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HomeMy WebLinkAbout009 - Appendix G.2 CCRs CommericalAfter recording return to: SRX LLC PO Box 4082 Bozeman, MT 59772 Attn: Parker Lange DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR SOUTH RANGE CROSSING COMMERCIAL DEVELOPMENT (GOVERNING COMMERCIAL BLOCK 1 LOTS 1-8) This Declaration of Covenants, Conditions, and Restrictions and Reservation of Easements for South Range Crossing Subdivision Block 1 Lots 1-8 Commercial Development (“Declaration”) is made this ____ day of , 2023 by SRX LLC, a Montana limited liability company (the "Declarant" as further defined in Section 2.6 of this Declaration). WHEREAS Declarant is the owner of the real property described in Exhibit A (the “Property”) known as the South Range Crossing Subdivision Block 1, Lots 1-8, a described on Exhibit A as the Commercial Development, shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, sold, and improved subject to the declarations, limitations, covenants, conditions, restrictions, and easements contained in this Declaration, all of which are imposed as equitable servitudes pursuant to the master plan for the development of the South Range Crossing Subdivision Commercial/Multi Family Development and the Property. NOW THEREFORE, Declarant hereby declares that the Commercial Development shall be subject to all of the limitations, covenants, conditions, restrictions and easements of this Declaration. ARTICLE 1 – PURPOSE AND OWNERSHIP 1.1 The purpose of this Declaration is to establish a general plan or scheme of development and use of the Commercial Development and the Property, which is intended to maintain or enhance the character and value of such property. 1.2 The provisions of this Declaration are intended to be covenants that run with the land in accordance with the provisions of Sections 70-17-201 through 72-17-203 of the Montana Code Annotated, and any successor statutes of similar effect, and are binding upon Declarant and its successors and assigns, the Association, and all parties having or acquiring any right, title, or interest in or to any part of the Commercial Development. 1.3 The Commercial Development that is subject to this Declaration is located in Bozeman, Gallatin County, Montana, and is solely owned by the Declarant as of the date of this Declaration. 1.4 For purposes of this Declaration, the term "Owner" shall mean any person or entity which is the record owner of fee simple title of any Lot, including buyers under a contract for deed, but excluding any entity or person who holds such interest as security for the payment of an obligation, other than a contract seller, mortgagee, beneficiary or other security holder in actual possession of a Lot. If more than one person or entity is the record owner of a Lot and/or if any Lot contains multiple units, then such co-owners and/or unit owners shall be treated as a single Owner with respect to the rights and liabilities associated with such Lot. The term "Owners" means more than one Owner, as provided herein. ARTICLE 2 – DEFINITIONS 2.1 Annexed Property has the meaning given in Section 6.4. 2.2 Association means all of the Owners acting as a group and in accordance with this Declaration, also referred to as the South Range Crossing Commercial Owners Association, and any successor thereto. The Association will be formed before any properties in the Commercial Development are sold. 2.3 Board means the Board of Directors of the Association as more particularly described in Section 3.2. 2.4 Common Expenses has the meaning given in Sections 3.2 and 5.3. 2.5 Community for the purpose of this Declaration means the South Range Crossing Subdivision master planned community, development and neighborhood as a whole, including the Residential Development and Common Open Spaces, the Commercial Development and Neighborhood Commercial Center, parks, trails and pedestrian systems, services and amenities, business, social and recreational opportunities, located within the Property and the surrounding area, and the associated community character and community lifestyle, known as “South Range Crossing” or “SRX”, Bozeman, Montana. 2.6 Declarant means SRX LLC, a Montana limited liability company, and its successors and assigns. Both successors and assigns to the Declarants rights hereunder shall always be deemed to be included within the term "Declarant," whenever and however such term is used in the Declaration. No party other than SRX LLC, shall exercise the rights and privileges of the Declarant unless such party receives from the then-existing Declarant and records in the office of the Clerk and Recorder of Gallatin County, Montana, a written instrument expressing assigning such declarant’s rights and privileges. 2.7 Declarant Control Period means the period of time commencing with the recording of this Declaration with the office of the Clerk and Recorder of Gallatin County, Montana, and ending on the earlier of (i) when the Declarant determines, in an instrument recorded with the office of the Clerk and Recorder of Gallatin County, Montana, that all of the Lots (including any Lots which may ultimately be annexed into and become part of the Commercial Development) have been sold or conveyed to persons or entities other than Declarant or its affiliates, or (ii) any earlier date on which Declarant, in its discretion, records an instrument with the office of the Clerk and Recorder of Gallatin County, Montana, specifying that the Declarant Control Period has ended. 2.8 Building Design Guidelines shall mean and refer to the South Range Crossing Commercial Design Guidelines, including the design standards, required review process and fees, as amended from time to time by the Declarant, the Board of Directors, or the Architectural Review Committee. The current version of the Building Design Guidelines is attached as Exhibit B. 2.9 Lot shall mean the Commercial Lots 1-8 of Block 1 the South Range Crossing Subdivision, as may be later amended, annexed or withdrawn by the Declarant, pursuant to this Declaration. As used herein, the term “Lot” shall not include Common Open Spaces, lots within the Residential Development, or other tracts which are designated on the plat for the Property. 2.10 Owner or Owners has the meaning given in Section 1.4. 2.11 Percentage of Interest means each Owner's percentage share of Common Expenses based on the Owner’s percentage of ownership interest in the Commercial Development. The Percentage of Interest may change in the event of annexation of additional real property or Lots or withdrawal of real property of Lots owned by Declarant pursuant to Sections 6.4 and 6.5, respectively. 2.12 Property means all of the real property located in Gallatin County, Montana, and described on Exhibit A, known as the South Range Crossing Subdivision Block, Lots 1-8 along with any property subsequently annexed or otherwise subjected to this Declaration, including the Residential Development, Commercial Development, Common Open Space Property and Stormwater Lots. 2.13 Residential Development shall mean and refer to the part of the Property more particularly described on Exhibit A. The Residential Development and associated Common Open Spaces is not part of the Commercial Development subject to this Declaration. 2.14 Rules and Regulations means the specific rules, regulations, and policies that may be adopted by the Board of Directors from time to time for the governance, operations and management of the Commercial Development and the Property. ARTICLE 3 – PROPERTY OWNERS ASSOCIATION AND ASSESSMENTS 3.1 Membership. Each Owner in the Commercial Development shall, by acceptance of a deed or conveyance to such Lot or any portion thereof, automatically become a member of the Association and shall remain a member for the period of the Owner's ownership of a Lot. For purposes of membership in the Association, all co-owners and/or unit owners of a Lot shall be treated as a single Owner as described in Section 1.4. Membership in the Association may not be transferred separately from the fee simple title to a Lot or any portion thereof. Upon becoming an Owner, the Owner shall furnish to the Association a copy of the recorded instrument vesting that person with the interest required to make such person a member of the Association. 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 address 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 any change of ownership, the member shall give a new written notice to the Association containing all of the information required to be contained in the original notice. As against any member of the Association, and any person claiming by, through, or under such member, the Association may, but shall not be obligated to, rely, for any and all purposes, 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 into the address or contact information of any member. 3.1.1 Function of the Association. The function of the Association shall be to: 3.1.1.1 Elect the Board of Directors as provided herein. 3.1.1.2 Approve any changes to this Declaration as provided herein. 3.1.2 Voting. In any matter to be determined by the members of the Association, each Owner shall be entitled to cast one vote for each Lot owned. Any Owner shall be entitled to provide his proxy, for all purposes, to another Owner. If a Lot has more than one owner, the owners of that Lot shall nominate in writing a single person to cast their vote and in no event shall the vote with respect to any Lot exceed the total of one (1) vote per Lot as herein provided. Such written nomination shall be signed by all co-owners of the Lot. In the absence of a written nomination signed by all co-owners of the Lot, no voting by that Owner shall be permitted. Unless expressly provided otherwise herein, all actions of the Association shall be by majority vote. 3.2 Board of Directors. The Association shall be governed by a Board of Directors as provided herein. 3.2.1 Composition of Board. The Board of Directors shall consist of three Lot Owners members. So long as Declarant owns at least one Lot, it shall select one member of the Board of Directors in its sole discretion. The remaining members of the Board of Directors shall be elected by a majority vote of the Owners. All directors must be Owners or an agent or representative of an Owner. 3.2.2 Function of Board. It shall be the function of the Board to: 3.2.2.1 Make provisions for the general management, repairs, and maintenance of the Common Open Spaces, and any other provisions for the benefit of the Association. 3.2.2.2 Levy and collect assessments as provided for herein. 3.2.2.3 Enter into contracts to hire personnel for the management of the affairs of the Association and Common Expenses as deemed necessary in the sole discretion of the Board. 3.2.2.4 Enter into contracts and negotiate and accept easements for the benefit of the Association. 3.2.2.5 Manage the affairs of, and take action for, the Association, except where the vote of the Lot Owners or consent of the Declarant is specifically required by this Declaration or applicable law. 3.2.2.6 In addition to the Building Design Guidelines, it is intended that the Board of Directors may make, amend, and repeal Rules and Regulations from time to time that apply to the Commercial Development, Lots, Lot Owners, and their tenants, employees, customers, licensees, guests and invitees on the Property. Such Rules and Regulations may govern use of the Lots, the personal conduct of the Lot Owners and anyone entering the Property, and may govern construction and design criteria and aesthetic standards so as to further the use, enjoyment, and aesthetics of the Commercial Development for the Lot Owners. Such Rules and Regulations may also establish enforcement mechanisms, including penalties for violation thereof. Following adoption, amendment, or repeal of any Rules and Regulations, the Board of Directors shall provide Lot Owners with notice thereof. Copies of all such Rules and Regulations shall be furnished to all Lot Owners upon request. Notwithstanding anything to the contrary herein, the Board of Directors shall not adopt any rules or regulations that adversely affect the Declarant without the Declarant's prior written consent. 3.2.3 Operation of Board. 3.2.3.1 During the Development Period, Association decisions and action shall be made by Declarant. Thereafter, Association decisions shall be made by the Board of Directors. 3.2.3.2 Unless expressly provided otherwise herein, all decisions and action of the Board of the Directors shall be by majority vote. 3.2.4 Assessments and Collection. Each Owner, by accepting deed to or contract for deed for a Lot within the Commercial Development, whether or not specially so expressed in said conveying instrument, shall be deemed to covenant, agree, and shall be bound to pay assessments established pursuant to the provisions of this Declaration, which will include regular annual assessments and special assessments for general Association operating funds, capital improvements, maintenance (including snow removal), repairs, improvements, weed control, reserve fund, insurance, and other expenses of the Commercial Development and Property which the Board of Directors deems are of common use and benefit to each Lot Owner ("Common Expenses") or are required under Section 3.2.5 or 5.3. Assessments, whether special or regular, shall be set by a resolution of the Board of Directors and may be collected on a monthly, quarterly, or yearly basis, together with interest, costs, and reasonable attorneys' fees incurred in the enforcement of the provisions of this article. 3.2.5 Other Common Expenses. Common Expenses shall also include costs and reserves (if appropriate) incurred by the Association in connection with maintaining areas outside of the Commercial Development as may be required by the City of Bozeman, Montana, or any other governmental agency with jurisdiction. Common Expenses shall also include any obligations of the Association, and the Association’s share, of any costs or expenses incurred in regard to shared development costs and expenses, or other shared expenses of the Property and by Agreement with the Residential Development. Such expenses may include street lighting, maintenance and upkeep of the water features and wetlands of the Project, shared expenses of landscaping and maintaining the Commercial Development, landscaping and maintaining the streets and medians (including snow removal), maintenance and upkeep of any shared facilities or improvements, if any, and all expenses associated with utilities and water infrastructure, except for any such facilities or infrastructure maintained by the City of Bozeman. 3.2.6 Community Association Manager. Together with the South Range Crossing Residential Owners Association, the Association shall jointly designate a Community Association Manager (“CAM”). The function of the CAM is to support and enhance a sense of community for residents of the Community and promote a thriving Neighborhood Commercial Center for the benefit of the Community as a whole. The CAM may provide media and marketing for the Community, maintain a website and social media accounts and content for the Community, produce marketing video productions and other advertisements for the Community; promote and organize Community events and activities in the Neighborhood Commercial Center and other public areas of the Property, which may include art shows, holiday and social events, concerts, farmers markets, etc. The Association shall collect the designated assessment amount from each Lot Owner as herein provided for payment to the CAM. The CAM will initially be the Declarant, or designee of the Declarant, until the Association and Residential Association jointly designate a successor professional CAM. In addition to the CAM assessments, the CAM shall be reimbursed by the Associations, proportionately relative to each Association’s respective share of the CAM assessment. The CAM shall not use the CAM assessment, or seek reimbursement, for expenses to market the sale of Lots. The CAM is permitted to include in Community promotion materials, weblinks or other contact information that directs to separate websites or information about sale of Lots. 3.2.7 Regular and Special Assessments. The Board of Directors shall be entitled to levy annual regular assessments and special assessments in order to cover Common Expenses. 3.2.8 Allocation of Assessments. Except as otherwise provided, assessments for Common Expenses shall be allocated among the Lots based on the Lots’ respective Percentage of Interest. However, the Association may, in its sole discretion, create a different assessment format for Common Expenses from time to time, provided that such assessments be equitable and in proportion to and not exceeding the benefits derived from the improvements by the Lot. 3.2.9 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 the Commercial Development that are incurred for the benefit of or related to only some Lots, as determined by the Board in good faith. All such assessments shall be “Specific Assessments.” (b) Any Lot Owner or group of Lot Owners may request that the Association provide a higher level of service or special services for the benefit of such Lot(s), upon the affirmative vote, written consent, or a combination thereof, of a majority of affected 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 Lots making the request, as determined by the Board in good faith, as a Specific Assessment on such Lot(s). (c) Community Association Management. Upon issuance of a certificate of occupancy for any building on a Commercial Lot and annually thereafter, the Lot Owner shall pay an annual assessment amount based on gross square footage of such building(s), for payment of the South Range Crossing Commercial Owners Association’s share of the Community Association Manager. The initial annual community association assessment is calculated based on the rate of $0.25 per square foot. The annual assessment rate amount is subject to periodic adjustment by the CAM. 3.2.10 Assessment Period. The Board of Directors shall fix the amount of the regular annual assessment against each Lot annually, by resolution, at the time and manner deemed appropriate by the Board of Directors. Special and specific assessments shall be levied by resolution of the Board of Directors at the time and in the manner deemed appropriate by the Board of Directors. An assessment period shall consist of a calendar year. Upon an Owner purchasing a Lot, liability for regular, special and specific assessments shall be prorated on a daily basis to the extent of the number of days remaining from date of purchase in any assessment period. Said proration shall be based on a 365 day year. 3.2.11 Assessment Due Date. Written notice of any assessment shall be sent to every Owner subject thereto. Such notice shall include a due date for the payment of the applicable assessment, which date shall be no less than ten (10) business days after the date the notice is sent. 3.2.12 Lien. Assessments as provided herein shall be a charge on each Owner's Lot and shall be a continuing lien against said Lot. Said assessment, together with any interest, costs, and reasonable attorneys' fees incurred in collection of the same, shall also be a personal and individual obligation and debt of the Lot Owner thereof. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage, deed of trust or trust indenture. The sale or transfer of any Lot shall not affect the assessment lien whether such lien arises prior to such sale or transfer, or thereafter becomes due. However, the sale or transfer of any Lot pursuant to foreclosure proceedings of such first mortgage, deed of trust or trust indenture, or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to payments which become due prior to such sale or transfer, but shall not relieve such Lot from liability for any assessments thereafter accruing or becoming due or from the lien thereof. 3.2.13 Nonpayment/Remedies. Any assessment not paid by the applicable due date established in the notice shall bear interest from the due date at a rate equal to the lesser of 10% per annum or the maximum annual percentage interest rate allowed under Montana law. On behalf of the Association, the Board of Directors may bring suit to recover a money judgment for unpaid assessments without foreclosing or waiving the lien securing the same. In addition to the amount of the assessment and any interest thereon, in the event of any such suit or collection activities, the Association shall be entitled to all attorneys' fees and costs incurred. No owner may exempt himself, herself, or itself from liability for assessments by waiver of the use or enjoyment of any Common Open Spaces or by abandonment of such Owner's Lot. 3.2.14 Restrictions on Increases in Regular and Special Assessments. The Board may not impose a regular Assessment on any Lot which is more than twenty percent (20%) greater than the regular Assessment for the immediate preceding fiscal year, or levy a special Assessment to defray the cost of any action or undertaking on behalf of the Association which in the aggregate exceeds ten percent (10%) of the budgeted gross expenses of the Association for that fiscal year, without the vote or written assent of Members casting a majority of the votes at a meeting of the Association at which a quorum is present. Any meeting of the Association for purposes of complying with this Section shall be conducted in accordance with the Montana Non-Profit Corporation Act. The Board may increase regular Assessments by more than twenty percent (20%) over the regular Assessment for the immediate preceding fiscal year only if the Board has complied with the provisions set forth in the Bylaws and this Declaration. Notwithstanding the foregoing, the Board, without Membership approval, may increase regular Assessments or levy special Assessments necessary for an emergency situation. For purposes of this Section, an emergency situation is one of the following: (1) an extraordinary expense required by an order of a court; (2) an extraordinary expense necessary to repair or maintain the Property or any part of it for which the Association is responsible where a threat to personal safety on the Property is discovered; or (3) an extraordinary expense necessary to repair or maintain the Property or any part of it for which the Association is responsible that could not have been reasonably foreseen by the Board in preparing and distributing the pro forma operating budget, provided, however that prior to the imposition or collection of the Assessment, the Board shall pass a resolution containing written findings as to the necessity of the extraordinary expense involved and why the expense was not or could not have been reasonably foreseen in the budgeting process and the resolution shall be distributed to the Members with the notice off the Assessment. The Association shall provide by first-class mail or electronic means if permitted via the Bylaws and the Montana Nonprofit Corporations Act notice to Owners of any increase in the regular or special Assessments of the Association not less than thirty (30) nor more than Sixty (60) days prior to the increased Assessment becoming due. 3.3 Meetings. The manner and time for holding meetings of the Board and/or Association shall be at the time, place, and manner as published by the Board. The Board of Directors, however, is authorized to act by resolution or written consent and there is no obligation that Board or Association meetings be held. ARTICLE 4 – RESTRICTIONS 4.1 Use Restrictions. 4.1.1 Lots shall be used only for such commercial and multi-family use in compliance with the conditions of approval of the Commercial Development by City of Bozeman, Montana, the approved Master Plan for the Property, and any zoning or applicable regulations of the City of Bozeman, including the Unified Development Ordinance. The use of any Lot shall be further limited and subject to compliance with and restrictions, limitations or requirements shown or listed on any recorded plat map for the Property, this Declaration, the Building Design Guidelines, the Rules and Regulations, and any other approved governing documents of the Property, the Project or the Association, as the same may be duly amended or supplemented. The Declarant, during the Declarant Control Period, and the Board of Directors thereafter, shall retain the power to disapprove any use that does not meet such requirements or fit the intent of the Commercial Development. 4.1.2 No unlawful activity shall be carried on upon any Lot or upon the Common Open Spaces, nor shall anything be done by any Owner (agents, employees, tenants, customers, guests, or invitees of any Owner) which may be or become an annoyance or a nuisance to the Lot Owners. No Owner shall do or permit anything to be done or keep or permit to be kept on such Owner's Lot that will increase the rate of insurance premiums for the Commercial Development without the written approval of the Board of Directors. Each Owner who causes such an increase shall pay to the Association the increased cost of insurance premiums resulting from any activity or the maintenance of any such condition, even if approved by the Board of Directors. 4.2 Architectural and Building Restrictions. 4.2.1 Architectural Review Committee (“ARC”). During the Declarant Control Period, the Architectural Review Committee ("ARC") shall consist of the Declarant OR an ARC reviewer may be hired who is a qualified professional that has experience with commercial and multi-family development in the City of Bozeman and is familiar with the City of Bozeman UDC. Fees from each submittal will be used to hire this reviewer. The ARC shall be guided by the then current SRX Commercial/ Multi- Family Building Design Guidelines 4.3 City of Bozeman Required Covenants. 4.3.1 The following conditions have been imposed on the Project by the City of Bozeman, and shall not be amended or revoked without the consent of the Owner in accordance with the amendment procedures of this Declaration, and the City Commission: ___________________________________________________ 4.3.2 Any covenant, which is included herein as a condition of plat approval and required by the City of Bozeman, may not be amended or revoked except in accordance with the amendment procedures in these covenants and consent of the City of Bozeman. 4.4 Maintenance and Upkeep. Each Owner shall, at such Owner's cost and expense, maintain and keep in good repair, and in safe condition, such Owner's Lot, and all building, improvement, or site maintenance within Lot boundaries (including the storage and disposal or all garbage and/or refuse) shall be the sole responsibility of the individual Owners. No Owner, through act or omission, shall impair any easement on the Property. ARTICLE 5 – EASEMENTS 5.1 Easements for Maintenance, Improvement, Repair, Relocation, and Replacement. Declarant, the Association, designees of any of the foregoing and all public or private utilities shall have such easements over, under, across, and through the Commercial Development, including all Lots, as may be necessary to exercise any rights or fulfill any responsibilities, including those of installation, maintenance, repair, reconstruction, replacement, improvement, or relocation, which they or any of them are required or permitted to perform under this Declaration. These easements include, without limitation, the right of Declarant and the Association to obtain access at all times to any meters, controls, valves, pipes, utility mains, lines, utility facilities, conduits, and other improvements and equipment with respect to the private utilities located on or to which access may be gained through any Lot. Except in an emergency situation, such entry onto a Lot shall only be during reasonable hours and after notice to the Owner. 5.2 Drainage Easements. An easement over and under each Lot as the servient tenement is reserved by Declarant in favor of each other Lot and the Association for the purpose of allowing the Association's agents the right, but not the obligation, to enter the Lot to maintain that portion of any storm drainage system located thereon. No Owner or occupant shall commit any act that would interfere with the operation of any drainage system (including drainage swales) installed on the Owner's Lot. The Owner shall maintain the system free of debris and other obstacles at all times. Reciprocal appurtenant easements between each Lot and between adjoining Lots are reserved for the flow of water in the storm drainage system. 5.3 Additional Easements for Other Projects. Declarant hereby reserves unto itself(with the right to designate or assign to others) and to the Residential Development and Common Open Spaces the following easements in connection with any improvements, facilities, or developments constructed or to be constructed by Declarant, its affiliates, or its designees in connection with or for the benefit of the Property or other projects, whether or not such improvements, facilities, or developments are made part of the Commercial Development or the Property. 5.3.1 A perpetual, nonexclusive easement for installation, utilization, tapping, tying into, extending, and enlarging all utility mains or facilities located in the Commercial Development, including connections to water, storm and sanitary sewer mains or related facilities within the Commercial Development. Declarant, its affiliate, or its designee or assign, as applicable, will pay all costs of such utilization, tapping, tying into, extending, and enlarging, and to the extent possible, will restore all areas thereby disturbed to substantially their condition immediately prior to commencement of such activities. All expenses of maintenance, repair, replacement, and resurfacing of such utility mains or facilities shall be shared by the Association and the owners of the other projects utilizing such utility mains or facilities on a proportionate and equitable basis based on the use of such utility mains or facilities. 5.3.2 A perpetual, nonexclusive easement located as determined by Declarant in, over, and upon the Lots (but not over any buildings or other buildings or structures on a Lot) and any roadways or driveways within the Commercial Development for the purposes of ingress and egress to and from and Residential Development, Common Open Space or other projects. Declarant or its designee or assign exercising such easement right, as applicable, shall be responsible for any physical damage caused to the Lots or the Common Open Spaces as a result of vehicular traffic connected with the development of other projects by Declarant or its designee or assign. If the easement is exercised for permanent access to other projects and the Association maintains roadways used for such access, then the owners of such other projects shall enter into a reasonable agreement with the Association to share the cost of maintenance, repair, or improvement of any access roadway serving such other projects. 5.4 Declarant Right to Relocate and Add Roadways. Declarant reserves unto itself the right to relocate, modify, improve, remove, and add roadways, driveways and access within the Commercial Development provided such changes to roadways will not unreasonably interfere with or restrict the use of any buildings situated upon a Lot or the conduct of business upon any Lot. 5.5 Emergency, Security, and Maintenance Easement. Public safety and other appropriate persons designated by the Board of Directors shall have the right, but not the obligation, to enter upon the Property, including any Lot, for emergency, security, and safety reasons, or to perform maintenance, repair, improvement, or reconstruction as provided herein, or to inspect for the purpose of ensuring compliance with this Declaration. This right may be exercised, without limitation, by police officers, firemen, ambulance personnel, security officers and similar emergency personnel in the performance of their duties. Except in an emergency situation, entry onto a Lot shall only be during reasonable hours and after notice to the Lot Owner. This right of entry shall include the right of the Association, or its designees, to enter upon any Lot to cure any condition which may increase the possibility of a fire or other hazard in the event a Lot Owner fails or refuses to cure the condition within a reasonable time after request. 5.6 Specific Written Easements. Declarant may, in its sole discretion without the necessity of consent by any interested party, prepare and record a subsequent instrument to specifically define by legal description the easements created by or in accordance with this Declaration. The easements provided for herein shall in no way adversely affect any other recorded easement on the Property, except as expressly permitted herein. Nothing in this Section shall be construed to require the Declarant to prepare and record any subsequent instrument. 5.7 Other Easements. The Lots are subject to all easements, dedications, and rights of way granted or reserved in, on, over and under the Property as shown on the public records, including as reflected on any recorded plat map for the Property, and as otherwise provided or contemplated in this Declaration. 5.8 Amendment or Repeal. The easements and other rights reserved or granted to Declarant in this Article may not be modified, amended, or repealed without Declarant's prior written consent. Any attempted or purported modification, amendment, or repeal without Declarant's prior written consent shall be void and have no effect. ARTICLE 6 – AMENDMENT, ANNEXATION, AND WITHDRAWAL 6.1 Amendment by Declarant. During the Declarant Control Period, Declarant may from time to time unilaterally amend this Declaration for any purpose, provided the amendment has no material adverse effect on the right of any Owner (or the consent of any such Owner is obtained). Notwithstanding the foregoing, 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 an institutional or governmental lender or purchaser or mortgage loans, including, for example, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase mortgage loans on the Lots or units thereon; (iv) necessary to enable any governmental agency or reputable private insurance company to insure mortgage loans on the Lots or to insure the Property or any portion thereof, including any individual Lot; (v) necessary to allow the Association to obtain insurance contemplated by this Declaration, including without limitation, property or liability insurance, at a reasonable price and on reasonable terms; or (vi) otherwise necessary to satisfy the requirements of any governmental or quasi-governmental agency. 6.2 Amendment by Owners. This Declaration may be amended by (a) the affirmative vote or written consent, or any combination thereof, of at least sixty seven percent (67%) of the Owners, and (b) the written consent of the Declarant so long as it owns at least one Lot. 6.3 Restriction on Amendment. Notwithstanding any other provision in this Declaration, the percentage of voting interest necessary to amend a specific clause pursuant to Section 6.2 shall not be less than the prescribed percentage required for action to be taken under that clause. To be effective, any amendment must be recorded with the office of the Clerk and Recorder of Gallatin County, Montana. If an Owner consents to any amendment of this Declaration, 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 without the written consent of the Declarant. 6.4 Annexation. During the Declarant Control Period, Declarant may from time to time unilaterally (a) annex any other property into the Commercial Development, and/or add Lots to the Commercial Development, or (b) subject other property or Lots to the provisions of this Declaration (collectively, the "Annexed Property"). Annexation or addition of property and Lots shall not require the consent of the Owners or the Board of Directors. Each additional tract of property or Lot shall have one (1) vote in connection with Owner and Association voting. 6.5 Withdrawal. During the Declarant Control Period, Declarant may from time to time unilaterally amend this Declaration for the purpose of removing property then owned by Declarant or its affiliates from the coverage of this Declaration. Any property removed from this Declaration shall be and remain subject to whatever easements, if any, are reasonably necessary for access to or operation of the Commercial Development and each Lot. Any amendment pursuant to this Section shall not require the consent of the Owners or the Board of Directors. 6.6 Plat Amendment. During the Declarant Control Period, Declarant may unilaterally amend the plat of the Commercial Development without the additional consent of any Owner or the Board of Directors; provided, however, that nothing in this Section allows Declarant to replat the property underlying any building or structure (i.e., change a boundary line or platted easement under a building or structure) without the consent of the Owner of such building or structure. 6.7 Merger or Consolidation. During the Declarant Control Period, Declarant may merge or consolidate the Association with a property owners association of the same form of ownership, or restructure the Association as a sub association of a master association for the Property. Upon written request from Declarant during the Declarant Control Period, the Board of Directors and each Lot Owner shall execute such documents and take such actions as shall reasonably be requested by Declarant to approve and effect any such merger, consolidation or restructure. 6.8 Agreement Regarding Amendments. The Lot Owners, the Association, lien holders, mortgagees, and all others acquiring any interest in or lien on the Lots, any Common Open Spaces, or any other portion of the Commercial Development shall be bound by the rights of Declarant to amend and supplement this Declaration and the plat of the Property as set forth in this Declaration, including, without limitation, in connection with any annexation of Annexed Property or removal of property from this Declaration, and their consent to such amendments and supplements is implied and agreed to by the acceptance or acquisition of any interest in or lien on the Lots, the Common Open Spaces, or any other portion of the Commercial Development. Declarant is hereby appointed the Lot Owners', the Association's, lien holders', and mortgagees' agent and attorney-in-fact to execute and record such amendments, supplements, and related documents. ARTICLE 7 – ASSIGNMENT Any or all of the rights and powers granted or reserved to Declarant in this Declaration or by law, including the power to approve or disapprove any act, use, or proposed action, or any other matter or thing, may be assigned by Declarant to any other entity or to the Association. Any such assignment or transfer shall be made by appropriate instrument in writing and duly recorded in the office of the Clerk and Recorder of Gallatin County, Montana. ARTICLE 8 – INSURANCE 9.1 Association Insurance. The Association shall obtain and continue in effect the following types of insurance, the premiums for which shall be apportioned among the Lot Owners in accordance with their Percentage in Interest: 9.1.1 Directors and Officers Insurance. Unless otherwise determined by the Board of Directors, a directors and officers liability and fidelity insurance policy with a limit of not less than $1,000,000 (or such higher limit as may be determined by the Board of Directors) to insure against liability for actions taken by individuals in their capacity as officers or directors of the Association. 9.1.2 General Liability Insurance. Commercial general liability insurance on an occurrence form covering bodily injury, including death, and property damage with a limit of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate and including coverage for personal injury, products and completed operations and contractual liability. Such insurance shall cover and indemnify the Association, the Board of Directors, and each director, officer, and employee of the foregoing against liability for all tort claims arising out of or relating to the Association's ownership, operation, use, and maintenance of the Common Open Spaces; and such policy shall name the Declarant as an additional insured during the Declarant Control Period. Such policy also may include, where available, the Lot Owners as additional insureds; provided, however, that such insurance is not intended to contribute to or be in lieu of any individual Lot Owner's liability policies required to be carried by each Lot Owner as stipulated below and under which each Lot Owner's liability insurance shall be primary for each respective Lot Owner. 9.2 Owner Insurance. Each Owner shall be responsible for procuring and maintaining insurance coverage deemed appropriate by that Owner with respect to that Owner's real and/or personal property and liability. The Association shall have no obligation and shall not procure or maintain any insurance coverage covering the real and/or personal property and liability of a Lot Owner or that Owner's family members, guests, or invitees. ARTICLE 9 – ENFORCEMENT 10.1 Interested Parties. Any Owner, the Association through its Board of Directors, and/or the Declarant during the Declarant Control Period shall have the option and right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations and charges now or hereafter imposed by the provisions of this Declaration. The method of enforcement may include proceedings to enjoin the violation, to recover damages, or both. Failure by an Owner, the Association, and/or the Declarant to enforce any such provision shall in no event be deemed a waiver of the right to do so thereafter. ARTICLE 10 – MISCELLANEOUS 11.1 Severability. Invalidation of any one of these covenants or restrictions shall in no way affect any other provisions which shall remain in full force and effect. 11.2 Benefit. Except as otherwise provided herein, this Declaration shall be binding upon and shall inure to the benefit of Declarant, the Association, and each Lot Owner, and the heirs, estates, personal representatives, successors, and assigns of each. 11.3 Warranties. Declarant does not make any, and expressly disclaims all, warranties or representations concerning the Property, the Lots, the Declaration, or deeds of conveyance except as specifically set forth therein and no one may rely upon such warranty or representation not so specifically expressed therein. 11.4 Taxation. Each Lot shall be considered a separate parcel of real property and shall be separately assessed and taxed. 11.5 Notices. All notices required or permitted to be given or delivered under this Declaration shall be deemed to have been given or delivered when either: (a) deposited in the certified United States mail, postage pre-paid to the addresses provided in Section 3.1, rejection or refusal to accept or inability to deliver due to changed address of which no notice was given shall be deemed receipt; or (b) delivered personally to a director of the Association, Declarant, or a Lot Owner. 11.6 Gender. Whenever any reference herein is made to one gender, the same shall include a reference to any and all genders where the same would be appropriate; similarly, whenever reference is made herein to the singular, a reference shall also be included to the plural where the same would be appropriate and vice versa. 11.7 Conflicts. In the event that there is any conflict or inconsistency between or among the provisions of Montana law, this Declaration, and any Rules and Regulations promulgated hereunder, the provisions of Montana law, the Declaration, and the Rules and Regulations (in that order) shall prevail. 11.8 Limitation of Liability. Notwithstanding anything to the contrary contained in this Declaration, any liability or claims against the Declarant shall, except in connection with any express written warranty of Declarant, be strictly limited to Declarant's then-existing interest in the Property, and in no event shall any recovery or judgment be sought against any of Declarant's other assets (if any) or against any of Declarant's or its affiliates' owners, managers, members, partners (or their constituent members or partners), or any manager, director, officer, employee, or shareholder of any of the foregoing. Further, in no event shall any claimant be entitled to seek or obtain any special, consequential, indirect, treble (or other multiplier), or punitive damages. 11.9 Governing Law. This Declaration shall be governed and interpreted in accordance with the laws of the State of Montana. 11.10 No Subdivision of Lots. 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 Development Period and thereafter the Association. No private covenants and no Condominium Association shall be created, and no amendment of any governing document of any Condominium Association shall be effective without the prior written consent of the Declarant during the Declarant Control period, and thereafter the Association. Nothing in this Section shall be construed to restrict or limit the Declarant's right to partition, aggregate, or subdivide any existing Lot, subject to the approval of the Bozeman City Commission. 11.11 Attorneys' Fees. In the event that any action or proceeding is brought for the enforcement of this Declaration or as the result of any alleged breach, the prevailing party or parties shall be entitled to be paid all associated costs, including reasonable attorneys' fees by the losing party or parties. In addition, the prevailing party or parties shall be entitled to recover all fees, costs, and expenses incurred in connection with such action or proceeding, including without limitation, any post-judgment fees, costs or expenses incurred on any appeal or in collection of any judgment, and any judgment or decree rendered shall include the same in the award. 11.12 Noxious Weeds. The control of noxious weeds by the Association on those areas for which the Association is responsible and the control of noxious weeds by individual Owners on their respective Lots shall be as required by the Montana Noxious Weed Control Act (§ 7-22-2101, MCA through § 7-22-2153, MCA as amended) and the rules, regulations and management plans of the Gallatin County Weed District. Both unimproved and improved Lots shall be managed for noxious weeds. In the event an Owner does not control the noxious weeds after 10 days' notice from the Association, the Association may cause the noxious weeds to be controlled. The cost and expense associated with such weed management shall be assessed to the Lot and such assessment may become a lien if not paid within thirty (30) days of the mailing of such assessment. The Association is responsible for control of state and county declared noxious weeds in the Community parks, open spaces, Community areas, trails, and roadways. Nothing herein shall require or obligate the Gallatin County Weed District to undertake any management or enforcement on behalf of the Association or Owners that is not otherwise required by law of the Gallatin County Weed District Management Plan. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, Declarant has executed this Declaration this day of , 2022. DECLARANT: SRX LLC By: Bryan Klein, Its Managing Member STATE OF Montana ) :ss COUNTY OF Gallatin ) This instrument was acknowledged before me on by Bryan Klein as the managing member of SRX LLC, a Montana limited liability company. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. Notary Public for the State of My commission expires: EXHIBIT A Legal Descriptions of “Property” “Residential Development” and “Commercial Development” NOTE: To be updated with final plat descriptions. “Property” South Range Crossing Subdivision being Lot 1 of Block 1 of Yellowstone Theological Institute Minor Subdivision No. 494 Located in the Northwest and Southwest ¼ of Section 24, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana “Residential Development” – Block 2-8 Block 2 Lots 1-3; Block 3 Lots 1-24; Block 4 Lot 1; Block 5 Lots 1-4; Block 6 Lots 1-2; Block 7 Lots 1-35; Block 8 Lots 1-2 as shown on the Final Plat for South Range Crossing Subdivision, Bozeman, Gallatin County, Montana recorded as document number ______________in the records of the Gallatin County Clerk and Recorder. Park and Open Space as shown on the Final Plat for South Range Crossing Subdivision, Bozeman, Gallatin County, Montana recorded as document number ______________in the records of the Gallatin County Clerk and Recorder. “Commercial Development” – Block 1 Lots 1-8 of Block 1 as shown on the Final Plat for South Range Crossing Subdivision, Bozeman, Gallatin County, Montana recorded as document number ______________in the records of the Gallatin County Clerk and Recorder. After recording return to: Providence Development Company LLC 529 East Main Street Bozeman, MT 59715 Attn: Parker Lange EXHIBIT B Building Design Guidelines