Staff Report/Final PlatTri-City Planninggee
17 Second Street East - Suite 211
Kalispell, Montana 59901
Phone: (406) 751-1850
Fax: (406) 751-1858
tricity@centurytel.net
REPORT TO: Kalispell Mayor and City Council
FROM: Narda A. Wilson, Senior Planner
James H. Patrick, City Manager
SUBJECT Final Plat for Orchard Village Subdivision
MEETING DATE: April 18, 2005
BACKGROUND: This is a request from Blend Design and Build for final plat approval
of Orchard Village that plats 14 four-plex lots on approximately 3.172 acres. This
property is zoned B-2, General Commercial, where multi -family dwellings are listed as a
permitted use. The property is located on the south side of Appleway Drive and west of
North Meridian Road.
The Kalispell City Council approved this subdivision subject to conditions on March 1,
2004 subject to conditions. All of the conditions have been met or otherwise adequately
addressed through a subdivision improvements agreement. There is some remaining
paving, landscape and sidewalk work that has not been completed and a Subdivision
Improvements Agreement has been submitted with this plat in the amount of $55,554.
The SIA covers the cost of the improvements plus 25 percent as required in the Kalispell
Subdivision Regulations. A letter of credit has been submitted with the final plat to cover
the cost of the improvements with the improvements anticipated to be completed by
December of 2005. Those improvements include paving, landscaping and sidewalks.
Parkland dedication requirements have been met with the development of a small
recreation area on the site.
RECOMMENDATION: A motion to accept the Subdivision Improvements Agreement and
approve the final plat for Orchard Village Subdivision would be in order.
FISCAL EFFECTS: Minor positive impacts once developed.
ALTERNATIVES: As suggested by the city council.
Respectfully submitted,
C::4Narda A. Wilson ames H. atric .�� ... �`�
Senior Planner City Manager
Report compiled: April 13, 2005
Attachments: Letter of transmittal
Final plat application and supporting documents
Providing Community Planning Assistance To:
® City of Kalispell - City of Columbia Falls - City of Whitefish
Tri-City Planningdice
17 Second Street East - Suite 211
Kalispell, Montana 59901
Phone: (406) 751-1850
Fax: (406) 751-1858
tricity@centurytel.net
April 13, 2005
James H. Patrick, City Manager
City of Kalispell
P.O. Drawer 1997
Kalispell, MT 59901
Re: Final Plat for Orchard Village Subdivision
Dear Jim:
Our office has received an application from Blend Design and Build for final plat
approval of Orchard Village that plats 14 four plex lots on approximately 3.172 acres.
This property is zoned B-2, General Commercial, where multi -family dwellings are
listed as a permitted use. The property is located on the south side of Appleway Drive
and west of North Meridian Road.
The Kalispell City Council approved this subdivision subject to conditions on March 1,
2004 subject to conditions. All of the conditions have been met or otherwise
adequately addressed through a subdivision improvements agreement. There is some
remaining paving, landscape and sidewalk work that has not been completed and a
Subdivision Improvements Agreement has been submitted with this plat in the
amount of $55,554. The SIA covers the cost of the improvements plus 25 percent as
required in the Kalispell Subdivision Regulations. A letter of credit has been
submitted with the final plat to cover the cost of the improvements with the
improvements anticipated to be completed by December of 2005. Those improvements
include paving, landscaping and sidewalks. Parkland dedication requirements have
been met with the development of a small recreation area on the site.
The following is a list of the conditions of preliminary plat approval for this subdivision
and a discussion of how they have been met or otherwise addressed.
en_ 4 :- .0
Condition 1. That the development of the site shall be in substantial
compliance with application submitted, the site plan, covenants, elevation drawings,
materials and other specifications as approved by the city council. (Kalispell
Subdivision Regulations, Appendix C - Final Plat)
® This condition has been met. The final plat complies with the preliminary plat that
was approved.
Condition 2. That the plans and specifications for all public infrastructure be
designed and installed in accordance with the Kalispell Design and Construction
Providing Community Planning Assistance To:
• City of Kalispell • City of Columbia Falls • City of Whitefish
Final Plat for Orchard Village Subdivision
April 13, 2005
Page 2
Standards and a letter shall be obtained stating that they have been reviewed and
approved by the Kalispell Public Works Department. (Kalispell Subdivision
Regulations, Chapter 3, Design Standards, Section 3.01).
• This condition has been met. A letter from the Kalispell Public Works Department
has been submitted with the final plat application.
Condition 3. That a provision be made for cross easement agreements and
maintenance of common areas.
® This condition has been met. The covenants to be filed with the subdivision address
cross easements and maintenance of common area.
Condition 4. Minimum fire flows shall be in accordance with Uniform Fire Code
(1997) Appendix III -A. Fire hydrants shall be provided per City specifications at
locations approved by this department prior to combustible construction. All house
numbers shall be visible from the driveway entrance and clearly posted on each of the
buildings. (Kalispell Subdivision Regulations, Section 3.20).
® This condition has been met. A letter from the Kalispell Fire Marshal dated 3/ 18/05
has been submitted with the final plat.
Condition 5. That a letter be obtained from the Kalispell Parks and Recreation
Department stating that the a landscape plan has been reviewed and approved for the
placement of trees and landscaping materials within the development. (Kalispell
Subdivision Regulations, Section 3.11).
® This condition has been met. A letter from the Parks and Recreation Department
dated 3 / 10 / 05 has been submitted with the final plat.
Condition 6. That the approximately 0.389 acre area designated on the plat as
"park" shall be developed to provide recreational amenities and shall be privately
owned an maintained. This park area satisfies the parkland dedication requirements.
(Kalispell Subdivision Regulations. 3.19).
® This condition has been met. The park area has been developed and satisfies the
requirements for parkland dedication.
Condition 7. The internal road within the parking lot shall be signed in
accordance with the policies of the Kalispell Public Works Department and the
Uniform Traffic Control Devices Manual and be subject to review and approval of the
Kalispell Fire Department. (Kalispell Subdivision Regulations, Section 3.09).
® This condition has been adequately addressed. As the buildings are completed
addressing will occur in compliance with fire department and public works
requirements.
Final Plat for Orchard Village Subdivision
April 13, 2005
Page 3
Condition 8. The developer shall provide a letter from the U.S. Postal Service
approving the plan for mail service. (Kalispell Subdivision Regulations, Section 3.22).
• This condition has been met. A letter from the post office dated 10/26/04 has been
submitted with the final plat.
Condition 9. Street lighting shall be located within the subdivision and shall be
shielded so that it does not intrude unnecessarily onto adjoining properties. (Kalispell
Subdivision Regulations Section 3.09(L)).
• This condition has been adequately addressed. Lighting is part of the site
development review committee process and has been required to comply with this
condition.
Condition 10. All utilities shall be installed underground. (Kalispell Subdivision
Regulations, Section 3.17).
• This condition has been met. All utilities have been installed underground and
certified by Schwarz Engineering.
Condition 11. That issues related to the 100 year floodplain that lies to the west
be adequately addressed prior to construction of Lot 14 in the southwest quadrant of
the site. (Kalispell Subdivision Regulations, Section 3.05).
• This condition has been met. A letter from P.J. Sorensen, Kalispell Floodplain
Administrator, has been submitted with the final plat stating this property is outside
the 100 year floodplain.
Condition 12. That sidewalks be placed o n the south side of Appleway Drive
that are a minimum of five feet wide and separated by a minimum five foot landscape
buffer. Placement of trees and landscape materials shall be coordinated with the
Kalispell Parks and Recreation Director.
• This condition has been adequately addressed. The placement of sidewalks
necessitated alternative location because of the location of the right-of-way and
roadway. Landscaping will be placed on the inside of the sidewalk rather than in a
boulevard.
Condition 13. That a provision be made for the use and maintenance of common
elements within the subdivision by way of a maintenance agreement or within the
covenants for the subdivision.
• This condition has been met. The covenants address the use and maintenance of
the common area and park.
Condition 14. That a minimum of two-thirds of the necessary infrastructure for
this subdivision shall be completed prior to final plat submittal.
Final Plat for Orchard Village Subdivision
April 13, 2005
Page 4
® This condition has been met. A subdivision improvements agreement has been
submitted for some remaining work associated with paving, landscaping and
sidewalks. The completed work exceeds two-thirds.
Condition 15. All areas disturbed during development of the subdivision shall be
re -vegetated with a weed -free mix immediately after development.
® This condition has been adequately addressed. Most of the disturbed area has been
revegetated and as work continues landscaping and revegetation will continue.
Funds have been included in the SIA for remaining landscape work.
Condition 16. That preliminary plat approval shall be valid for a period of three
years from the date of approval with an automatic two-year extension as each phase of
the subdivision plat has been completed and filed. (Kalispell Subdivision Regulations,
Section 2.04).
® This condition has been adequately addressed. The subdivision and the final plat were
submitted prior to expiration.
The final plat is in substantial compliance with the preliminary plat which was
reviewed and approved by the Kalispell City Council on March 1, 2004.
This subdivision plat has been found to be in compliance with the State and City
Subdivision Regulations.
This subdivision can be found to be in compliance with the Kalispell Zoning Ordinance
and the B-2, General Commercial, zoning designation for the property which governs
the dimensional requirements of the lots within the subdivision as well as the uses.
It can be found that the conditions of preliminary plat approval have been met or
otherwise adequately addressed. The staff would recommend that the Kalispell City
Council approve the final plat for Orchard Village Subdivision. Please schedule this
matter for the regular city council meeting of April 18, 2005.
Final Plat for Orchard Village Subdivision
April 13, 2005
Page 5
Sincerely,
Narda A. Wilson
Senior Planner
a Of
Attachments: Vicinity map
1 opaque mylar of final plat
1 reproducible mylar of final plat
1 copy of final plat
Letter from Blend Design and Build dated 3/22/05
Final plat application dated 2/24/05
Ltr from Montana DEQ dated 4/20/04
Ltr from Montana DEQ dated 4/23/04
Ltr from Parks and Rec dated 3 / 10 / 05
Floodplain ltr from P.J. Sorensen dated 11/5/04
Lr from Kalispell Fire Dept dated 3/ 18/05
Ltr from USPS dated 10/26/04
Ltr from Kalispell Public Works dated 4/ 14/04
Ltr from Kalispell Public Works dated 3 / 21 / 05
Engineer's certification dated 3 / 3 / 05
Subdivision improvements agreement
Ltr of credit from Glacier Bank dated 2/28/05
Treasurers certification dated 2/24/05
Title report dated 12 / 28 / 04
Consent to plat from Whitefish Credit Union dated 1 / 21 / 05
Consent to plat from Platt Electric Supply dated 1/21/05
Declaration of conditions and restrictions articles of incorporation
c: Michael Blend, P.O. Box 7505, Kalispell, MT 59904
Theresa White, Kalispell City Clerk
BLEND
DESIGN & BUILD
REMODELING • NEW CONSTRUCTION
Building Hope, Building Dreams
March 22, 2005
Kalispell Planning Board
Kalispell City Council
C/O Tri-City Planning Office
17 Second Street East, Suite 211
Kalispell, Mt 59901
Re: Orchard Village Final Plat Application
Assessor's Tract 15 located in S13,T28N,R22W
Enclosed please find the final plat application for the above located 14 lot, 4-Plex
Subdivision. This is currently a permitted use within the existing B-2 Zoning. The
preliminary plat for this location was approved on March 8, 2004 with conditions
addressed in the Appendix as follows:
1) That the development of the site shall be in substantial compliance with
application submitted, the site plan, covenants, elevation drawings, materials and
other specifications as approved by the city council.
2) That the plans and specifications for all public infra -structure be designed and
installed in accordance with the Kalispell Design and Construction Standards and
a letter shall be obtained stating that they have been reviewed and approved by the
Kalispell Public Works Department.
3) That a provision be made for cross easements agreements and maintenance of
the common areas.
4) Minimum fire flows shall be in accordance with Uniform Fire Code ( 1977)
Appendix III -A. Fire hydrants shall be provided per City specifications at
locations approved by this department prior to combustible construction. All
house numbers shall be visible from the driveway entrance and clearly posted on
each of the buildings.
1069 N. Meridian Road, Kalispell P.O. Box 7505, Kalispell, MT 59904
406.752.5250 Fax 406.752.2668 mblend@centurytel.net www.btenddesignbuitd.com
5) That a letter be obtained from the Kalispell Parks and Recreation Department
stating that landscape plan has been reviewed and approved for the placement of
trees and landscaping materials within the development.
6) That the approximately 0.389 acre area designated on the plat as "park" shall
be developed to provide recreational amenities and shall be privately owned and
maintained. This park area satisfies the parkland dedication requirements.
7) The internal road within the parking lot shall be signed in accordance with the
policies of the Kalispell Public Works Department and the Uniform Traffic
Control Devices Manual and be subject to review and approval of the Kalispell
Fire Department.
8) The developer shall provide a letter from the US Postal Service approving the
plan for mail service.
9) Street lighting shall be located within the subdivision and shall be shielded so
that it does not intrude unnecessarily onto adjoining properties.
10) All utilities shall be installed underground.
11) That issues related to the 100 year floodplain that lies to the west be
adequately addressed prior to construction on Lot 14 in the southwest quadrant of
the site.
12) That sidewalks be placed on the south side of Appleway Drive that are a
minimum of five feet wide and separated by a minimum five foot landscape
buffer. Placement of street trees and landscape materials shall be coordinated
with the Kalispell Parks and Recreation Director.
13) That a provision be made for the use and maintenance of common elements
within the subdivision by way of a maintenance agreement or within the
covenants for the subdivision.
14) That a minimum of two-thirds of the necessary infrastructure for this
subdivision shall be completed prior to final plat submittal.
15) All areas disturbed during development of the subdivision shall be re -
vegetated with a weed free mix immediately after development.
16) That preliminary plat approval shall be valid for a period of three years from
the date of approval with an automatic two-year extension as each phase of the
subdivision plat has been completed and filed.
The following is a list of attachments included for final application:
1. Final plat application and our check #10445 in the amount of $1,210.
representing $650. for base fee and $40.00 per lot.
2. Copy of Conditions of approval of Preliminary Plat by the City of Kalispell,
Mayor and Council.
3. Letter from City of Kalispell Public Works approving existing completed
sanitary sewer mains and water main.
4. Letter from Kalispell Fire Department approving final plat.
5. Letter from City of Kalispell's Parks and Recreation Director approving the
landscaping plans submitted.
6. Letter from Schwarz Engineering certifying inspection of the Water, Storm
and Sewer improvements to Orchard Village Subdivision.
7. Irrevocable Letter of Credit from Glacier Bank to cover paving, sidewalks,
landscaping and the park at Orchard Village.
8. Letter from City of Kalispell's Zoning Administrator regarding the floodplain
issue.
9. Letter from DEQ approving the plans and specifications received from
Schwarz Engineering on April 22, 2004.
10. Letter from US Post Office, Meridian Road Division Supervisor approving
the Cluster Box Unit for Orchard Village.
11. Title Report
12. Consent to Platting
13, Tax Certification
14. Articles of Incorporation
15. Proposed Covenants
16. Bylaws
17. One 11 x 17 copy of final plat plan
18. 2 sets of Plans
19. Exhibit A of Subdivision Improvement Agreement with Engineer's Stamp
Sincerely,
Michael Blend
1-34-19/2004 14:33 40G7551310 SCHWARZ AE PAGE 02
Nfr Montana Department of
`-'``"�-' E"mowENTALQuAuTy Judy Martz, Governor
P.O. Box 200901 - Helena, MT 59620-0901 • (406) 444-2544 - www.deq.state.Fnt.us
April 20, 2004
Sch. warn, Architecture & Engineering
Marc Liechti
100 Financial Dr Suite 120
Kalispell MT 59901
Dear Mr Liechti:
COSY
fi-,: Orchard Village Subdi.visi.on.
Municipal. Facilities Exclusion
EQ#04-2515
City of Kalispell1
Flathead County
This is to certify that the information and fees received by the Deparbnent of Environmental Quality relating to
this subdivision are in compliance with 76-4-127, MCA. Under 76-4-125(2)(d) MCA., this subdivision is not
subject to review, and the plat can be filed with the county clerk and recorder.
Plans and specifications must be submitted when extensions of municipal facilities for the supply of water or
disposal of sewage are proposed {76-4-111 (3), MCA). Construction of water or sewer extensions prior to
DEQ, Public Water Supply Section's approval is prohibited, and is subject to penalty as prescribed in. Title 75,
Chapter 6 and Title 76, Chapter 4.
This file has been. mailed to the Public Water Supply Section, Kalispell Office for their review.
Sincerely,
Janet Skaarland
Compliance Technician
Subdivision Section
Water Protection Bureau
(406) 444-1801 — email iskaarland@state.mt.us
cc: City Engineer
County Sanitarian
file
• �►Nkt � �, GUU�
Centralized services EKvision , Enforcement Division • Permitting & Compliance Division • Plnnning, Prcvemtion & Assistance Division - Remedistion Division
PPPP__0M%e01P`
Montana Department
of 7�
ENvmoN SENT iL QuAi 1 1 Judy Martz, Governor
109 Cooperative Way • Suite 105 • Kalispell, MT 59901-2389 • (406) 755-8985 • FAX (406) 755-8977
Marc Liechti
April 23, 2004
Schwarz A&E, Inc.
100 Financial Drive, Suite 120
Kalispell, MT 59901
RE: Orchard Village Water & Sewer Extensions - Kalispell, EQ#04-2515
Dear Mr. Liechti:
Plans and specifications for the above -referenced project have been reviewed by personnel with
the Permitting & Compliance Division utilizing the certified checklist procedure. The plans and
specifications are hereby approved. One set of plans and specifications bearing the approval
stamp of the Department of Environmental Quality is enclosed.
Approval is based on plans and specifications received April 22, 2004 under the seal of: John P.
Schwarz, P.E.# 11258 PE.
Approval is also given with the understanding that any deviation from the approved plans and
specifications will be submitted to the Department for reappraisal and approval. Within 90 days
after the project has been completed the project engineer shall certify to the Department that the
project was inspected and found to be installed in accordance with the plans and specifications
approved by the Department. This certification shall be accompanied by a set of "as -built" record
drawings signed by the project engineer.
It is further understood that construction will be completed within three years of this date. If
more than three years elapse before completing construction, plans and specifications must be
resubmitted and approved before construction begins. This three-year expiration period does not
extend any compliance schedule requirements pursuant to a Department enforcement action
against a public water or sewage system.
Please be aware that this project may need a storm water general permit. Please contact the
Water Protection Bureau at 406-444-3080 for more information.
Sincerely, /.� r►,"�.
alter M. , nvironmental Engineer Specialist fi , �� T
Public Wat upply Section
Public Water Supply and Subdivisions Bureau
,cc: City of Kalispell, Department of Public Works
Flathead County Sanitarian
File
Centralized Services Division • Enforcement Division • Permitting & Compliance Division • Planning, Prevention & Assistance Division • Remediation Division
AR: City of Kalispell Public Works Department
Post Office Box 1997, Kalispell, Montana 59903-1997 - Telephone (406)758-7720, Fax (406)758-7831
NOW
April 14, 2004
Dick Montgomery, P.E.
Environmental Health Services
Flathead City -County Health Department
1035 First Avenue West
Kalispell, Mt. 59901
Re: Orchard Village Subdivision
Section 13, T28N, R22W, Flathead County
Kalispell, Montana
Dear Dick,
This letter is to confirm that the City of Kalispell has reviewed and approved the
construction plans and specifications prepared by Schwarz Architecture & Engineering,
Inc., for the referenced project. The Kalispell water and sanitary sewer systems have
adequate capacity to serve the project.
Please feel free to call if you have any questions.
Respectfully,
Frank Castles, P.E.
Assistant City Engineer
�c=SEK,Warz Architecture & Engineering, Inc.
ARCHITECTURE
RECEIVED MAR 0- 4 2005
March 3, 2005
Frank Castles, P.E.
City of Kalispe ublic Works Department
P.O. Box
Kalis MT 59901-1997
Re: Orchard Village Subdivision
Section 13, T 28N, R 22W, Flathead County
Dear Frank:
We hereby certify that we have inspected the Water, Storm & Sewer
improvements to Orchard Village Subdivision — Phase 1, and to the best of our
knowledge and belief, have found them to be in substantial conformance with
the approved plans and specifications.
Sincerely,
SCHWARZ ARCHITECTURE & ENGINEERING, Inc.
John P. Sc arz, P.E.
Cc: lend Design & Build
Project File #3123.04
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I, the undersigned, being a natural person of the age of 18 or more, acting as incorporator for the
purpose of creating a nonprofit corporation under the laws of the State ofMontana, as contained in Title
35, Chapter 2 of Montana Code Annotated, do hereby set forth:
ARTICLE I
Corporate Name: The name of the Corporation is and shall be ORCHARD VILLAGE
OWNERS' ASSOCIATION, INC.
ARTICLE II
Duration: The Corporation shall have perpetual existence.
ARTICLE III
Purposes: The Corporation shall be a mutual benefit corporation. The Corporation does not
contemplate pecuniary gain or profit to the members thereof.
(A) More particularly, this Corporation is formed:
(1) To own the common areas of the Flathead County subdivision known as Orchard Village,
as described in the plat on file and of record in Flathead County, Montana;
(2) To promote the health, safety, and welfare of the residents of, and to provide for the
maintenance and preservation of the residences, lots and common areas within that certain
tract ofproperty in Flathead County, Montana, described as Orchard Village, according
to the official plat thereofto be filed and ofrecord in the office of the Clerk and Recorder
of Flathead County, Montana;
(3) To fix, levy, collect, and enforce payment by any lawful means, all charges or assessments
pursuant to the jurisdiction of the Corporation; to pay all expenses in connection therewith
with all office and other incident to the conduct of the business of the Corporation,
including licenses, taxes, or governmental charges levied or imposed against the property
of the Corporation;
(4) To have and to exercise all powers, rights, and privileges which a nonprofit corporation
organized under the laws of the State of Montana may now or hereafter have or exercise;
and
ARTICLES OF INCORPORATION FOR ORCHARD VILLAGE OWNERS' ASSOCIATION, INC. 1 OF 3.
(5) To do all things necessary to carry out the purposes herein set forth.
(B) No part of the net earnings of the Corporation shall inure to the benefit of any member,
Director, officer of the Corporation, or any private individual (except that reasonable compensation may
be paid for services rendered to or for the Corporation effecting one or more of its purposes to anyone
other than a Director as Director).
ARTICLE IV
Registered Office and Agent: The initial registered agent ofthis Corporation shall be Randall A.
Snyder, at 8090 Highway 35, Bigfork, Montana 59911. This address is also the registered office and
address for the Corporation.
ARTICLE V
Board of Directors: The initial Board of Directors shall consist of two Directors. After three -
fourths (75%) of the lots in Orchard Village subdivision have been sold and an organizational meeting of
members of the corporation called, the Board of Directors shall be expanded to five Directors.
ARTICLE VI
Liability of Directors: To the extent permitted by Montana law, no director shall be liable to the
Corporation or to its members for monetary damages forbreach of a director's duties to the Corporation
and its members. The corporation shall fully indemnify and hold each Director and officer harmless of any
claim, demand, suit or judgment filed or made against any Director or officer on account of conduct of the
Director or officer on behalf of the corporation.
ARTICLE VII
Incorporator: The name and address of the incorporator of this Corporation is Randall A. Snyder,
8090 Highway 35, Bigfork, Montana 59911.
ARTICLE VIII
Membership: Every person or entity who or which is a record owner of any lot which is in the
subdivision known as Orchard Village, as described in the plat on file and ofrecord in Flathead County,
Montana, and which is subject by covenants of record to assessment bythe Corporation, including buyers
under Contract for Deed, shall be members ofthe Corporation. Membership shall be appurtenant to and
may not be separated from ownership of the lot which is subject to assessment.
ARTICLES OF INCORPORATION FOR ORCHARD VILLAGE OWNERS' ASSOCIATION, INC. 2 OF 3.
Each lot, other than those owned by the Declarant ofthe Declaration of Covenants, Conditions and
Restrictions of Orchard Village, a Flathead County, Montana Subdivision ("Declarant"), is entitled to one
vote in matters submitted to the vote of the members. When more than one person holds the ownership
interest in the same lot, the vote for such lot shall be exercised as such persons among themselves
determine, but in no event shall more than one vote be cast with respect to any lot owned by anyone other
than Declarant.
Declarant shall be deemed to be the majorityholder of memb er votes until such time as (1) three-
quarters (75%) of the lots in Orchard Village subdivision have sold, and (2) the Declarant has held an
organizational meeting of this Corporation and directors have been elected. Thereafter Declarant shall
continue to hold a seat on the board of directors until Declarant has sold its last lot, or until Declarant
resigns from the board, if sooner. Declarant may appoint any individual to act in his place as a board
member.
Subject to the restrictions herein and the provisions ofthe covenants and bylaws, members have
the voting rights and the right to elect directors annually.
ARTICLE IX
Amendment: These Articles maybe amended by the Incorporator, in advance of the formation
of the Board of Directors. Thereafter, the Board of Directors may amend these Articles by a two-thirds
majority vote.
IN WITNESS HEREOF, the undersigned has hereunto set his hand at Bigfork, Montana on this / � )-�
day of August, 2004.
I consent to serve a, registered agent.
Randall A. S46er, Incorporator
STATE OF MONTANA )
:ss.
County of Flathead )
This instrru .1®knowledged before me on this #day of August, 2004, by Randall A.
Snyder. ®® �1�;:...,�
Q• f.
IL i Q
® O ` c Edward P. Nolde
O Notary Public for the State of Montana
�� Residing at: Bigfork
® STAIS%." My commission expires October 21, 2004.
F:TLES\CLIENT1Blend\Incorporation\Articles Homeowners -Orchard Village
ARTICLES OF INCORPORATION FOR ORCHARD VILLAGE OWNERS' ASSOCIATION, INC. 3 OF 3.
U
PROPOSED
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS &EASEMENTS FOR
ORCHARD VILLAGE
THIS DECLARATION of Covenants, Conditions, Restrictions & Easements for Orchard
Village, is made this day of , 2004, by Orchard Village, L.L.P. a
Montana limited liability partnership. (hereinafter referred to as "Declarant")
WINESSETH:
WHEREAS, Declarant is the owner of the real property situated in Kalispell,
Montana, to be developed and known as Orchard Village; and
WHEREAS, Declarant is desirous of subjecting said real property to the
Covenants, Conditions, Restrictions & Easements hereinafter set forth, each of which is
and are for the benefit of said property and for each owner thereof, and shall insure to the
benefit of and pass with said property, and each and every parcel thereof, and shall apply
to and bind the successors in interest, and owner thereof;
NOW THEREFORE, the Declarant hereby declares that the real property
described in Article I is and shall be held, transferred, sold and conveyed subject to the
Covenants, Conditions, Restrictions & Easements hereinafter set forth.
ARTICLE 1
1.1 Property. The real property which is and shall be held, conveyed, transferred
and sold subject to the Covenants, Conditions, Restrictions & Easements hereinafter set
forth is situated in the County of Flathead, State of Montana, and is described on Exhibit
A hereto, which by this reference is incorporated herein, and which is the land
encompassed by the plat entitled Orchard Village.
No other property, other than that described above, shall be deemed subject to this
Declaration unless and until specifically made subject thereto.
DEFINITIONS
1.2.1 "Articles" means the Articles of Incorporation of the Association,
as amended from time to time.
1.2.2 "Assessments" means the Common Expense Assessments and
Special Assessments levied and assessed against each Lot pursuant to Article 7 of this
Declaration.
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1.2.3 "Assessments Lien" means the lien granted to the Association to
secure the payment of Assessments, monetary penalties and other charges owed to the
Association.
1.2.4 "Association" means Orchard Village Owners Association, a
Montana nonprofit corporation, its successors and assigns.
1.2.5 "Board of Directors" means the Board of Directors of the
Association.
1.2.6 "Bound Party" means the Declarant, the Association, its officers,
and directors, all Lot Owners, and Members, suppliers, vendors and other Persons subject
to this Declaration that agree to be bound by the terms of this Declaration.
1.2.7 `Buildings" means the structures designated as buildings on the
Plat.
1.2.8 "Bylaws" means the Bylaws of the Association, as amended from
time to time
1.2.9 "Claimant" Any Bound Party initiating a claim against any other
Bound party.
1.2.10 "Common Property" means all portions of the Subdivision other
than the 4-plex Buildings on Lots.
1.2.11 "Common Expenses" means expenditures made by or financial
liabilities of the Association, together with any allocations to reserves, including, without
limitation, (i) the cost of inspection, maintenance, management, operation, repair and
replacement of the Common Property and all Improvements thereon, including clustered
mailboxes, private sidewalks and parking areas, fences, gates and those exterior parts of
the Buildings, which the Association has the responsibility of maintaining, repairing and
replacing; (ii)the cost of sewer, centrally metered utilities and trash removal which are the
Common Property; (iii) the cost of insurance premiums for fire, liability, workers'
compensation, errors and omissions and directors, officers and agents liability, and any
other insurance that may be required for the Association or that the Board of Directors
determines advisable to obtain, the costs of bonding the members of the Board of
Directors, and the cost of compensation, wages, materials, services, supplies, and other
expenses required for the administration, operation, maintenance and repair of the
common Property, including landscape renovation and maintenance; (iv) the costs of
rendering to the Unit Owners all services required to be rendered by the Association
under the Orchard Village Documents (v) such other funds as may be necessary to
provide general operating reserves and reserves for contingencies and replacements
deemed appropriate by the Board of Directors; and (vi) the cost of any other items
incurred by the Association for any reason whatsoever in connection with the common
Property for the common benefit of the Lot Owners.
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1.2.12 "Common Expense Assessment" means the assessment levied
against the Lots pursuant to Section 7.2 of this Declaration.
1.2.13 "Common Expense Liability" means the liability for common
expenses allocated to each Lot by this Declaration.
1.2.14 "Declaration" means this declaration of covenants, conditions,
restrictions and easements as amended from time to time.
1.2.15 "Development Rights" means any right or combination of rights
reserved by or granted to the Declarant in this Declaration of covenants, conditions,
restrictions and easements to do any of the following:
(i) Add real estate to the Subdivision;
(ii) Create easements, Lots, Common Property or Limited
Common Property within the Subdivision.
(iii) Amend the Declaration of covenants, conditions,
restrictions and easements during the Period of Declarant Control to comply with any
other applicable law, or to correct any error or inconsistency in the Declaration provided
the amendment does not adversely affect the rights of any Unit Owner;
1.2.16 "Improvement" means any physical structure, fixture or facility
existing or constructed, placed, erected, or installed on the land included in the
Subdivision, including, but not limited to, buildings, private drives, walkways, basketball
hoops and poles, paving, fences, walls, hedges, plants, trees and shrubs of every type and
kind.
1.2.17 "Lot" means the real property located in Flathead County,
Montana, which is described in Exhibit A as Lots 1 through 14, attached to this
Declaration, together with all buildings and other Improvements located thereon.
1.2.18 "Lot Owner" means the record owner, whether one or more
Persons, of beneficial or equitable title (and legal title if the same has merged with the
beneficial or equitable title) to the fee simple interest of a Lot. Lot Owner shall not
include Persons having an interest in a Lot merely as security for the performance of an
obligation, or lessee or tenant of a Unit. Lot Owner shall include a purchaser under a
contract for the conveyance of real property, a contract for deed, a contract to convey, an
agreement for sale or any similar contract subject to Montana Law. Lot Owner shall not
include a purchaser under a purchase contract and receipt, escrow instructions or similar
executory contracts which are intended to control the rights and obligations of the parties
to executory contracts pending the closing of a sale or purchase transaction.
Association.
1.2.19 "Member" means any Person who is or becomes a member of the
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1.2.20 "Orchard Village Documents" means this Declaration and the
Articles, Bylaws, and the Rules.
1.2.21 "Period of Declarant Control" means the time period
commencing on the date this Declaration is recorded with the County Recorder of
Flathead County, Montana, and ending on the earlier of: (i) (90) days after the
conveyance of seventy-five (75%) of the Lots which may be created to Lot Owners other
than the Declarant; or (ii) four (4) years after Declarant has ceased to offer Lots for sale
in the ordinary course of business.
1.2.22 "Person" means a natural person, corporation, business trust,
estate trust, partnership, Limited Liability Company, association, joint venture,
government, governmental subdivision or agency, or other legal or commercial entity.
1.2.23 "Plat" means the Subdivision Plat for Orchard Village, a
Subdivision, which plat has been recorded in Book of Maps, page , records of
Flathead County, Montana, and any amendments, supplements or corrections thereto.
1.2.24 "Purchaser" means any Person, other than the Declarant, who by
means of a voluntary transfer becomes a Lot Owner.
1.2.25 "Respondent" Any Bound Parry that has received notice of a
claim against any other Bound Party.
1.2.26 "Rules" means the rules and regulations adopted by the
Association, as amended from time to time.
1.2.27 "Special Declarant Rights" means any right or combination of
rights reserved by or granted to the Declarant in this Declaration or by the Montana
Subdivision Act to do any of the following:
(i) Construct Improvements provided for in this Declaration or
shown on the Plat;
(ii) Exercise any Development Right;
(iii) Maintain management office and signs advertising the
Units, lots, buildings and or units for rent.
(iv) Use easement through the Common Property for the
purpose of making Improvements within the Subdivision;
and
(v) Appoint or remove any office of the Association or any
member of the board of Directors during the Period of
Declarant Control.
1.2.28 "Subdivision" means the entire property including all lots &
common Property. This additionally includes all subdivision
documents including this declaration
1.2.29 "Unit" means a single dwelling unit in a 4-plex; on a lot.
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ALLOCATION
EXPENSE LIABILITIES
2.1 Allocation of Common Property Interest and Common Expense
Liabilities.
The allocation of undivided interests in the Common Property and in liability for the
Common Expenses of the Association shall be allocated equally among the Lots.
Accordingly, the initial interest in the Common Expenses of the Association for each Lot
shall be 1/141h upon the Effective Date.
2.2 Allocation of Votes in the Association. The total votes in the
Association shall be equal to the number of Lots in the Subdivision. The votes in the
Association shall be allocated equally among all the Lots, with each Lot having one (1)
vote.
ARTICLE 3
EASEMENTS
3.1 Utility Easement. There is hereby created an easement upon, across,
over and under the Common Property for reasonable ingress, egress, installation,
replacing, repairing or maintaining of all utilities, including, but not limited to, gas,
water, sewer, drainage, ditches, telephone, cable television and electricity. By virtue of
this easement, it shall be expressly permissible for the providing utility company to erect
and maintain the necessary equipment on the Common Property, but no sewers, electrical
lines, water lines, or other utility or service lines may be installed or located on the
Common Property except as initially designed, approved and constructed by the
Declarant or as approved by the Board of Directors. This easement shall in no way affect
any other recorded easements on the Common Property. Declarant, the Board of the
Association, does hereby reserve and may impose new, different, replacement or
relocated easements for any of the foregoing purposes by appropriately recorded
document with notice to the affected lot owners when such amended or additional
easements are reasonable and necessary in Declarants or the Board's opinion.
3.1 Easements for Ingress and Egress. There is hereby created
easements for ingress and egress for pedestrian traffic over, through and across
sidewalks, paths, parking areas, and lanes that from time to time may exist upon the
Common Property. There is also created an easement for ingress and egress for
pedestrian and vehicular traffic over, through and across such driveways and parking
areas as from time to time may be paved and intended for such purposes. Such
easements shall run in favor of and be for the benefit of the Lot Owners and occupants of
the Units and their guests, families, tenants and invitees.
3.2 Lot Owners' Easements of Enjoyment.
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3.2.1 Every Lot Owner shall have a right and easement of
enjoyment in and to the Common Property, which right and easement shall be
appurtenant to and shall pass with the title to every Lot subject to the following
provisions:
(i) The right of the Association to adopt reasonable
rules and regulations governing the use of the Common Property;
(ii) All rights and easements set forth in this
Declaration including, but not limited to, the rights and easements granted
to the Declarant by Section 3.4 of this Declaration;
(iii) The right of the Association to suspend the right of
a Lot Owner and any resident of his Unit to use the Common Property for
any period during which the Lot Owner or Unit Resident is in violation of
any provision of this Declaration;
3.2.2 If a Unit is leased or rented, the lessee and the members of
his family residing with the lessee shall have the right to use the Common Property
during the term of the lease.
3.2.3 The guests and invitees of any member or other person
entitled to use the Common Property pursuant to Subsection 3.3.1 of this Declaration or
of any lessee who is entitled to use the Common Property pursuant to Subsection 3.3.2 of
this Declaration may use the Common Property. The Board of Directors shall have the
right to limit the number of guests and invitees who may use the Common Property at
any one time and may restrict the use of the Common Property by guests and invitees to
certain specified times.
3.2.4 A lot Owner's right and easement of enjoyment in and to
the Common Property shall not be conveyed, transferred, alienated or encumbered
separate and apart from a Lot. Such right and easement of enjoyment in and to the
Common Property shall be deemed to be conveyed, transferred, alienated or encumbered
upon the sale of any Lot, notwithstanding that the description in the instrument of
conveyance, transfer, alienation or encumbrance may not refer to such right and
easement.
3.3 Declarants Rights and Easements.
3.4.1 Declarant shall have the right and an easement on and over the
Common Property to construct the Common Property and the Buildings shown on the
Plat and all other Improvements the Declarant may deem necessary, and to use the
Common Property and any Units owned by Declarant for construction or renovation
related purposes including the storage of tools, machinery, equipment, building materials,
appliances, supplies and fixtures, and the performance of work in the Subdivision.
3.4.2 Declarant shall have the right and an easement on, over and
under those portions of the Common Property not located within the Buildings for the
purpose of those portions of the Common Property not located within the Buildings for
the purpose of maintaining and correcting drainage of surface, roof or storm water. The
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easement created by this Subsection expressly includes the right to cut any trees, bushes,
or shrubbery, to grade the soil or to take any other action reasonably necessary.
3.5 Common Property Easement in Favor of the Association. The
Common Property shall be subject to an easement in favor of the Association and the
agents, employees and independent contractors of the Association for the purpose of the
inspection, upkeep, maintenance, repair and the replacement of Common Property and
for the purpose of exercising all rights of the Association and discharging all obligations
of the Association.
3.5.1 For the installation, repair, maintenance, use, removal or
replacement of pipes, electrical, telephone and other communication wiring and cables
and all other utility lines and conduits which are a part of or serve any Lot and which pass
across or through a portion of the Common Property.
3.5.2 For the installation, repair, maintenance, use, removal or
replacement of lighting fixtures, electrical receptacles, panel boards and other electrical
installations which are a part of or serve any Building but which face into a part of a
Common Property adjacent to such Building, provided that the installation, repair,
maintenance, use, removal or replacement of any such item does not unreasonably
interfere with the common use of any part of the Common Property, adversely affect
either the thermal or acoustical character of the Buildings, or impair or structurally
weaken the Buildings.
4.1 Residential Use. All Lots and Units shall be used, improved and devoted
exclusively to residential use. No trade or business may be conducted on any Lot or in or
from any Unit, except that a Lot Owner or other resident of a Unit may conduct a
business activity within a Unit so long as; (i) the existence or operation of the business
activity is not apparent or detectable by sight, sound or smell from outside the Unit; (ii)
the business activity does not involve persons coming on to the Unit or the door-to-door
solicitation of residents in the Subdivision, and (iv) the business activity is consistent
with the residential character of the Subdivision and does not constitute a nuisance or a
hazardous or offensive use or threaten the security or safety of other residents in the
Subdivision, as may be determined from time to time in the sole discretion of the Board
of Directors. The terms "business" and "trade" as used in this Section shall be construed
to have ordinary, generally accepted meanings, and shall include, without limitation, any
occupation, work or activity undertaken on an ongoing basis which involves the
provision of goods or services to persons other than the provider's family and for which
the provider receives a fee, compensation or other form of consideration, regardless of
whether; (i) such activity is engaged in full or part time; (ii) such activity is intended or
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does generate a profit; or (iii) a license if required for such activity. The leasing of a Unit
by the Lot Owner thereof shall not be considered a trade or business within the meaning
of this Section.
4.2 Antennas. The Board of Directors shall regulate, to the extent permitted
under federal, state and local law, any antenna, aerial, satellite television dish or other
device for the transmission or reception of television or radio signals or any other form of
electromagnetic radiation proposed to be erected, used or maintained outdoors on any
portion of the subdivision whether attached to a Building or structure or otherwise. To
the extent permitted by applicable law, the prior approval of the Board of Directors shall
be required for the installation, use or maintenance of any such device, which approval
the Board may grant upon the satisfaction of certain conditions including, but not limited
to, the size, placement, height, means of installation and screening of such devices.
4.3 Utility Service. Except for lines, wires and devices existing on the
Subdivision as of the date of this Declaration and maintenance and replacement of the
same, no lines, wires, or other devices for the communication or transmission of electric
current or power, including telephone, television, and radio signals, shall be erected,
placed or maintained anywhere in or upon the subdivision unless they are installed and
maintained underground or concealed in, under, or on Buildings or other structures
permitted under this Declaration. No provision hereof shall be deemed to forbid the
erection of temporary power or telephone structures incident to the construction of
Buildings or structures permitted under this Declaration.
4.4 Improvements and Alterations. Any Lot Owner may make nonstructural
additions, alterations and improvements within their Building without the prior written
approval of the Board of Directors, but such Lot Owner shall, to the extent permitted
under Montana law, be responsible for any damage to the Common Property which
results from any such alterations, additions or improvements. No Lot Owner shall make
any structural additions, alterations or improvements within a Building, unless prior to
the commencement of each addition, alteration or improvement, the Lot Owner receives
the prior written approval of the Board of Directors, which approval shall only be granted
if the Board of Directors affirmatively finds that the proposed addition, alteration or
improvement is aesthetically pleasing and in harmony with the surrounding
improvements. No Lot Owner shall make any addition, alteration or improvement to the
Common Property without the prior written approval of the Board of Directors.
4.5 Trash Containers and Collection. No garbage or trash shall be placed or
kept on the Lots or common areas except in the containers provided in the common
collection areas. The Board of Directors shall have the right to require all Owners to
place trash and garbage in containers located in designated areas. No incinerators shall
be kept or maintained in any Unit.
4.6 Machinery and Equipment. No machinery or equipment of any kind shall
be placed, operated or maintained upon the Subdivision except such machinery or
equipment as is usual and customary in connection with the use, maintenance or
construction of buildings, improvements or structures which are within the uses permitted
by this Declaration, and except that which Declarant or the Association may require for
the construction, operation, repair and maintenance of the Common Property.
4.7 Animals. No animals, birds, fowl, poultry or livestock shall be maintained
or kept in any Units or on any other portion of the Subdivision except that Permitted Pets
may be kept or maintained in a Unit. Permitted Pets may be kept solely as an assistant to
an individual with a disability and not for commercial purposes. For purposes of this
Section, a "Permitted Pet' shall mean a seeing eye dog, or other generally recognized
special assistance pet. Notwithstanding the foregoing, the Board of Directors is
authorized to determine, in its sole discretion and on a case -by -case basis, whether any
particular animal or pet is to be considered as a "generally recognized special assistance
pet". No permitted pets shall be allowed to make an unreasonable amount of noise, cause
an offensive odor within a building or to neighbors, deposit urine or feces within any
building or common area, or to become a nuisance. All dogs shall be kept on a leash not
to exceed six (6) feet in length when outside a Unit or on any Common Property and all
dogs shall be directly under the Unit Occupants control at all times. It shall be the
responsibility of all Unit Occupants or guests of a Unit to remove immediately any
droppings from permitted pets. Any Unit or Common Property where a permitted pet is
kept or maintained shall at all times be kept in a neat and clean condition. No structure
for the care, housing, confinement, or training of any animal or pet shall be maintained on
any portion of the Common Property or in any Unit so as to be visible from the exterior
of the Buildings in which the Unit is located.
4.8 Temporary Occupancy. No trailer, tent, shack, garage, or other
structure, and no temporary Improvement of any kind shall be used at any time for
residence either temporarily or permanently. Temporary buildings or structures used
during construction of buildings or structures approved by the Board of Directors shall be
permitted but must be removed promptly upon completion of the construction of the
building or structure.
4.9 Clothes Drying Facilities. Outside clotheslines or other outside facilities
for drying or airing clothes shall not be erected, placed or maintained in the Subdivision.
4.10 Mineral Exploration. No portion of the Subdivision shall be used in any
manner to explore for or to remove any water, oil, or other hydrocarbons, minerals, of
any kind, gravel, earth, or any earth substance of any kind.
4.11 Diseases and Insects. No Lot Owner shall permit any thing or condition
to exist upon the Subdivision which could induce, breed or harbor infectious plant
diseases or noxious plant diseases or noxious insects.
4.12 Trucks, Trailers Campers and Boats. No commercial truck over 10,000
lb Gross Vehicle Weight, mobile home, travel trailer, tent trailer, trailer, camper shell,
detached camper, recreational vehicle, all terrain vehicle, boat, boat trailer, or other
similar equipment or vehicle may be parked, kept, maintained, constructed,
reconstructed, or repaired on any part of the Subdivision except in garages if they are
provided as part of a Unit.
4.13 Motor Vehicles. Except for emergency repairs, no automobile,
motorcycle, motorbike or other motor vehicle shall be constructed, reconstructed,
serviced or repaired on any part of the Subdivision, except in the garages if they are
provided for the Unit and no inoperable vehicle may be stored or parked on any portion
of the Subdivision, except in garages if they are provided for the Units. No automobile,
motorcycle, motorbike or other motor vehicle shall be parked upon any part of the
Subdivision, except in parking spaces or garages as may exist from time to time on the
Common Property.
4.14 Towing of Vehicles. The Board of Directors shall have the right to have
any truck, mobile home, travel trailer, tent trailer, trailer, camper shell, detached camper,
recreational vehicle, boat, boat trailer or similar equipment or vehicle or any automobile,
motorcycle, motorbike, or other motor vehicle parked, kept, maintained, constructed or
reconstructed or repaired in violation of the Subdivision Documents towed away at the
sole cost and expense of the owner of the vehicle or equipment. Any expense incurred by
the association in connection with the towing of any vehicle or equipment shall be paid to
the Association upon demand by the owner of the vehicle or equipment.
4.15 Suns. No signs, with the exception of "For Sale" or "For Rent" shall be
permitted on the exterior of any Unit or Building or any other portion of the Subdivision
without written approval of the Board of Directors.
4.16 Lawful Use. No offensive, or unlawful use shall be made of any part of
the Subdivision. All valid laws, zoning ordinances, and regulations of all governmental
bodies having jurisdiction over the Subdivision shall be observed. Any violation of such
laws, zoning ordinances or regulations shall be a violation of this Declaration.
4.17 Nuisances and Offensive Activity. No nuisance shall be permitted to
exist or operate upon the Subdivision and no activity shall be conducted upon the
Subdivision which is offensive or detrimental, or is an annoyance to any portion of the
Subdivision or any Unit occupants. No exterior speakers, horns, whistles, bells, or other
sound devices, except security or other emergency devices used exclusively for security
or emergency purposes, shall be located, used or placed on the Subdivision.
4.18 Window Coverings. No reflective materials, including, but without
limitation, aluminum foil, reflective screens or glass, mirrors or similar items, shall be
installed or placed upon the outside or inside of any windows of a Unit without prior
written approval of the Board of Directors.
4.19 Limitation on Leasing of Units. All leases shall be in writing and shall
provide that the terms of the lease shall be subject in all respects to the provisions of the
Subdivision Documents, and any failure by the lessee to comply with the terms of the
Subdivision documents shall be a default under the lease. Upon leasing of a Unit, a
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Building Owner shall promptly, within five (5) days, notify the Association of the
commencement date and termination date of the lease and the names of each lessee or
other person who will be occupying the Unit during the term of the lease. All lease
contracts shall provide that the term of the lease is not less than six months.
4.20 Declarant Approval Required. After the expiration of the Period of
Declarant Control and for so long as the Declarant owns any Lot, any action for which
the consent or approval of the Board of Directors is required under this Declaration may
be taken only if such action is also consented to or approved by the Declarant.
ARTICLE 5
5.1 Duties of the Association. The Association shall inspect, maintain, repair
and replace all Common Property. The cost of all such inspection, maintenance, repairs
and replacements shall be paid for by the Association.
5.1.1 Exterior Maintenance. In addition to maintenance upon the
Common Property, the Association shall provide exterior maintenance upon each lot
which is subject to assessment hereunder, and is limited to the following specific items;
painting of siding, soffits, exterior doors and jambs; repair and/or replacement of roofing,
gutters, downspouts, exterior light fixtures and siding. Such exterior maintenance shall
not include improvements built or placed by an Owner within the patio or yard space or
repairs or replacements caused by any of the perils covered by a standard form fire
insurance policy with extended coverage endorsement thereon, or caused by flood,
earthquake or other acts of God or terrorism, including, but not limited to glass surfaces
and or air conditioning units.
5.2 Duties of Lot Owners. Except as provided in Section 5.1.1 of this Article,
all repairs, replacements and maintenance items within a Lot shall be the responsibility of
each Lot Owner; provided however, that if a Lot Owner shall fail to maintain or make the
repairs or replacements which are the responsibility of such Lot Owner, then, upon vote
of the majority of the Board of Directors, and after not less than thirty (30) days notice to
the Lot Owner, the Association shall have the right, but not the obligation, to enter upon
or into the Lot or Building and perform the required maintenance, repair or replacement.
The cost of any such maintenance, repair or replacement shall be assessed against the
non -performing Lot Owner pursuant to Subsection 7.2.5 of the Declaration.
5.3 Repair or Restoration Necessitated by Owner. Each Lot Owner shall be
liable to the Association, to the extent permitted by Montana law, for any damage to the
Common Property or the Improvements, landscaping or equipment thereon, which results
from the negligence or willful conduct of the Lot Owner or his guests and/or tenants.
The cost to the Association of any such repair, maintenance or replacements required by
such act of a Lot Owner, his guests and/or their tenants shall be paid by the Lot Owner,
upon demand, to the Association. The Association may enforce collection of any such
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amounts in the same manner and to be the same extent as provided for this Declaration
for the collection of the Assessments.
5.4 Lot Owner's Failure to Maintain. If a Lot Owner fails to maintain in
good condition and repair his Building or any Common Property which he is obligated to
maintain under Sections 5.2 & 5.3 of this Declaration and the required maintenance,
repair or replacement is not performed within fifteen (15) days after written notice has
been given to the Lot Owner by the Association, the Association shall have the right, but
not the obligation, to perform the required maintenance, repair or replacement. The cost
of any such maintenance, repair or replacement shall be assessed against the non-
performing Lot Owner pursuant to Subsection 7.2.5 of the Declaration.
ARTICLE 6
6.1 Ri2hts, Powers and Duties of the Association. No later than the date
on which the first Lot is conveyed to a Purchaser, the Association shall be organized as a
nonprofit Montana Corporation. The Association shall be the entity through which the
Lot Owners shall act. The Association shall have such rights, powers and duties as are
prescribed by the law and as set forth in the Subdivision Documents together with such
rights, powers and duties as may be deemed reasonably necessary in order to effectuate
the objectives and purposes of the Association as set forth in this Declaration. The
Association shall have the right to finance capital improvements in the Subdivision by
encumbering future Assessments, if such action is approved by written consent or
affirmative vote of the Lot Owners representing more than fifty percent (50%) of the
votes of the Association. Unless the Subdivision Documents specifically require a vote
of the Members, approvals or actions to be given or taken by the Association shall be
valid if given or taken by the Board. Notwithstanding anything herein to the contrary, so
long as the Declarant owns any Lot, the prior written consent of the Declarant shall be
required for any decision by the Association to establish self -management when
professional management had previously been in place. The Association shall, upon
request, make available to the Declarant, Mortgage Holders, Lot Owners, and Eligible
Insurers, Guarantors, or Title Companies current copies of the Declaration, Bylaws,
Articles, Rules and other books, records and financial statements of the Association from
time to time by such parties. Such requests shall be in writing, and the Association shall
have the right to charge for copying expenses. See also Paragraph 9.2
6.2 Directors and Officers.
6.2.1 During the period of Declarant Control, the Declarant shall have the
right to appoint and remove the members of the Board of Directors and the officers of the
Association who may not be Lot Owners.
6.2.2 Upon the termination of the Period of Declarant Control, the Lot
Owners shall elect the Board of Directors, which must consist of at least five (5)
members, at the least a majority of whom must be Lot Owners. The Board of Directors
elected by the Lot Owners shall then elect the officers of the Association, who shall
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include a president, vice president, secretary and treasurer. The terms and conditions of
office shall be as set forth in the bylaws. The offices of secretary and treasurer may, in
lieu of an elected individual or individuals, be delegated to a manager or management
company.
6.3 Rules. The Board of Directors, from time to time and subject to the
provisions of this Declaration and Montana law, may adopt, amend, and repeal rules and
regulations (collectively, the "Rules"). The Rules may, among other things, restrict and
govern the use of any area by any Lot Owner, his guests and/or tenants of such Lot
Owner; provided, however, that the Rules may not unreasonably discriminate among Lot
Owners and shall not be inconsistent with this Declaration, the Articles or Bylaws. A
copy of the Rules as they may from time to time be adopted, amended or repealed, shall
be mailed or otherwise delivered to each Lot Owner and may be recorded.
6.4 Composition of Members. Each Lot Owner shall be a Member of the
Association. The membership of the Association at all times shall consist exclusively of
all the Lot Owners. A Lot Owner (which may include Declarant) of a Lot shall
automatically, upon becoming the Lot Owner thereof, be a Member of the Association
and shall remain a Member of the Association until such time as such Lot Owner's
ownership ceases for any reason, at which time, such Lot Owner's membership in the
Association shall automatically cease.
6.5 Personal Liability. Neither the Declarant nor any member of the Board of
Directors or of any committee of the Association, any officer of the Association nor any
manager or other employee of the Association shall be personally liable to any Member,
or to any other person or entity, including the Association, for any damage, or loss or
prejudice suffered or claimed on account of any act, omission, error or negligence of the
Declarant, the Association, the Board of Directors, the manager, any representative or
employee of the Association, or any committee, committee member or officer of the
Association; provided, however, the limitations set forth in this Section shall not apply
any person who has failed to act in good faith or has engaged in willful or intentional
misconduct. The Association shall fully indemnify and hold each and every officer and
director harmless from any claim, suit, demand, liability or judgment which may arise or
which may be threatened against any such individual on account of their service, office
conduct or duties for or on behalf of the Association, including all expenses for legal
representation and the entire amount of any settlement or judgment. This indemnity
obligation shall continue and shall exist EVEN IF it is subsequently determined that the
officer, the board or a board member did not act correctly or in compliance with this
declaration or Montana law.
6.6 Implied Rijzhts. The Association may exercise any right or privilege given
to the Association expressly by the Subdivision Documents or this Declaration and every
other right or privilege reasonably to be implied from the existence of any right or
privilege given to the Association by the Subdivision Documents or reasonably necessary
to effectuate any such right or privilege.
6.7 Voting Rights. Subject to Section 6.8 below, each Lot Owner of a Lot,
including Declarant, shall be entitled to cast one (1) vote for each Lot owned by such Lot
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Owner, on any Association matter which is put to vote of the membership in accordance
with this Declaration, the Articles and/or the Bylaws.
6.8 Voting Procedures. No change in the ownership of a Lot shall be effective
for voting purposes unless and until the Board is given actual written notice of such
change and is provided satisfactory proof thereof. The vote for each such Lot must be
cast as a unit, and fractional votes shall not be allowed. In the event that Lot is owned by
more than one (1) Person and such Lot Owners are unable to agree among themselves as
to how their vote or votes shall be cast, they shall lose their right to vote on the matter in
question. If any Member casts a vote representing a certain Lot, it will thereafter be
conclusively presumed for all purposes that such Lot Owner was acting with the authority
and consent of all other Lot Owners of the same Lot unless objection thereto is made at
the time the vote is cast. In the event more than one (1) vote is cast by a Member for a
particular Lot, none of the votes shall be counted and all of such Member's votes shall be
deemed void.
6.9 Transfer of Membership. The rights and obligations of any Member other
than Declarant shall not be assigned, transferred, pledged, conveyed or alienated in any
way except upon transfer of the ownership of a Lot Owner's Lot and then only to the
transferee of the ownership to the Lot. A transfer of ownership to a Lot may be effected
by deed, intestate succession, testamentary disposition, foreclosure of a mortgage of
record, or such other legal process as now in effect or an may hereafter be established
under or pursuant to laws of the State of Montana. Any attempt to make a prohibited
transfer shall be void. Any transfer of ownership to a Lot shall operate to transfer the
membership appurtenant to said Lot to the new Lot Owner thereof. Each Purchaser of a
Lot shall notify the Association of its purchase within ten (10) days after becoming the
Lot Owner of a Lot.
6.10 Suspension of Voting Rights. If any Lot Owner fails to pay any
Assessments or other amounts due to the Association under these Covenants and the
Subdivision Documents within fifteen (15) days after such payment is due or if any Lot
Owner violates any other provision of the Subdivision Documents and such violation is
not cured within fifteen (15) days after the Association notifies the Lot Owner of the
violation, the Board of Directors shall have the right to suspend such Lot Owner's right to
vote until such time as all payments, including interest and attorney's fees, are brought
current, and until any other infraction or violations of the Subdivision Documents are
corrected.
6.11 Architectural Committee. The Board of Directors may establish an
Architectural Committee consisting of not less that three (3) members appointed by the
Board of Directors to regulate the external design, appearance, use and maintenance of
each Building and to perform such other functions and duties as are imposed upon it by
the Subdivision Documents or the Board of Directors.
6.12 Conveyance or Encumbrance of Common Property. The Common
Property shall not be mortgaged, transferred, dedicated, or encumbered without the prior
written consent or affirmative vote of Lot Owners representing at least two-thirds (2/3) of
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the votes allocated to Lot Owners. In addition, any conveyance, encumbrance, judicial
sale or other transfer (whether voluntary or involuntary) of an individual interest in the
Common Property shall be void unless the Lot to which that interest is allocated also is
transferred.
6.13 Bylaws, Declarant shall establish the initial bylaws for the Association
and its non-profit corporation. The bylaws may be amended from time to time by the
Board, by a two-thirds (2/3) affirmative vote of all Board Members. Amendments to
bylaws are not subject to approval by the Association, PROVIDED that the Association
may, by majority vote, rescind any such amendment of bylaws at a special or general
meeting where such bylaw amendment or amendments are on the agenda.
7.1 Preparation of Budget.
7.1.1 At least sixty (60) days before the beginning of each fiscal year of
the Association commencing with the fiscal year in which the first Lot is conveyed to a
Purchaser, the Board of Directors shall adopt a budget for the Association containing an
estimate of the total amount of the funds which the Board of Directors believes will be
the required during the ensuing fiscal year to pay all Common Expenses including, but
not limited to: (i) the amount required to pay the cost of inspection, maintenance,
management, operation, repair and replacement of the Common Property and those parts
of the Buildings, if any, which the Association has the responsibility of inspecting,
maintaining, repairing, and replacing; (ii) the cost of wages, materials, insurance
premiums, services, supplies and other expenses required for the administration,
operation, maintenance and repair of the Subdivision; (iii) the amount required to render
to the Lot Owners all services required to be rendered by the Association under the
Subdivision Documents; and (iv) such amounts as may be necessary to provide general
operating reserves and reserves for contingencies and replacements. The budget shall
separately reflect any Common Expenses to be assessed against less than all the Units
pursuant to Subsection 7.2.5 of the Declaration.
7.1.2 Within thirty (30) days, after the adoption of a budget, the Board of
Directors shall send to each Lot Owner a summary of the budget and a statement of the
amount of the Common Expense Assessment assessed against the Lot and the lot Owners
in accordance with Section 7.2 of this Declaration. The failure or delay of the Board of
Directors to prepare or adopt a budget for any fiscal year shall not constitute a waiver or
release in any manner of a Lot Owner's obligation to pay his allotted share of the
Common Expenses as provided in Section 7.2 of this Declaration, and each Lot Owner
shall continue to pay the Common Expense Assessment against his Lot as established for
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the previous fiscal year until notice of the Common Expense Assessment for the new
fiscal year has been established by the Board of Directors.
7.1.3 The Board of Directors is expressly authorized to adopt and amend
budgets for the Association, and no ratification of any budget or amended budget by the
Lot Owners shall be required.
7.2 Common Expense Assessment.
7.2.1 For each fiscal year of the Association commencing with the fiscal
year in which the first Lot is conveyed to a Purchaser, the total amount of the estimated
Common Expenses set forth in the budget adopted by the Board of Directors (except for
the Common Expenses which are to be assessed against less than all of the Lots pursuant
to Subsection 7.2.5 of the Declaration) shall be assessed against each Lot as to which
provisions of the Declaration then are effective, in proportion to the Lot's Common
Expense Liability as set forth in Section 2.1 of this Declaration. The amount of the
Common Expense Assessment assessed pursuant to this Subsection 7.2.1 shall be in the
sole discretion of the Board of Directors. If the Board of Directors determines during any
fiscal year that its funds budgeted or available for that fiscal year are, or will, become
inadequate to meet all Common Expenses for any reason, including, without limitation,
nonpayment of Assessments by Members, it may increase the Common Expense
Assessment for that fiscal year and the revised Common Expense Assessment shall
commence on the date designated by the Board of Directors.
7.2.2 The maximum Common Expense Assessment for each fiscal year of
the Association shall be as follows:
(1) Until January 1 of the year immediately following the
conveyance of the first Lot to a Purchaser, the maximum annual Common Expense
Assessment for each Lot shall be $1,000.00.
(ii) From and after January 1 of the year immediately following the
conveyance of the first Lot to a Purchaser, the Board of Directors may, without a vote of
the Members, determine the maximum annual assessment.
7.2.3 The Common Expense Assessment shall commence as to all Lots on
the first day of the month following the conveyance of the first lot to a Purchaser. The
first Common Expense Assessment shall be adjusted according to the number of months
remaining in the fiscal year of the Association. The Board of Directors may require that
the Common Expense Assessment or Special Assessments be paid in installments.
7.2.4 Except as otherwise expressly provided for in this Declaration, all
Common Expenses shall be assessed against all of the Lots in accordance with
Subsection 7.2.1 of the Declaration.
7.2.5 If any Common Expense is caused by the misconduct of any Lot
Owner, their guest and/or tenant, or expenses in excess of insurance limits for the
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reconstruction of a total or partial Building loss, the Association shall assess that
Common Expense exclusively against his lot.
7.2.6 The personal obligation of a Lot Owner for Assessments, monetary
penalties and other fees and charges levied against his Lot shall pass to the Lot Owner's
successors in title except as provided in Article 7.5 and Article 9.3.
7.3 Special Assessments. In addition to Common Expense Assessments,
the Association may levy, in any fiscal year of the Association, a special assessment
applicable to that fiscal year only for the purpose of defraying, in whole or in part, the
cost of any construction, reconstruction, repair or replacement of a capital improvement
of the Common Property, including fixtures and personal property related thereto or for
any other lawful Application purpose, provided that any Special Assessment shall have
first been approved by Lot Owners representing two-thirds (2/3) of the votes in the
Association who are voting in person or by proxy at a meeting duly called for such
purpose. Unless otherwise specified by the Board of Directors, Special Assessments
shall be due thirty (30) days after they are levied by the Association and notice of the
Special Assessment is given to the Lot Owners.
7.4 Effect of Nonpayment of Assessments; Remedies of the
Association.
7.4.1 Any Assessment, or any installment of an Assessment, which
is not paid within fifteen (15) days after the Assessment first became due shall be deemed
delinquent and shall bear interest from the date of delinquency at the rate of ten percent
(10%) per annum. No Owner may waive or otherwise escape liability for the
assessments or charges provided for herein by non-use of the Common Property or
abandonment of his Lot and Building.
7.4.2 All Assessments, monetary penalties and other fees and
charges imposed or levied against any lot or Lot Owner shall be secured by an
Assessment Lien. The recording of this Declaration constitutes record notice and
perfection of the Assessment Lien, and no further recordation of any claim of lien shall
be required. Although not required in order to perfect the Assessment Lien, the
Association shall have the right but not the obligation, to record a notice setting forth the
amount of any delinquent assessments, monetary penalties or other fees or charges
imposed or levied against a Lot or the Lot Owner which are secured by the Assessment
Lien.
7.4.3 The Association shall have the right, at its option, to enforce
collection of any delinquent Assessments,. monetary penalties and all other fees and
charges owed to the Association in any manner allowed by law including, but not limited
to: (i) bringing an action at law against the Lot Owner personally obligated to pay the
delinquent amounts and such action may be brought without waiving the Assessment
Lien securing any such delinquent amounts; or (ii) bringing an action to foreclose its
Assessment Lien against the Lot in the manner provided by law for the foreclosure of a
realty mortgage. The Association shall have the power to bid in at any foreclosure sale
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and to purchase, acquire, hold, lease, mortgage and convey any and all Lots purchased at
such sale.
7.5 Subordination of Assessment Lien to Mortgages. The Assessment
Lien shall be subordinate to the lien of any First Mortgage. Any First Mortgagee or any
other party acquiring title or coming into possession of a Lot through foreclosure of a
First Mortgage, purchase at a foreclosure sale or trustee sale, or through any equivalent
proceedings, such as, but not limited to, the taking of a deed in lieu of foreclosure, shall
acquire title free and clear of any claims for unpaid Assessments, monetary penalties and
other fees and charges against the Lot which became payable prior to such sale or
transfer. Any delinquent Assessments, monetary penalties and other fees and charges
which are extinguished pursuant to this Section may be reallocated and assessed to all
Lots as a Common Expense. Any Assessments, monetary penalties and other fees and
charges against the Lot which accrue prior to such sale or transfer shall remain the
obligation of the defaulting Lot Owner.
7.6 Certificate of Payment. The Association on written request shall
furnish to a lien holder, Lot Owner or person designated by a Lot Owner a recordable
statement setting forth the amount of unpaid Assessments against his Lot. The statements
shall be furnished within twenty (20) business days after receipt of the request and will be
binding on the Association, the Board of Directors, and every Lot Owner. The
Association may charge a reasonable fee in an amount established by the Board of
Directors for each such statement.
7.7 No Offsets. All Assessments, monetary penalties and other fees and
charges shall be payable in accordance with the provisions of this Declaration, and no
offsets against such Assessments, monetary penalties and other fees and charges shall be
permitted for any reason, including, without limitation, a claim that the Association is not
properly exercising its duties and powers as provided in the Subdivision Documents.
7.8 Monetary Penalties. In accordance with the procedures set forth in
the Bylaws, the Board of Directors shall have the right to levy reasonable monetary
penalties against a Lot Owner for violations of this Declaration or Subdivision
Documents. Such monetary penalties shall be added to any assessments then due, or
subsequently due and owing and may be collected in any manner provided for in this
declaration.
ARTICLE 8
INSURANCE
8.1 Purchase Insurance. The Association shall have the power to
purchase insurance for either or both the common areas and all or any part of the living
units for such risks, and such companies, and in such amounts as the Board of Directors
of the Association shall determine and to assess the premium costs thereof in any manner
that the Board of Directors of the Association shall deem to be equitable. Premium costs
for risks associated with the common area shall be part of the uniform assessment
provided in Article 7 and risks associated with individual dwelling units shall be special
assessments attaching only to such dwelling.
8.2 Liability Insurance. Public liability and common area property
damage insurance shall be purchased by the Board, or acquired by assignment from
Declarant, as promptly as possible following its election, and shall be maintained in force
at all times. The premium thereon is to be paid out of the Association's funds. The
insurance shall be carried in reputable companies authorized to do business in Montana.
The minimum amounts of coverage shall be $500,000.00 for personal injury to any one
person, $1,000,000.00 for personal injury to any number of persons sustained in any one
accident or mishap, and $100,000.00 property damage. The policy shall insure against,
but may not be limited to, injury or damage occurring in the common area.
8.2.1 Fire Insurance - Master Policy for Common Area. A
master or blanket fire insurance policy shall also be purchased or acquired by the Board
as promptly as possible following its election, and shall hereafter be maintained in force
at all times, the premium thereon to be paid out of the Association's funds. Said
insurance shall be carried with reputable companies qualified to do business in the State
of Montana, and shall insure against loss from fire and other hazards therein covered, for
the full insurable value of all of the permanent improvements upon the common area.
Said policy may contain extended coverage and replacement costs endorsements,
coverage, special form endorsement, stipulated amount clause, or clauses to permit cash
settlement covering full value of the improvements in the event of partial destruction.
The policy shall be in such amounts as shall be determined from time to time by the
Board. The policy shall name all owners and mortgagees of the subject property, or any
of it, as insured, as their respective interest may appear, and shall contain a loss payable
endorsement in favor of the trustee hereinafter described.
a. Other Insurance. The Board of Directors of this
Association may purchase additional insurance as the Board may determine to be
advisable including, but not limited to, Workman's Compensation Insurance, demolition
insurance to remove improvements that are not rebuilt, errors and omissions insurance,
director's and officer's liability insurance, fidelity bonds and insurance on Association
owned personal property. All premiums therefore shall be paid out of the Association's
funds.
b. Owner's Additional Insurance. An owner shall carry
such personal liability and property damage insurance respecting his individual lot and
building; however, any such policy shall include a waiver of subrogation clause against
the Association and all other owners.
c. Mortilagee's Rights. With respect to insurance
coverage under paragraph (b) hereof, any mortgagee of record shall have the option to
apply insurance proceeds payable to it in reduction of the obligation secured by its
mortgage.
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8.3 Dama2e and Destruction; Reconstruction. If any permanent
improvement comprising a part of the properties, whether owned by an individual owner
or by the Association, shall be damaged by fire or other casualty covered by insurance,
the proceeds of all such insurance policies shall be paid to the Association to be applied
as hereinafter provided. If the damage or destruction shall be one or more living units,
the Board of Directors of the Association shall enter into a contract for the repair or
reconstruction of the damaged improvements, upon such terms as the Board feels is in the
best interest of the individual owner as well as the Association. In the event that the
proceeds from the insurance policies payable as a result of the loss to an individual living
unit shall be insufficient for the repair or reconstruction of such living unit, the deficiency
shall be promptly paid by the owner of such living unit, failing which, such amount shall
become a special charge and assessment against such living unit pursuant to the provision
of Article 7 hereof. In the event of damage or destruction of any improvements upon the
common areas, the Board of Directors shall contract for repair or reconstruction of such
improvements and if the proceeds of any insurance policies payable as a result of such
loss are insufficient for such repair or reconstruction, the deficiency shall be the subject
of a special assessment which shall be approved by a vote of the iowners as provided in
Article 7 hereof. The insurance proceeds shall be paid to the contractor or contractors
designated by the Board. All repairs or reconstruction shall be made in accordance with
original plans and specifications therefore, or according to such revised plans and
specifications as may be approved by the Board of Directors of the Association.
In the event that improvements in and upon the common areas shall not be
rebuilt because the cost of rebuilding shall exceed the available insurance proceeds, and
the members shall fail to approve a special assessment to cover the deficiency, the Board
of Directors shall then cause any remaining portion of such improvement to be removed
and the area cleared and landscaped in the most efficient and aes� hetically pleasing
manner possible. The lot may be sold by the owner and any subsequent owner would be
required to fund reconstruction of the building within 12 months of purchase, in full
compliance with this Article.
If the Board of Directors of the Association shall fail t(
with the repair or reconstruction of any damaged or destroyed in
upon an individually owned lot or upon common area, and in an
of an individual lot or building is not commenced within sixty ((
occurs, the owner of such damaged improvement may proceed t,
contract for such repair or reconstruction and the Association wl
insurance proceeds attributable to such loss, shall pay such prod
required, to the contractor or contractors selected by such indivi4
that the Board of Directors shall fail to proceed in good faith to I
or destroyed improvements upon the common areas, any individ
all owners and such Association may act, through its membershi
simple majority vote of the members present and voting to enter
proceed in good faith
provement whether
event if reconstruction
)) days after the casualty
negotiate and execute a
shall receive any
-ds, to the extent
aal owner. In the event
;pair or rebuild damaged
.al owner in writing to
i, to proceed upon a
nto contracts for the
repair and reconstruction of any damaged improvements. The excess of any proceeds,
not requiring to repair or restore an improvement shall be paid by the Association to the
owner or the institution that shall have paid the premium for such insurance coverage.
-20-
8.4 Other Duties and Powers. The Association and its Board of
Directors acting in its behalf shall obtain, provide and pay for any other materials,
supplies, furniture, labor, services, maintenance, repairs, structural alterations, insurance,
or pay any taxes or assessments which the Board is required to secure or pay for pursuant
to the terms of these Restrictions; provided that if any such materials, supplies, furniture,
labor, services, maintenance, repairs, structural alterations, insurance, taxes or
assessments are specially provided for particular lots, the cost thereof shall be specially
assessed to the owners of such lots. The Association may likewise pay any amount
necessary to discharge any lien or encumbrance levied against the entire properties or any
part thereof which may, in the opinion of the Board, constitute a lien against the common
areas, rather than merely against the interests therein of a particular owner, provided that
where one or more owners are responsible for the existence of such lien, they shall be
jointly and severally liable for the cost of discharging it, and any costs incurred by the
Board by reason of said lien or liens shall be specially assessed to said owners.
9.1 RIGHTS OF FIRST MORTGAGEES. The holders of first
mortgages or trust indentures on Lots may, jointly or singly, pay taxes or other charges
which are in default, and which may or have become a charge against any Common
Property, and may pay overdue premiums on hazard insurance policies or secure new
hazard insurance coverage upon the lapse of a policy for such Common Property, and the
holders of first mortgages or trust indentures making such payments shall be owed
immediate reimbursement therefore from the Owner's Association.
9.1.1 No action may be taken by the Developer, by the Owner's
Association, or any successor or entity that would have the effect of giving the Lot
Owners or any other party priority over any rights of the holders of first mortgages or
trust indentures, in the case of a distribution to Lot Owners of insurance proceeds or
condemnation awards for losses to or taking of any Common Property.
9.2 Ri2ht of Inspection of Records. Any Lot Owner, First Mortgagee or
Eligible Insurer or Guarantor will, upon written request, be entitled to (i) inspect the
current copies of the Subdivision Documents and the books, records and financial
statements of the Association during normal business hours; (ii) receive written notice of
all meetings of the Members of the Association and be permitted to designate a
representative to attend all such meetings, (iii) receive a written statement of assessments
paid and unpaid as to any lot on which any mortgagee holds collateral. Such a statement
shall also be furnished to any Montana licensed real estate broker or agent or to any title
company or other mortgagee who can demonstrate a bona fide interest in financing or
resale of the property, PROVIDED that such documents or information shall be deemed
confidential and shall not be released to any other party or to the public.
9.3 Liens Prior to First Mortgage. All taxes, assessments, and charges
which may become liens prior to the First Mortgage under local law shall relate only to
the individual Lot and not to the Subdivision as a whole.
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10.1 Enforcement. The Association, or any Lot Owner, shall have the
right to enforce, by any proceeding at law or in equity, all restrictions, conditions,
covenants, reservations, liens and charges now or hereafter imposed by the provisions of
the Subdivision Documents. Failure by the Association or by any Lot Owner to enforce
any covenant or restrictions contained in the Subdivision Documents shall in no event be
deemed a waiver of the right to do so thereafter.
10.2 Severability. Invalidation of any one of these covenants or
restrictions by judgment or court order shall in no way affect any other provision which
shall remain in full force and effect.
10.3 Duration. The covenants and restrictions of this Declaration shall
run with and bind the Subdivision for a term of twenty(20) years from the date this
Declaration is recorded, after which time they shall be automatically extended for
successive periods of ten (10) years.
10.4 Notices. All notices, demands, statements or other communications
required to be given to or served on a Lot Owner under this Declaration shall be in
writing and shall be deemed to have been duly given and served if delivered personally or
sent by US mail. If delivery is made by mail, it shall be deemed to have been received by
the person to whom the notice was addressed on the earlier of the date the notice is
actually received or three (3) days after the notice is mailed. Notices shall be addressed
to each person at the address given by such person to the Association for the purpose of
service of such notice or to the address obtained from the County Tax Assessors Office.
A Lot Owner may change his address on file with the Association for receipt of notices
by delivering a written notice of change of address to the Association pursuant to this
Section. If a Lot is owned by more than one person, notice to one of the Lot Owners
shall constitute notice to all Lot Owners of the same Lot. Each Lot Owner shall file his
correct mailing address with the Association and shall promptly notify the Association in
writing of any subsequent change of address.
10.5 Binding Effect. By acceptance of a deed or by acquiring any
ownership interest in any portion of the Subdivision, each Person, for himself, his heirs,
personal representatives, successors, transferees and assigns, binds himself, his heirs,
personal representatives, successors, transferees and assigns to all of the provisions,
restrictions, covenants, conditions, easements, rules, and regulations now or hereafter
imposed by the Subdivision Documents and any amendments thereof. In addition, each
such person by so doing thereby acknowledges that the Subdivision Documents set forth
a general scheme for the improvement and development of the real property covered
thereby and hereby evidences their interest that all the restrictions, conditions, covenants,
easements, rules and regulations contained in the Subdivision Documents shall ran with
the land and be binding on all subsequent and future Lot Owners, grantees, purchasers,
assignees, and transferees thereof. Furthermore, each such person fully understands and
-22-
acknowledges that the Subdivision Documents shall be mutually beneficial, prohibitive
and enforceable by the various subsequent and future Lot Owners. Declarant, its
successors, assignees and grantees agree that the Lots and the membership in the
Association and the other rights created by the Subdivision Documents shall not be
separated or separately conveyed, and each shall be deemed to be conveyed or
encumbered with its respective Lot even though the description in the instrument of
conveyance or encumbrance may refer to the Lot.
10.6 Gender. The singular, wherever used in this Declaration, shall be
construed to mean the plural when applicable, and the necessary grammatical changes
required to make the provisions of this Declaration apply either to corporations or
individuals, or men or women, shall in all cases be assumed as though in each case fully
expressed.
10.7 Topic HeadintZs. The marginal or topical headings of the sections
contained in the Declaration are for convenience only and not define, limit or construe
the contents of the sections of this Declaration.
10.8 Survival of Liability. The termination of membership in the
Association shall not relieve or release any such former Lot Owner or Member from any
liability or obligation incurred under, or in any way connected with, the Association
during the period of such ownership or membership, or impair any rights or remedies
which the Association may have against such former Lot Owner or Member arising out
of, or in any way connected with, such ownership or membership and the covenants and
obligations incident thereto.
10.9 Construction. In the event of any discrepancies, inconsistencies or
conflicts between the provisions of the Declaration and the Articles, Bylaws or the
Association Rules, the provisions of this Declaration shall prevail.
10.10 Joint and Several Liabilities. In the case of joint ownership of a
Lot the liabilities and obligations of each of the joint Lot Owners set forth in, or imposed
by, the Subdivision Documents shall be joint and several.
10.11 Guests and Tenants. Each Lot Owner shall be responsible for
compliance by his agents, tenants, guests, invitees, licensees and their respective
servants' agents, and employees with the provision of the Subdivision Documents. A Lot
Owner's failure to insure compliance by such Persons shall be grounds for the same
action available to the Association or any other Lot Owner by reason of such Lot Owner's
own noncompliance.
10.12 Attorney's Fees. In the event the Declarant, the Association or any
Lot Owner employs an attorney or attorneys to enforce a lien or to collect any amounts
due from a Lot Owner or to enforce compliance with or recover damages for any
violation or noncompliance with the subdivision documents, the prevailing party in any
such action shall be entitled to recover from the other party his reasonable attorneys' fees
incurred in the action.
- 23 -
10.13 Number of Days. In computing the number of days for purposes of
any provisions of the Subdivision Documents, all days shall be counted including
Saturdays, Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday, then the next day shall be deemed to be the
next day which is not a Saturday, Sunday or holiday.
10.14 Notice of Violation. The Association shall have the right to record
a written notice of a violation by any Lot Owner of any restriction or provision of the
Subdivision Documents. The notice shall be executed and acknowledged by an officer of
the Association and shall contain substantially the following information: (i) the name of
the Lot Owner; (ii) the legal description of the Lot against which the notice is being
recorded; (iii) a brief description of the nature of the violation; (iv) a statement that the
notice is being recorded by the association pursuant to this Declaration; and (v) a
statement of the specific steps which must be taken by the Lot Owner to cure the
violation. Recordation of a Notice of Violation shall serve as a notice of the Lot Owner
and to any subsequent purchaser of the Lot that there is a violation of the provisions of
the Subdivision Documents. If, after the recordation of such notice, it is determined by
the Association that the violation referred to in the notice does not exist or that the actual
violation referred to in the notice has been cured, the Association shall record a Notice of
Compliance which shall state the legal description of the Lot against which the Notice of
Violation was recorded, the recording data of the Notice of Violation, and shall say that
the violation referred to in the Notice of Violation has been cured, or if such be the case,
that it did not exist.
10.15 Resolution of Disputes Between Bound Parties. Declarant, the
Association, its officers, and directors all Lot Owners and Members, builder, real estate
brokers and other Persons subject to this Declaration agree, to encourage the amicable
resolution of disputes involving any Bound Party without the emotional and financial
costs of litigation, by signing a copy of this Declaration and making it an integral part of
any contract, agreement or covenant entered into between any and/or all of the Bound
Parties, Declarant, the Declarant Affiliates, Builder and each Lot Owner by accepting a
deed for the common areas or a lot, as the case may be, and the Association agrees to
have any dispute resolved according to the provisions of Subsection 10.20.1 and
Subsection 10.20.2 waive their respective rights to pursue any dispute in any manner
other than as provided in this Section. Such parties acknowledge that by agreeing to
resolve all disputes as provided in Subsection 10.20.1 and Subsection 10.20.2 they are
giving up their respective rights to have such disputes tried before a court or jury.
Accordingly, each Bound Party covenants and agrees to submit any all claims, grievances
or disputes described in Subsection 10.20.1 (collectively "Claims") to the procedures set
forth in Subsection 10.20.2.
10.15.1 Unless specifically exempted below in Subsection 10.15.2
all Claims arising out of or related to the interpretation, application or enforcement of the
Declarations, or the rights, obligations and duties of any Bound Party under the
Declaration or relating to the design, construction, and installation of the Improvements
on the Subdivision shall be subject to the provisions of Subsection 10.15.2 .
-24-
10.15.2 The following are Mandatory Procedures for all Claims of
Bound Parties.
(a) Any Bound Party initiating a Claim against any other
Bound Party (respondent) referred to herein being individually referred to as a "Party" or
collectively referred to as the "Parties" shall notify each Respondent in writing (the
"Notice"), stating plainly and concisely:
(i) the nature of the Claim, including the
Persons involved and Respondent's role in the Claim;
(ii) the legal basis of the Claim (i.e., the specific
authority out of which the Claim arises;
(iii) The proposed remedy; and
(iv) The fact that the Claimant will meet with
Respondent to discuss in good faith ways to resolve the Claim.
(b) All Bound Parties agree that any dispute arising
between them shall be resolved by negotiation and mediation according to the following;
(i) The Parties shall make every effort to meet
in person and confer for the purpose of resolving the Claim by good faith negotiation. If
requested in writing, accompanied by a copy of the Notice, the Board of Directors may
appoint a representative to assist the Parties in negotiation.
(ii) If the Parties do not resolve the Claim within
thirty (30) days after the date of Notice (or within such other period as may be agreed
upon by the parties) negotiations will terminate and the Claimant shall have an additional
thirty (30) days to submit the Claim to mediation under the auspices of an independent
mediator designated by the Association, or if the Parties otherwise agree, to an
independent agency providing dispute resolution services with substantial experience
with comparable disputes.
(iii) If Claimant does not submit the Claim to
mediation within such time, or does not appear for mediation, Claimant shall be deemed
to have waived the Claim, and Respondent shall be released and discharged from any and
all liability to Claimant on account of such Claim; provided, nothing herein shall release
or discharge Respondent from any liability to any Person other than the Claimant.
(iv) Any settlement of the Claim through
mediation shall be documented in writing by the mediator and signed by the Parties. If
the Parties do not settle the Claim within thirty (30) days after submission of the matter to
mediation, or within such other time as determined by the mediator or agreed to by the
Parties, the mediator shall issue a notice of termination ("Termination of Mediation
-25-
Notice") of the mediation proceedings. The Termination of Mediation Notice shall set
forth that the Parties have an impasse and the date that the mediation was terminated.
(v) Each Party shall bear its own cost of the
mediation, including attorneys' fees, and each Party shall share equally all charges
rendered by the mediator. If the Parties agree to a resolution of any Claim through
negotiation or mediation in accordance with this Subsection 10.20.2 and any Party
thereafter fails to abide by the terms of such agreement, then any other Party may file suit
or initiate administrative proceedings to enforce such agreement without the need to
again comply with the procedures set forth in this Subsection 10.20.2. In such event, the
Party taking the action to enforce the agreement shall be entitled to recover from the non-
complying Party (or if more than one non -complying Party, from all such Parties pro
rata) all cost incurred in enforcing such agreement, including, without limitation,
attorney's fee and related court cost.
(c) Upon Termination of Mediation, Claimant shall thereafter
be entitled to submit the matter to binding arbitration. Any arbitration proceeding shall
be (i) proceed in Kalispell, Montana (unless all parties agree to a different location); (ii)
be governed by the Federal Arbitration Act (Title 9 of the United States Code); and (iii)
be conducted in accordance with the Commercial Arbitration rules of the American
Arbitration Association ("AAA"). Any arbitration proceeding shall be before a single
arbitrator. The parties shall use reasonable efforts to agree upon single arbitrator within
ten (10) days after written notice from one party to the other requesting arbitration. If the
parties are unable to agree upon an arbitrator within such ten (10) day period, at any time
thereafter either party may require that the arbitrator be selected according to the
Commercial Arbitrator Rules of AAA. The arbitrator shall be a neutral attorney who
practices in the area of real estate, commercial or business law, who NEED NOT be
registered, licensed or certified before the AAA. The arbitrator shall determine whether
or not an issue is arbitrated and will give effect to the statues of limitation in determining
any Claim. Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction. In any proceeding, the arbitrator shall decide (by documents
only or with a hearing at the arbitrator's discretion) any pre -hearing motions for summary
adjudication. In any arbitration proceeding, discovery shall be permitted and shall be
governed by the Montana Rules of Civil Procedure. All discoveries must be completed
no later than twenty (20) days before the hearing date and within one hundred and eighty
(180) of the commencement of arbitration proceedings. Any request for an extension of
the discovery periods and any discovery disputes, shall be subject to final determination
by the arbitrator upon a showing that the request for discovery is essential for the party's
presentation and that no alternative means for obtaining information is available. The
arbitrator shall award cost and expenses of the arbitration proceeding in accordance with
the provisions of this forbearance agreement. The laws of the State of Montana shall
apply in any arbitration proceeding, without regard to its conflict of laws rules.
(d) Notwithstanding anything contained herein to the contrary
and in addition to any requirements prescribed by law, the Association shall not submit a
-26-
Claim against the Declarant, a Declarant Affiliate, or any Designated Builder to binding
arbitration upon Termination of Mediation, and shall not file any action against
Declarant, or Declarant Affiliate, or any Designated Builder arising out of or related to
the design, construction, condition or sale of any part of the Subdivision or any
Improvements thereon, until all of the following have occurred:
(i) In advance of the meeting described in
Subsection 10.15.2 (d)(ii) below, the Board of Directors has provided full disclosure in
writing to all Members of all material information relating to the Claim or action. The
material information shall include, without limitation, a statement that describes the
manner in which the action will be funded and a statement that describes, notices, offers
to settle or responses to offers to settle made either by the Association or the Declarant,
the Declarant Affiliate, or the Designated Builder, if applicable.
(ii) The Association has held a duly called meeting
of its Members and the Board of Directors, at which a majority of the Lot Owners, voting
in person or by proxy, authorize the submittal of the Claim to arbitration or the filing of
the action, as applicable.
(iii) The Board of Directors has authorized the
submittal of the Claim to arbitration or the filing of the action as applicable.
10.15.3 Notwithstanding the foregoing Subsection 10.15.1 and Subsection
10.15.2 unless all parties thereto otherwise agree, the following shall not be Claims and
shall not be subject to the provisions of Subsection 10.15.1 and Subsection 10.15.2
which shall be known as Claims Exempt from Dispute:
(a) Any suit or action by the Association against any
Bound Party for delinquent Assessments;
(b) Any suit between or among Owners, which does not
include Declarant, a Designated Builder or the Association as a party, if such suit asserts
a Claim which would constitute a cause of action independent of the Declaration;
(c) Any suit in which any indispensable party is not a
Bound Party and;
(d) Any suit as to which any applicable statute of
limitations has expired or would expire within one hundred and eighty (180) days of
giving notice required by Subsection 10.15.2.
-27-
11.1 The restrictions contained herein shall be appurtenant to and run with the
land and shall continue indefinitely. The Association may revise these covenants at any
time as follows:
11.1.1 The Board or any owner may propose any revision, addition or
deletion of a covenant(s) at any time. For any proposed change, the
Board will give written notice of a proposed change to each member of
the Association at least 30 days prior to the Association's regular
annual meeting. The proposed changes may be summarized.
11.1.2 At the annual meeting, the precise, proposed change(s) will be
distributed to each member in attendance.
11.1.3 The Association will discuss the merits of each proposed
change.
11.1.4 The Association will provide each member in attendance with a
written ballot for each proposed change.
11.1.5 The members will vote by written ballot. The ballots will be
counted by the Association's secretary and by at least one other
individual appointed to assist the secretary
11.1.6 The results of the ballot(s) will be announced at those meetings,
with the number of members voting in favor of the proposed change(s)
and the number of members voting against the proposed change(s).
11.1.7 If two-thirds (2/3) of all members in attendance (NOT 2/3 of
the total membership) vote in favor of the proposed amendment(s), or
such majority as may be required under then current Montana Law,
vote in favor of a proposed change, then that change has passed and
the covenants will be revised to reflect the change.
11.1.8 The president and secretary shall give written certification,
under oath, that these steps have been followed and that a change(s)
have been approved.
11.1.9 The change(s), together with the certification, shall be recorded
with the Flathead County Clerk and Recorder's office.
11.1.10 The effective date of all changes shall be 30 days from the date
they are recorded, or as specified within the proposed change.
WIN
ORCHARD VILLAGE, LLP
Montana limited liability partnership
By: Michael Blend
Its: Partner
STATE OF MONTANA )
)ss.
County of Flathead )
The foregoing instrument was acknowledged before me this day of
�, 2005, byM GGkO-d 8Lain b , the General Partner of the Orchard
Village, LLP, a Montana limited liability partnership on behalf of the company.
JENNIFER M. VOLKERT tary Public
Notarial Seal
State of Montana My Commission Expires: 2
t.00-0
ORCHARD VILLAGE, LLP
Montana limited liability partnership
By: Diana Blend
Its: Partner
STATE OF MONTANA )
)ss.
County of Flathead )
The foregoing instrument was acknowledged before me this day of
, 2005, by , the General Partner of the Orchard
Village, LLP, a Montana limited liability partnership on behalf of the company.
Notary Public
My Commission Expires:
-29-
ORCHARD VILLAGE, LLP
Montana limited liability partnership
By: David Graham
Its: Partner
STATE OF MONTANA )
)ss.
County of Flathead )
The foregoing instrument was acknowledged before me this day of
, 2005, by , the Limited Partner of the Orchard
Village, LLP, a Montana limited liability partnership on behalf of the company.
Notary Public
My Commission Expires:
ORCHARD VILLAGE, LLP
Montana limited liability partnership
By: Kathy Graham
Its: Partner
STATE OF MONTANA
)ss.
County of Flathead
The foregoing instrument was acknowledged before me this day of
, 2005, by , the Limited Partner of the Orchard
Village, LLP, a Montana limited liability partnership on behalf of the company.
Notary Public
My Commission Expires:
-30-
ORCHARD VILLAGE, LLP
Montana limited liability partnership
By: Michael Dores
Its: Partner
STATE OF MONTANA )
)ss.
County of Flathead )
The foregoing instrument was acknowledged before me this day of
, 2005, by , the Limited Partner of the Orchard
Village, LLP, a Montana limited liability partnership on behalf of the company.
Notary Public
My Commission Expires:
ORCHARD VILLAGE, LLP
Montana limited liability partnership
By: Jordonna Dores
Its: Partner
STATE. OF MONTANA )
)ss.
County of Flathead )
The foregoing instrument was acknowledged before me this day of
, 2005, by , the Limited Partner of the Orchard
Village, LLP, a Montana limited liability partnership on behalf of the company.
Notary Public
My Commission Expires:
-31 -
BYLAWS
OF
ORCHARD VILLAGE OWNERS' ASSOCIATION, INC.
ARTICLE I
INTRODUCTION
Section 1 The provisions of these Bylaws govern the internal affairs of this
corporation and its members as applicable to the operation, administration, use and occupancy of
Orchard Village Owners' Association, Inc., located on the real property in Flathead County,
Montana, described on the Plat of Orchard Village and such subsequent provisions hereof.
Section 2 These Bylaws were adopted by this corporation, a nonprofit corporation,
organized under the laws of Montana, and in accordance with the Internal Revenue Code, Section
504(c)(7) as amended, pertaining to owners associations.
ARTICLE 11
PRINCIPAL OFFICE
The principal office of the corporation shall be maintained in Kalispell, Montana.
ARTICLE III
DEFINITIONS
The definitions of the Declaration of Covenants are expressly incorporated herein. The
Board may, by subsequent amendment, supplement these definitions.
ARTICLE IV
ADOPTION OF DECLARATION OF COVENANTS
These Bylaws adopt by reference the above -described Declaration of Covenants in their
entirety, and render the provisions thereof applicable to the corporation and its members.
A copy of said Declaration of Covenants shall be retained in the corporation's permanent
records, but need not be appended hereto as an exhibit.
ARTICLE V
MEETINGS AND MEMBERS
Section 1 Membership shall be as set forth in the Articles of Incorporation.
Section 2 The owners association shall have not less than one (1) annual meeting
upon 30 days written notice to each unit owner. The notice of the meeting shall include a written
agenda for the meeting and a written treasurers report. The president and board of directors shall
BYLAWS OF ORCHARD VILLAGE - Page 1 of 6
determine the precise agenda for the meeting, however, the agenda shall include at a minimum
the following items:
1. Role call of owners, call of meeting to order and determination of quorum.
2. Review, discussion and approval of treasurers report for prior year. (This
report shall include at a minimum, all income and expenses itemized by
category and a financial statement showing all assets and liabilities by
category.)
3. An itemized budget and proposed assessments for the following year.
4. Election of officers and directors.
Section 3 Special meetings may be called at any time for the purpose of considering
matters which require the approval of members. Such a special meeting shall be called by
written notice mailed by the Board of Directors at least 10 days prior to the date of such meeting
to all members. The majority of the Board of Directors may initiate such written notice.
Section 4 The presence at any meeting in person or by proxy of members owning 60
percent of the total interests shall constitute a quorum. Unless otherwise expressly provided
herein or in the Covenants, any action may be taken at any meeting of the members upon the
affirmative vote of members or their proxies owning a majority of the total interests present or
represented by proxy at the meeting.
Section 5 Voting on any issue may be conducted by mail so long as sufficient ballots
are returned representing the votes of sufficient owners who have constituted a quorum. An
issue may also be affirmatively decided when the combined votes, taken at a meeting, together
with written ballots or votes received after a meeting total a simple majority of the total votes
cast. Any issue which fails to receive the requisite number of votes may be subsequently ratified
and approved by the Association by resubmitting the matter to a popular vote. If a sufficient
number of members vote in favor of the proposed action or resolution, the matter shall be
deemed passed.
Section 6 Voting rights shall be as set forth in the Declaration of Covenants, as
provided in Article 6.
ARTICLE VI
BOARD OF DIRECTORS
Section 1 Initially the business and property of the Association shall be managed
under the direction of the Declarant in the Covenants, acting as a single -member Board of
Directors, or its appointed successor. Upon the election of the first elected Board of Directors,
the number of Directors shall increase to three who shall be elected for a term of three years,
subject to the limitations set forth in Section 2 of this Article relating to the lengths of terms of
the first elected Board of Directors. There shall thenceforth be three directors unless or until this
Bylaw is amended.
BYLAWS OF ORCHARD VILLAGE - Page 2 of 6
Section 2 The Declarant shall call an organizational meeting of members to be held
within 90 days after the closing of the sale of seventy-five percent (75%) of the lots within
Orchard Village. At the organizational meeting of members, a five member Board of Directors
shall be elected with overlapping or "staggered" terms. Any Director may be removed at any
meeting of members by due and proper vote at that meeting, provided proper notice of such
resolution or vote had been mailed to all members at least 10 days prior to said meeting.
Section 3 A regular meeting of the Board of Directors shall be held within five (5)
days of the adjournment of the organizational meeting of members, and annually thereafter
immediately after the adjournment of the annual meeting of members. This Bylaw shall be the
only notice required for such annual meetings.
Section 4 Special meetings of the Board of Directors may be called by the President
or in his or her absence, by the Vice -President. By unanimous consent of the Directors, a special
meeting may be held, without notice, at any time or place. The Directors may vote to meet more
frequently or at regular time intervals.
Section 5 Notice of all special meetings, except those specified in the second
sentence of Section 4 of this Article, shall be mailed to each Director by the Secretary at least
five days prior to the time fixed for the meeting. Such notice shall specify thee time and place of
meeting, and shall state the purpose of the meeting. Before or at any meeting, any Director may
in writing waive notice of such meeting. Directors may attend meeting, waive notice and vote in
person, by written proxy, by teleconference or by other electronic means.
Section 6 A quorum for the transaction of business at any regular or special meeting
of the Directors shall consist of a majority of members of the Board. Any business may be
transacted by the signature and consent of all Directors, in lieu of a meeting for that purpose.
Section 7 The Organizational Directors shall elect officers of the Association to
serve until the first meeting of the regular Directors. The Directors shall elect the officers of the
Association specified in these Bylaws at the Directors meeting following the organizational
meeting of members and following each annual meeting of the members of the Association. An
officer may be removed at any time by a majority vote of the full Board of Directors of the
Association.
Section 8 Any vacancy or vacancies on the Board of Directors may be filled by the
remaining Directors in any special or regular Directors meeting. Death, incapacity, or resignation
of any Director shall cause his office to become vacant. Such appointment shall be for the
remaining term of the vacancy filled, but shall be confirmed by the members at the next annual
meeting.
Section 9 The Board of Directors shall have the responsibility for, and authority to
do all things necessary for the accomplishment of the matters specified in the Declaration of
BYLAWS OF ORCHARD VILLAGE - Page 3 of 6
Covenants. Directors shall not be compensated, but may be reimbursed for out of pocket
expenses.
Section 10 All checks, drafts, notes, acceptances, vouchers, conveyances, contracts
and other instruments shall be approved and signed on behalf of the Association by such person
or persons as shall be provided by general or special resolution of the Board of Directors, or in
the absence of any such resolution applicable to such instruments, by the President or Vice -
President or Secretary/Treasurer.
Section 11 The Board of Directors shall adopt, amend and repeal rules and regulations
concerning this subdivision as set forth in original Covenant No. 6.3.
Section 12 The Board shall appoint and supervise the Architectural Control
Committee. The Board may remove and replace the committee members and establish
conditions for service on this committee.
ARTICLE VII
OFFICERS
Section 1 The officers of the corporation shall be a President, a Vice -President , and
a Secretary/Treasurer, each of whom shall be elected for a term of one year and shall hold office
until their successors are duly elected and qualified. Officers shall be members and shall attend
and vote at Director's meetings. The Board may appoint committees and committee
chairpersons.
Section 2 The President shall preside at all Directors' and members' meetings: shall
have general supervision over the affairs of the Association: and shall perform all such other
duties as are incident to the office. In case of the absence or disability of the president his or her
duties shall be performed by the Vice -President.
Section 3 The Secretary/Treasurer shall issue notices of all Directors' and members'
meetings and shall attend and keep the minutes of the same; shall have charge of all Association
books and records and papers: and shall have custody of all money and securities of the
Association: and shall give bond in such amount as required by the Directors, conditioned upon
the faithful performance of the duties of the office. The Secretary/Treasurer shall keep regular
books of account and shall submit them, together with all of his or her vouchers, receipts, records
or other papers to the Directors for their examination and approval, at least quarterly or as often
as they may require additionally: and shall perform all other duties as are incident to this office.
Section 4 The Board may hire a manager and may delegate, for a fee, any and all
Association management responsibilities to a manager. The manager shall be an employee or
independent contractor of the Board of Directors. The Board shall determine the scope and
duties of the manager's employment and responsibilities subject to the Covenants and these
Bylaws. The manager shall be authorized to take any and all business, legal and financial action
BYLAWS OF ORCHARD VILLAGE - Page 4 of 6
that is delegated, subject to the Board's approval. The Board shall require appropriate insurance
and bonding of any manager.
ARTICLE VIII
FINANCE AND ASSESSMENTS
Section 1 The funds of the Association shall be deposited in such bank or banks, savings
and loan associations, or other financial institutions as the Directors shall designate and shall be
withdrawn only upon check or order of an officer of the Association duly authorized by the Board of
Directors, or by a Manager/Agent if so authorized.
Section 2 The Directors shall establish and collect the assessments specified in the
Declaration of Covenants pursuant to the terms and conditions stated therein.
Section 3 In the event of default by any owner in paying the assessments specified
above, the Board of Directors shall exercise any or all of the remedial procedures stated in the
Declaration of Covenants, or any other available legal remedy.
ARTICLE IX
AMENDMENTS
Section 1 Declarant under the covenants may amend these Bylaws during the period
of Declarant control as defined in 1.2.21 of the covenants.
Section 2 These Bylaws may otherwise be amended by a 2/3 majority vote of all
Directors, subject to the approval of a majority of owners at a regular or special meeting called
for that purpose.
Section 2 The Association may amend to the Bylaws by resolution passed by 2/3 of
the members in attendance, subject to Declarant rights in the covenants.
ARTICLE X
MISCELLANEOUS
Section 1 All notices to the Board of Directors shall be sent by U.S. postage prepaid
to the office of the Board of Directors, or via e-mail, as may be designated from time to time,
said notices to be effective upon receipt, and all notices by the Board of Directors to owners shall
be sent by the Board or its agent postage prepaid to the most recent address furnished by each
owner.
Section 2 The invalidity of any part of these Bylaws shall not affect or impair in any
manner the validity, enforce ability, or effect of the balance of these Bylaws. Similarly, any
BYLAWS OF ORCHARD VILLAGE - Page 5 of 6
invalidity in the Declaration of Covenants shall not affect the balance thereof.
Section 3 No restriction, condition, obligation, or provision contained in these
Bylaws shall be deemed to be abrogated or waived by reason of any failure to enforce the same,
regardless of the number of violations or breaches thereof which may occur. Similarly, any
failure to enforce the provisions of the Declaration of Covenants shall not be deemed to be a
waiver.
Section 4 Upon dissolution or final liquidation of the corporation, obligations shall
be paid and assets distributed in conformity with the Montana Non -Profit Corporation Act and/or
Section 501 of the Internal Revenue Code, as amended.
ARTICLE XI
CONFLICTS
In case any of these Bylaws conflict with the provisions of federal or state statutes, the
Declaration of Covenants, the provisions of such statue or of the said Declarations, as the case
may be, shall control.
IN WITNESS WHEREOF, the undersigned, as Incorporator of Orchard Village Owners'
Association, Inc., has hereunto executed and hereby certify these Bylaws as duly adopted by said
corporation this C % day of !fir- !:!1 20
DECLARANT
ORCHARD VILLAGE, LLP
A Montana Limited Liability Partnership
Blend Joint Revocable Trust
By: Michael K. Blend, Trustee
Michael Dores
David Graham
By: Diana O. Blend, Trustee
Jordonna Dores
Kathy Graham
BYLAWS OF ORCHARD VILLAGE - Page 6 of 6
F:\FILES\CLIENT\Blend\BYLAWS-Orchard Village.doc
BYLAWS OF ORCHARD VILLAGE- Page 7 of 6
Tri-City Planning Office
17 Second St East, Suite 211
Kalispell, MT 59901
Phone: (406) 751-1850 Fax: (406) 751-1858
riv V
KALISPELL 'Z W 01TEFISH COLUMBIA FALLS
Project /Subdivision Name:
Contact Person: Owner & Mailing Address:
Name: Ai�hae / 1-3le-nd, Oy'chaird_ Vfflaqe, k�'®d
0y
Address: R.O. eox 15,09 P, 6, j3, 7,5-,n e-
Phone No.: YQ& - /-/06- '752- 52SO
Date of Preliminary Plat Approval: Ma rcA- 1,
'Lpo If -
Type of Subdivision: Residential. X Industrial
Commercial PUD Other
Total Number of Lots in Subdivision
Land in Project (acres)
Parkland (acres) 0, 3 V Cash -in -Lieu
Exempt Yes.
No. of Lots by Type:
Single Family Townhouse
Mobile Home Park
Duplex Apartment 14
Recreational Vehicle Park
Commercial Industrial
Planned Unit Development
Condominium Multi -Family
Other
Legal Description of the Property
M — 1 11
Minor Subdivision with approved preliminary plat $400 + $40/lot
Major Subdivision with approved preliminary plat $650 + $40/lot
Subdivisions with Waiver of Preliminary Plat $600 + $40/lot
Subdivision Improvements Agreement $ 50
1
Attached Not Applicable (MUST CHECK ONE)
X Health Department Certification (Original)
>< Title Report (Original, not more than 90 days old)
Tax Certification (Property taxes must be paid)
Consent(s) to Plat (Originals and notarized)
Subdivision Improvements Agreement (Attach collateral)
Parkland Cash -in -Lieu (Check attached)
Maintenance Agreement
Plats: lopaque OR 2 mylars
I mylar copy I signed blueline
4 bluelines 4 bluelines, unsigned
1 1X17 Copy 1 1X17 Copy
"The plat must be signed by all owners of record, the surveyor and the examining land surveyor.
Attach a letter, which lists each condition of preliminary plat approval, and individually state how
each condition has specifically been met. In cases where documentation is required, such as an
engineer's certification, State Department of Health certification, etc., original letters shall be
submitted. Blanket statements stating, for example, "all improvements are in place" are not
acceptable.
A complete final plat application must be submitted no less than 60 days prior to expiration date of
the preliminary plat.
When all application materials are submitted to the Tri-City Planning Office, and the staff finds the
application is complete, the staff will submit a report to the governing body. The governing body
must act within 30 days of receipt of the revised preliminary plat application and staff report.
Incomplete submittals will not be accepted and will not be forwarded to the governing body for
approval. Changes to the approved preliminary plat may necessitate reconsideration by the
planning board.
I certify that all information submitted is true, accurate and complete. I understand that
incomplete information will not be accepted and that false information will delay the application
and may invalidate any approval. The signing of this application signifies approval for Tri-City
Planning staff to be present on the property for routine monitoring and inspection during the
approval and development process.
**NOTE: Please be advised that the County Clerk & Recorder requests that all subdivision
final plat applications be accompanied with a digital copy.
/?
Owners) Signature Date
**A digital copy of the final plat in a Drawing Interchange File (DXF) format or an AutoCAD file
format, consisting of the following layers:
1. Exterior boundary of subdivision
2. Lot or park boundaries
3. Easements
4. Roads or rights -of -way
5. A tie to either an existing subdivision corner or a comer of the public land survey system
As approved by the TCPB, Effective 3/15/04
N