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4. Final Plat - Orchard Village
Tr -City Planning Office 17 Second Street East -- Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 tricityC centu rytel.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, Narda A. Wilson �'SH- 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 o City of Columbia Falls • City of Whitefish Tri-City Planning Office 17 Second Street East - Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax; (406) 751-1858 tricity,eenturytel.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 S1A 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. COMPLIANCE WITH CONDITIONS OF APPROVAL 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 meta 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 113, 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 net. 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 S. 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 conditions 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 subdivisions 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 IS. 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. COMPLIANCE WITH APPROVED PRELIMINARY PLAT 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. COMPLIANCE WITH THE SUBDIVISION REGULATIONS: This subdivision plat has been found to be in compliance with the State and City Subdivision Regulations. COMPLIANCE WITH THE ZONING 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. RECOMMENDATION: 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, F Narda A. Wilson Senior Planner NW Attachments: Vicinity reap 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 LISPS dated 10/26/04 Ltr from Kalispell Public Works dated 4/ 14/04 Ltr from Kalispell Public Works dated 3 / 2 1 / 0 5 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 / 03 Declaration of conditions and restrictions articles of incorporation ca Michael Blend, P.O. Box 7505, Kalispell, NIT 59904 Theresa White, Kalispell City Clerk C TTTIT►Tn7ycy"r,T A r113V i i%IuAtrV OIL)" "IV -LO-t"IN Airli IN," r L';:VJLUie i L'?Vit_i':..A'sAr I E,-11 THIS AGREEMENT, made and entered into this 22nd day of February 2005, by and between the CITY COT TNCIL, City of Kalispell, Party of the First Part and hereinafter referred to as the CITY, and Orchard Village LLP, located at PO Box 7505 Kalispell, MT 59901, Party of the Second Part and hereinafter referred to as DEVELOPER. WITNESSETH: and, THAT WHEREAS, the Developer is the owner and developer of a new subdivision known as Orchard Village Subdivision, located at Section 13, T 28N, R 22W. flathead County Montana WHEREAS, the City has conditioned its approval of the final plat of Orchard Village Subdivision upon the conditions as set forth in the Preliminary flat of the Subdivision being completed and all improvements as cited in "Exhibit A" have not been completed at this time, and the Developer wishes to bond for the completion of those improvements set forth in "Exhibit A"; and WHEREAS, the City's Subdivision Regulations require that a subdivider shall provide a financial security of 12511/o of the estimated total cost of construction of said improvements as evidenced by an estimate prepared by a licensed public engineer included herewith as "Exhibit 13' ; and WHEREAS, the estimated total cost of construction of said improvements is the sum of S44,443.20. NOW, THEREFORE, in consideration of the approval of the final plat of said Subdivision by the City, the Developer hereby agrees as follows: 1. The Developer shall deposit as collateral with the City a Certificate of Deposit, in the amount of S55,554.00. Said Certificate of Deposit has an expiration date of at least sixty (60) days following the date set for completion of the improvements, certifying the following: Subdivision Improvernenis.igreement--- Orchard Village Subdivision Page I af5 a. That the creditor guarantees funds in the sun of $55,554.00, 125% of the estimated cost of completing the required improvements in Orchard Village. b. That if the Developer fails to complete the specified improvements within the required period, the creditor will pay to the City immediately, and without further action, such funds as are necessary to finance the completion of those improvements up to the limit of credit stated in the letter. 2. That said required improvements shall be fully completed by December 31, 2005. 3. That upon completion of the required improvements, the Developer shall cause to be 'filed with the City a statement certifying that: a. All required improvements are complete; b. That the improvements are in compliance with the minimum standards specified by the City for their construction and that the Developer warrants said improvements against any and all defects for a period of one (1) year from the date of acceptance of the completion of those improvements by the City; c. That the Developer knows of no defects in those improvements; d. That these improvements are free and clear of any encumbrances or liens, e. That a schedule of actual construction costs has been filed with the City; and, f. All applicable fees and surcharges have been paid. 4. The Developer shall cause to be filed with the City copies of final plans, profiles, grades and specifications of said improvements, with the certification of the registered professional engineer responsible for their preparation that all required improvements have been installed in conformance with said specifications. ';andivisiori improvements lgreertren[ — Orchard Village :SWyhvision Page 7 of 5 IT IS ALSO AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS, TO -WIT: That the Developer shall provide for inspection of all required improvements by a registered professional engineer before the Developer shall be released from the Subdivision Improvement Agreement. That if the City determines that any improvements are not constructed in compliance with the specifications, it shall furnish the Developer with a list of specific deficiencies and may withhold collateral sufficient to insure such compliance. If the City determines that the Developer will not construct any or all of the improvements in accordance with the specifications, or within the required time limits, it may withdraw the collateral and employ such funds as may be necessary to construct the improvement or improvements in accordance with the specifications. The unused portions of the collateral shall be returned to the Developer or the crediting institution, as is appropriate. IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals the day and year herein before written. Orchard Village LLP by�� (Title) Sigbahvision Improverrac-raas llvvement — Orchard Village Sm5division Page 3 of 5 STATE OF MONTANA COUNTY OF On this `<�_day of 20 Before me, a State of Montana, personally appeared � � ��.� -�� , A a known to me to be the o�� whose name is subscribed to the foregoing instrument and acknowledged to me tl same. IN 'WITNESS WHEREOF, I have hereunto set my hand and affixed nay Notarial Seal this day and year first above written. '- Notary Public for the State, of Montana Residing at C " i1![y Commission Expires MAYOR, CITY OF KALISPELL By: Mayor ATTEST: By: Finance Director Subdivision Impr-owments Agmement - Orchard d tillage Subdivivon Page 4 of 5 EXHIBIT A Conditions of approval as fixed to the preliminary plat by the City Council, Kalispell, Montana. This agreement specifically includes the following improvements, their projected construction completion date and estimated construction costs. IMPROVEMENTS Sidewalks Paving Landscaping CHECK CONSTRUCTION APPROPRIATE COMPLETION BOX DATE TOTAL COLLATERAL (TOTAL COST x 125%) 105 105 105 SUBTOTAL FEES TOTAL COST ESTIMATED CONSTRUCTION COSTS $ 10,082,00 $ 18,127.20 $ 16,234.00 $44,443.20 $44,443.20 $55,554.00 Subdivision Improvements Agreement — Orchard Village Subdivision Page 5 of 5 1 %GLACIER No, BANK PO Box 27, Kalispell, MT 59903 (406) 758-4345 fax (406) 756-4204 February 28, 2005 City of Kalispell 312 I5t Ave. E. Kalispell, MT 59901 RE: Michael K. Blend Inc. Irrevocable Letter of Credit No. 1-05-250 Amount: $55,554.00 Expiration Date: March 1, 2006 Glacier Bank has established an Irrevocable Letter of Credit in your favor at the request of and for the account of Michael. K. Blend Inc., 104 W. Bluegrass Dr., Kalispell, MT 59901, up to the aggregate amount of FIFTY-FIVE THOUSAND FIVE HUNDRED FIFTY-FOUR AND 00/100 US DOLLARS ($55,554.00), to cover paving, sidewalks, landscaping and the park in Orchard Village Development on Appleway Drive, If Michael K. Blend Inc. fails to complete the specified improvements on Appleway Drive within the time period set forth in the attached Improvements Agreement, we will pay on demand your draft or drafts for such funds, to the limit of credit set forth herein, as are required to complete said improvements. All drafts must indicate the number and date of this Letter of Credit and be accompanied by a signed statement of an authorized official that the amount is drawn to install improvements not installed in conformance with the Improvements Agreement and specifying the default or defect in question. Said funds are available by presentation of your sight draft(s), which clearly specifies the number of this Letter of Credit and shall be presented at the office of Glacier Bank, 202 Main Street, Kalispell, MT 59901. All drafts must be presented prior to the expiration date stated above, and this Letter of Credit must accompany the final draft for payment. Draft(s) drawn in conformity with the conditions of the credit will be honored by us if presented at our office on or before March 1, 2006. City of Kalispell February 28, 2005 Page 2 This letter may not be withdrawn or reduced in any amount prior to its expiration date except by your draft or written release. Unless otherwise expressly stated, this Letter of Credit is subject to the Montana Uniform Commercial. Code and the Uniform Custom and Practice for the Documentary Credits (1993 Revision) International Chamber of Commerce Document No. 500. Sincerely, A Peter J. Davis a Vice President PJD/djb 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 Flat 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 111-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 406.752.52.50 Fax 406.752.2668 mblen gceiituryte1.net w�u.�lenddesiQniZuild_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 small 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. 111nal plat app11%, aL1LJn iinu our c1led, ti l ulflto M L11G dill Sum, U1 'D1,G 1 i3. representing $650. for base fee and $40.00 per lot. 2. Copy of Conditions of approval of Preliminary Plat by the City of Kalispell, Mayor and Council. 3, Letter from City of Kalispell Public Works approving existing completed sanitary sewer mains and water main. 4. Letter from Kalispell Fire Department approving final plat. S. Letter from City ofKalispell's Parrs and Recreation Director approving the landscaping plans submitted. 6, Letter from Schwarz Engineering certifying inspection of the Water, Storm and Sewer improvements to Orchard Village Subdivision. 7, Irrevocable Letter of Credit from Glacier Bank to cover paving, sidewalks, landscaping and the park at Orchard Village. S. Letter from City of Kalispell's Zoning Administrator regarding the floodplain issue. 9. Letter from DEQ approving the plans and specifications received from Schwarz Engineering on April 22, 2004. 10. Letter from US Post Office, Meridian Load Division Supervisor approving the Cluster Box Unit for Orchard Village. 11, Title Report 12. Consent to Platting 13, Tax Certification 14, Articles of Incorporation 15. Proposed Covenants 17. One 11 x 17 copy of final plat plan 1$. 2 sets of Plans 19. Exhibit A of Subdivision Improvement Agreement vAth Engineer's Stamp Sincerely, Michael Blend Montana Department of JEANVMONMENTAL Judy Talart Governor P.Q. Box 200901 - Helena, MT 59620-0901 • (406) 444-2544 - www.dcq.state.mt.u9 April 20, 2004 schwa z Architecture & Engineering Marc Liechti too Financial Dr Suite 120 Kalispell MT 59901 Dear Mr Liechti; RE; Orchard Villabc Suodi.visi.00 Municipal. facilities Exclusion EQ#04-2515 City of Kalispell Flathead County This is to certify that the information and fees received by the Departrvient of Environmental Quality relating to this subdivision are in compliance with 76-4-127, MCA. Under 76-4-125(2)(d) MCA., this subdivi.sior is not subject to review, and the plat can be filed with the county clerk and recorder. Plans and specifications must he submitted when extensions ofmuaticipal facilities for the supply of water or disp©"sal 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 Skaarlan.d Compliance Technician Subdivision Section Water Protection Bureau (406) 444-1801 —email iskaarland@state.mt.us cc; City Engineer County Sanitarian file Cent; atized Services J)RY ivn I CnFarccmcnt Division • PcrMItting &c Cornpliance Divi6an - Panning, Pray vion &. Assistance Divisinh - Rcmcd"sstion [Division __� Montana Department of �NVMONMENTAL OUALITY Judy ,Martz, Governor 109 Cooperative Way - Suite 105 - Kalispell, N1T 59901-2389 m (406) 755-8985 < FAX (406) 755-8977 Marc Liechti Schwarz A&E, Inc. 100 Financial Drive, Suite 120 Kalispell, MT 59901 April 23, 2004 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 I'E. 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. zi Sincerely, �%ra�tl-eAM.�upplyy vironmental Engineer Specialist// Water_;,Section Public Water Supply and Subdivisions Bureau cc: City of Kalispell, Department of Public Works Flathead County Sanitarian File Ct-ntrabxed Services Division • Enforcement Division - Permitting & Cnmpliatace Division • Planning, Prevention & Assistance Division ^ Remediation Division 35 1" Ave East — P O Box 1997 — Kalispell MT 59W3-1997 Phone: (406) 758-7718 Fax: (406) 758-7719 Email: parknrec@kalispell.com March 10, 2005 Mr. Michael Blend Blend Design and Build Ike: Orchard Village, 55 Apple Way Dear Michael: This letter is to serve as approval on the proposed landscaping plans submitted to our office for Orchard Village, 55 Appleway. In addition we approve of your plans to provide a playhouse and two commercial grade spring rider toys, benches and pedestal barbeque to meet the recreation requirements for the playground area. If these improvements have not been installed by final plat, please be aware they need to be bonded for at a rate of 125°%. Tri City Planning can further advise you on this process if you desire. If you have any concerns or questions please give me a call. Sincerely, Michael Baker, Director Cc: Narda Wilson, Tri-City Planning . A City of Kalispell Zoning Administrator 248 3'd Avenue East - KaIis 11, MIT 59901, - Tele ho= 406) ; 58-7 32 - Fax { 06 j 758-7 739 November 5, 2004 Michael Blend Blend Designs 1069 N Meridian Kalispell, MT 59901 Re: Orchard Village Dear Michael: In regard to the floodplain issue at Orchard Village, I slid receive some information from John Schwarz earlier this summer. Based upon that information, the Orchard Village property does not contain a special flood hazard area and no floodplain development permits are required. If you have any questions, please give me a call. Sincerely, P7 Sorensen Zoning Administrator ! EWAl 1 Randy Brodehl - Fire Chief Jinn Stewart - Assistant ChieUPrevention March 18, 2005 Michael Blend PO Box 7505 Kalispell, MT 59901 Re: Final plat approval — Orchard Village Dear Michael, 312 First Avenue East Kalispell, Montana 59901 (406)758-7760 FAX: (406) 758-7952 In response to your request for approval of the above -referenced project, our department approves final plat for Orchard Village, with the following information and conditions. • Fire hydrant locations, fire flows, and fire department access are approved by this department. • It is our understanding that the fire department access across the south portion of the project will be completed as part of the final build out. Please contact me if you have any questions. Sincerely, Jim Stewart Assistant Fire Chief/Fire Marshal Kalispell Fire Department cc: Narda Wilson, Tri-City Planning Office ,.assisting our eommunily in reducing, preventing, and mitigating emergencies. " POSTAL SERVICE 350 N MERIDIAN RD KALISPELL, MT 59901-9998 October 26, 2004 Blend Design & Build P. O. Box 7505 Kalispell, MT 59904 To Whom It May Concern: Delivery has been approved for 27 — 53 Appleway Drive for Cluster Box Unit (CBU) delivery. The Post Office will supply the CBU's and Blend Design will provide the cement pad. If you have any questions regarding this matter, you may contact me at 755-6450. Sincerely, Pennie Ulvila Carrier Supervisor PU:maa City of Kalispell Public Works Department Post Office Box 1997, Kalispell, Montana 59903-1997 -Telephone ( 06)758-7720, Fax (406)758-7831 _ _ e 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, A (..4- Frank Castles, P.E. Assistant City Engineer varz Architecture & Engineering, Inc, r � t � � Works City of Kalispell Public Post vice Box 1.997, KahspelL Montana 59 03-1.997 -Telephone ( 06)-5 -772e Fax (- 758-78 1. March 21, 2005 Orchard Village LLP c/o Blend Design & Build P.O. Box 7505 Kalispell, Montana 59904 Re: Orchard Village Subdivision Gentlemen: The City of Kalispell Public Works Department hereby approves the existing, completed sanitary sewer mains and water main for the referenced subdivision. Approval by the City of Kalispell for the City owned and maintained improvements is granted based on the following: 1. Schwarz Architecture and Engineering, Inc., letter certifying that the improvements within the referenced subdivision have been inspected and installed in accordance with the City of Kalispell standards and the approved plans and specifications. 2. Our video records of the sanitary sewer system. The one year warranty period for the City owned and maintained Basting, sanitary sewer mains and water main will commence on March 21, 2005. A cursory examination of the preliminary plat for the referenced subdivision disclosed adequate acceptable easements for the sanitary sewer mains and water main. If you have any questions, please do not hesitate to contact this office. Sin ly, 1 Frank Castles, P.E. Assistant City Engineer Cc: Narda Wilson, Senior Planner Tri-City Planning Office Marc Liechti Schwarz Architecture and Engineering 100 Financial Drive, Suite 120 Kalispell, Montana 59901 E3 March 3, 2005 Frank Castles, P.E. City of Kalispe ublic Works Department P.O. Box Ka6s M 59901-199, 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. Schwarz, P.E. Cc: Mend Design & Build Project File #3123.04 \\Saeserver\docvmenfsvroject Fi€es\Blend DesEgr S Build\Orchard Village-Appleway Cordes\Cer iFctAion Letter to Frank Castles, PHASE i 20GS.doc SCE WARZARCHITECTURE AND EN61NEERIN6, INC,. 100 Financial Cyr„ Suite 120 - Kalispe?I, AAT 59901 - Tei: 406,755.1333 - Fax: 406.755.1310 - www.schwarzae.com lb A� Jharan R P.L6 -0j9AWAblp mhaws mVmAmd rAaA1;•; pbN 1p m jMWM1n i 8. AN u/ulyr vAaY byppeN wMwyraxn¢ • Aft raw <v, 0 AOs)o 0.06lr o/ /! 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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 of Montana, as contained in Title 35, Chapter 2 of Montana Code Annotated, do hereby set forth: ARTICLE I Corporate Narne: 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 of property in Flathead County, Montana, described as Orchard Village, according to the official plat thereofto be filed and ofrecord in the office ofthe Clerk and Recorder of flathead County, Montana; (3) To fix, levy, collect, and enforcepayment 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 ofits purposes to anyone other than a Director as Director). ARTICLE IV Registered Office and Agent: The initial registered agent of this Corporation shall be Randall A. Snyder, at 8090Highway 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 havebeen 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 for breach of a director's duties to the Corporation and its xmembers. 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 lncomorator: The name and address of the incorporator ofthis Corporation is Randall A. Snyder, 8090 Highway 35, Bigfork, Montana 59911. AR TICLE 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 of record in Flathead County, Montana, and which is subject by covenants of record to assessmentbythe 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 of the 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 ofthe 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 majority holder of member 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. ThereafterDeclarant 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 its his place as aboard member. Subject to the restrictions herein and the provisions of the covenants andbylaws, 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. L 1 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. S . er, Incorporator STATE OF MONTANA ) :ss. County of Flathead ) This inst' Q�'�'��j owledged before me on this _�ay of August, 2004, by Randall A. Snyder. 9 •.•D..... 44 Z 'dV : z : Edward P. Nolde ©: Notary Public for the State of Montana eO•e® e °�t� ®e Residing at: Bigfork My commission expires October 21, 2004. er®�®eaaaeaes ':',�ILESICLIEN7,BlendiIncorporationlArticles Homeowners -Orchard Village ARTICLES OF INCORPORATION FOR ORCHARD VILLAGE OWNERS' ASSOCIATION, INC. 3 OF 3. r off 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") WLNESSETH: 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 `SAssessments" means the Common Expense Assessments and Special Assessments levied and assessed against each Lot pursuant to Article 7 of this Declaration. -l_ 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 Marty. 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, (1) 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. -2- 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 .. 3 1.2.20 "Orchard Village Documents" means this Declaration and the Articles, Bylaws, and the Rules. L2.21 "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: (1) (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 Party 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 Might; (iii) Maintain management office and signs advertising the Units, Iots, 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. -4- ARTICLE 2 ALLOCATION OF PERCENTAGE INTERESTS, VOTES AND COMMON EXPENSE LIABILITIES 2.1 Allocation of Common ProverProvertv Interest and Common Expense Liabilities. The allocation of undivided interests in the Common Property and in Iiability 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 1/14'h 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 Enioyment. -5- 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: (1) 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 Ri hts 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 -6- 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. ARTICLE 4 USE AND OCCUPANCY RESTRICTION 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 -7- does generate a profit, or (iii) a license if required for such activity. The leasing of Unit y 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 Machiaeri 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 twine 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 Qccupancy. No trailer, tent, shack, garage, or other structure, and no temporary Improvement of any kind shall be used at any time for residence eit'her temporadly car permanently. Iemporary buildings or structures uses 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. 410 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 Cross 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, -9- 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 Si ns. 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 ActiviNo 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 Leasin1 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 - 1€1- 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 pp al„Reauired. After the expiration of the Period of eelarant r©v„ 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 MAINTENANCE AND REPAIR OF BUILDINGS AND COMMON PROPERTY 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 -1.1- 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. 1f a Lot Owner falls 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 (1 S) 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 12.5 of the Declaration. ARTICLE 6 THE ASSOCIATION; RIGHTS AND DUTIES, AND MEMBERSHIP 6.1 Rights, 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 r, affirmative vote of the Lot Owners representing more than fifty percent (50a) 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. Nohvithstanding 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 -12- 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 wilful 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 Rights. 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 givers 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 _13_ Owner, on any Association matter which is put to vote of the membership in accordance with this Declaration, the Articles and/or the Bylaws. 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 -14- 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. ARTICLE 7 ASSESSMENTS 7.1 Preparation of Budtet. 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 mariner 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 -15- 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 Lots 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 -16- 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 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 -17- and to purchase, acquire, Mold, 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 corning 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 fee 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 + .+ �+:, .+� +T o �+ �.,, . : a n 1,;q T �+ 'Pl.o J LQLG11iG11L 3tii Llll' Wi tll Ell%+ a111UU.EAL Lil 1i111Ja1U .C-1.�7 Jt+�].]k11L+11L.7 µgu11107 Ul0 111J 4. 111E A7 LU LL,.11k4iA LJ 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 - is- provided. in Article 7 and risks associated with individual dwelling units shall be special assessments attaching only to such dwelling. 8.2 Uabft, 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 Poliey 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 i Ilit l LUV LUSLCU HU- ICIRUI�LCI- UU-6- U1-1'UU-U� .erlUrSemC_t Ir.__Ura-.-` -- 1 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 ether owners. c. Vlort, aeee'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. - 19- 8.3 Data ne 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'',owners 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 aesthetically pleasing manner possible. The lot may be sold by the owner and any sub 'Sequent 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 to proceed in good faith with the repair or reconstruction of any damaged or destroyed itriprovement whether upon an individually owned lot or upon common area, and in any event if reconstruction of an individual lot or building is not commenced within sixty (60) days after the casualty occurs, the owner of such damaged improvement may proceed to negotiate and execute a contract for such repair or reconstruction and the Association who shall receive any insurance proceeds attributable to such loss, shall pay such proceeds, to the extent required, to the contractor or contractors selected by such individual owner. In the event that the Board of Directors shall fad to proceed in good faith to repair or rebuild damaged or destroyed improvements upon the common areas, any individual owner in writing to all owners and such Association may act, through its membership, to proceed upon a simple majority vote of the members present and voting to enterinto 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. 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. ARTICLE 9 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 Riaht 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. -21� ARTICLE 10 GENERAL PROVISIONS 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 s uccessive periods often (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 a the a� to each person at e 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 Bindint: 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 run 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 snake 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 Headings. The rrmarginal 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, Iicensees 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 Attorne '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 1013 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: (1) 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 A - A -4,hL,H1 MerissoeiRCion +at UIC viL.C�ioii«C�C1CC1 �o lll �Ta noticed 1,1oL exiJC ofha4 i1.1�aa%nMi.i 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 . 2 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 snit 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 A.A.A. The arbitrator shall be a neutral attorney who practices in the area of real estate, commercial or business law, who DEED 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 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: (1) 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 tiling 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_ ARTICLE 11 AMENDMENT 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 fhe A SS0 C:..+__1, r -----, --A 1— -4 1�. 4- . ..f1..,.. vliuuLtiu v� LLf4 .7.7V 41a LAV Ai D .l :Ll R1A.ItU Lim aL itiQ.JL Vlie MIMI 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. 11.19 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. -28- 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 4-1- day of 2005, by , the General Partner of the Orchard Village, LLP, a Montana limited liability partnership on behalf of the company. JENNIFER M. VGLKER Lary Publ C State of Montana My Commission Expires: Gj 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. Iimited 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 Lime ed 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 I 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 flat 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 II 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 I Membership shall be as set forth in the Articles of Incorporation. Section 2 The owners association shall have not less than one (I) 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 I 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 I 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 i 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 tens 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 X1 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 day of t200,' t DECLARANT ORCHARD VILLAGE, LLP A Montana Limited Liability Partnership Blend Joint Revocable Trust ell By: Michael K. Blend, Trustee By: Diana O. Blend, Trustee Michael Dores Jordonna Dores David Graham Kathy Graham BYLAWS OF ORCHARD VILLAGE - Page 6 of 6 Tri-City Planning Office 17 Second St East, Suite 212 Kalispell, MT 59901 Phone: (4061751-1850 Fax: (406) 751-1858 FINAL PLAT APPLICATION KALISPELL 'V/ WMTEFISH - COLUMBIA FALLS Project /Subdivision Name: FILING FEE ATTACHED $ to Q(,"000 Minor Subdivision with approved preliminary plat $400 + /lot Major Subdivision with approved preliminary plat $650 + $40/lot Subdivisions with Waiver of Preliminary Plat $600 + $40/lot Subdivision Improvements Agreement $ 50 I Attached Not 1pp—h-c—able (MUST CH K ONPJ **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 rnet_ 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 for -warded 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 inforination 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: i . Exterior boundary of subdivision 2. Lot or park boundaries 3. Easements 4. Roads or rights -of -way 5. A tic to either an existing subdivision comer or a comer of the -public land survey system As approved by the TCPB, E55ctve 3/15/04 M Plat Room Flathead County, Montana 800 S. Main St. Kalispell, MT 50001 (406) 758-5510 This Form is for Subdivisions & Condominiums Only BY: wtlo� FOR: R: Vl L L DESCP: YEARS ASSESSOR If 2000 THRU-- _-----____-- & TO DATE DATE 1 PURPOSE 083�5 --------------------------- I hereby certify that there are no outstanding taxes on the property assigned the assessor numbers listed above, for the years indicated for each assessor number. �`- Deputy TreaS[&r _ 2 200 (seal) 5 GUARANTEE - {CLTA Form) Rev. 6f6i92 SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE LIMITS OF LIABILITY AND OTHER PROVISIONS OF THE CONDITIONS AND STIPULATIONS HERETO ANNEXED AND MADE A PART OF THIS GUARANTEE, AND SUBJECT TO THE FURTHER EXCLUSION AND LIMITATION THAT NO GUARANTEE IS GIVEN NOR LIABILITY ASSUMED WITH RESPECT TO THE IDENTITY OF ANY PARTY NAMED OR REFERRED TO IN SCHEDULE A OFF WITH RESPECT TO THE VALIDITY, LEGAL EFFECT OR PRIORITY OF ANY MATTER SHOWN THEREIN, a corporation, herein called the Company, GUARANTEES the Assured named in Schedule A against actual monetary loss or damage not exceeding the liability amount stated in Schedule A which the Assured shall sustain by reasons of any incorrectness in the assurances set forth in Schedule A. title guamr" comp" V Tease note carefuily the liability exclusions and lirrtitations and the specific assurances afforded by this guarantee. If you wish additional liability, of assurances other than as contained herein. please contact the company for further information as to the availablility and cost. r ..... ...__. Guarantee5374 - ;' , m � _ S`::. "c v"' `, $2[� i�c. _ „sue-:, `. ' =T'. 4 e •,6 � Via. � ate- 6"� ; to —r3fi— the P.nrn;);4nv xniiop �+ qdrirp.cq it at P 0 Fray 5�Ci2Q Htt3rstnn_ Texas 77252. and refer ?o the printed Segal Number. Order No. STK-101310 Guarantee No. G-1578-53741 Date of Guarantee: December 28, 2004 Liability: $1,000.00 ASSUD: Montana Mapping Associates, Inc. Assurances, given without examination of the documents listed or referred to and only to the specifically named documents and no others: Description of the land: A tract of land situated, lying and being in the NENE of Section 13, township 28 North, Range 22 rest, P.M.M., Flathead County, Fontana, more particularly described as follows: Commencing at the Northeast corner of Section 13; thence "West a distance of 760.00 feet to a point; thence South a distance of 30.00 feet to the southerly right-of-way line of Appleway Drive and the True Point of Beginning of the tract of land being described; thence South 01°47'56" West a distance of 201.07 feet to the northerly right-of-way line of the Burlington Northern Railroad and a %" pipe; thence along said northerly line South 76°50'55" West a distance of 541.85 feet to a %" pipe; thence leaving said northerly line and continuing North 01°09'06" East a distance of 324.53 feet to the southerly right-of-way line of Appleway Drive and a 5/8" rebar; thence along said southerly line South 89°58'36" East a distance of 527.42 feet to a 5/8" rebar and the Point of Beginning. To be known as: ORCHARD VILLAGE That only the hereafter named parties appear to have an interest showing in the public records affecting the laud necessitating their execution of the named proposed plat or map, as follows: Orchard Village Limited Liability Partnership, a Montana Limited Liability Partnership Whitefish Credit Union Association Platt Electric Supply, Inc. FWXXNW�.� General taxes and assessments for the year 2004 First half: $1,819.14 PAID Second half: $1,819.10 DUE and will become delinquent after May 31, 2005 Assessor No.: 75-0283855 2. General county taxes for the year 2005, which are now a lien but not yet computed or payable. 3. Location of Burlington Northern Marion Branch railroad right-of-way along southerly boundary as described in Deed recorded April 17, 1891 in Book 353, Page 491, records of Flathead County, Montana. 4. Terms, Conditions and Provisions contained in Boundary sine Agreement between Hagerman, Robinson and Duval Recorded: October 4, 1972 Book/Page: 543/279 Easements, reservations, restrictions notes and dedications, as shown on the Deed Exhibit recorded in Book 544, Page 144, records of Flathead County, Montana. 6. Terms, Conditions and Provisions contained in Resolution No. 4789 (.Annexation) Recorded: June 9, 2003 Instrument No:2003-160-11040 7. Terms, Conditions and Provisions contained in Petition to Annex and Notice of Withdrawal from Rural Fire District Recorded: June 9, 2003 Instrument No:2003-160-11050 $. Easements, reservations, restrictions notes and dedications, as shown on the Certificate of Survey No. 15605, records of Flathead County, Montana, 9. An easement affecting the portion of said premises and for the purposes stated herein For: utilities In Favor of: Flathead Electric Cooperative Recorded: September 30, 2004 Instrument No:2004-274-09170 10, Easements, reservations, restrictions, notes and dedications as shown on the unrecorded plat of Orchard Village. 11. Trust Indenture Grantor: Orchard Village LLP ia Le 1jCfL%o11r11;, , 1a;L aLJ%wlV;zki,%,O Beneficiary: Whitefish Credit Union Amount: $3,236,250.00 Recorded: May 11, 2004 Instrument Irio:2004-132-11150 12. Assignment of Leases and Rents .Assignor: Orchard Village LLP Lender: Whitefish Credit Union Amount: $3,236,250.00 Recorded: May 11, 2004 Instrument No:2004-132-11160 13. Notice of Right to Claim a Lien Claimed by: Platt Electric Supply Inc. Against: Orchard Village and Blend Design & Build For: electrical materials Recorded: July 28, 2004 Instrument No:2004-210-08120 14. Terans, powers, provisions, and limitations of the partnership agreement under which title to the property is held. 15. The Company requires a copy of the general partnership agreement and any amendments and a certificating stating that the agreement has not been further amended and the names of the current general partners. 16. Exceptions and reservations contained in Patents of record. 17. Any off record facts, encumbrances, easements or possessory claims a survey or inspection would disclose. 18. No examination made herein for State U.C.C.'s and/or Federal Bankruptcy's, and coverage is excluded herein. 19. Rights of the United States of America to recover any public funds advanced under the provisions of the Hill -Burton Act or various Federal statues relating to health. 20. Survey/Plat when recorded, must be in compliance with the provisions of the Montana Subdivision and Platting Act, 1973 (Sections 76.3-101 M.C.A.) and the Regulations adopted pursuant thereto. 21. No search has been made for water rights or unpatented mining claims and liability thereon is excepted from this Certificate. 22. The above described property is located within and subject to the jurisdiction of Kalispell Fire District. JHEAD COUNTY AND !S NOT NECESSARILY AN ACCURATE 'ECQRD, THEIR BOUNDARIES OR EASEMENTS AND ROADWAYS. � 1 6C 15 1 14 1 DBA � 4 �hBgIp1A 1 t 13DB_`I"r�- 5 NESS PARK � C� I �'� 1A I3D 1a�10 � 11A J&L 11C 12 11E 13 4 _ gar 11 4 11 t3A (t i i 1 I 2aD ST Vd p r 11 1 1514 1 2 AD 1 _ AC f 1 3 ( li 1 31 1 19 7 .,, 1 3 25 26 27 4TH ST W 111 7 t 1 B 3 i. �+ 2 �� kB+ 3 7AB+ i 7AB+ 7ABAC 7AD i 7ABAB 7A I 1 ( j 7ABA 7AC �`--� 7ABAA i # t � 7ABBB t b 7ABB 7ABBA � t � t t -----__-__ 1 AI --�-_- } 1AH 1AG 1A+ t 1 A� 1A+�. � t 1 FB 21, f 1 / i i 1 t 1F f 1AE E t 1 1 58A i i ! E ID' � - i 1 t 1a , tl� ii j 1 AB 20051'JA /204"ru 04: 19. Pzf P. 009 CONSENT TO PLA "TTI G Pursuant to Section 76-3-612 M,C,A, the undemsiped, W=0-1811 CREDIT UNION ASSOCIATION ^as a representative of Trust Indenture in the amount of $3,236,250.00 rew rded May 11, 2004, InOminent No. 2004-132-11150 AND A-mig=ent of L(!! uses and Rents recorded May 121, 2004, )xnsft=ent No. 2.004-132-11160, records of Flathead 0 aunty, Montana, consents to the platting of a traet of land to be known and named ORCHARD VI1,LAGE. 1 WITNESS WHEREOF said ,party has caused their mane tot-� sAscn-kd hereto on the ..� . °�' day o , 2005. WMTEFISH CREDIT 1"C)N A °�'�SOCIA.'ION STATE OF MOkAN.A. COUNTY OF FLATHEAD ) On this day of Ik i 'e_ 2 bofore xa the lvo ersigned, a Notary Public for the State aforesod, personally eared as t aahn&i L R _ awn to me or.proved to me'upon satiActory evidence to be the person who executed the within instrument on beWf of Whitefish ("`redit Union Association, IN WITNESS WHEREOF I have hereunto get my hand and affi %od my N otarW Seal the day and year first above written. Notary Pdbhc for tE e S to of Montana Residing at My Commission Rzpires 7 2005/10/2310 04:140 PM am Putmmt to Section 7&3-612 NCC.A. the mdarsign4 PLAIT ELSCMC SUPPLY, INC. as a rqKcm9adve ofNcdcc ofRi& to cWm a Lien Mcd J* U:, 2004, histrm� No. 2004-210-08120, rewnis of FbthW Cmmty, Mmwma, consents to the 1mming of a track of land to be kumm md umed ORCHARD VnLA(r— IN VVTf NES P md party has cumd euir tumo to b,- ubscnlW hmo on 200, the da: . I STATE OF MDNTANA LC PLA ELF SVPPLY L33 Onthisel-IZ/ day M imdermip4 &Notary F tic for the StAte afbmaW: Vasonally appearod �7/ , , - Z,� � 7,� — 0 . - !7" -� /:�� " �' as kwwu tome or prova tome upon atialkaory o.-Admoe to be the persm who e"mW the within mstrmmt an h&W of Platt Electm: Supply, luo. IN WM'4BSS WMMROF I bavie hw=An ed my hmd and affmod my Notu-jal'seal th day and year first above written. Rmiding at myconmulanEXOM THE CITY OF KALISPELL, MONTANA FINANCE DEPARTMENT REPORT April 4, 2005 CASH RECONCILEMENT AT THE CLOSE OF BUSINESS CASH ON HAND & DEMAND DEPOSITS: GLACIER BANK/STIP-CASH IN TRANSIT GLACIER BANK CHECKING & REPO A/C GLACIER BANK -HEALTH FUND GLACIER BANK -POOL ACCOUNT STIP (CITY HEALTH FUND) STIP PROGRAM MULTI -BANK SECURITIES, INC/BEAR & STEARNS BIDDER'S BONDS SUB -TOTAL DEMAND DEPOSITS: INVESTMENTS: GLACIER BANK: COURTYARD RESERVE ACCOUNT COURTYARD RESERVE ACCOUNT!EQUITY COURTYARD RESERVE ACCOUNT/EQUITY RURAL DEVELOPMENT GRANT ACCOUNT STIP PROGRAM (UDAG) OTHER INVESTMENTS: REVOLVING FUND: 1996 S & C BONDS REVOLVING FUND: 1997 S & C BONDS REVOLVING FUND: 1998 S & C BONDS REVOLVING FUND: 1999 S & C BONDS REVOLVING FUND: 2000 S & C BONDS REVOLVING FUND: 2002 S & C BONDS REVOLVING FUND: 2003 S & C BONDS REVOLVING FUND: 2003 S & C BONDS TOTAL S & C's: TOTAL LONG TERM INVESTMENTS_ PETTY CASH TOTAL TO BE ACCOUNTED FOR: Respectfully Submitted, W11.121 PXOW. Carol L. Kostnian Citv Treasurer DATE: March 31. 2005 S 65,302.43 S 210,702.37 $ 58,513.68 S $ 1,467.91 $ 16,507,942.17 $ 4,000.0W00 $ 244,424,03 S 35,799.17 5 4,546,00 Renter Dep. S 2,70&00 $ 250.00 $ 1,098,165.54 $ 1,518.45 S 1,071.62 $ 632.58 S 884.48 $ 1,447.20 S 11,693.25 $ 13,758.44 S 31,692.72 S 62,699.74 S 21,088.352,59 S 1,204,167.45 S 1,750,00 $ 22,294,270.04 Kalispell Municipal Court PO Box 1997, Kalispell, MT 59903 PHONE: 406-758-7705 James Patrick, City Manager Pamela Kennedy, Mayor Charles Harball, City Attorney Kalispell City Council Members FAX: 406-758-7773 Subject: March, 2005 Kalispell Municipal Court Revenue City Fees $ 2,511,39 Court Costs and Misd.City State Tech Surcharge $ 1,546.96 Victim Admin $ 38.00 Victim SIC $ 848.34 Fine/Forfeitures $ 39,556,77 Fines/Forf/Bond Forf/Civil/Contempt DL Reinstatement Fee $ 200.00 City/County Drug Fund $ 717.04 Law Enforcement Academy $ 1,518,75 City SIC and Contract Fee $ 2,174.56 Time Pay Interest $ 1,374.34 NSF fee collected $ 3.00 SUBTOTAL: $ 60,489.15 NSF fees $ (3.00) Funds refunded from GF $ (400,00) Griffith/Allan TK2005-21 Funds refunded from GF $ (300.00) Klingele/.John TK2003-3783 Reimbursements $ 50.00 Parking $ 570.00 TOTAL COLLECTIONS: $ 50,406.15 Honorable Heidi Ulbricht Municipal Court Judge Monthly Report 122 people were arrested by KPD in March 2005 *Some of those charges include. Assault with bodily fluid (1) Assault on an Officer (1) Burglary (3) Shoplifting (11) Theft, other (4) Unauthorized use of Vehicle (1) Resisting Arrest (1) Partner Assault (1) Simple Assault (2) Forgery (3) False Report to Law Enforcement (1) Embezzlement (1) Criminal Mischief (1) Carrying Concealed Weapon (1) Possession of Drugs (3) Possess Drug Paraphernalia (2) TRO Violation (1) DUI (15) DUI .01 (1) Possession of Alcohol (22) Furnishing Alcohol (1) Unlawful Sale of Alcohol (3) Disorderly Conduct (17) Obstructing Peace Officer (9) Criminal Trespass (5) Contempt Warrant (12) Curfew Violation (1) Possession of Tobacco (2) Runaway Juvenile (2) # Adults Arrested ... 75 # Juveniles Arrested ... 47 Total Citations March 2003 ... 534 March 2004 ... 454 March 2005 ... 631 Total Arrests March 2003 ... 148 March 2004 ... 165 March 2005 ... 122 Total incidents 6p orted to this Department March 2003 ... 1484 March 2004 ... 1648 March 2005 ... 1786 CITY OF KALISPELL BUILDING DEPARTMENT MEMORANDUM TO: CITY MANAGER JAMES H. PATRICK, MAYOR PAM KENNEDY, & CITY COUNCIL FROM: CRAIG KERZMAN, BUILDING OFFICIAL DATE: March 31, 2005 RE: PERMIT REPORT PERMITS THIS MONTH FEES THIS MONTH PERMITS JANUARY TO DATE FEES JANUARY TO DATE FISCAL YEAR PERMITS FISCAL YEAR FEES BUILDING 47 $ 18,216.53 121 $ 46,032.98 370 $ 168,767.31 PLAN REVIEW 16 $ 8,713.80 39 $ 20,375.77 139 $ 95,050.04 ZONING 46 $ 5,921.00 120 $ 15,529.50 371 $ 58,324.87 FIRE PREVENTION 47 $ 7,083,89 121 $ 17,845.46 370 $ 65,417,39 PLUMBING 54 $ 5,604.00 124 $ 13,040.00 361 $ 35,516.00 MECHANICAL 37 $ 2,950-00 127 $ 10,469,00 391 $ 32,332.00 MOVING 0 $ - 0 $ - 2 $ 200.00 SIGNS 7 $ 948.00 21 $ 1,848.00 42 $ 2,907.50 TOTALS $ 49,43T22 $ 125,140,71 $ 458,515.11 VALUATION THIS MONTH JANUARY TO DATE FISCAL TO DATE BUILDING $ 5,749,609.50 $ 14,600,623.60 $ 69,275,160.23 WATER CONNECT FEE $ 91,531.00 $ 240,098.00 $ 996,646,00 SEWER CONNECT FEES $ 110,982.22 $ 236,555.65 $ 951,59531 BOARD OF ADJUSTMENT $ - kn OC. O� C:>: CT cl: © Ci 0" � oc. ockei. r--v 'r4 tr, 00: Al: ©© © in rn 00' ori 64 VA 6A 609, rl CD cn: LLU BUILDING DEPARTMENT RECEIPTS �IDATE ISSUED 11VOUCHER NO. 11 11 DATE OF RECORD 1 3/31/2005 FUND NUMBER ACCT NUMBER DESCRIPTION AMOUNT 1000 323102 SIGN PERMITS $ 948.00 1000 323111 ZONING FEE $ 5,921.00 1000 341010 ZONING MAP ,SALES 1000 341080 BOARD OF ADJUST. $ 1000 342023 FIRE PREVENTION $ 7,083.89 2394 323101 BUILDING PERMITS $ 18,216.53 2394 323103 PLUMBING PERMITS $ 5,604.00 2394 323104 MECHANICAL PERMITS $ 2,950.00 2394 323107 HOUSE MOV. PERM. 2394 323108 PLAN REVIEW $ 8,713.80 5210 343225 WATER HOOKUP $ 91,531.00 53101 343330 SEWER -COLLECTION $ 46,262.82 5310 343335 SEWER -TREATMENT $ 64,719.40 TOTAL DEPOSIT $ 251,950:4 kn m Rp Lr5 .. ... ..... --r T- , L O s 21 Sf 8 ...... ...... F 8- R 'A 'A . ... .. ........ .... cnl. .. ... .... .. X. 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I l m 4+ 1 c e V' CV R� h CL v3az � Q S 81 PI M C P � a P o I M a9 e9 ud `G !O Fg t9 1 t o. 0..,..Q O 9 LO q] ro all R fW &33 I P to : fA - fA V3 V3 d c o � of m = v 71 o � � I i � t � l I {[{ I n w n ea ra cn- wa; .n I 1 I I I q y I � � C3 CS E E I ' n al na. - 1 I i tL' m - a g mr� Z` 2' & er 5 It AL Tm S os m_ 2 e4, U C9 7 C] U U Z �VV i i 4 R1 4i 4I,I? M N N', N N' N-. Ni rA`1 H n �< FI of F pp � I I m ry E ' I cq I ' � a cn a z I I 4-- r m € I. U a I o ti o- - q m, di n I ra rri v I z i ! r 11 f]. li I 4B ` ii € Y Vi a rn P, A! m I n udi So [h N 4 N sn ? I I v I V uJ � � I 1 .,,.,.,.,�� 1 �........ ..... ... Ili III I l f � H cc 2 U aE _ Y m m t 4 L ¢. E E I o u, TLI7 1 E i Y(t City of Kalispell Post Oftic(- Box 1 ` 97 - al spell, Mon-ana Fay, t4 `?7::8-71 `8 REPORT TO: .Tames Patrick, City Manager SUBJECT: Monthly Activity Report for N FROM: James Hansz, Public Works D DATE: April 1.4, 2005 Highlights of monthly activity for the operatin, Department for the month of March 2005 are as follows: ENGINEERING DIVISION • Provided Congressman Rehberg a tour of the WWTP. • .Participated in meeting with interested developers for potential extension of utilities south on US 93 from Four Corners. • Met with architect for new HS to review utility and road issues. • Met with consultants to define scope of work for water storage project. • Reviewed WWTP plant expansion odor control study scope of work with consultants. • Met with Roger Claridge to outline for him the Whitefish Stage Road sewer issues. • Reviewed requirements for Glacier Bank expansion with architects. • Met with David Greer ofDNRC to discuss issues related to US 93 Bypass and Section 36 development. • Continued working on the Whitefish Stage Sewer Project. • Conference with engineers regarding the Bowser Creek S/D sewage pumping station capacity. • Completed ROW permit forms for submittal to MDT regarding the municipal utilities installed for the U.S. Highway 93 South Project. • Examined elevations required for an elevated water tank in the Four Corners area. • Created a preliminary cost estimate for a sewer SID South of Woodland Drive, East of South Woodland Drive, West of Willow Glen Drive, and north and East of River Glen Subdivision. • Attended conference on the Two Rivers Development planning area. • Attended conference on industrial development sites. • Inspected failed timber pilings at the City golf course bridge across the Stillwater River. • Met with Bill Boger of TD&H to discuss plans for development along Three Mile Drive. TD&ICI is coordinating the capital improvements for a number of developers, who will share the costs. The major item of concern is a new lift station that needs to be coordinated with the lift stations of Empire Estates and Blue Heron subdivisions. ENGINEERING DIVISION continued... • Met with Dustin of Hamerquist and Casalegno to determine location of the 1" meter at The Plaza located at 1825 Highway 93 South. • Researched sewer system management software packages. • Estimated sewer usage for Don Dines Automotive for the last 2.5 years. Mr. Mines has been issued a meter for his illegal tap, but has yet to install it. The estimated cost based on the ERU for the building exceeds S 1000.00. • Prepared system development charges for Rowe Addition, a convenience store/restaurant located at the corner of Main Street and 4m' Street East. • Attended presentation by DYK about pre -stressed concrete water storage tanks. • Prepared memo concerning installation of stop signs along 5m' Avenue East and 10'n Street East. Recommended stopping traffic on 10`m' Street. • Attended meeting at The Summit to discuss traffic safety concerns for the Junior High students traveling to the Summit. • Prepared system development charges for Subway, a restaurant located at Mountain View Plaza in a lot created out of the Horne Depot lot. This is a tenant improvement and Subway will pay for the sewer. The developer paid the water charge. • Discussed system development charges with. corporate representatives of Costco. • Reviewed plans and specifications for Stillwater Bluffs S/D. • Filled out permits for the stabilization and repair of the bridge over Stillwater River on the Buffalo Hills Golf Course. • Attended conference on proposed development in the Four Corners area. • Attended conference with engineer and developer regarding property southwest of Greenbriar subdivision. • Made site visit and issued SIA approval letter on Muskrat Slough subdivision. • Investigated pumping capacity of the Four Corners sewage pumping station. • Attended FEMA flood map modernization pre-scoping meeting. • Completed preliminary cost estimate for utility services south of Kalispell. • Attended the pre -construction conference for the City Airport north end utilities. • Performed site observation with the street superintendent on the pavement repair by the developer of Stratford Village. • Attended conference on proposed development in the Four Corners area. • Began addressing comments received regarding the proposed standards of design and construction. • Received emergency permit to place cribbing under bridge over the Stillwater River at Buffalo Hills Golf Course. • Attended meeting with consultants regarding the well and water storage tank site assessment project. • Attended a follow up meeting at the Kalispell Junior High School to discuss safety concerns. • Met with representative from Peak Property Management to discuss the placement of the 1" meter for the Plaza located at 1825 Hwy 93 South. • Held conference with engineer regarding preliminary design for Sinopah Subdivision (a residential subdivision off the north end of Northwest Lane). ENGINEERING DIVISION continued... • Held conference with engineer regarding preliminary design for an out lot at Gateway West Mall. • Completed final construction document assembly for Noffsinger Springs Building Lead Abatement and provided the contractor with two executed copies. The Notice to Proceed will be issued in about four to six weeks depending on the weather. The shop drawings for the windows have been approved. The windows have about a four to six week delivery time. • Attended interview sessions for a new hire for the Street Division • Continued editing the Proposed Design Standards based on comments received. • Field visit to Empire Estates Subdivision, Phase 111. • Continued working on the East Avenues Traffic Study Plan. • Attended UDIG council meeting. The council approved the contract with Montana One Call center through 2008. • Drafted detail of work to be done at Central School Museum to help mitigate sewer cross connection in the alley. • Made site visit to The Greenery, a development on the corner of Hwy 93 North and Four Mile Drive. • Met with representative of School. District 5 to discuss ongoing projects between the City and the School District. • Met with Public Works personnel to discuss the Glacier Bank remodel proposal. • Completed design review of Bowser Creek Estates Subdivision. • Completed design review of Ashley Park, Phase VIII. • Field visit to Sunnyside, Phase II and Ashley Park to investigate pavement failures. • Field visit to street crossing construction at Meridian and Westview Business Center. • Attended LEPC (Local Emergency Planning Committee) meeting. This is the funding conduit for some of the emergency preparedness funding for the City. • Attended site review meetings held on Thursday. OFFICE AND STAFF There were 13 emergency call -outs for the month of March: Water Division — 6 Sewer Division — 1 TSS Division — 3 Street Division - 3 WWTP - 0 Total — 13 CENTRAL GARAGE 84 Repair orders were completed during the month of March.: ■ Police — 20 ■ Streets — 19 K Fire — 5 ■ Garbage - 6 ■ Others - 34 a Total — 84 CENTRAL GARAGE continued... • Continued regular maintenance of City vehicles and machinery. • Serviced and repaired Parks Department Toro mower. • Removed, rebuilt, and installed tower lift cylinders on Fire Department ladder truck. • Began removing snow tires on City vehicles. • Replaced both rear axle shafts, bearings, and seals on police car. • Checked and adjusted new Elgin sweeper for use. • Replaced leaking injector on Street Division's 140 G grader. • Replaced main water hose in the Street Division's Sani-Vac. • Replaced alternator in the street sweeper. • Installed cab guard in the new garbage truck. • Fabricated water valve shut off keys for the Water Division. • Repaired damaged air filter housing on the Parks Department stump grinder. • Replaced rear brakes and alternator on the Parks Department's pickup. • Repaired electric window motor on police car. • Replaced leaking radiator on the Parks' mower. • Replaced booze control switch on the Parks' boom truck. • Replaced drive belts on the Parks' stump grinder. • Replaced alternator on Parks' vehicle. • Repaired broken grabber arm on the garbage truck. • Replaced alternator and main broom on the Elgin sweeper. • Installed block heater on the ice melt truck. • Replaced alternator belt on the Parking Commission's Cushman. • Replaced glow plug relay on the ambulance. • Held weekly safety meetings. SANITARY/STORM SEIWER DIVISON • Continued video and jet cleaning of sewer lines Monday through Thursday. • Performed weekly maintenance of twenty-six lift stations each Friday. • Held weekly safety meetings. SOLID WASTE DIVISION • Delivered 10 containers to new customers: 0 90 gallon, 3-100 gallon, 3-400 gallon, 4-300 gallon. • Repaired 0 containers: 3 90 gallon, 2 — 300 gallon, 3 --- 400 gallon and responded to 13 violations. • Continued weekly garbage service and alley cleanup. • Began assembling City containers. • Continued pruning in City alleys. • Held weekly safety meetings. STREET DIVISION • General operations and maintenance of City streets and alleys. • Graded various alleys throughout the City and did cold mix patching. • Assisted the Parks Division with tree removal. • Repaired sod in various locations due damage from winter operations. • Milled sidewalks. • Assisted the Water Division with the installation of a fire hydrant. • Worked on alley cleanup. • Held weekly safety meetings. WATER DIVISION WATER PRODUCTION & STORAGE: • Produced 69 M gallons of water: 14 M gallons upper zone and 55 M gallons lower zone. • Injected 218 gallons of sodium hypochlorite, 12% solution to maintain an average chlorine residual of 0.34 PPM throughout the system. • Continued daily monitoring of all pump stations and routine maintenance on all pumps, motors, chlorination equipment, analyzers, grounds, buildings, controls, testing, water sampling, and record keeping. • Removed submersible motor from Grandview Well — ordered new motor and check valve. • In the process of painting the interiors of the primp stations. • Reviewed work and punch list with contractor on the electrical upgrade. • The water tower was inspected and repaired. • Worked on list of repair items as defined by the DEQ Sanitary Survey. WATER CONS TR UCTION A ND SYSTEM REPAIR; • Tagged 51 delinquent accounts on the East Side of Kalispell. • Meter maintenance and change out on going. • Completed 168 work orders during the month March. • Repaired 6" line at the County shop. • Completed a I %" water tap at 2445 Hwy 93 North. • Completed an 8"x 8" water tap on Airport Road. • Working on trailers. • Replaced fire hydrant at 1990 Teal Drive. • Leak Detection found leak at Petco on Hwy 93 North. • Repaired 6" main on Airport Road. • Attended Foreman's meeting. • Held weekly safety meetings. TRAFFIC SIGNS & SIGNALS DIVISON • Continued regular maintenance of signals, signs, luminaires, barricades, sight obstructions, Airport lighting, alley lighting. • Straightened numerous bent poles throughout the downtown area. • Set out counters at 5th Avenue East and 10th Avenue East and removed after counts were completed. • Changed #9 HPS on East Center Street. • Checked airport runway lights. Replaced two burned out lights. • Set out counters at 5'h Avenue East and 12t" Street East. • Replaced two stolen skateboard park restriction signs in Woodland Park. • Replaced two faded street name signs in Village Greens subdivision. • Set out counters at 5`1' Avenue West and 13lb Street East. Counts are for the Hedges School Safety Study. • Installed five poles with breakaways — four "Stop" signs and three "Street" name signs. • Signed and barricaded for St. Patrick's Day parade. • Street personnel replaced two broken type III barricades on by Rosauer's with two jersey rails. Trucks are backing into barricades breaking them. • Placed counters at 5'h Avenue East and 7th Street East. • Assisted contractor at Conlin's with luminaires electrical plans. They will be removing some for reconstruction on 2'd Street West sidewalks. • Installed temporary advanced warning signs for new "Stop" signs at 5`h Avenue East and 5th Street East. • Installed poles and breakaways at 5"' Avenue East and I Ot" Street East. • Completed City limit survey for the Public Works Department to determine the sign locations for future City limit signs. • Two week traffic counts at 5"' Avenue East and 7't' Street East. • Changed the signs on 4"' Avenue East in front of Hedges School to reflect changes on bus loading and special permit parking. • Dug four holes for four new "Stop" sign poles that were damaged and bend during auto accidents. • Weekly safety meetings held. WASTEWATER TREATMENT DIVISION • 244 Work orders were completed during the month of March. • 456 Lab tests were performed during the month of March. • 24 Loads of sludge were hauled during March. • 151,780 pounds of bio-solids were pressed. • Permit Report for February 2005: There were no permit violations. The total monthly flow was 75 million gallons; average daily flow was 2.7 million gallons, with a peak now of 2.9 million gallons on February 2" d. 0 Safety meetings conducted weekly. �� _ c xa �r , s_ jai r)o m V0)COuucr400a0 rl_ o tacv �8 r'-MQ0 aCNN CN N N 0 rr V It� s - cs g o $ ©a a Olt ram ti (a+r M , " w`80)'td-�Na3acoNuarl iY- eP 5) io el' to t+3 rV s..., a^. £`a - a S'1 '' c- h3 3 I^� F� v- Ci C t �" C9i P I.:: r ➢ 4i3 da to o �'? t- :. far '�"� �- e-- c- r Eq' sm r• C,4 €4 C'4 -. ,3 . 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