall have the authority to require reasonable fees to be paid with the filing of plans to offset expenses. In addition, they shall have the authority to set and require Owners to post reasonable deposits prior to commencing Construction Activities for the purpose of assuring that Construction Activities will be completed within the time specified and in compliance with approved plans and applicable requirements. 9.10 Revocation or Suspension of Approvals. The Board shall have the authority to revoke or suspend its review and/or approval and/or order the suspension or cessation of any Construction Activity for violation(s) of the Governing Documents or for failure to construct the project in accordance with the approved plans. In addition, they shall have the authority to record a notice of such non-compliance in the Public Record. 9.11 Certificate of Substantial Completion. If requested by the Board, an Owner, upon final completion of such Owner’s Construction Activity, shall request in writing from the Board a certificate of substantial completion. The Board will consider the request at its next regularly scheduled meeting. In the event of denial, the Board shall state its reasons in writing and provide the Owner a reasonable time to address the reasons for denial (e.g., complete the Construction Activity in accordance with Board approval) and reapply for a certificate of substantial completion. The Board shall not be required to release any deposits held pursuant to this Article until a certificate of substantial completion has been issued. 9.12 Adoption of Design Guidelines and Rules and Regulations. The Board shall have the authority to establish Rules and Regulations and/or Design Guidelines regarding the procedure and fees for making application for design review approval; establishing design guidelines; establishing deposits that may be required prior to the commencement of any Construction Activity; and for any other purpose that will assist the them in their review of applications to perform Construction Activities. The Board shall have the exclusive right to construe and interpret the pertinent provisions of any such Rules and Regulations and/or Design Guidelines. In the absence of any adjudication to the contrary by a court of competent jurisdiction, the Board’s construction or interpretation of the Rules and Regulations and/or Design Guidelines and the provisions of this Article shall be final, conclusive, and binding as to all Persons and property benefitted or bound by the provisions hereo DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 35 9.13 Variances. The Board may, in their sole and absolute discretion, grant variances from the Design Guidelines when (i) there is a valid justification, (ii) where the variance does not have a negative impact on the Unit Owners or the Property as a whole, and (iii) where the variance is reasonable in relation to the overall character and nature of the area. The Owner shall apply in writing for a variance addressing the above criteria and all variance Rules or Regulations adopted by the Board. Any grant or denial of a variance shall be stated in writing. The decision to grant a variance shall not be deemed a waiver of any provision of the Declaration and the Board shall not be deemed required to grant a similar variance under other similar circumstances. 9.14 Conflict of Interest. If a director on the Board submits a project to the Board for review, that director shall recuse himself from the meeting as a voting member of the Board and not participate in the review and discussion of the submitted Construction Activity. 9.15 Approvals and Consents. Board decisions shall be conclusive and binding on all interested parties, subject only to the right of appeal detailed below. Any approval or disapproval by the Board shall be in writing and in the case of a denial shall state the reasons for such denial. Decisions of the Board are final; however, an Owner can appeal in writing to reconsider the Board’s decision. A request for reconsideration must be made in writing within ten (10) business days of the decision and be delivered by certified mail or email to the Association’s mailing address. The request will be considered by the Board at its next regularly scheduled meeting. The Board will in writing affirm, modify, or withdraw its decision. 9.16 Liability. The standards and procedures established by this Article or by the Board are intended to enhance the overall aesthetics of the Property. None of the Declarant, the Association, or the Board, nor any of their respective officers, directors, employees or agents, shall be responsible or liable for ensuring the structural integrity or soundness of approved construction or modifications, nor for ensuring compliance with building codes and other governmental or quasi-governmental entity requirements, nor for ensuring the appropriateness of soils, drainage, and general site and geotechnical work. A consent or approval or certificate of substantial completion issued by the Board means only that the Declarant or Board believes that the construction, alteration, installation or other work for which the consent, approval or certificate was requested complies with the Declaration and applicable rules and guidelines. No such consent or approval shall be interpreted to mean that the construction, alteration, installation or other work covered thereby (i) complies with laws, rules, regulations, ordinances or other requirements of any governmental or quasi-governmental authority, or any applicable covenants, conditions or resolutions, (ii) is free from defects, errors or omissions, (iii) is structurally sound, or (iv) lies within the boundaries of a Unit, and by submitting materials to the Board for its review, the applicant shall be deemed to have waived all claims against the Board based on the foregoing disclaimed matters. None of the Declarant, the Association, or the Board, nor any member or officer of any of the foregoing, shall be held liable for any injury, damages, or loss arising out of the manner or quality of approved or disapproved Construction Activity. Article 10 ENFORCEMENT AND REMEDIES DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 36 10.1 Strict Compliance. Each Owner and the Owner’s Invitees shall strictly comply with all provisions of the Governing Documents. 10.2 Remedies for Non-Compliance. In addition to any other remedies of the Association set forth in the Governing Documents or permitted under Montana law, the failure to comply with any of the provisions of the Governing Documents shall be grounds for the imposition of fines, an action to recover damages or for injunctive relief or both, suspension of Membership rights and privileges (including without limitation the right to vote and the right to use the General Common Elements), and imposition of Default Assessments. Any action against an offending Owner may be maintained by the Association (through the Board) or by an aggrieved Owner. 10.3 Remedies Cumulative. Each remedy provided under Montana law or the Governing Documents is cumulative and not exclusive. 10.4 Written Notice of Non-Compliance. Except as otherwise stated in the Declaration for non-payment of Assessments, removal of signs, or removal of Recreational Vehicles or Vehicles, before a fine, action, or suspension of Membership Rights, the Board shall provide the Owner with at least fifteen (15) days’ written notice of the alleged violation. Such written notice to the Owner shall be given either by personal delivery, U.S. Mail, or email, to the address or email address on record with the Association. Such notice shall be deemed given (i) if by personal delivery, on the date it is delivered; (ii) if by mail, three (3) days after being mailed; or (iii) if by email, twenty-four (24) hours after it is emailed. The Owner may respond in writing within such fifteen (15) days as to why a violation has not occurred. If a response is not timely provided, a violation will be deemed to have occurred. If a response is timely provided, the Board will consider the Owner’s written response at the Board’s next regularly scheduled meeting and will notify the Owner in writing as to the Board’s decision. 10.5 Discretion. The Association, through the Board, shall have the right but not the obligation to enforce any provisions of any of the Governing Documents. The decision to have the Association pursue an enforcement action in any particular case shall be left to the Board’s sole and absolute discretion, except that the Board shall not be arbitrary or capricious in taking enforcement action. Without limiting the generality of the foregoing sentence, the Board may determine that, under the circumstances of a particular case: (i) the Association’s position is not strong enough to justify taking any or further action; (ii) the covenant, restriction or rule being enforced is, or is likely to be construed as, inconsistent with applicable law; (iii) although a technical violation may exist or may have occurred, it is not of such a material nature as to be objectionable to a reasonable person or to justify expending Association resources; or (iv) it is not in the Association’s best interest, based upon hardship, expense, or other reasonable criteria, to pursue or continue enforcement action. Such a decision shall not be deemed a waiver of the right of the Association to enforce such provision at a later time or under other circumstances, nor shall it preclude the Association from enforcing any other covenant, restriction or rule, nor shall it preclude any Member from taking action at law or in equity to enforce the Governing Documents. 10.6 Attorney’s Fees. If any lawsuit or other legal proceeding is instituted by a Member against the Association, or the Association against a Member, the substantially DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 37 prevailing party in such lawsuit or other legal proceedings shall be entitled to reimbursement for all costs, including, without limitation, reasonable attorneys’ fees, court costs, fees to determine the amount of fees, fees on appeal, and all other expenses incurred by the substantially prevailing party. 10.7 Delegation. The Board may delegate any of its rights or obligations with respect to enforcement as set forth above to its appointed agent, Staff, or any committee of the Board, including, but not limited to, an architectural review committee; except that any decision to pursue or not pursue any legal proceeding may not be delegated, and shall be determined by the Board. Article 11 Insurance, Casualty and Condemnation 11.1 Unit Owner Insurance. Each Unit Owner shall purchase and maintain property and casualty insurance to cover the Owner’s Unit and the Limited Common Elements appurtenant to such Unit, and the contents thereof, which provides full replacement cost coverage less a reasonable deductible. Each Unit Owner shall also purchase and maintain liability insurance for the Owner’s use, rental or activities within the Unit. Upon the Association’s request, an Owner shall provide the Association with a current certificate of insurance evidencing the insurance required in this Section, but the Association shall have no obligation to request such certificate from any Owner. 11.2 Association Insurance. All insurance policies upon West Park Neighborhood Condominiums shall be purchased by the Association and shall be issued by an insurance company authorized to do business in the State of Montana. (a) Named Insured. The named insured shall be the Association individually and as agent for the Unit Owners without naming them. Such policies shall provide that payments for loses there under by the insurer shall be paid to the Insurance Trustee hereinafter designated, and all policies and endorsements thereon shall be deposited with the Insurance Trustee. (b) Required Coverages. (a) All Buildings and Improvements upon the land shall be insured in an amount equal to the full insurable replacement value, and all personal property included in the General Common Elements shall be fully insured, with all such insurance to be based on current replacement value, as determined annually by the Board, but subject to deductible clauses as are required in order to obtain coverage at reasonable costs. Such coverage shall afford protection against: (i) loss or damage by fire or other hazards covered by a standard extended coverage endorsement; and (ii) such other risks as from time to time shall be customarily covered with respect to buildings similar in construction, location, and use as the Buildings on the land, including without limitation vandalism and malicious mischief. The policies shall state whether air handling or service equipment, DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 38 interior fixtures, and carpets are included within the coverage in order that Unit Owners may insure themselves if the items are not insured by the Association. (b) Commercial general liability insurance insuring the Association and its Owners for damage or injury caused by the negligence of the Association or any of its Owners, employees, agents or contractors while acting on its behalf. If generally available at reasonable cost, such coverage (including primary and umbrella coverage) shall have a limit of at least $1,000,000.00 per occurrence with respect to bodily injury, personal injury, and property damage; provided, should additional coverage and higher limits be available at reasonable cost which a reasonably prudent person would obtain, the Association shall obtain such additional coverages or limits; (c) Directors and officers liability coverage; (d) Commercial crime insurance, including fidelity insurance covering all Persons responsible for handling Association funds in an amount determined by the Board’s business judgment but not less than an amount equal to one-sixth of the annual revenue of the Association plus reserves on hand, or such lesser amount as is commercially reasonably obtainable. Fidelity insurance policies shall contain a waiver of all defenses based upon the exclusion of Persons serving without compensation; and (e) Such additional insurance as the Board, in the exercise of its business judgment, determines advisable or as may be required by federal or state law. (c) Premiums. Premiums for insurance policies purchased by the Association shall be paid by the Association as a General Common Expense; provided, however, the amount of any increase in the premium occasioned by the use, misuse, occupancy, or abandonment of a Unit or its appurtenances or of the Common Elements by a Unit Owner or the Unit Owner’s Invitee, shall be assessed as a Default Assessment to the Owner. (d) Insurance Trustee. All insurance policies purchased by the Association shall be for the benefit of the Association and the Unit Owners and their mortgagees as their interests may appear, and shall provide that all proceeds covering property losses shgall be paid to =such bank in Montana with trust powers as may be designated as Insurance Trustee by the Board. The Insurance Trustee shall not be liable for payment of premiums, nor for th renewal or sufficiency of the policies, nor for the failure to collect any insurance proceeds. The duty of the Insurance Trustee shall be to receive such proceeds as are paid and hold the same in trust for the purposes elsewhere stated in hits instrument and for the benefit of the Unit Owners, and their mortgagees in the following shares, but which shares need not be set forth on the records of the Insurance Trustee: (a) Unit Owners. An undivided share for each Unit Owner, such share being the same as the undivided share in the General Common Elements appurtenant to the Owner’s Unit. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 39 (b) Mortgagees. In the event a mortgagee endorsement has been issued as to a Unit, the share of the Unit Owner shall be held in trust for the mortgagee and the Unit Owner as their interests may appear; provided, however, that no mortgagee shall have any right to determine or participate in the determination as to whether or nor any damaged property shall be reconstructed or repaired, and no mortgagee shall have any right to apply or have applied to reduction of the mortgage debt any insurance proceeds except distributions thereof made to the Unit Owner and mortgagee pursuant to the provisions of this Declaration. (e) Distribution of the Proceeds. Proceeds of insurance policies received by the Insurance Trustee shall be distributed to or for the benefit of the beneficial owners in the following manner: (a) Miscellaneous. Expenses of administration, the Insurance Trustee, and construction or remodeling supervisions shall be considered as part of the costs of construction, replacement, or repair. (b) Reconstruction or Repair. If the damage for which the proceeds are paid is to be repaired or reconstructed by the Association, the remaining proceeds shall be paid to defray the costs thereof as elsewhere provided. Any proceeds remaining after defraying such costs shall be distributed to the beneficial owners, remittances to Unit Owners and their mortgagees being payable jointly to them. (c) Failure to Reconstruct or Repair. If it is determined in the manner elsewhere provided that the damage for which the proceeds are paid shall not be reconstructed or repaired, the remaining proceeds shall be distributed to the beneficial owners, remittances to the Unit Owners and their mortgagees being payable jointly to them. (d) Certificate. In making distributions to Unit Owners and their mortgagees, the Insurance Trustee may rely upon a certificate from the Association made by its respective Board or Manager as to the names of the Unit Owners and their respective shares of the distribution. (f) Association as Agent. The Association is irrevocably appointed agent for each Unit Owner and for each Owner of a mortgage or other lien upon a Unit and for each Owner of any other interest in a Unit on the Property to adjust all claims arising under insurance policies purchased by the Association and to execute and deliver releases upon the payment of claims. (g) Benefit to Mortgagees. Certain provisions in this Article are for the benefit of mortgagees or trust indenture beneficiaries of condominiums Units, and all such provisions are covenants for the benefit of any mortgagee of a Unit and may be enforced by such mortgagee or beneficiary. (h) Reconstruction. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 40 (a) Repair After Casualty. If any part of the Property shall be damaged by casualty, whether or not it shall be reconstructed or repaired shall be determined in the following manner: (i) if a Unit or Units are found by the Board to be tenantable after the casualty, the damages property shall be repaired; (ii) if a Unit or Units are found by the Board to not be tenantable after the casualty, the damaged property shall be reconstructed or rebuilt; and (iii) the Insurance Trustee may rely upon a certificate of the Association made by the Board or Manager to determine whether or not the damaged property is to be repaired or reconstructed. (b) Plans and Specifications. Any repair or reconstruction must be substantially in accordance with the plans and specifications and the original improvements, or if not, then according to the plans and specification approved by the Board and by the Affirmative Vote of a Majority. Any such repair or reconstruction not in accordance with the original plans and specifications must be set forth in an amendment or supplement to the Declaration, which amendment or supplement shall be prepared and filed in the Public Record in accord with the Article 13. (c) Responsibility. The responsibility for the repair or reconstruction after casualty shall be the same as for maintenance and repair of General Common Elements, and the Board shall work with the Insurance Trustee to carry out the provisions of this Article. (d) Assessments. If the proceeds of insurance are not sufficient to defray the estimated costs of repair or reconstruction for which the Association is responsible, or if at any time during such repair or reconstruction, or upon completion of such repair or reconstruction, the funds for the payment of the costs thereof are insufficient, General Common Assessments shall be made against the Unit Owners in sufficient amounts to provide funds to the payment of such costs. Such General Common Assessments shall be in proportion to the Owner’s Percentage of Interest in the General Common Elements. (e) Construction Funds. The funds for payment of costs of repair or reconstruction after casualty, which shall consist of proceeds of insurance held by the Insurance Trustee and funds collected by the Association from General Common Assessments against Unit Owners, shall be disbursed in the sound discretion of the Insurance Trustee and according to the contract of repair or reconstruction, which contract must have the approval of the Board. (f) Surplus. It shall be presumed that the first monies disbursed in payment of costs of repair or reconstruction shall be from the insurance proceeds. If there is a balance in a construction fund after payment of all costs of the repair or reconstruction for which the fund is established, such balance shall be paid to the Association for the use and benefit of the Unit Owners. (g) Limitations. Except as provided by statute, in case of condemnation or substantial loss to the Units and/or Common Elements, the DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 41 Association is not entitled to take any of the following actions unless 100% of the first mortgagees or Units Owners give their consent: (i) seek to abandon or terminate the condominium project by act or omission; (ii) change the pro rata interest or obligations of any Unit in order to levy Assessments or charges, allocate the distribution of hazard insurance proceeds or condemnation awards, or determine the pro rata share of ownership of each Unit in the General Common Element; or (iv) partition or subdivide any Unit, (v) by act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer the General Common Elements; or (v) use hazard insurance proceeds for losses to any condemnation property, whether Units or Common Elements, for other than the repair or reconstruction of the Property and the Units contained therein. Article 12 REMOVAL OR PARTITION 12.1 Removal or Partition. West Park Neighborhood Condominiums may only be removed from condominium ownership, and may only be partitioned or sold, as provided under the Unit Ownership Act and upon compliance with each of the conditions hereof: (a) The Board must approve the plans of removal, partition, or sale, including the details of now any partition or sale, and the distribution of property or funds, shall be accomplished. (b) The plan of removal, partition, or sale must be approved as provided in the Unit Ownership Act. If approval for any of the foregoing is not required by the Unit Ownership Act, then approval shall be required from 100% of the Percentage of Interest and any first mortgagee of a Unit. An election to remove will be impliedly agreed to by a first mortgagee if the first mortgagee fails to approve or disapprove the election to remove within sixty (60) days after written notice is provided to the first mortgagee. (c) Upon obtaining such approval, the Board shall be empowered to implement and carry out the plan of removal, partition, or sale. (d) No Unit may be divided or subdivided into a smaller Unit, nor any portion thereof sold or otherwise transferred, except as otherwise provided above. (e) No Units may be aggregated without the Affirmative Vote of a SuperMajority. (f) The Common Elements shall not be abandoned, partitioned, subdivided, sold, or transferred (except to the Association) without compliance with all of the above requirements. This Section shall not apply to the sale of individual Units and shall not be considered as a right of first refusal. DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 42 Article 13 AMENDMENT 13.1 Amendment. Within the Declaration, “amend” or “amendment” broadly means the right to amend, supplement, restate, modify, change, add to, or delete provisions of the Declaration. (a) By Declarant. In addition to the Declarant’s rights to amend or supplement the Declaration pursuant to other provisions of the Declaration, before the Turnover Date the Declarant may unilaterally amend this Declaration for any other purpose, provided the amendment has no material adverse effect on the right of any Owner. Notwithstanding the afore sentence, before the Turnover Date, the Declarant may unilaterally amend this Declaration if such amendment is: (i) necessary to bring any provision in compliance with any applicable governmental statutes, necessary governmental registrations, rule, regulation, or judicial determination; (ii) necessary to enable any reputable title insurance company to issue title insurance coverage on the Units; (iii) required by a Federal Mortgage Underwriter to enable such Federal Mortgage Underwriter to make or purchase mortgage loans for Units; (iv) necessary to enable any governmental agency or reputable private insurance company to insure mortgage loans on the Units; (v) necessary to enable any governmental agency or reputable private insurance company to insure the Property, or any portion thereof; (vi) otherwise necessary to satisfy the requirements of any governmental or quasi-governmental entity; (vii) necessary to annex the Annexable Area or any portion thereof; or (viii) for any reason prior to the sale of any Units. (b) By Members. Except as otherwise stated in the Declaration, before the Turnover Date the Members may amend the Declaration by: (i) obtaining the written consent of the Declarant; and (ii) obtaining an Affirmative Vote of a SuperMajority. Except as otherwise stated in the Declaration, after the Turnover Date the Members may amend the Declaration by obtaining an Affirmative Vote of a SuperMajority. (c) Recording of Amendment. Any amendment, restatement, supplemental declaration, or other similar document adopted pursuant to this Article must be recorded in the Public Record in order to be effective. (d) Restrictions on Amendment. No amendment may remove, revoke, or modify any right or privilege of the Declarant, or increase Declarant’s obligations, without the written consent of the Declarant or the assignee of such right or privilege. In addition, the covenants contained in Exhibit C may not be amended without the approval of the governing body of the City of Bozeman. Article 14 Interpretation 14.1 Effect of Provisions of Declaration. Each provision of this Declaration, and any agreement, promise, covenant and undertaking to comply with each provision of this Declaration, and any necessary exception or reservation or grant of title, estate, right or interest to effectuate all easements, grants, and conveyances herein and all other provisions of this DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 43 Declaration shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any real property within the Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. 14.2 Interpretation of the Declaration. The Association, by and through its Board, shall have the exclusive right to construe and interpret the provisions of this Declaration. In the absence of any adjudication to the contrary by a court of competent jurisdiction, the Board’s construction or interpretation of the provisions hereof shall be final, conclusive and binding as to all Persons and property benefitted or bound by the covenants and the provisions hereof. 14.3 Conflicts Hierarchy. In the event that there is any conflict or inconsistency between nay mandatory provision of Montana law, this Declaration, the Articles, the Bylaws, the Rules and Regulations, and the Design Guidelines, the conflict or inconsistency shall be resolved in the following order: Montana law (mandatory provision only), this Declaration, the Articles, the Bylaws, the Rules and Regulations, and Design Guidelines, Montana law (non-mandatory provisions). If a conflict or inconsistency exists between a Governing Document and any subsequent amendment of such Governing Document, the most recent amendment shall control. Article 15 MISCELLANEOUS 15.1 Limited Liability. None of Declarant, the Association, the Board, or any member, agent or employee of any of the same shall be liable to any party for any action or for any failure to act with respect to any matter related to the Governing Documents if the action taken or failure to act was in good faith and without malice. Such parties shall additionally be entitled to indemnification by the Association to the extent required under applicable law or any Governing Document. 15.2 Successors and Assigns. Except as otherwise provided herein, this Declaration shall inure to the benefit of Declarant, the Association, and each Member and shall be binding upon Declarant, the Association, each Member and their respective heirs, devisees, personal representatives, successors and assigns. 15.3 Severability. A determination of invalidity of any one or more of the provisions or conditions hereof, or any portion thereof, by judgment, order or decree of a court shall not affect in any manner the other provisions or portions of provisions hereof which shall remain in full force and effect. 15.4 Captions. The captions and headings in this Declaration are for convenience only and shall not be considered in construing any provisions of this Declaration. 15.5 Gender. The use of the masculine gender in this Declaration shall be deemed to include the feminine and neuter genders and the use of the singular shall be deemed to include the plural, and vice versa, whenever the context so requires. 15.6 No Waiver. Failure to enforce any provisions of the Governing Documents shall not operate as a waiver of any such provision or of any other provision of the Governing DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 44 Documents. The Association expressly reserves the right to enforce, against each and ever Owner, each provision of the Governing Documents. 15.7 Service of Process. The name and address of the person to receive service of process for the West Park Neighborhood Condominiums until another designation is filed with the Montana Secretary of State shall be: __________ 15.8 Warranties. The Declarant expressly makes no warranties or representations concerning the Property, the Units, the Declaration, the Articles, the Bylaws, or deeds of conveyance except as specifically set forth therein. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] DECLARATION OF PROTECTIVECOVENANTS, CONDITIONS AND RESTRICTIONS FOR WEST PARK NEIGHBORHOOD CONDOMINIUMS PAGE 45 IN WITNESS WHEREOF, the Declarant has executed this Declaration of Protective Covenants, Conditions and Restrictions for West Park Neighborhood Condominiums on this _____ day of ____________, 20____. DECLARANT 8FC LLC, a Montana limited liability company By: ____________________________ Authorized Member STATE OF MONTANA ) :ss COUNTY OF Gallatin ) This instrument was acknowledged before me on ___________________, by ________________, as Authorized Member of 8FC LLC, a Montana limited liability company. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. Notary Public