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Declaration of Protective
Covenants, Conditions and Restrictions for Shady Glen Major Subdivision Page 1 of 47
After recording please return to:
Griffith & Cummings, PC
P.O. Box 160748
Big Sky, Montana 59716
Declaration of Protective Covenants,
Conditions and Restrictions
For
Shady Glen Major Subdivision
Declaration of Protective
Covenants, Conditions and Restrictions for Shady Glen Major Subdivision Page 2 of 47
TABLE OF CONTENTS
Heading Page Number
Article 1 Declaration – Purposes .................................................................................................... 3
Article 2 Definitions ....................................................................................................................... 4
Article 3 Certain Functions and Rights of Association ................................................................ 10
Article 4 Membership, Voting and Board of Directors ................................................................ 14
Article 5 Assessments, Association Expenses and Other Amounts; Lien for Sums Due
Association; Enforcement ................................................................................................. 15
Article 6 Easements ...................................................................................................................... 18
Article 7 Declarant’s Rights.......................................................................................................... 20
Article 8 Rights, Restrictions and Obligations Applicable to Property ........................................ 22
Article 9 Architectural Review Committee .................................................................................. 28
Article 10 Enforcement and Remedies ......................................................................................... 32
Article 11 Insurance, Casualty and Condemnation ....................................................................... 34
Article 12 Mortgagee Provisions .................................................................................................. 38
Article 13 Jurisdiction and Annexation ........................................................................................ 39
Article 14 Amendment .................................................................................................................. 39
Article 15 Interpretation ................................................................................................................ 40
Article 16 Miscellaneous .............................................................................................................. 40
Exhibit A- 1 .................................................................................................................................. 43
Exhibit B ...................................................................................................................................... 44
Exhibit C ...................................................................................................................................... 46
Exhibit D ...................................................................................................................................... 47
Map of Wildlife Refuge and Open Spaces ................................................................................ 47
Declaration of Protective
Covenants, Conditions and Restrictions for Shady Glen Major Subdivision Page 3 of 47
Declaration of
Protective Covenants, Conditions and Restrictions
for
Shady Glen Major Subdivision
This Declaration of Covenants, Conditions and Restrictions for Shady Glen Major
Subdivision (“Declaration”) is made this ________ day of ____________, 20___, by Bridger
Center, LLC, a Montana limited liability company (the “Declarant”). All capitalized terms used
herein are defined in Article 2 below.
Article 1
Declaration – Purposes
1.1 General Purposes.
(a) Declarant owns the real property located in Gallatin County, Montana
legally described as a tract of land being a portion NEEE LEGAL HERE P.M.M., Gallatin
County, Montana, and intends to develop a residential and commercial community on this
property.
(b) Shady Glen Property Owners’ Association, Inc., a Montana nonprofit
corporation (the “Association”), has been formed to hold, manage, and maintain certain property
for the common benefit of the Members, Licensees, and Invitees within the Property; to
administer and enforce the covenants, conditions, restrictions, reservations and easements
created hereby; to collect and enforce the Assessments, charges, and liens imposed pursuant
hereto; and for all other purposes set forth in this Declaration, the Articles and Bylaws and the
other Governing Documents. This Declaration defines certain rights and obligations of
Members, Licensees, and Invitees within the Property with respect to the Association and with
respect to the Functions undertaken and the property held or maintained by the Association.
(c) By this Declaration, Declarant intends to establish a means to provide for
and maintain areas within the Subdivision as a pleasant and desirable environment for all Persons
residing or visiting therein. The Shady Glen Major Subdivision is in a unique parkland setting
which has a high natural, scenic, recreational, economic and wildlife value. This Declaration is
adopted to preserve and maintain the foregoing values of the Property for the benefit of all
Persons residing or visiting therein.
(d) Declarant reserves the right to develop the Property as otherwise permitted
under law and subject to any annexation of real property as permitted herein, regardless of
whether said property was originally subject to or ever becomes subject to the Declaration.
1.2 Declaration. To further the general purposes herein expressed, Declarant, for
itself, its successors and assigns, hereby declares that the property described in Exhibit A-1
attached hereto and incorporated herein by reference, and any property subsequently added,
annexed or subjected to this Declaration (collectively, the “Property”) shall, at all times, be
owned, held, used, occupied, sold and conveyed subject to the provisions of this Declaration,
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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. In addition to the foregoing, other
specific covenants, conditions, restrictions, reservations and easements exist herein, burdening
and benefiting the Property and certain other real property and Persons, all as expressly set forth
below. Each Member, Licensee, Invitee or other 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 the
Declarant in their efforts to enforce such provisions.
Article 2
Definitions
The terms in this Declaration shall generally be given their natural, commonly accepted
definitions except as otherwise specified. Capitalized terms shall be defined as set forth below:
2.1 Act. Act means the Montana Nonprofit Corporation Act, §35-2-113 et seq.,
MCA, as amended.
2.2 Affirmative Vote of a Majority. The Affirmative Vote of a Majority means and
shall be achieved on any particular matter if (and only if) all of the following occur: (a) the
Declarant votes in favor of such matter, and (b) the affirmative vote of a majority of Members
entitled to vote on such matters. The affirmative vote of a majority of Members shall require (i)
a Quorum, and (ii) the votes of a majority of the Members entitled to vote on such matter and
present at such meeting in person, by proxy, or by written ballot. Notwithstanding the foregoing,
upon the effective resignation of the Declarant, the favorable vote of the Declarant shall no
longer be required under clause (a) above, except as where specifically required in this
Declaration.
2.3 Architectural Review Committee or ARC. Architectural Review Committee or
ARC means the committee appointed pursuant to Section 9.2.
2.4 Area of Common Responsibility. Area of Common Responsibility means the
Common Area, together with the Open Space, Roadways, Wildlife Refuge, Transportation
Systems, Internal Trails and any other areas that by the terms of this Declaration, any written
notice from the Declarant to the Association, or other applicable covenants, contract, or
agreement with the City, are or become the responsibility of the Association to maintain.
2.5 Articles of Incorporation or Articles. 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.
2.6 Assessments. Assessments means, collectively, the categories of assessments as
established herein, being Base Assessments, Default Assessments, Special Assessments, Specific
Assessments, or any other assessments as may be established by the Board.
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2.7 Association. Association means the Shady Glen Property Owners’ Association,
Inc. a Montana nonprofit corporation, which meaning shall include successors and assigns.
2.8 Association Expenses. Association Expenses means allocations to reserves for,
and all costs, expenses and liabilities incurred by or on behalf of the Association for, (a)
acquiring, leasing, renting, designing, constructing, managing, operating, maintaining, repairing,
replacing and improving Area of Common Responsibility; (b) administering and enforcing the
Governing Documents; (c) levying, collecting and enforcing the Assessments, charges, liens, and
other expenses imposed pursuant to the Governing Documents; (d) regulating and managing the
Property; (e) performing any and all Functions permitted by this Declaration or any Governing
Document; (f) operating the Association; and (g) any other cost or expense legally incurred by
the Association. Association Expenses shall not include any expenses incurred during the
Declarant Control Period for initial development, original construction, installation of
infrastructure, original capital improvements, or other original construction costs unless
approved by a majority of the votes of the Association.
2.9 Base Assessment. Base Assessment has the meaning given to it in Section 1.1(b)
of Exhibit B.
2.10 Board of Directors or Board. Board of Directors or Board means the body
responsible for administration of the Association, as established in the Bylaws.
2.11 BFD. BFD means the Bozeman Fire Department, which is the authority having
jurisdiction and enforcing the fire code as adopted by Bozeman.
2.12 Bylaws. Bylaws means the Bylaws of the Association adopted by the Association
and any amendments and restatements thereto from time to time, as may be filed with the
Montana Secretary of State or recorded in the Public Record.
2.13 City. City means the City of Bozeman.
2.14 Common Area. Common Area means all real and personal property which the
Association owns or leases for the common use and enjoyment of the Owners.
2.15 Construction Activity. Construction Activity means any site preparation,
landscaping, sign erection, construction, reconstruction, change, modification, alteration,
enlargement or material maintenance of any Improvements or real property within the Property,
or any physical changes in the use of any Lot or other property or building or structure thereon;
provided, however, that after initial construction of any Improvement on a Lot is completed,
Construction Activity shall not include any activities within the interior of such Improvements
that do not have a material impact on the exterior of such Improvements, except a change in the
use thereof.
2.16 County. County means Gallatin County, Montana.
2.17 Declarant. Declarant means Bridger Center, LLC, a Montana limited liability
company, or any successor, successor-in-title, or assign who is designated as the Declarant by
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Bridger Center, LLC or any successor Declarant in a written instrument recorded in the Public
Record and who succeeds as Declarant pursuant to the terms of this Declaration.
2.18 Declarant Control Period. Declarant Control Period means the period of time
during which the Declarant is entitled to certain rights as enumerated in this Declaration, which
expires on the Turnover Date.
2.19 Declarant’s Rights. Declarant’s Rights has the meaning given to it in Section
7.3.
2.20 Declaration. Declaration means this Declaration of Protective Covenants,
Conditions and Restrictions for Shady Glen Major Subdivision and includes all amendments,
restatements or supplements hereafter recorded in the Public Record.
2.21 Default Assessment. Default Assessment has the meaning given to it in Section
1.2 of Exhibit B.
2.22 Design Guidelines. Design Guidelines mean any instruments adopted by the
ARC for the regulation and management of the Property or any portion thereof with respect to
any matter that the ARC is authorized to review or for which the ARC is authorized to establish
standards, as the same may be amended from time to time.
2.23 Eligible Holder. Eligible Holder shall have the meaning given in Section
12.1(a).
2.24 Federal Mortgage Underwriter. Federal Mortgage Underwriter means
governmental (including, but not limited to, a government sponsored enterprise) or nation-wide
institutional lender or purchaser of mortgage loans or governmental provider of credit support for
mortgage loans or securitized mortgage loans, including, but not limited to, the Federal National
Mortgage Association, Federal Home Loan Mortgage Corporation, the Federal Housing
Administration, the United States Veterans Administration and their respective successors and
assigns.
2.25 Function. Function means any activity, function or service listed in this
Declaration which is required to be or may be undertaken or performed by the Association as
well as any activity, function or service otherwise undertaken or performed by the Association.
2.26 Good Standing. Good Standing means that a Member is current on the payment
of such Member’s Assessments, is not deemed by the Board to be in violation of the Governing
Documents, and is current on any other payments deemed by the Board to be due and owing to
the Association.
2.27 Governing Documents. Governing Documents collectively means this
Declaration, Supplemental Declarations, Bylaws, Articles, Rules and Regulations, Design
Guidelines, and resolutions of the Board, all as amended from time to time.
2.28 Improvements. Improvements means all structures and appurtenances thereto of
every type and kind, including but not limited to, buildings, outbuildings, all exterior surfaces
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including the surface finish thereof; Transportation Systems; facilities and illumination
equipment for trails, bridges and other amenities that are part of the Property; sprinkler systems
and other landscaping; planting, clearing, or removing of trees, shrubs, grass, or plants and
appurtenances; ponds and water tanks; drainage, detention, retention facilities and culverts;
monuments; recreational areas, amenities and facilities; facilities to accommodate Invitees and
visitors; central waste collection and disposal facilities; paving and parking areas; malls; ducts;
shafts and flues; conduit installation areas; storage facilities for supplies and equipment; fences;
gates; fire breaks and fire prevention works; screening walls; earth walls, retaining walls, cuts
and fills associated with any improvements; lighting; signage; pipelines, lift stations, and pumps;
utilities of any sort; communication facilities and lines; management offices; environmental
monitoring equipment and facilities; ground water facilities; waterways; the demolition or
destruction by voluntary action of any structure or appurtenance thereto of every type and kind;
grading, excavation, filling, or similar disturbance to the surface of the land including, but not
limited to, change of grade, change of ground level, change of drainage pattern, change of stream
bed or change of any existing surface contour; equipment related to the foregoing; and all types
of structures, facilities and improvements that a governmental or quasi-governmental entity may
be empowered by law from time to time to construct.
2.29 Internal Trails. Internal Trails means those trails as established by the Declarant
and thereafter the Association, for non-motorized use by Owners, Invitees and members of the
general public.
2.30 Invitee. Invitee means any customer, agent, employee, independent contractor,
guest or invitee of a Member.
2.31 Licensee. Licensee means any Person who occupies or uses a Lot pursuant to a
lease, license, occupancy agreement, concession agreement or under color of any other
arrangement with an Owner.
2.32 Livestock. Livestock means cattle, horses, mules, asses, sheep, llamas, alpacas,
bison, swine, ostriches, rheas, emus, goats, alternative livestock as defined in M.C.A. § 87-4-
406, and other animals for purposes of disease prevention, control, and eradication as defined in
M.C.A. § 81-2-702 (2019 and as amended).
2.33 Lot. Lot means a legally described division of real property within the Property
as depicted on the Plat recorded in the Public Record, as may be amended from time to time that
may have a designated number for the purposes as set forth in Section 8.3.
2.34 MCA. MCA means the Montana Code Annotated 2019 and any subsequent
amendments.
2.35 Member. Member means a Person holding a membership in the Association
pursuant to Article 4.
2.36 Membership. Membership means a membership in the Association that is
appurtenant to the ownership of a Lot within the Property.
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2.37 Mobile Homes/House Trailers. Mobile Homes/House Trailers means mobile
homes/house trailers as defined in M.C.A. § 15-24-201 (2019) and any amendment thereof. In
addition, mobile homes are also defined as a Recreational Vehicle which is inhabited for: 1.
more than five (5) consecutive days; or 2. more than twenty (20) days in any given year.
2.38 Modular/Manufactured Home. Modular/Manufactured Home means
manufactured homes as defined in M.C.A. § 15-24-201 (2019) means a residential dwelling built
in a factory in accordance with the United States department of housing and urban development
code and the federal Manufactured Home Construction and Safety Standards. A manufactured
home does not include a mobile home or a house-trailer and any amendments thereof.
2.39 Mortgage. Mortgage means a mortgage, a deed of trust, a deed to secure debt, or
any other form of security deed relating to all or a portion of the Property.
2.40 Open Space. Open Space, also known as Common Open Space per the City of
Bozeman’s current Municipal Code, means the portions of the Property designated on Exhibit D
as “Open Space” for the purposes as set forth in Section 8.3 and Exhibit C.
2.41 Owner. Owner means one or more Persons, including, without limitation, the
Declarant, who hold record title to any Lot but excluding (a) contract purchasers or holders only
of beneficial title unless the record holder has designated in a writing delivered to the
Association that such contract purchaser or beneficial title holder is, until further notice, to be
deemed to stand in place of the record holder, (b) the Association, and (c) those having an
interest merely as security for the performance of an obligation; provided, however, that such a
holder may be subject to payment of Assessments from and after the time of commencement of a
foreclosure or other effective transfer procedures until the time that such procedures have been
abandoned or completed and all redemption periods have expired.
2.42 Permitted Household Pets. Permitted Household Pets has the meaning given to
it in Section 8.15.
2.43 Person. Person means any natural person, corporation, partnership, limited
liability company, association, trust, or any other legal entity.
2.44 Plat. Plat means the __________ filed on ________ at Document
#________________ in the Public Record.
2.45 Poultry. “Poultry” means domesticated birds, including but not limited to
chickens, turkeys, ducks, geese, guinea fowl, pigeons, and pheasants as defined in M.C.A. § 81-
2-702 (2019 and as amended).
2.46 Property. Property means the real property described in Exhibit A, as
supplemented or otherwise revised from time to time in accordance with Article 13.
2.47 Public Record. Public Record means the office of the Clerk and Recorder of
Gallatin County where land records are recorded or filed.
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2.48 Quorum. Quorum means the presence in person or by proxy of all Members who
are entitled to vote at least fifty-one percent (51%) of the total votes.
2.49 Recreational Vehicle. Recreational Vehicle means a conveyance capable of
transporting or housing people or their large animals (like horses and llamas) for short-term
recreational purposes, including but not limited to camping trailers, class A, B or C motor
homes, horse trailers, boats, snowmobiles, all-terrain vehicles, and trailers for transporting such
vehicles.
2.50 Roadway. Roadway means a street or roadway within the Property that provides
ingress and egress within the subdivision.
2.51 Rules and Regulations. Rules and Regulations means any instruments adopted
by the Association for the regulation and management of the Property or any portion thereof, as
the same may be amended from time to time.
2.52 Special Assessments. Special Assessments has the meaning given to it in
Section 1.3 of Exhibit B.
2.53 Special Declarant Rights. Special Declarant Rights has the meaning given to it
in Section 7.2.
2.54 Specific Assessments. Specific Assessments has the meaning given to it in
Section 1.4(a) of Exhibit B.
2.55 Staff. Staff means the employees or agents of the Association.
2.56 Supplemental Declaration. Supplemental Declaration means an amendment or
supplement to this Declaration filed pursuant to Article 14 which subjects additional property to
this Declaration, and/or imposes, expressly or by reference, additional, modified or restated
restrictions and obligations on all or any portion of the Property.
2.57 Transportation Systems. Transportation Systems means Roadways (including
paving, curbing, lighting and gutters), parking lots (including paving, striping, curbing, lighting
and gutters), Internal Trails, paths, walkways and walks; bus stops and other related structures;
any facilities owned by the Association and necessary or useful for transit purpose or other
means of transportation to and from or within the Property; and lighting, signage and any other
facilities deemed necessary or appropriate for the proper operation and maintenance of such
systems.
2.58 Turnover Date. Turnover Date means the date upon which the Declarant
Control Period ends, which shall be the earlier of (a) December 31, 2039, and (b) when the
Declarant determines, in an instrument recorded in the Public Record, that one hundred percent
(100%) of the Lots that may ultimately be platted have been sold to a Person other than
Declarant or an affiliate thereof.
2.59 Turnover Meeting. Turnover Meeting has the meaning given to it in the Bylaws.
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2.60 Wildlife Refuge. Wildlife Refuge means the portions of the Property designated
on Exhibit D as a “Wildlife Refuge” for the purposes as set forth in Section 8.3 and Exhibit C.
2.61 Zoning Regulations. Zoning Regulations means the regulations adopted for the
City of Bozeman as of this date and as subsequently amended.
Article 3
Certain Functions and Rights of Association
3.1 General. Certain of the Functions described in this Article 3 are expressly made
mandatory performance obligations of the Association. All other Functions described below are
voluntary Functions that the Association may, but is not obligated to, elect to provide. For any
voluntary Functions, the Association may elect which Functions to perform based on the budget
as adopted by the Association.
3.2 Mandatory Property Maintenance Function; Additional Discretionary
Property Management Function. The Association shall have the obligation, right, and
authority to provide or cause another party to provide for the care, operation, management,
maintenance, repair and replacement of the Area of Common Responsibility. Such obligations
with respect to the Area of Common Responsibility shall include but not be limited to:
(a) the removal of snow from and application of sand and salt to Roadways
and operation, management, maintenance, repair, and replacement of Improvements or
Transportation Systems;
(b) control of noxious weeds; and
(c) maintenance of all landscaping, lawn irrigation systems, Open Space
Easements, trails and other flora, parks, structures, lighting, subdivision signage and
Improvements within the Area of Common Responsibility.
3.3 Other Functions. The Association may undertake and perform other functions as
the Board deems reasonable or necessary to carry out the provisions of this Declaration.
3.4 Right to Make Rules and Regulations.
(a) The Association is authorized to and has the power to adopt, amend and
enforce Rules and Regulations applicable to the Property and, when authority is conferred upon
the Association, any other property managed by the Association, with respect to the Area of
Common Responsibility and with respect to any Function, and to implement the provisions of
the Governing Documents, including, but not limited to, Rules and Regulations: to (i) prevent or
reduce fire hazard; (ii) prevent disorder and disturbances of the peace; (iii) regulate pedestrian
and vehicular traffic; (iv) regulate household animals, the environment and environmental
practices; (v) regulate signs; (vi) regulate any use of any and all Area of Common Responsibility
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; and (viii) protect
and preserve property and property rights.
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(b) The ARC is authorized and empowered to adopt, amend and enforce
Design Guidelines applicable within the Property and is authorized to establish standards,
including but not limited to, new Design Guidelines or revised Design Guidelines and procedures
to be followed and materials which must be provided by any Member or such Member’s
authorized agents in order to obtain review of proposed Construction Activity by the ARC.
(c) The Association and ARC may provide for enforcement of any Rules and
Regulations adopted and Design Guidelines adopted, as the case may be, through fines,
penalties, restrictions of access or otherwise.
(d) Each Member, Licensee, and Invitee is hereby deemed to have notice of
all Rules and Regulations adopted by the Association and Design Guidelines adopted by the
ARC, whether or not the same have been recorded, and shall be obligated to and shall comply
with and abide by such Rules and Regulations and Design Guidelines, and pay such unpaid fines
and penalties which shall be enforceable in accordance with Article 10. Any current or potential
Member, investor, lender or purchaser in relation to the Property may request that the
Association or ARC provide a copy of the Rules and Regulations and the Design Guidelines to
such Member, potential Member, investor, lender or purchaser. Upon the new adoption or
material amendment of Rules and Regulations and Design Guidelines, the Association or ARC
shall provide all current Members affected by such Rules and Regulations or Design Guidelines
with copies of such documents or notification of the adoption of such documents and notice as to
where copies may be obtained. Copies of such documents may be made available at offices of
the Association or its agents or on an electronic or otherwise generally accessible medium. Each
Member is obligated to inform all Licensees and Invitees of the obligations and restrictions set
forth in the Governing Documents and to cause such Licensees and Invitees to comply with such
obligations and restrictions; provided, however, that failure to so inform any Licensees or
Invitees shall not impair the enforceability of any Governing Document.
3.5 Taxes. The Association shall pay or cause to be paid all ad valorem real estate
taxes, special improvement and other assessments (ordinary and extraordinary), ad valorem
personal property taxes, 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, or arise in connection with, the Area of Common Responsibility or Functions.
3.6 Right to Acquire, Dispose and Improve Association Property. The
Association may acquire (by gift, purchase, lease, trade or any other method), own, operate,
build, manage, maintain, rent, sell, develop, encumber, abandon, dispose of and otherwise deal in
and with real and personal property of every kind and character, tangible and intangible,
wherever located, and interests of every sort therein; except that the Association may not convey
any real property or Improvements owned by the Association without the Affirmative Vote of a
Majority (as well as the consent of the Declarant during the Declarant Control Period). The
Association may cause additional Improvements to be made as part of the real property it owns
or Area of Common Responsibility, including, without limitation, the construction of any capital
asset, in whole or in part, for the benefit of some or all of the Members, Licensees or Invitees,
subject to the restrictions set forth herein. The Association may grant easements, leases, licenses
and concessions through or over real property owned by the Association, including, but not
limited to, easements (including the Open Space Easement), rights-of-way, leases, licenses and
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concessions to suppliers of utilities serving the Property for the purpose of accommodating
minor encroachments onto the real property owned by the Association or other purposes that do
not unreasonably interfere with the use and enjoyment of the Area of Common Responsibility.
Declarant, and thereafter the Association, reserves the right to subject the Area of Common
Responsibility to a Rural Improvement District for either capital improvements or maintenance.
3.7 Records. The Association shall maintain its records in accordance with
applicable law and the Bylaws.
3.8 Rights of Association. The Association shall have and may exercise any right or
privilege given to it expressly by the Governing Documents or reasonably implied from or
reasonably necessary to effectuate any such right or privilege. Except as otherwise specifically
provided in the Governing Documents or by law, all rights and powers of the Association may be
exercised by the Board without a vote of the Members. The powers and rights of the Association
include, but are not limited to, the right to:
(a) adopt and amend the Bylaws by a majority vote of the Board, with such
consents as are required pursuant to the Bylaws;
(b) make capital expenditures, incur liabilities, enter into contracts and
agreements, and provide services and functions as are necessary to effect the business of the
Association, including, but not limited to, hiring and discharging managing agents and other
employees, agents, and independent contractors;
(c) enter into agreements with adjacent property owners for the use of
Roadways within the Property, Improvements and real property owned by the Association, or the
Area of Common Responsibility, as well as receiving a benefit of any of the Functions
performed by the Association and addressing their proportionate share of the costs for such use
and participation;
(d) petition the City to place the Area of Common Responsibility in a rural
improvement district for the purpose of capital improvements or maintenance and/or for the City
to place addition capital improvements and/or take over the maintenance of any portion of the
Area of Common Responsibility;
(e) perform any Function, including, without limitation, by, through or under
contractual agreements, licenses, or other arrangements with any governmental, quasi-
governmental, private entity or any non-profit organization, as may be necessary or desirable;
(f) enter upon any Lot for emergency and safety reasons, to perform
maintenance in accordance with this Declaration, to protect persons and property, and to inspect
for the purpose of ensuring compliance with the Governing Documents, which right may be
exercised by any member of the Board, the Association, officers, agents, employees, and
managers, 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 Lot. This right of entry shall
include the right of the Association to enter upon any Lot 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
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condition within a reasonable time after request by the Board, but shall not authorize entry into
any building 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
Association to exercise any such rights or to undertake any of the actions set forth in this
provision;
(g) adopt and amend budgets for revenues, expenditures and reserves and levy
and collect Assessments from Members;
(h) pay the expenses of the Association, and provide for the use and
disposition of any insurance proceeds in the event of loss or damage;
(i) purchase insurance policies to protect the real and personal property of the
Association, including the Area of Common Responsibility, against casualty or loss and to
protect the Association, officers, directors, and Staff (when acting in their official capacity) from
liability (the extent and specific nature of coverage shall be determined by the Board in
accordance with Section 11.1);
(j) provide for the indemnification of the Association’s officers, directors and
Staff;
(k) borrow funds in order to pay for any expenditure or outlay authorized by
the Governing Documents, including, but not limited to, funds borrowed from Declarant or an
affiliate thereof, and to execute all such instruments evidencing such indebtedness as may be
necessary or advisable; and assign its right to future income, including, without limitation, the
right to receive Assessments, as security for any borrowed funds; provided, however, that the
Association shall not use reserve funds or pledge its assets as collateral for any borrowed funds
without the Affirmative Vote of a Majority;
(l) obtain and pay for legal, accounting and other professional and expert
services;
(m) deal with agencies, officers, boards, commissions, departments, and other
governmental bodies on a local, state and federal basis to carry out the powers, duties and
responsibilities herein;
(n) institute, defend or intervene in litigation, arbitration, mediation, or an
administrative proceeding in its own name on behalf of itself on matters affecting the Property or
Area of Common Responsibility or take such action as it deems necessary to enforce the
Governing Documents;
(o) in its discretion, appoint Persons to generally supervise and control the
business of the Association and delegate certain powers, duties and responsibilities to such
Persons;
(p) settle any lawsuits where the Association finds the settlement reasonable
even if the settlement does not comply with the Governing Documents; and
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(q) exercise all the powers that may be exercised by a Montana nonprofit
corporation under the Act.
3.9 Conflicts Hierarchy. In the event that there is any conflict or inconsistency
between the provisions of Montana law, this Declaration, the Articles, the Bylaws, the Rules and
Regulations or other governing documents or rules, the provisions of Montana law, this
Declaration, the Articles, the Bylaws, the Rules and Regulations or other governing documents
or rules (in that order) shall prevail. In the event there is a conflict between this Declaration and
any Supplemental Declaration, the Supplemental Declaration shall control, and in the event there
is a conflict between any Supplemental Declarations, the Supplemental Declaration most
recently recorded in the Public Record shall control.
Article 4
Membership, Voting and Board of Directors
4.1 Regular Membership; Appurtenant Rights.
(a) Owners. Every Owner shall be a Member of the Association. There shall
be only one Membership attributable to fee simple ownership of a Lot.
(b) Memberships Appurtenant. Membership in the Association shall be
limited to Owners. A Person may hold more than one Membership.
(i) Each Membership and the benefits and burdens relating to that
Membership shall be appurtenant to the fee simple title to the Lot by an Owner. The Owner
shall hold the Membership appurtenant to that Unit as set forth herein and title to and ownership
of the Membership shall automatically pass with fee simple title of a Lot no matter how such title
or interest is acquired. Membership may not be transferred separately from the fee simple title of
a Lot.
(ii) No such Person who is an Owner shall be entitled to opt out,
resign, or withdraw from being a Member, regardless of whether any Person uses or does not use
any Area of Common Responsibility or is the beneficiary of any Function of the Association.
The obligations of each Owner under this Declaration are mandatory, including, but not limited
to, the payment of ongoing Assessments, and all obligations of each Owner set forth herein,
regardless of when specific obligations arise or become payable during the term of any Owner’s
ownership of a Lot are deemed to be an obligation incurred and a commitment made as of the
date of such Person becoming an Owner.
4.2 Joint Ownership; Joint and Several Liability. If an Owner’s interest in a Lot is
held by more than one Person (in tenancy in common, as joint tenants, or otherwise), the
Membership appurtenant to such Lot shall be shared by all such Persons in the same
proportionate interest and by the same type of ownership as the Lot is held, subject to reasonable
Board regulation and restrictions on voting, notices, and Assessment obligations as set forth in
this Declaration, the Bylaws or otherwise. All such Persons shall be jointly and severally
obligated to perform the responsibilities of the specific Owner. 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 from time to time in a written instrument
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describing and certifying the authority of such Person provided to the Secretary of the
Association. In a multiple interest owner situation, if more than one Person seeks to exercise the
vote, the voting privilege shall be suspended. Neither the Association nor Declarant shall have
any obligation to confirm, as among such multiple interest owners, which of the Persons has the
right to exercise a vote. In the case where an Owner is not a natural person, or where there are
multiple owners of one Lot written notice shall be provided to the Secretary of the Association
stating which Person has authority to act (including the payment of any Assessments due) on
behalf of the Owner(s) and include that Person’s name, mailing and physical address, telephone
number and email address. The Association shall rely on such notice until such notice is updated
by an Owner. In the case where there are multiple Owners of a Lot the liability of each Owner in
relation to the Governing Documents is joint and several.
4.3 Evidence of Membership and Registration of Mailing Address. Any Person,
upon becoming a Member, shall furnish to the Association a copy of the instrument vesting that
Person with the interest required to make such Person a Member. Each such Member at the
same time shall give a single name and address to which notices to such Member may be sent, as
well as an e-mail and telephone number by which that Person can be contacted. In the event of
any change in the facts reported in the original written notice, including, without limitation, any
change of ownership, the Member shall give a new written notice to the Association containing
all the information required to be contained in the original notice. As against any Member, and
any Person claiming by, through, or under such Member, the Association may, but shall not be
obligated to, for any and all purposes, rely on the information reflected in the most recent written
notice furnished with respect to such Member. In no event will the Association have any
obligation to investigate the address or contact information of any Member.
4.4 Notice of Sale or Transfer of Title. Any Owner desiring to sell or otherwise
transfer title to such Owner’s Lot shall give the Board at least seven (7) days’ prior written notice
of the name and address of the proposed purchaser or transferee, the date of such proposed
transfer of title, and such other information as the Board may reasonably require. The transferor
shall continue to be jointly and severally responsible with the transferee for all obligations of the
Owner of the Lot with respect thereto, including, without limitation, assessment obligations, until
the date such notice is received by the Board, notwithstanding the transfer of title.
4.5 Voting Rights of Membership. On all matters, unless excluded by this
Declaration, to be decided by the Declarant or the Association, each Owner shall have one vote
per Lot owned. Voting is further addressed in the Bylaws.
4.6 Board of Directors. The Bylaws contain the provisions governing the board of
directors, including but not limited to number, qualifications, quorum, tenure, resignation,
vacancies, voting and indemnification.
Article 5
Assessments, Association Expenses and Other Amounts;
Lien for Sums Due Association; Enforcement
5.1 Personal Obligation for Assessments and Other Amounts. Each Member shall
pay to the Association, and be liable for, all Assessments, charges, fines, penalties or other
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amounts, to be levied, fixed, established and collected as set forth in the Governing Documents.
Each Member’s obligation as to Assessments shall be as set forth in this Article 5 and Exhibit
B. Each Owner, by accepting a deed or recording a notice of purchaser’s interest for a contract
for deed for any portion of the Property, is deemed to covenant and agree to pay the
Assessments.
(a) Failure of the Board to set assessment rates or to deliver or mail each
Member an assessment notice shall not be deemed a waiver, modification, or a release of any
Member from the obligation to pay these Assessments or the effectiveness of the lien in relation
to the Assessments. In such event, each Member shall continue to pay their respective
Assessments on the same basis as during the last year for which an Assessment was made, if any,
until a new budget becomes effective and new Assessments are levied pursuant thereto. Any
such budget may include as an expense item any shortfall in amounts previously collected.
(b) No Member may exempt himself from liability for any Assessments or
any other obligation under the Governing Documents by non-use of or abandonment of such
Member’s Lot 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 Lot. No diminution or
abatement of Assessments or set-off shall be claimed or allowed for any alleged failure of the
Association or Board to take some action or perform some function required of it, or for
inconvenience or discomfort arising from the making of repairs or Improvements, or from any
other action the Association or Board takes or any omission to take any such action.
(c) Neither Declarant nor any affiliate thereof is obligated to pay Assessments
on any Lot it owns. During the Declarant Control Period, Declarant may, but is not obligated to,
voluntarily subsidize the Association’s budget by contribution, advance, loan, or in any manner
the Declarant, in its sole discretion, chooses. Any such voluntary subsidy shall be conspicuously
disclosed as a line item in the budget and shall be made known to the Members. Such voluntary
subsidy in any year shall under no circumstance obligate the Declarant to continue to provide a
subsidy in future years, unless otherwise provided in a written agreement between the
Association and the Declarant.
5.2 Waiver of Homestead. By purchasing a Unit a Unit Owner agrees that any filed
Homestead Exemption does NOT apply to any amounts owed under the Governing Documents,
including but not limited to Assessments and all court costs, monies, attorney’s fees and
judgment interest owed to the Association as a result of any case involving the Association
where the Association is awarded such case, including the costs of collection.
5.3 Verification of Assessments Due. Upon written request, the Association shall
furnish to a Member or such Member’s title or mortgage company written verification of the
amount of such Assessments owing and whether the Member has paid such Assessment.
5.4 Purpose of Assessments and Other Amounts. The Assessments levied and any
charge, fine, penalty or other amount collected by the Association shall be used exclusively to
pay expenses and other obligations the Association may incur in performing any actions
permitted or required under the Governing Documents, including, but not limited to, operating
expenses (inclusive of the overall general administration of the Association), the costs of
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performing Functions, the cost of all insurance premiums and applicable deductibles for
insurance required or permitted under this Declaration, repayment of debt and debt service,
providing security for third party obligations as provided in the Governing Documents,
maintenance of the Area of Common Responsibility, and all other Association Expenses. The
Association may invest any funds allocated to reserves in a reasonable and prudent manner.
Unless expressly required by a Governing Document, the Association will not refund or credit to
any Member any excess funds (including reserves) collected by the Association.
5.5 Types of Assessments. The Association may levy all of the Assessments set
forth in Exhibit B. Each Member, as applicable, shall be obligated to and shall collect or pay, as
applicable, the Base Assessments, Default Assessments, Special Assessments and Specific
Assessments as levied by the Association, as defined and described in Exhibit B.
5.6 Time for Payments; Effect of Non-payment of Sums Due Association; Lien
and Remedies of the Association.
(a) The amount of any Assessment, charge, fine, penalty or other amount
payable by any Member shall become due and payable at such times as the Board may establish.
(b) Any Assessment, charge, fine, penalty, or other amount not paid within
sixty (60) days after the due date shall be delinquent, shall incur a late payment penalty and bear
interest in an amount to be set by the Board from time to time, not to exceed the maximum
permitted by applicable law, from the date due and payable until paid and the Member shall be
obligated to pay all lien fees, legal fees, paralegal fees, and recording fees (as applicable). All
such amounts shall be considered Default Assessments.
(c) The Association has a lien on each Lot for any Assessment levied against
the Lot, and for any other amounts due hereunder from the Owner in relation to such Lot.
(d) In the event an Owner fails to pay sums due the Association within sixty
(60) days of the due date, the Association may (i) bring an action at law to collect the lien or
foreclose the lien against the real property in the same manner as a mortgage on real property,
(ii) although not necessary in order to foreclose the lien, record notice of the Association’s lien
against the property being assessed, (iii) send the debt to collections, (iv) institute an action for a
money judgment, (v) apply any deposits held by the Association or ARC to the amount due, and
(vi) exercise any other remedy at law or equity. Each Assessment or other charge, together with
interest and penalties thereon and all costs and expenses incurred by the Association to collect
such Assessment, charge, fine, penalty or other amount, including, without limitation, reasonable
attorneys’ fees, paralegal fees, and disbursements, may be recovered by suit for a money
judgment by the Association without foreclosing or waving any lien securing the same or may be
recovered in any foreclosure.
(e) The recording of this Declaration constitutes record notice and perfection
of a lien of the Association on all Lots. 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 Association. The priority of the lien of the Association
shall be determined pursuant to Section 5.8 and shall not be dependent upon the recording or
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filing date of any notice of lien recorded or filed in the Public Record, and shall be binding upon
the Owner and its successors. The Association, acting on behalf of the Members, 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 Lot at foreclosure sale, and to acquire and hold, lease, mortgage and convey the same.
During the period a Lot is owned by the Association following foreclosure, (i) no right to vote
shall be exercised on behalf of the Lot (ii) no Assessment shall be assessed or levied on the Lot
and (iii) each other Lot shall be charged, in addition to its usual Assessments, its equal pro rata
share of the Assessments that would have been charged to or payable by such Lot had it not been
acquired by the Association.
(f) The sale or transfer of any Lot shall not affect the assessment lien or
relieve such Lot from the lien for any subsequent assessments. Any Assessments or other costs
unpaid as a result of a foreclosure shall be deemed to be Association Expenses collectible from
all Owners subject to Assessment under this Declaration, including, without limitation, the
acquirer at foreclosure, its successors, assigns and transferees.
5.7 Priority and Non-subordination of the Lien. The lien under this Article 5 shall
be superior to all other liens, except the liens of all taxes, bonds, assessments and other liens and
levies which by law in effect from time to time would be superior.
5.8 Liability of Members, Purchasers and Encumbrancers. The amount of any
Assessment, charge, fine, penalty or other amount payable under this Article 5 or Exhibit B
payable by any Member shall be a joint and several obligation to the Association of such
Member and such Member’s heirs, estates, devisees, personal representatives, successors and
assigns. A Person acquiring fee simple title to a Lot shall be jointly and severally liable with the
former owner of the Lot 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.
Article 6
Easements
6.1 Easements for Encroachment. There shall be reciprocal appurtenant easements
of encroachment and for maintenance and use of any permitted encroachment, between each Lot
and any adjacent Common Area and between adjacent Lots or any Lot and Area of Common
Responsibility due to the unintentional placement or settling or shifting of the Improvements
constructed, reconstructed, or altered thereon (in accordance with the terms of this Declaration),
or any Internal Trails, including, without limitation, pedestrian and bicycle, to a distance of not
more than three (3) feet, as measured from any point on the common boundary along a line
perpendicular to such boundary. However, in no event shall an easement for encroachment exist
if such encroachment occurred due to willful and knowing conduct on the part of, or with the
knowledge and consent of, an Owner, occupant, or the Association.
6.2 Easements for Utilities, Etc.
(a) There are hereby reserved unto Declarant, during the Declarant Control
Period, the Association, and the designees of each (which may include, without limitation, the
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City and any utility provider) access and maintenance easements upon, across, over, and under
all of the Property to the extent reasonably necessary for the purpose of installing, replacing,
repairing, maintaining and relocating cable television systems, master television antenna
systems, security and similar systems, roads, walkways, bicycle pathways, trails, lakes, ponds,
wetlands, drainage systems, street lights, signage, and all utilities, including, but not limited to,
water, sewer, meter boxes, telephone, gas, and electricity, and for the purpose of installing any of
the foregoing on property which it owns or within easements designated for such purposes on
any Plat. The Declarant further hereby reserves for itself and its duly authorized agents,
representatives, designees, successors and assigns a perpetual non-exclusive easement for
utilization, tapping into, tying into, extending and enlarging all utilities within the Property, and a
perpetual non-exclusive easement hereunder over the Roadways for the purposes of ingress and
egress to and from any improvements constructed or to be constructed by Declarant within the
Property. The Declarant further hereby reserves an easement in favor of itself, the Association,
and the designees of each, upon, across, over, and under all of the Property for the creation, use,
maintenance and relocation of trail systems and Internal Trails including, without limitation,
pedestrian, and bicycle. The foregoing easements may traverse the private property of any
Owner; provided, however, an easement shall not entitle the holders to construct or install any of
the foregoing systems, facilities, or utilities over, under or through any existing structure on a
Lot, and any damage to a Lot resulting from the exercise of an easement shall promptly be
repaired by, and at the expense of, the Person exercising the easement. The Declarant and the
Association reserve the right to allow members of the general public to utilize said easements.
The exercise of an easement shall not unreasonably interfere with the use of any Lot and, except
in an emergency, entry onto any Lot shall be made only after reasonable notice to the Owner or
occupant.
(b) The Declarant specifically reserves the right to convey to the to the local
electric company, natural gas supplier, the City and cable television or communications systems
supplier easements across the Property for ingress, egress, installation, reading, replacing,
repairing, and maintaining utility meters, boxes, pump or other utility lines, valves, etc.
However, the exercise of this easement shall not extend to permitting entry into a structure on
any Lot nor shall any utilities be installed or relocated on the Property, except as approved by the
Board or the Declarant.
(c) Should any Person furnishing a service covered by the general easement
herein provided request a specific easement by separate recordable document, the Board shall
have the right to grant such easement over the Property without conflicting with the terms hereof.
The easements provided for in this Section 6.2 shall in no way adversely affect any other
recorded easement on the Property.
6.3 Easements to Serve Additional Property. The Declarant hereby reserves for
itself and its duly authorized agents, representatives, and employees, designees, successors,
assigns, licensees, and mortgagees, an easement over the Area of Common Responsibility for the
purposes of enjoyment, use, access, maintenance and development of any property which
Declarant may acquire an interest in that is adjacent to any Property, whether or not such
property is made subject to this Declaration. This easement includes, but is not limited to, a right
of ingress and egress over the Area of Common Responsibility for construction and maintenance
of roads and for connecting and installing utilities on such property. Declarant agrees that it and
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its successors or assigns shall be responsible for any damage caused to the Area of Common
Responsibility as a result of vehicular traffic connected with development and maintenance of
such property. Declarant further agrees that if the easement is exercised for permanent access to
such property and such property or any portion thereof is not made subject to this Declaration,
the Declarant, its successors or assigns shall enter into a reasonable agreement with the
Association to share the cost of maintenance of any access roadway serving such property.
6.4 Emergency Services Easements. Declarant hereby grants a non-exclusive
perpetual easement across and over the Property for ingress and egress to all police, sheriff, fire
protection, ambulance and similar emergency agencies or persons, now or hereafter serving the
Property, to enter the Property in the performance of their duties, subject, however, to limitations
generally imposed by local, state and federal law.
6.5 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 (a) exercise any right held by the Association
under this Declaration or any other Governing Document, and (b) perform any obligation
imposed upon the Association by this Declaration or any other Governing Document. The
Association shall not enter any building without reasonable prior notice to the Owner of the
building or other Improvement of an Owner without the consent of such Owner, in each case
except in cases of emergency.
6.6 Transportation System Easements. Each Lot is encumbered with an easement
for Transportation Systems for the benefit of each Owner, Member, Invitee, Licensee and
members of the general public as those systems may exist or may be constructed with the
development of each Lot. Each Owner, Member, Invitee, Licensee and members of the general
public shall have a perpetual, non-exclusive easement for ingress, egress and access across and
through the Roadways to and from such Owner’s Lot and the Area of Common Responsibility,
subject to: (a) this Declaration recorded in the Public Record, and any other applicable
covenants, restrictions or limitations contained in any recorded instrument affecting the
Transportation System; and (b) the right of the Board to promulgate and enforce any rules or
regulations it deems necessary in its sole discretion for the reasonable use and enjoyment of the
Transportation System by any and all Owners, their Invitees, members of the general public,
including, but not limited to, traffic regulation, speed regulation, parking, height, size and other
vehicle regulations, security protocols and time/use regulations.
6.7 Acceptance of Easements. Each Owner, by accepting a deed to a Lot agrees for
themselves and their Licensees, Invitees and successors and assigns, to be subject to all
easements created by this Declaration and the other Governing Documents.
Article 7
Declarant’s Rights
7.1 Declarant’s Easements and Related Rights.
(a) Declarant hereby reserves to itself for itself and for the benefit of its
Licensees, Invitees, successors and assigns a non-exclusive, perpetual easement on, over, upon,
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across, above, under and through the Area of Common Responsibility as may be reasonably
necessary to (i) discharge Declarant’s obligations under this Declaration; (ii) exercise any
Special Declarant Right; (iii) make Improvements within the Property on property owned by the
Declarant; and (iv) maintain, repair, access, replace, relocate, construct, use and operate utilities
where they are located within the Property (and any other property that becomes subject to this
Declaration) as of the date of this Declaration or any new or relocated utilities.
(b) Declarant hereby reserves to itself for itself and for the benefit of its
Licensees, Invitees, successors and assigns, the right from time to time to establish, relocate, and
use non-exclusive, perpetual utility and other easements, leases, permits or licenses on, over,
upon, across, above, under and through the Property for uses for the Association or Declarant,
including, without limitation, in relation to any Improvements in order to serve all persons
residing, visiting or doing business within the Property; provided that any such easement, lease,
permit or license does not unreasonably impair the use of the Area of Common Responsibility
for its intended purpose.
7.2 Special Declarant Rights. Declarant hereby reserves for itself and its successors
and assigns the following rights, which rights may be exercised at any time during the Declarant
Control Period (collectively the “Special Declarant Rights”):
(a) The right to complete any Improvements on real property owned by
Declarant within the Area of Common Responsibility or shown on any Plat;
(b) 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 any property owned by Declarant or the Area of Common Responsibility; and the
right to construct and maintain signs advertising the properties 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;
(c) The right to exercise any development right, including, without limitation,
the rights found in Article 13 and the right to amend this Declaration to change the uses for real
property or create additional Lots within the Property, the right to subdivide the Lots or CI Lot,
the right to combine Lots, the right to convert any and all real property owned by Declarant into
an Area of Common Responsibility, the right to record Supplemental Declarations;
(d) The right to create, relocate and use easements through the Area of
Common Responsibility for the purpose of making Improvements within the Property or within
real property which may be added to the Property;
(e) The right to designate real property owned by Declarant within the
Property for fire, police, utility service operation facilities (e.g., electric power, propane,
sanitation, etc.), water and sewer facilities, public schools and parks, and other public facilities;
(f) The right to maintain construction equipment on the Property that is
necessary for the development of the Property;
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(g) The right to merge and consolidate the Association with a property owners
association of the same form of ownership; and
(h) The right to accept, establish and amend reasonable use restrictions with
respect to the Property.
7.3 Transfers of Special Declarant Rights and Rights as Declarant. The term
“Declarant’s Rights” means, collectively, the Special Declarant Rights defined herein as well as
all other rights of the Declarant under this Declaration, the other Governing Documents, and the
rights of a declarant under applicable law.
(a) The Declarant’s Rights may be transferred by the Declarant in whole or in
part during the Declarant Control Period; provided, (i) the transfer shall not reduce an obligation
or enlarge a right beyond that which Declarant has under this Declaration and the other
Governing Documents, and (ii) any such transfer shall only be effective if it is in a written
instrument signed by Declarant and the transferee and recorded in the Public Record.
(b) Upon transfer of the Declarant’s Rights, the liability of a transferor is as
follows:
(i) A transferor is not relieved of any obligation or liability arising
before the transfer.
(ii) A transferor 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 of the Declarant’s Rights, the liability of a transferee is as
follows:
(i) A transferee of the Declarant’s Rights is subject to all obligations
and liabilities imposed on the Declarant by this Declaration arising from and after the date of
such transfer.
7.4 Rights of Declarant after the Turnover Date. After the Turnover Date,
Declarant, if still an Owner, will continue to have all of the rights and duties given to Members
under the Governing Documents. In no event shall the passage of time prevent the Declarant
from utilizing any easement, right or privilege, granted by this Declaration or otherwise, upon
the Area of Common Responsibility or portions of the Property owned by Declarant that is
necessary or advisable in connection with the development and sale of real property or amenities
in relation to the Property.
Article 8
Rights, Restrictions and Obligations Applicable to Property
8.1 Land Use Restrictions. In addition to the restrictions found elsewhere in this
Declaration, all or any portion of the Property shall be further restricted in its use, density or
design according to any Supplemental Declarations; Rules and Regulations; Design Guidelines;
subdivision regulations, designations and agreements; wildlife agreements, wildfire mitigation
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guidelines and conservation guidelines entered into by Declarant or the Association in
connection with the development of the Property; zoning regulations adopted by governmental
authorities; and similar matters. Each Member, Licensee and Invitee shall comply with all of the
terms, provisions, covenants, conditions, restrictions, easements and reservations to be complied
with under this Declaration, including those referenced above, those imposed by the land use
restrictions in this Article 8 and any applicable Supplemental Declaration.
8.2 City Required Covenants. The covenants contained in Exhibit C are included
as a condition of preliminary plat approval and required by the City of Bozeman and may not be
amended or revoked without the approval of the governing body of City of Bozeman.
8.3 Uses.
(a) Lots. Except as otherwise restricted in this Declaration, the Lots shall be
used for residential purposes pursuant to the Zoning Regulations for the underlying zoning sub-
district.
(b) Open Space. The Open Space as shown on the Plat is hereby reserved by
the Association for itself or its assigns for the use and installation of drainage and Improvements
for the benefit of the Association. Any improvements within the Open Space will be maintained
by the Association or its assigns. The Open Space is further restricted to the uses set forth in
Exhibit C, City of Bozeman Plat Approved Covenants.
(c) Wildlife Refuge. The Wildlife Refuge as shown on the Plat shall be
owned and maintained by the Association or the City of Bozeman and shall be used for the
purposes of protecting, maintaining and improving the Preserve for the benefit of the natural
wildlife. The Board may adopt Rules and Regulations to govern the use of the Wildlife Refuge.
(i) The Owners are prohibited from placing any vegetation, garden
waste, lawn clippings, animal waste or other materials within the boundaries of the Wildlife
Refuge.
(ii) The Owners must prevent their Permitted Household Pets from
entering the Wildlife Refuge. For all residential lots adjacent to the Wildlife Refuge (Common
Open Space 03), the Owners are required to construct a fence along the lot line adjacent to the
refuge, in accordance with the Design Guidelines. These fences shall connect to each other to
form a continuous barrier to household pets traversing this boundary.
8.4 Development and Maintenance of Lot. All Lots except for any portion of the
Lot then undergoing any Construction Activity, including all Improvements on such Lot and all
unimproved Lots shall be kept and maintained in a clean, safe, attractive and sightly condition
and in good repair.
8.5 Approval of Construction Activities. Unless the approval of the ARC through
processes set forth in Article 9 is obtained in advance, (i) no Improvements shall be constructed,
erected, placed or installed upon any Lot, (ii) no change or alteration of the materials or
appearance (including, but not limited to, color) of the exterior of any Improvements shall be
made, (iii) no excavation or change in the grade of any Lot or earth movement shall be
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performed, (iv) no healthy vegetation or trees shall be cut or removed from any Lot subject to the
provisions of Section 8.6, (v) no physical or cosmetic alteration or modification to existing
Improvements shall be made, and (vi) no other Construction Activity shall be initiated or
performed.
8.6 Fire Precautions. In addition to the Design Guidelines, all structures must be
constructed in accordance with City of Bozeman’s Fire Protection Regulations.
(a) All Structures within the Subdivision must comply with the City’s current
Fire Protection regulations. The Association and the Owners must follow the Fire Protection
regulations. If there is a conflict with the City’s Fire Protection Regulations and these Covenants,
the Fire Protection Regulations will prevail.
8.7 Trash; Garbage; Organic and Inorganic Materials. No trash, waste, garbage,
litter, junk, refuse, or unused items of any kind shall be kept, stored, thrown, dumped, allowed to
accumulate, left or burned on any portion of the Property. No incinerator or other device for
burning of trash or garbage shall be installed or used. Each Member shall dispose of their trash
at the location(s) designated by the Association. In the event the Association has not designated
any disposal location, then the Member shall provide suitable receptacles for the collection of
garbage, which must be enclosed within a building and comply with any Rules and Regulations,
Board adopted policies, this Declaration, the other Governing Documents and requirement for
animal-proof garbage containment.
8.8 Preservation of Water Resources. Members, Licensees, Invitees and members
of the general public shall at all times conduct their use and activities in a manner that will
preserve the integrity of all water courses within the Shady Glen Major Subdivision. The
degradation or pollution of water is not permitted. All applicable local, state, and federal
regulations, guidelines, and standards pertaining to water use must be followed. The Association
may adopt Rules and Regulations, including fines, that will protect the water resources within the
Association. These include, but are not limited to pesticides, garbage, oil, grease, pets and
humans.
8.9 Wildlife Habitat, Hunting, Firearms.
(a) Declarant reserves to itself and thereafter to the Association, the right to
utilize and manage the Open Space Easement for the creation and enhancement of habitat for
wildlife and native plants. It is also recognized by Declarant, the Association and the Members
that wildlife species 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 wildlife habitat in the Property and to minimize the adverse effects of development on
the wildlife habitat:
(i) Hunting, capturing, trapping or killing of wildlife within the
Property is prohibited. The discharge of firearms is prohibited within the Property.
(ii) No feeding or domestication of any wildlife shall be permitted. No
salt licks, bird feeders, or other foods shall be placed upon any Lot. Items such as bird feed,
horse feed, grains, garbage and dog food shall be stored in bear-proof containers.
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8.10 No Noxious or Offensive Activity. No noxious or offensive activity shall be
carried on upon the Property nor shall anything be done or placed on the Property which is or
may become a nuisance or cause any disturbance or annoyance to others. As used herein, the
term “noxious or offensive activity” shall not include any activities of a Member, Declarant or
their respective designees 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, rules or regulations of any governmental or quasi-governmental entity having
jurisdiction with respect thereto and do not unreasonably interfere with any Member’s use of
such Member’s Lot or with any Member’s ingress and egress to or from such Member’s Lot and
a Roadway.
8.11 Lights. All exterior lighting of Improvements and grounds on a Lot will be
subject to regulation by the ARC.
8.12 No Hazardous Activities. No activities shall be conducted on any Lot no
Improvements shall be constructed or performed on any Lot and no Construction Activities shall
be conducted on any Lot that are or might be unsafe or hazardous to any Person or property.
8.13 No Unsightliness. No unsightliness shall be permitted on any portion of the
Property. Without limiting the generality of the foregoing:
(a) All unsightly structures, facilities, equipment, objects, and conditions shall
be kept within an enclosed structure at all times.
(b) The Board may create rules and regulations regarding the parking and
storing of Recreational Vehicles and commercial vehicles.
(c) No Mobile Homes are allowed.
(d) Manufactured Homes that comply with these Covenants and the Design
Guidelines are allowed.
(e) Service areas and facilities for hanging, drying or airing clothing or fabrics
shall be kept within an enclosed structure.
(f) Mechanical and utility equipment, lines, wires, pipes, cables, tanks, poles,
meters and other facilities, loading docks and sewage disposal systems or devices shall be
screened or kept and maintained below the surface of the ground, or to the extent feasible,
customary and sightly as determined by the ARC, within an enclosed structure, subject to
exceptions as determined at the discretion of the ARC.
8.14 Repair of Improvements. No Improvements upon the Property shall be
permitted to fall into disrepair, and each such Improvement shall at all times be kept in good
condition and repair.
8.15 Animals. No animals shall be kept, raised, or bred on any Lot. Notwithstanding
the foregoing, no more than 2 dogs and no more than 2 cats, and a reasonable number of birds,
tortoises, or other customary household pets may be brought onto the Property or kept on a Lot
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(“Permitted Household Pets”) as determined by the Board. Permitted Household Pets shall not
be kept, bred, or maintained for any commercial purpose, nor in unreasonable quantities, nor in
violation of any other provision of this Declaration. Livestock and Poultry are not Permitted
Household Pets with the exception of female chickens. Female Chickens are allowed Poultry.
No Permitted Household Pet shall be permitted to harass any wildlife. Permitted Household Pets
are not to be kept outdoors or chained up. Any Permitted Household Pet that is on the Property
shall be accompanied by the Owner, or their guest or invitee, and kept under control at all times.
Owners are responsible for damage and waste caused by any Permitted Household Pet associated
with a Lot.
Female chickens shall be kept outdoors and in an enclosure. The Board may establish
such other reasonable Rules and Regulations (including but not limited to the number of
Permitted Household Pets, Female Poultry and the requirement to charge pet deposits)
concerning Permitted Household Pets, Female Chickens and other animals as it deems necessary.
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.
8.16 Signs. Except as otherwise provided in Section 8.30, no signs or advertising
devices of any nature shall be erected or maintained on any Lot except signs approved by the
ARC, signs required by the land use restrictions, applicable law or legal proceedings,
identification signs for work under construction (as approved by the ARC), temporary signs to
caution or warn of danger, Association signs necessary or desirable to give directions or advise
of Rules and Regulations or Design Guidelines, or political signs as permitted pursuant to § 70-
1-522, MCA. The ARC shall regulate the terms for maintenance and length of time temporary
signs may be placed. Without limiting the generality of the foregoing, no “For Sale,” “For
Rent,” “Open,” “Open House,” “Garage Sale,” “Estate Sale” or similar signs shall be displayed
on the exterior or interior of any Lot, except as permitted under the Design Guidelines.
8.17 Parking. Members, Licensees, Invitees and members of the general public shall
not park vehicles on or along any Roadway, except in areas specifically designated for parking.
The Association shall have the right to remove any vehicle that is parked on or along any
Roadway not in compliance with this Section, at the vehicle owner’s expense. Parking within
the Property is further subject to the adoption of Rules and Regulations by the Association.
8.18 Aircraft. No aircraft, including, without limitation, helicopters, or aircraft
operations of any kind shall be permitted anywhere in or above the Property, except according to
applicable Federal Aviation Administration regulations. Drones are not allowed except for
marketing of a Lot or as otherwise allowed by the Rules and Regulations. Nothing in this Section
shall limit the use of an aircraft in the event of an emergency.
8.19 Wood Burning Devices. In addition to any regulations under applicable law, the
use of wood burning devices may be regulated or prohibited by the Association or ARC pursuant
to its Design Guidelines.
8.20 Drainage; Erosion. Reasonable caution shall be taken during any Construction
Activity, and thereafter, to prevent erosion, dust and drainage problems. All disturbed soil areas
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shall be revegetated within a reasonable time in such a fashion as to minimize erosion and dust.
Owners shall not obstruct or re-channel drainage flows after the initial location and installation
of drainage swales, storm sewers, or storm drains, except that the Declarant during the Declarant
Control Period and thereafter the Association shall have such right; provided, the exercise of
such right shall not materially diminish the value of or unreasonably interfere with the use of any
Lot without the Owner’s consent.
8.21 No Mining, Drilling, Commercial Logging or Timber Harvesting. No Lot
shall be used for the purpose of mining, quarrying, drilling, boring or exploring for or removing
oil, gas or other hydrocarbons, minerals, rocks, stones, gravel or earth or for commercial logging
or timber harvesting.
8.22 Fences and Entry Gates. No fences, entry gates, walls or other boundaries for
the purpose of enclosing or demarcating any Lot are permitted without first being approved by
the ARC.
8.23 Hot tubs – Hot tubs are allowed with the prior written approval of the Board.
Hot tubs must be located in an area where they are out of sight from the road or appropriately
screened with a privacy fence approved by the ARC.
8.24 Zoning Petition. No Owner shall submit a petition or application pursuant to the
Zoning Regulations or take any action to change the zoning within the Property without the prior
consent of Declarant, during the Declarant Control Period, and thereafter the Association.
8.25 Health, Safety and Welfare. In the event additional uses, activities and/or
facilities are deemed by the Board to be nuisances or to adversely affect the health, safety or
welfare of the Members, Licensees, Invitees, or members of the general public, or the value of
any part of the Property, the Association may adopt Rules and Regulations or Design Guidelines
restricting or regulating the same.
8.26 Compliance with Law; Hazardous Materials. No Lot shall be used, occupied,
altered, improved or repaired except in compliance with all laws, rules, requirements, orders,
directions, ordinances and regulations of any local, state or federal governmental or quasi-
governmental agency in effect from time to time. The Association and the Declarant shall not be
obligated to pursue enforcement in the event this Section 8.26 is violated. The Association and
Declarant may notify the applicable governing entity of any alleged violation and may also
pursue remedies for the violation of this Declaration.
8.27 Permits. No structure shall be erected within the Property without first
requesting and receiving a land use permit and such other permits and approvals as may be
required from the City, County and State of Montana.
8.28 Subdivision, Aggregation, and Boundary Line Adjustment of a Lot. No Lot
shall be subdivided, partitioned, aggregated, or be subject to a boundary line adjustment without
the prior written consent of the Declarant during the Declarant Control Period and thereafter the
Association.
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8.29 Temporary Structures. Unless approved by Declarant during the Declarant
Control Period, and thereafter by the ARC, no tent, shack, trailer or any temporary building or
structure shall be placed upon any portion of the Property.
8.30 Declarant’s Exemption. Notwithstanding any other provision of this
Declaration, nothing contained in this Article 8 shall apply to the activities of Declarant.
Further, Declarant’s Construction Activity and Declarant’s exercise of any Special Declarant
Rights are exempt from review by the ARC during the Declarant Control Period.
8.31 Violation. Determination with respect to whether or not a particular activity or
occurrence shall constitute a violation of this Article 8 shall be made in accordance with Article
10.
Article 9
Architectural Review Committee
9.1 Purpose. In order to preserve the natural beauty of the Property and its setting, to
maintain the Property as a pleasant and desirable environment, to establish and preserve a
harmonious design for the community, and to protect and promote the value of the Property, all
exterior design, development, Improvements, including, but not limited to, new Improvements
and additions, changes or alterations to existing uses or Improvements, and Construction Activity
at the Property shall be subject to review and approval by the ARC pursuant to this Article 9.
9.2 ARC. During the Declarant Control Period, Declarant shall appoint all members
of the ARC, who shall serve at the discretion of Declarant. During the Declarant Control Period,
the ARC shall consist of 1 to 3 members. Once the Declarant Control Period ends, the ARC shall
consist of at least three (3), but not more than five (5) persons. The members of the ARC need
not be Members of the Association or representatives of Members, and may, but need not,
include architects, engineers or similar professionals, whose compensation, if any, shall be
established from time to time by the Board. Upon expiration of the Declarant Control Period, the
Board shall appoint the members of the ARC, who shall serve at the discretion of the Board..
9.3 Powers and Duties.
(a) Except as otherwise provided in Section 8.30 and this Section 9.3, neither
the Association, nor any Member, Licensee, Invitee nor any occupant shall perform the activities
described in Section 8.4 on the Property or a building or structure thereon, or change the use of
any Lot or building or structure thereon or engage in any Construction Activity unless the ARC
has approved the plans and specifications for the project, showing the nature, kind, shape, height,
color, materials and location of same, and the construction procedures to be used to ensure
compliance with this Article 9, including, without limitation, compliance with applicable law,
the Governing Documents and any Supplemental Declaration. The ARC has the express
authority to review, accept, condition, modify or deny all plans for any of the activities described
in this Section 9.3(a) to the extent they conflict with the Design Guidelines adopted by the ARC
or are not compatible with, or are inappropriate for, the Property.
(b) Design Guidelines adopted by the ARC shall provide reasonable rules and
procedures as the ARC deems necessary to carry out its functions, which Design Guidelines shall
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not be inconsistent with the provisions of the other Governing Documents. Design Guidelines
adopted by the ARC shall state the general design theme of all projects in the Property, specific
design and construction requirements, and the general construction procedures that will or will
not be allowed in the Property.
(c) Each Member is hereby advised and acknowledges that, in connection
with any Construction Activities on such Member’s Lot such Member must comply with the
applicable provisions of Supplemental Declarations, Design Guidelines adopted by the ARC, and
the Governing Documents, which documents may include, among other things, the following: (i)
procedures and fees for making application to the ARC for design review approval, including,
without limitation, the documents and materials to be submitted and the process the ARC must
utilize 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) directions pertaining to the location of Improvements upon Lots with respect to
natural topography, preservation of view corridors and similar criteria; (iv) minimum and
maximum square foot areas of living space and non-habitable or non-living space that may be
developed on any Lot; (v) landscaping and irrigation regulations or limitations, and limitations
and restrictions prohibiting the removal or requiring the replacement of existing trees, the use of
plants indigenous to the locale and other practices benefiting the protection of the environment,
aesthetics and architectural harmony of the Property; (vi) instructions and Design Guidelines for
the construction, reconstruction, refinishing or alteration of any Improvement and addressing
matters such as grading, transformers, meters, fire protection, loading areas, waste storage, trash
and debris removal, parking areas, outside storage, sanitary facilities, and conduct of behavior of
builders, sub-contractors and Members’ representatives on the Property at any time; and (vii) the
nature, kind, shape, height, color, materials and location of Improvements, parking, landscaping,
open space, signage, skylining, setbacks, 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 Article 8.
(d) The ARC shall have the authority to establish new Design Guidelines,
revise existing Design Guidelines or enforce existing Design Guidelines.
(e) The ARC shall have the authority to retain the services of one or more
consulting architects, landscape architects, engineers, contractors and experts, who are
independent of the ARC, but are, to the extent required under law, licensed in the State of
Montana, to advise and assist the ARC in performing the review functions prescribed in this
Article 9 and in carrying out provisions of Article 8. Such consultants may be retained to advise
the ARC on a single project, on a number of projects, or on a continuing basis. Consultants shall
promptly disclose to the ARC their interests in any project or matter before the ARC prior to
such project coming up for ARC consideration.
(f) The ARC may, as a condition to any consent or approval, impose such
covenants, conditions and restrictions as the ARC deems necessary or appropriate, including,
without limitation, penalties for failure to comply.
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(g) The Association and the ARC through their authorized agents shall have
the right to enter any Lot upon twenty-four (24) hours’ notice (or such notice as is appropriate in
the event of an emergency) to the Member or Member’s agent for the purpose of ascertaining
whether such Lot or the construction, erection, placement, remodeling or alteration of any
Improvement thereon is in compliance with plans or Construction Activity approved by the
ARC, the applicable Design Guidelines or the terms of this Declaration. The ARC, the
Association or such officer, employee, or agent thereof shall not be deemed to have committed a
trespass or wrongful act solely by reason of such action or actions under this Section 9.3(g).
Notice as provided under this Section 9.3(g) may be either in person, via telephone, e-mail, or in
writing.
(h) The ARC shall have the authority to require reasonable fees to be paid
with the filing of plans to offset expenses of the ARC. In addition, the ARC shall have the
authority to set and require Members 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.
The ARC shall adopt a fee and deposit schedule as part of the Design Guidelines covering what
fees and deposits will be required, the format for paying the fees and posting the deposits, and
how such fees and deposits are used. The ARC reserves the right to establish special fees and
deposits in the case of special projects where design review, oversight and enforcement costs
may be higher than those established in the fee and deposit schedule.
(i) The ARC shall have the authority to revoke or suspend its 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, the ARC shall have the authority to record a notice of such non-compliance in the
Public Record.
(j) A Member upon final completion of such Member’s Construction
Activity, as to such Member’s Lot shall request in writing from the ARC a certificate of
substantial completion. The ARC will consider the request at a regularly scheduled meeting, for
which there is quorum, within forty-five (45) business days from the date the request was
received. The ARC will then grant or deny the issuance of the certificate. In the event of denial,
the ARC shall state its reasons in writing and provide the Member a reasonable time to address
the reasons for denial (e.g., complete the Construction Activity in accordance with ARC
approval) and reapply for a certificate of substantial completion. The ARC shall not be required
to release any deposits held pursuant to this Article 9 until a certificate of substantial completion
has been issued, though the ARC may, in its discretion, reduce or release deposits when all that
remains is minor, exterior landscaping work that is prevented from being completed by weather
conditions. Construction Activity shall not be deemed to be substantially complete until all
exterior finish and landscaping work has been completed, construction equipment and machinery
are demobilized, and construction staging materials, including, but not limited to, portable
toilets, dumpsters and all debris, are cleared from the Lot. Such certificate shall run to third
parties at the request of the applicable Member.
(k) The ARC shall have the exclusive right to construe and interpret the
pertinent provisions of Design Guidelines. In the absence of any adjudication to the contrary by
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a court of competent jurisdiction, the ARC’s construction or interpretation of the Design
Guidelines and the provisions of this Article 9 shall be final, conclusive and binding as to all
Persons and property benefitted or bound by the provisions hereof.
(l) In addition to the above powers and duties, the ARC may have such
powers and duties as delegated to it by the Board.
(m) The ARC may grant variances from the Design Guidelines when there is a
valid justification, where the variance does not have a negative impact on the adjacent properties
or the Property as a whole, which shall be determined in the sole and absolute discretion of the
ARC, and where the variance is reasonable in relation to the overall character and nature of the
area; provided, however, that no variances can be granted by the ARC as to specific covenants
and restrictions set forth in this Declaration, and the ARC may adopt specific guidelines in
relation to any variance requests. Any application for a variance shall be pursuant to a written
request addressing the above criteria and all variance guidelines adopted by the ARC, and any
grant or denial of a variance by the ARC shall be stated in writing, based on written findings.
(n) If a member of the ARC submits a project to the ARC for review or has a
personal interest in a submitted project, that ARC member shall recuse himself or herself from
the meeting as a voting member of the ARC and not participate in the review and discussion of
the submitted project.
9.4 Operational Procedures.
(a) The ARC shall hold meetings as necessary. Meetings of the ARC may be
called by Staff, the chair of the ARC or by a majority of the members of the ARC.
(b) A majority of the members of the ARC shall constitute a quorum.
(c) The ARC shall maintain written minutes of its meetings and a record of
any votes taken.
(d) All meetings of the ARC shall be open to Members and the Declarant, as
well as to any designated professional representatives thereof, and all votes of the ARC shall be
taken at such meetings. Nothing contained herein, however, shall prevent the ARC from
meeting in executive session, not open to Members, in relation to personnel matters, litigation in
which the Association or the ARC is or may become involved, matters subject to privileges and
confidentiality obligations, and matters relating to the formation of contracts with third parties.
Any matter discussed in executive session shall be generally noted in the minutes of the
immediately following open meeting. No meeting, regular or special, may be audio taped,
recorded or broadcast.
(e) A copy of all minutes, Design Guidelines and policy statements, shall be
filed with the records of the Association and shall be maintained by the Association in
accordance with its retention and record keeping policies.
(f) Approvals and consents of the ARC shall not be arbitrarily and
capriciously withheld, and actions taken shall not be arbitrary and capricious. ARC decisions
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shall be conclusive and binding on all interested parties, subject only to the right of appeal
detailed below. Any approval or disapproval by the ARC shall be in writing and in the case of a
denial shall state the reasons for such denial. Decisions of the ARC are final; however, a
Member can appeal in writing to the ARC to reconsider its decision. A request for
reconsideration must be made in writing within ten (10) business days of the ARC’s decision and
be delivered by certified mail to the Association’s mailing address. The ARC will consider the
request at a regularly scheduled meeting, for which there is quorum, within forty-five (45)
business days from the date the request was received. The ARC will then in writing affirm,
modify or withdraw its decision within twenty (20) business days after the meeting.
9.5 Enforcement. Prior to completion of construction or action subject to review
under this Article 9, the ARC shall have primary responsibility to enforce the restrictions set
forth in Article 8, any applicable Design Guidelines, and restrictions as set forth in any
Supplemental Declaration; provided, however, that such responsibility shall not limit the right of
Declarant or the Association to act under Article 10. In addition to any other rights or remedies
available to the ARC, the ARC shall have the right to suspend its review or temporarily suspend
any approvals or certificates granted in the event an Owner is not in Good Standing.
9.6 Liability. The standards and procedures established by this Article 9 or the ARC
are intended to enhance the overall aesthetics of the Property. None of the Declarant, the
Association, or the ARC 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 ARC means only that the ARC believes that the
construction, alteration, installation or other work for which the consent, approval or certificate
was requested complies with the applicable Design Guidelines. No such consent or approval
shall be interpreted to mean that the construction, alteration, installation or other work covered
thereby (a) complies with laws, rules, regulations, ordinances or other requirements of any
governmental or quasi-governmental authority, or any applicable covenants, conditions or
resolutions, (b) is free from defects, errors or omissions, (c) is structurally sound, or (d) lies
within the boundaries of a Lot or a Building Envelope, and by submitting materials to the ARC
for its review, the applicant shall be deemed to have waived all claims against the ARC based on
the foregoing disclaimed matters. None of the Declarant, the Association, the Board, the ARC,
or 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 on or
modifications to any Lot within the Property.
Article 10
Enforcement and Remedies
10.1 Procedure. The Association shall have the right (but not the obligation) to enforce
the provisions of any of the Governing Documents, through its procedure adopted by resolution of
the Board, abatement of the violation by the Association, or by proceedings either at law or in
equity against any Person(s) violating or attempting to violate any of the Governing Documents.
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10.2 Discretion.
(a) The decision to have the Association pursue an enforcement action in any
particular case shall be left to the Board’s 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.
(b) 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, including all such costs and fees for any appeal or enforcement of a judgment.
(c) In addition to all other enforcement rights and remedies available to the
Association, the Association may suspend the right of an Owner to use the Area of Common
Responsibility and Improvements located therein (i) for any period during which any charge
against such Owner’s Lot remains delinquent, and (ii) for a period not to exceed thirty (30) days
for a single violation, or for a longer period in the case of any continuing violation, for any
period in which such Owner is not in Good Standing (other than as set forth in clause (i) of this
paragraph).
10.3 Costs of Enforcement.
(a) Costs incurred for enforcing the provisions of the Governing Documents
(inclusive of giving notice of the violation), costs of correcting the defect or undoing or curing
the violation, if undertaken by the Association, or any fines levied against the Member after the
Member is determined by the Board to be in violation of the Governing Documents, shall be paid
by the Member. Any costs incurred for enforcing the provisions of the Governing Documents,
for correcting the defect or undoing the violation, or fine assessed against the Member that is not
paid within sixty (60) days may be handled in accordance with Section 5.7.
(b) Should any lawsuit, arbitration or other legal proceeding be instituted by a
Member against the Association, or the Association against a Member alleged to have violated
one or more of the provisions of the Governing Documents and should the Association be wholly
or partially successful in such proceeding, the Member shall be obligated to pay all the costs of
such proceeding, including, without limitation, reasonable attorneys’ fees and costs.
10.4 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, the ARC; except that any decision to pursue or not pursue any legal
proceeding may not be delegated, and shall be determined by the Board.
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10.5 Remedies Cumulative. Each remedy provided under the Governing Documents
is cumulative and not exclusive.
Article 11
Insurance, Casualty and Condemnation
11.1 Insurance.
(a) Required Coverages. The Association shall obtain and continue in effect
the following types of insurance, if reasonably available, or if not reasonably available, the most
nearly equivalent coverages as are reasonably available:
(i) Blanket property insurance covering “risks of direct physical loss”
on a “special form” basis (or comparable coverage by whatever name determined) for all
insurable Improvements within the Area of Common Responsibility or otherwise owned by the
Association to the extent the Association has assumed responsibility in the event of a casualty,
regardless of ownership. If such coverage is not generally available at reasonable cost, then
“broad form” coverage may be substituted. All property insurance policies obtained by the
Association shall have policy limits sufficient to cover the full replacement cost of the insured
Improvements under current building ordinances and codes;
(ii) Commercial general liability insurance on the Area of Common
Responsibility and Improvements located thereon, insuring the Association and its Members for
damage or injury caused by the negligence of the Association or any of its Members, 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;
(iii) Workers compensation insurance and employer’s liability
insurance, if and to the extent required by law;
(iv) Directors and officers liability coverage;
(v) 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
(vi) Such additional insurance as the Board, in the exercise of its
business judgment, determines advisable.
(b) Claims Against the Association’s Insurance Policies. Unless otherwise
provided in this Declaration or the Bylaws, the Board may adopt a resolution that:
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(i) Prescribes a procedure for processing insurance claims. The
procedure may require that all claims against the Association’s insurance policy be processed
through and coordinated by the Board or the Manager, if authorized by the Board.
(ii) Assigns the responsibility for payment of charges for handling
claims, including any charges by a Manager.
(c) Policy Requirements. From time to time, the Association shall arrange
for a review of the sufficiency of its insurance coverage by one or more qualified Persons, at
least one of whom must be familiar with insurable replacement costs in Bozeman, Gallatin
County, Montana. The policies may contain a reasonable deductible (the determination of
“reasonable” including all reserves maintained by the Association) and the amount thereof shall
not be subtracted from the face amount of the policy in determining whether the policy limits
satisfy the requirements of Section 11.1(a). In the event of an insured loss, the deductible shall
be treated as an Association Expense in the same manner as the premiums for the applicable
insurance coverage. However, if the Board reasonably determines that the loss is the result of
the negligence or willful misconduct of one or more Members, Licensee, or Invitee, then the
Board may assess the full amount of such deductible against such Member and their Lot as a
Default Assessment.
All insurance coverage obtained by the Board shall (if reasonably available):
(i) Be written with a company authorized to do business in Montana;
(ii) Be written in the name of the Association as trustee for the
benefited parties. Policies on Area of Common Responsibility, Improvements located thereon
and other Improvements owned by the Association shall be for the benefit of the Association and
its Members;
(iii) Not be brought into contribution with insurance purchased by
Owners, occupants or their mortgagees individually;
(iv) Contain an inflation guard endorsement;
(v) Include an agreed amount endorsement, if the policy contains a co-
insurance clause;
(vi) Provide that each Member is an insured person under the policy
with respect to liability arising out of such Member’s interest as a member of the Association in
the Area of Common Responsibility (provided, this provision shall not be construed as giving a
Member any interest in the Area of Common Responsibility other than that of a Member);
(vii) Include an endorsement precluding cancellation, invalidation,
suspension, or non-renewal by the insurer on account of any act or omission of one or more
Members, or on account of any curable defect or violation of any Member without prior written
demand to the Association to cure the defect or violation and allowance of a reasonable time to
cure; and
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(viii) Include an endorsement precluding cancellation, invalidation, or
condition to recovery under the policy on account of any act or omission of any one or more
individual Owners, unless such Owner is acting within the scope of its authority on behalf of the
Association.
(d) Waiver of Subrogation and Endorsements. In addition, the Board shall
use reasonable efforts to secure insurance policies which name the Members, collectively, as
additional insureds for claims arising in connection with the ownership, existence, use or
management of the Area of Common Responsibility, Improvements located thereon and other
Improvements owned by the Association and provide:
(i) A waiver of subrogation as to any claims against the Association’s
Board, Staff, officers, and any manager, the Members and their Licensees and Invitees;
(ii) A waiver of the insurer’s rights to repair and reconstruct instead of
paying cash;
(iii) An endorsement excluding Member’s individual policies from
consideration under any “other insurance” clause;
(iv) An endorsement requiring at least thirty (30) days’ prior written
notice to the Association of any cancellation, substantial modification, or non-renewal;
(v) A cross-liability endorsement that provides cross-liability
coverage; and
(vi) A provision vesting in the Board exclusive authority to adjust
losses; provided, however, no mortgagee having any interest in such losses may be prohibited
from participating in the settlement negotiations, if any, related to the loss.
11.2 Casualty.
(a) In the event of damage or destruction to any part of the Area of Common
Responsibility, Improvements located thereon or other Improvements owned by the Association,
any insurance proceeds shall be collected by and paid to the Association and such insurance
proceeds, if sufficient to reconstruct or repair the damage in the estimation of the Board, shall be
applied by the Association to such reconstruction and repair. If the insurance proceeds with
respect to such damage or destruction are insufficient to repair and reconstruct the damaged or
destroyed Area of Common Responsibility or Improvements, or if there are no insurance
proceeds, the Board shall levy a Special Assessment pursuant to the Governing Documents in the
aggregate amount of such deficiency and shall proceed to make such repairs or reconstruction.
Notwithstanding the foregoing, the Association shall not repair or reconstruct the damaged or
destroyed Area of Common Responsibility or Improvements if (i) such repair or reconstruction
would be illegal under any local, state or federal law, or (ii) within sixty (60) days after such
damage or destruction (A) during the Declarant Control Period the Declarant elects not to repair
or reconstruct, or (B) after the Declarant Control Period the Board elects not to repair or
reconstruct. If the Declarant or the Board elects not to repair or reconstruct as provided above,
the Association shall demolish any destroyed or damaged improvements, remove all debris and
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rubble caused by such demolition and return the damaged or destroyed area to a sightly condition
and shall have the right to levy against and collect from the Members a Special Assessment for
this limited purpose, if necessary.
(b) Subject to the terms of any Supplemental Declaration, in the event of
damage or destruction of the Improvements located on any Lot or any part thereof (other than
any Area of Common Responsibility or Improvement which is governed by Section 11.2(a)), the
Owner of such Lot shall, at its sole cost and expense, with due diligence, either (i) cause the
damaged or destroyed Improvements to be repaired and restored to a condition comparable to
that prior to the damage or destruction, or (ii) demolish the destroyed or damaged Improvements,
in which event the rubble caused by such demolition shall be removed and the affected Lot
graded and landscaped. If such repair or restoration or such demolition, debris removal, grading
and landscaping is not commenced within one hundred eighty (180) days from the date of such
damage or destruction, or if the same is commenced but then abandoned for a period of more
than ninety (90) days, the Association may initiate proceedings under Article 10, inclusive of
fining the Owner until such repair or restoration or such demolition, debris removal, grading and
landscaping is commenced or re-commenced, as the case may be, unless the Owner or can prove
to the satisfaction of the Board that such failure is due to circumstances beyond the Owner’s
control. All Construction Activity commenced under this Section 11.2(b) shall be subject to
ARC review and approval, which will not be unreasonably withheld. In addition to the remedies
available pursuant to Article 10, the Association, acting through the Board, may undertake
demolition, grading, and landscaping of the affected Lot and charge the Owner for the costs
thereof as a Default Assessment.
11.3 Condemnation.
(a) In the event the Area of Common Responsibility, Improvements thereon
or other Improvements or property owned by the Association, or any portion thereof, shall be
taken for any public or quasi-public use, under any statute, by right of eminent domain or by
purchase in lieu thereof, each Member will be entitled to notice thereof, but the Association will
act as attorney-in-fact for all Members in the proceedings incident to such taking unless
otherwise prohibited by law. The award for such taking will be payable to the Association as
trustee for all of the Members to be used as follows:
(i) If the taking involves a portion of the Area of Common
Responsibility on which Improvements have been constructed, then, unless (A) restoration or
replacement of such Improvements would be illegal under any state, local or federal law or (B)
within sixty (60) days after such taking (I) during the Declarant Control Period Declarant elects
not to restore or replace such Improvements, or (II) after the Declarant Control Period the Board
elects not to restore or replace such Improvements, the Association shall restore or replace such
Improvements so taken on the remaining land included in the Area of Common Responsibility to
the extent lands are available therefore, in accordance with plans approved by the ARC and other
governmental or quasi-governmental entity having jurisdiction over the Property. If such
Improvements are to be restored or replaced, and the award for the taking is insufficient to
restore or replace such Improvements, the Board shall levy a Special Assessment in the
aggregate amount of such deficiency and shall proceed to restore or replace such Improvements.
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(ii) If the taking does not involve any Improvements, or if there is a
decision made not to restore or replace as set forth above, or if there are net funds remaining
after any such restoration or replacement of Improvements is completed, then the Association
shall retain such excess proceeds and place them in the Association’s reserve account.
(b) In the event any Lot or any portion thereof (other than any Area of
Common Responsibility which is governed by Section 11.3(a)) shall be taken, the condemnation
award for such taking shall be paid solely to the Owner of such Lot. The repair or restoration of
any Improvements located on such Unit which are affected by the taking shall be completed as if
it were a casualty, in accordance with the terms of Section 11.2(b). If an entire Lot shall be
condemned, the Owner thereof shall automatically cease to be a Member of the Association with
respect to such Lot but obligations arising prior to such taking shall remain the obligation of such
Person regardless of the termination of Membership.
Article 12
Mortgagee Provisions
12.1 Notices of Action.
(a) Any institutional holder, insurer, or guarantor of a first Mortgage that
provides a written request to the Association in accordance with this Section 12.1 shall thereby
become an “Eligible Holder” for so long as such Person remains an institutional holder, insurer
or guarantor of a first Mortgage and will be entitled to timely written notice of:
(i) Any condemnation loss or any casualty loss of which the
Association has notice which affects a material portion of the Area of Common Responsibility;
or
(ii) At least thirty (30) days prior to any foreclosure by the Association
of a lien resulting from a delinquency in the payment of any Assessment, charge, fine, penalty or
other amount payable by a Member with respect to a Lot subject to the mortgage of such Eligible
Holder.
(b) The written request as required under this Section 12.1 shall clearly state
the legal description and address of the Lot as well as the name, mailing address, telephone
number and e-mail address of the person who should receive the notices for the above listed
actions. It is the sole obligation of the Eligible Holder to keep this information up to date with
the Association and deliver notice as provided herein to the Association when this information
changes. The Association will not be in default for failure to provide the above-listed notices if
the Eligible Holder does not provide the Association with accurate information.
(c) Any written notice required under this Section 12.1 to be provided by the
Association to an Eligible Holder shall be in writing and shall be deemed to have been duly
given if delivered personally or if sent by certified mail, first-class, postage pre-paid, return
receipt requested to the address provided by the Eligible Holder.
12.2 Payment of Unpaid Assessment. Any mortgagee or other lienholder holding a
lien on a Lot may pay any unpaid Assessment with respect to such Lot, together with any and all
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costs and expenses incurred with respect to the Assessment lien securing such unpaid
Assessment.
Article 13
Jurisdiction and Annexation
13.1 Jurisdiction. The Property within the jurisdiction of the Association and subject
to this Declaration and the Governing Documents as of the date hereof is described in Exhibit A
attached to this Declaration and incorporated herein by reference. Property within the
jurisdiction of the Association and subject to this Declaration is subject to all provisions of the
Governing Documents.
13.2 Additional Covenants and Easements. During the Declarant Control Period, the
Declarant may unilaterally subject any portion of the Property submitted to this Declaration
initially or by Supplemental Declaration to additional covenants and easements, including,
without limitation, covenants obligating the Association to maintain and insure such property on
behalf of the Owners and obligating such Owners to pay the costs incurred by the Association.
Such additional covenants and easements shall be set forth in a Supplemental Declaration filed
either concurrent with or after the annexation of the subject property, and shall require the
written consent of the owner(s) of such property, if other than the Declarant.
Article 14
Amendment
14.1 Amendment.
(a) By Declarant. During the Declarant Control Period, Declarant may
unilaterally amend this Declaration for any purpose, provided the amendment has no material
adverse effect on the right of any Owner. Notwithstanding the above, during the Declarant
Control Period, 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 Lots; (iii)
required by a Federal Mortgage Underwriter to enable such Federal Mortgage Underwriter to
make or purchase mortgage loans for Lots; (iv) necessary to enable any governmental agency or
reputable private insurance company to insure mortgage loans on the Lots; (v) necessary to
enable any governmental agency or reputable private insurance company to insure the Property,
or any portion thereof; or (vi) otherwise necessary to satisfy the requirements of any
governmental or quasi-governmental entity; which amendment shall be effective upon a
recording of a Supplemental Declaration or amendment stating the amendment, the authority for
the amendment, and signed by Declarant.
(b) By Members. After the Declarant Control Period and otherwise, this
Declaration may be amended by an Affirmative Vote of a Majority, with the consent of the
Declarant during the Declarant Control Period or if a higher percentage is required that
percentage shall control.
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(c) Application. Owners are on notice that by virtue of taking title to a Unit
subject to the Governing Documents that they are subject to and agree to the amendment
provisions contained in this Article. Owners waive their rights to any statutory remedies
provided for under Title 70 of the Montana Code Annotated with regard to duly adopted
amendments pursuant to this Article.
(d) Recording of Amendment. Any amendment adopted pursuant to this
Article must be recorded with the office of the Clerk and Recorder of Gallatin County, Montana
in order to be effective. If an Owner consents to any amendment to this Declaration or the
Bylaws, it will be conclusively presumed that such Owner has the authority to consent, and no
contrary provision in any mortgage or contract between the Owner and a third party will affect
the validity of such amendment.
(e) Restrictions on Amendment. If an Owner consents to any amendment to
this Declaration or the Bylaws, it will be conclusively presumed that such Owner has the
authority to consent, and no contrary provision in any Mortgage or contract between the Owner
and a third party will affect the validity of such amendment. No amendment may remove,
revoke, or modify any right or privilege of the Declarant, or increase Declarant’s obligations,
without the written consent of the Declarant or the assignee of such right or privilege.
Article 15
Interpretation
15.1 Effect of Provisions of Declaration. Each provision of this Declaration, and any
agreement, promise, covenants 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 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.
15.2 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, except
for provisions expressly delegated to the ARC. 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.
Article 16
Miscellaneous
16.1 Attorneys’ Fees. In the event suit or action is instituted for a declaration of rights
hereunder or to enforce any of the provisions of this Declaration or the other Governing
Documents, the parties agree to pay to the prevailing party all reasonable costs, fees, and
paralegals’ and attorneys’ fees and costs (as calculated on an hourly fee basis and not a
contingency fee basis) and all costs of collection and enforcement, including, but not limited to,
any appeals.
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16.2 Limited Liability. None of Declarant, the Association, the ARC, 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 to the extent required under applicable law or any Governing
Document.
16.3 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.
16.4 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.
16.5 Captions. The captions and headings in this Declaration are for convenience
only and shall not be considered in construing any provisions of this Declaration.
16.6 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.
16.7 No Waiver. Failure to enforce any provisions of this Declaration shall not
operate as a waiver of any such provision or of any other provision of this Declaration.
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IN WITNESS WHEREOF, Declarant has executed this Declaration of Protective Covenants,
Conditions and Restrictions for Shady Glen Major Subdivision on this _____ day of
____________, 20____.
DECLARANT
Bridger Center 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 Bridger Center 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.
__________________________(printed name)
Notary Public for the State of _____________
Residing at: ___________________________
My commission expires: _________________
(mm/dd/yyyy)
Declaration of Protective
Covenants, Conditions and Restrictions for Shady Glen Major Subdivision Page 43 of 47
Exhibit A- 1
of
Declaration of
Protective Covenants, Conditions and Restrictions
For Shady Glen Major Subdivision
LEGAL DESCRIPTION OF THE PROPERTY
Shady Glen Subdivision, Gallatin County, (Rest TBD by the Plat)
Declaration of Protective
Covenants, Conditions and Restrictions for Shady Glen Major Subdivision Page 44 of 47
Exhibit B
of
Declaration of
Protective Covenants, Conditions and Restrictions
for Shady Glen Major Subdivision
ASSESSMENTS
Article 1
Types of Assessments
1.1 Base Assessments.
(a) Budget. At least sixty (60) days before the beginning of each fiscal year,
the Board shall prepare a budget covering the estimated Association Expenses during the coming
year, including, without limitation, a capital contribution to establish a reserve fund in
accordance with a budget separately prepared. The Board shall annually prepare the reserve
budget which takes into account the number and nature of depreciable assets owned by the
Association, the expected life of each asset, and their expected repair or replacement cost.
(b) Rate. The Base Assessment shall be levied equally against all Lots which
are subject to the Base Assessment pursuant to this Declaration and shall be set at a level which
is reasonably expected to produce total revenue for the Association equal to the total budgeted
Association Expenses for the benefit of all Owners, including, without limitation, reserves
(“Base Assessment”). In determining the level of Base Assessments, the Board, in its
discretion, may consider other sources of funds (exclusive of Specific Assessments) available to
the Association. In addition, the Board shall take into account the number of Lots subject to the
Base Assessment on the first day of the fiscal year for which the budget is prepared and the
number of Lots reasonably anticipated to become subject to Base Assessments during the fiscal
year.
(c) Notices. The Board shall send a copy of the budget and notice of the
amount of the Base Assessment for the upcoming year to be delivered to each Owner at least
thirty (30) days prior to the beginning of the fiscal year for which it is to be effective. Such
budget and assessment shall become effective unless disapproved at a meeting by at least
seventy-five percent (75%) of the Members in the Association, and, during the Declarant Control
Period, the Declarant. There shall be no obligation to call a meeting for the purpose of
considering the budget except on petition of the Membership as provided for special meetings in
the Bylaws or, if the Bylaws are silent, the Act, which petition must be presented to the Board
within ten (10) days after delivery of the budget and notice of the amount of the Base
Assessments.
(d) Failure to Approve Budget. If the proposed budget is disapproved or the
Board fails for any reason to determine the budget for any year, then until such time as a budget
is determined, the budget in effect for the immediately preceding year shall continue for the next
year.
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1.2 Default Assessment. Notwithstanding anything to the contrary contained herein,
if any cost or expense of the Association is caused by (a) the negligence or misconduct of a
Member or a Member’s employee, agent, Licensee or Invitee, or (b) a violation of any covenant
or condition of a Governing Document by a Member or a Member’s employee, agent, Licensee
or Invitee, the Association may, if the Board deems necessary or advisable, levy a Default
Assessment against such Member. The Association may also, in the discretion of the Board,
levy a Default Assessment against any Lot to reimburse the Association for costs incurred in
bringing the Lot into compliance with the provisions of the Governing Documents, provided the
Association gives prior notice to the Owner and an opportunity for a hearing. Any such
assessment levied by the Association pursuant to this Exhibit B Section 1.2, and each fine,
penalty, fee, or other charge imposed upon a Member for the Member’s violation of any
covenant or condition of any Governing Document, are each referred to herein as a “Default
Assessment.”
1.3 Special Assessment. The Association may levy “Special Assessments” 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 Association
Expenses for the general benefit of all Owners shall require the Affirmative Vote of a Majority.
Special Assessments shall be payable in such manner and at such times as determined by the
Board, and may be payable in installments extending beyond the fiscal year in which the Special
Assessment is approved.
1.4 Specific Assessments.
(a) The Board shall have the power to specifically assess Association Expenses
against Lots receiving benefits, items, or services not provided to all Lots within an area or
within the Property that are incurred for the benefit of the Owner of a Lot or the Owners of a Lot
within a section of the Property for specific items or services relating to the Lot, as determined
by the Board in good faith. All such assessments shall be “Specific Assessments.”
(b) Any Lot or group of Lots may request that the Association provide a higher level
of service or special services for the benefit of such Lot, upon the affirmative vote, written
consent, or a combination thereof, of a majority of Owners requesting the service. In such event,
the Association, in the Board’s sole discretion, may provide for the requested services. The cost
of such services, if provided, shall be assessed against the Lot(s) making the request, as
determined by the Board in good faith, as a Specific Assessment on such Lots.
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Covenants, Conditions and Restrictions for Shady Glen Major Subdivision Page 46 of 47
Exhibit C
of
Declaration of
Protective Covenants, Conditions and Restrictions
for Shady Glen Major Subdivision
CITY OF BOZEMAN PLAT APPROVED COVENANTS
The following covenants are required by the City of Bozeman per the plat approvals for the
Property.
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Exhibit D
Map of Wildlife Refuge and Open Spaces