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Declaration of CovenantsAfter Recording Please Return To: Vincent G. Rieger Law Office of Vincent G. Rieger, P.C. 4 Meridian Court Kalispell, MT 59901 DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR WILLOW CREEK This Declaration of Covenants, Conditions, Restrictions and Easements for WILLOW CREEK (the "Declaration") is made this _ day of 12009, by Wayne E. Turner (hereinafter the "Declarant"). ARTICLE I STATEMENT AND PURPOSE AND IMPOSITION OF COVENANTS Section 1.1. Owner. The Declarant is the owner of the property in Flathead County, Montana, more particularly described as follows (the "Property"): [[[[INSERT LEGALflfl Section 1.2. Purpose. The purpose of the Declarant in making this Declaration is to create a development known as Willow Creek on the Property (the "Project" or "Willow Creek"). The Declarant further intends to ensure the attractiveness of the Property, including tile residences and other improvements constructed on it; to prevent any future impairment of the Property and to guard against the construction on the Property of improvements of improper or unsuitable materials or with improper quality or methods of construction; to protect and enhance the values and amenities of the Property; to provide for the operation, administration, use and maintenance of the common areas within the Property; to preserve, protect and enhance the values and amenities of the Property; and to promote the health, safety, and welfare of the owners of the Property. Section 1.3. Imposition of Covenants. To accomplish the purposes indicated above, the Declarant hereby declares that from the date of recording this Declaration forward, the Property will constitute a planned community known as Willow Creek, and will be held, sold, and conveyed subject to the following covenants, conditions, restrictions and easements (collectively, these "Covenants"). These Covenants will run with the land and will be binding upon all persons or entities having any right, title, or interest in all or any part of the Property (including Declarant) and their heirs, successors, and assigns, and their tenants, employees, guests, and invites. These Covenants will inure to the benefit of each owner of the Property. ARTICLE 11 DEFINITIONS The following terms, as used in this Declaration, are defined as follows: Section 2. 1. "Annual Assessment" means the Assessment levied annually pursuant to Section 9.3. Section 2.2. "Architectural Review Committee " or "Committee " means the committee fortned pursuant to Article VI to maintain the quality and architectural harmony of improvements in Willow Creek. Section 2.3. "Articles " or "Articles ofIncorporation " means the Articles of Incorporation of the Willow Creek Homeowners' Association, Inc., a Montana non-profit corporation, which have been filed with the Montana Secretary of State, as such articles may be amended from time to time. Section 2.4. "Assessments " means the Annual, Special and Default Assessments levied pursuant to Article IX to meet the estimated cash requirements of the Willow Creek Homeowners' Association. Section 2.5. "Association " means the Willow Creek Homeowners' Association, Inc., a Montana nonprofit corporation, and any successor of that entity by whatever name. Section 2.6. "DefaultAssessment" means the Assessment levied annually pursuant to Section 9.5. Section 2.7. "Bylaws " means the bylaws of the Association which establish the methods and procedures of its operation, as such bylaws may be amended from time to time. Section 2.8. "Common Area" means all of the areas shown as common areas or as a park, including the storm water facilities as depicted on the Final Plat of Willow Creek, records of Flathead County, Montana and any other property in which the Association owns an interest for the common use, benefit and enjoyment of the Members. Section 2.9. "Common Expenses " means (i) premiums for the insurance carried by the Association under Article XII; (11) all other expenses incurred by the Association 'in administering, servicing, conserving, managing, maintaining, repairing or replacing the Common Area and any Improvements located on it; (iii) all expenses expressly declared to be Common Expenses by the Willow Creek Documents; (iv) all expenses lawfully determined to be Common Expenses by the Board of Directors; and (v) all expenses to be allocated among the Owners as provided in Article IX. Section 2. 10. "Declarant" means Wayne E. Turner, or his successors or assigns, including any Successor Declarant. 2 Section 2. 11. "DefaultAssessment" means any Assessment levied by the Association pursuant to Section 9.6. below. Section 2.12. "Design Guidelines " means the guidelines and rules published and amended and supplemented from time to time by the Architectural Review Committee. Section 2.13. "Developtnent Rights " is defined in Section 11.1.2. Section 2.14. "Expansion Property" means such additional real property now owned or in the future acquired by Declarant (including any Successor Declarant) as Declarant may make subject to the provisions of this Declaration, by duly recorded Declaration of Annexation. Section 2.15. "Improvement(s) " means all buildings, parking areas, fences, walls, hedges, plantings, lighting, poles, driveways, roads, ponds, trails, gates, signs, changes in any exterior color or shape, excavation and all other site work, including, without limitation, grading, road construction, utility improvements, removal of trees or plantings, and any new exterior construction or exterior improvement which may not be included in the foregoing. "Improvement(s)" does not include turf, shrub, or tree repair or replacement of a magnitude which does not change exterior colors or exterior appearances. "Improvement(s)" does 'include both original ninprovements and all later changes and improvements. Section 2.16. "Lot" means a parcel of land designated as a lot on any Plat of the Property. Section 2.17. "Maintenance Fund" means the fund created by Assessments and fees levied pursuant to Article IX below to provide the Association with the funds required to carry out its duties under this Declaration. Section 2.18. Wernber" means any person or entity holding membership in the Association. Section 2.19. "Owner" means the owner of record (including Declarant, and including the most recent contract purchaser, but excluding all contract sellers), whether one or more persons or entities, of fee simple title to any Lot or, if the Lot is subject to one or more contracts for deed, the owner of the purchaser's interest in the most recent contract for deed, but "Owner" does not mean or refer to any person or entity who holds such interest merely as security for the perfon-nance of a debt or other obligation, including a mortgage or trust indenture, unless and until such person or entity has acquired fee simple title pursuant to foreclosure or other proceedings. Section2.20. "Period ofDeclarant Control" means the period beginning on the date this Declaration is first recorded in the office of the Clerk and Recorder of Flathead County, Montana, and ending on the earlier of. (a) the date which is 15 years later, or (b) the date on which the Declarant has sold 90% of the Lots. Section2.21. "Person" (whether or not in capitalized form) means a natural person, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or combination of the foregoing. 3 Section2.22. "Plat' 'means any surveyor surveys of all or part of the Property, together with such other diagrammatic plans and infortnation regarding the Property as may be required by applicable law, or as may be included in the discretion of Declarant, as each such survey may be amended and supplemented from time to time, and all as recorded in the office of the Clerk and Recorder for Flathead County, Montana. Section2.23. "Property" means and includes the property described on Section-1.] and initially subjected to this Declaration, and also refers to any additional real property that may be incorporated in the Project from time to time and made subject to these Covenants pursuant to the provisions of this Declaration. Section2.24. "Special Assessment" means an Assessment levied pursuant to Section 9.4. Section 2.25. "Special Declarant Rights" is defined as set forth in Section 11. 1 below. Section 2.26. "Successor Declarant" means any party or entity to who Declarant assigns any or all of its rights, obligations or interest as Declarant, as permitted by Section 17.7 and evidenced by an assignment or deed of record in the office of the Clerk and Recorder of Flathead County, Montana, designating such party as a Successor Declarant, signed by the transferor and the transferee. Upon such recording, Declarant's rights and obligations under the Declaration will cease and terminate to the extent provided in such document� and all such rights and obligations shall be transferred to and assumed by the Successor Declarant to the extent provided in such document. Section 2.27. "Willow Creek Documents" means the basic documents creating and governing Willow Creek, including, but not limited to, this Declaration, the Articles of Incorporation and Bylaws, the Design Guidelines and any other procedures, rules, regulations or policies adopted under such documents by the Association, all as may be amended from time to time. Section2.28. "Willow Creek Rules" means the rules and regulations adopted by the Association from time to time. ARTICLE III EXPANSION AND PLAT Section 3. 1. Development Rights. Declarant reserves the right to exercise all Development Rights in connection with the Willow Creek subdivision in accordance with Article XI below. Section 3.2. Expansion Rights. Declarant reserves the night to expand the Project in accordance with Article XII below. Section 3.3. Declaration ofLot Boundaries. The boundaries of each Lot are delineated on the Plat, and each Lot is identified by the number noted on the Plat. Section 3.4. Plat. The Plat will be filed for record in the office of the Clerk and Recorder of Flathead County, Montana. The Plat may be filed as a whole or as a series of Plats from time to time. 4 ARTICLE IV ASSOCIATION MEMBERSHIP AND VOTING RIGHTS Section 4. 1. Membership. Every Owner, by virtue of being an Owner, and for so long as he is an Owner, will be a Member of the Association. Membership will be appurtenant to and may not be separated from ownership of any Lot. No Owner, whether one or more persons, will have more than one membership per Lot owned, but all of the persons owning each Lot will be entitled to rights of membership and of use and enjoyment appurtenant to such ownership. The Declarant shall be considered an Owner and shall be a Member of the Association with all of the same privileges of the other Owners and Members. For purposes of voting, the Declarant shall have one vote for each Lot owned by the Declarant. For purposes of assessments, the Declarant shall be exempt from all forms of assessments imposed pursuant to this Declaration. Section 4.2. Transfer ofMembership. An Owner may not transfer, pledge or alienate its membership in the Association in any way except upon the sale or encumbrance of his Lot, and then only to the purchaser or Mortgagee of his Lot. Section 4.3. Classes ofMembership. The Association will have one class of voting membership, composed of all Owners, including Declarant, except that the Declarant shall have such additional rights and responsibilities as expressly provided in this Declaration. Section 4.4. Voting Rights. All Members will be entitled to vote on Association matters on the basis of one vote for each Lot owned. Section 4.5. Appointment of Officers andDirectors by Declarant. Until the expiration of the Period of Declarant Control, Declarant will retain the exclusive powers to appoint, remove and replace Directors and officers of the Association. Section 4.6. Proof ofMembership. An Owner will not be entitled to notice or to vote at any annual or special meeting of the Members unless the following requirements are first met: 4.6.1 Any person or entity, within fourteen (14) days of becoming an Owner, will furnish to the Secretary of the Association a photocopy or a certified copy of the recorded instrument vesting that person or entity with an ownership interest, which instrument will remain in the files of the Association. 4.6.2 Within fourteen (14) days of becoming an Owner, the Owner or Owners shall furnish in writing to the Secretary of the Association one (1) mailing address and one (1) telephone number, regardless of the number of Owners, that shall be utilized for all notices and all other Association business. ARTICLE V POWERS AND DUTIES OF WILLOW CREEK PHASE 5 HOMEOWNERS'ASSOCIATION Section 5. 1. Willow Creek Homeowners'Association Management Duties. Subjeettothe rights and obligations of Declarant as set forth in this Declaration, the Association will be responsible for the administration and operation of Willow Creek. The Board of Directors will exercise for the 5 Association all powers, duties and authority vested in or obligated to be taken by the Association and not reserved to Declarant or the other Members by this Declaration, or by other applicable law. Section 5.2. CommonArea. 5.2. 1. Conveyance by Declarant. On or before the expiration of the period of Declarant Control, Declarant will convey to the Association, by written instrument recorded with the Clerk and Recorder of Flathead County, Montana, the Common Area located on the Property that has not otherwise been conveyed to the City of Kalispell, Montana. 5.2.2. Use of Common Area. The Common Area generally is designated by this Declaration for the common use, benefit and enjoyment of the Owners and their families, tenants, employees, guests and invitees. 5.2.3. Willow Creek Homeowners'Association's Responsibilityfor Common Area. The Association, subject to the rights and obligations of the Owners set forth in this Declaration, will be responsible for the management, maintenance and control of the Common Area. This will include the management and maintenance of the storm water facilities. 5.2.4. Assoc iation'sAgreements Regarding CommonArea. The Association, acting through the Board of Directors, may grant casements, rights -of -way, leases, licenses and concessions through or over the Common Area without the independent approval by the Owners. Without limiting the generality of the foregoing, the Association may grant such rights to suppliers of utilities serving the Project or property adjacent to the Project� and to developers or owners of property adjacent to the Project for the purpose of accommodating minor encroachments onto the Common Area or other purposes that do not unreasonably interfere with the use and enjoyment of the Common Area by the Owners. Section 5.3 Water and Sanitary Sewer Facilities. 5.3. 1. Sanitary Sewer Service. Each Lot shall be served by the sanitary sewer system of the City of Kalispell, Montana. Each Owner shall be responsible for the operation, repair, maintenance, and replacement of all sewer facilities located on that Owner's Lot, including but not limited to, the service line running from the house to the sewer main located at or near the property line. 5.3.2. Water Service. Each Lot shall be served by the water system of the City of Kalispell, Montana. Each Owner shall be responsible for the operation, repair, maintenance, and replacement of all water facilities located on that Owner's Lot, including but not limited to, the service line running from the house to the shutoff valve located at or near the property line. Section 5.4. Delegation by Willow Creek Homeowne rs 'Association. 5.4.1. Committees. The Association may delegate any of its rights, duties or responsibilities to any committee or other entity (in addition to the Architectural Review Committee) that the Board may choose to form. 6 5.4.2. Limitation. Any delegation by the Board under this Section is subject to compliance with the Bylaws and the requirement that the Board, when so delegating, will not be relieved of its responsibilities under the Willow Creek Documents. Section 5.5. Streets, Roads andAlleys. Willow Creek shall be served primarily by City of Kalispell, Montana streets and alleys. However, the Association shall be responsible for maintaining all private roads within the Property, if any, except private driveways located within the Lots on the Property, which shall be the responsibility of the Owners of the Lot. Such maintenance will include repair and replacement of such private roads, as well as periodic maintenance of the surface and regular snow, ice, and trash removal from all private roads within the Property. [[[[Hubert: We need to find out if the alleys will be city owned or if they will be casements across the Lots or if they will be private roadways. I will modify this section once we find out.flfl Section 5.6. Books andRecords. Upon being provided forty-eight (48) hours written notice and at a scheduled appointment occurring during non-nal business hours, the Empire Estates Association will make available for inspection by Owners and Mortgagees, current copies of the Willow Creek Documents, and the books, records, and financial statements of the Association prepared pursuant to the Bylaws. Section 5.7. Reserve Account. The Association will establish and maintain an adequate Maintenance Fund from Annual Assessments levied pursuant to Section 9.3. below for maintenance, repair or replacement of the private roads, parks and landscaping or other Improvements located within the Common Area. Section 5.8. Successor to Declarant. The Association will succeed to all of the rights, duties and responsibilities of the Declarant under this Declaration upon terraination of the Period of Declarant Control. ARTICLE VI ARCHITECTURAL REVIEW COMMITTEE Section 6. 1. Committee. There is hereby established an Architectural Review Committee, which will be responsible for the review and approval of all proposed Improvements on the Lots. Section 6.2. Committee M-embership. The Committee will be composed of three or more persons. All of the members of the Committee will be appointed, removed, and replaced by Declarant, in its sole discretion, until the expiration of the Period of Declarant Control or such earlier time as Declarant may elect to voluntarily waive this right by notice to the Association, and at that time the Board of Directors will succeed to Declarant's right to appoint, remove, or replace the members of the Committee. Section 6.3. Purpose and General Authority. No Improvement will be erected, placed, reconstructed, replaced, repaired or otherwise altered, nor will any construction, repair or reconstruction be commenced until plans for the Improvements have been approved in writing by the Committee; provided, however, that Improvements that are completely within a building may be undertaken without such approval. Prior to construction, an Owner shall submit the following items and those items detailed in the Design Guidelines to the Committee: (1) the plan review fee in the amount of $200.00; (2) a Common Area damage deposit in the amount of $1,000; (3) a site plan; (4) 7 elevations showing the design, location, material, colors and exterior finish of the proposed Improvements; and (5) landscaping plans. Notwithstanding subsection (4) of this paragraph, the proposed colors of the Improvements may be submitted subsequent to the original submission but prior to the installation or painting of such Improvements. All Improvements (and color selections) will be constructed only in accordance with approved plans. The Committee shall issue a letter or form indicating approval or disapproval of the plans and colors. [[[[Hubert: In the Design Guidelines, you stated that you did not want to review colors other than that the homes could not match the 3 adjoining homes on each side. We should make these sections consistent.fl]] Section 6.4 Design Guidelines. The Architectural Review Committee shall publish Design Guidelines that will set forth the procedures and criteria for review of Improvements to be constructed on any Lot, and for review of landscaping plans. Failure to follow procedures or criteria set forth in the current published Design Guidelines shall form an adequate basis for rejection of the submitted site plan and elevations; provided, however, that this requirement shall not be construed as preventing the Declarant or the Architectural Review Committee, at their option, from waiving or amending the Design Guidelines at any time or with respect to any application. Failure to follow such procedures or criteria set forth in the Design Guidelines shall also be deemed a breach of this Declaration by such Owner and shall entitle the Association or the Architectural Review Committee to exercise and pursue the rights and remedies provided herein with respect to such breach. Section 6.5. Failure to Act. In the event the Architectural Review Committee fails to approve or disapprove such design, location, materials, color and exterior finish within thirty days after the detailed site plan and elevations have been submitted to it, approval shall not be required and such Owner shall be deemed in compliance with this Article. Any plans, elevations and proposals so approved, either expressly in writing or by the expiration of the thirty day period hereinabove provided, shall then permit the Owner to commence construction in accordance with said plans and elevations, but any deviation from said plans and elevations which in the judgment of said Architectural Review Committee is a substantial detriment to the appearance of the structure or of the surrounding area shall be corrected to conform with the plans and elevations as submitted. Section 6.6. Committee Discretion. The Committee will exercise its best judgment to see that all Improvements conform and harmonize with any existing structures as to external design, quality and type of construction, materials, color, location on the Lot height, grade and finished ground elevation, and the schemes and aesthetic considerations set forth in the Design Guidelines and the other Willow Creek Documents. The Committee, in its sole discretion, may excuse compliance with such requirements as are not necessary or appropriate in specific situations and may permit compliance with different or alternative requirements. Section 6.7. BindingEffect. The actions of the Committee in the exercise of its discretion by its approval or disapproval of plans and other information submitted to it. or with respect to any other matter before it, will be conclusive and binding on all interested parties. Section 6.8. Organization and Operation of Committee. M 6.8.1. Term. The terni of office of each member of the Committee will be one year, commencing January I of each year, and continuing until his or her successor shall have been appointed. Should a Committee member die, retire or become 'incapacitated, or in the event of a temporary absence of a member, a successor may be appointed as provided in Section 6.2. 6.8.2. Chairman. So long as Declarant appoints the Committee, Declarant will appoint the chairman. At such time as the Committee is appointed by the Board of Directors, the chairman will be elected annually from among the members of the Committee by a majority vote of the members. In the absence of a chairman, the party responsible for appointing or electing the chairman may appoint or elect a successor, or if the absence is temporary, an interim chairman. 6.8.3. Operations. The Committee chairman will take charge of and conduct all meetings and will provide for reasonable notice to each member of the Committee prior to any meeting. The notice will set forth the time and place of the meeting, and notice may be waived by any member. 6.8.4. Voting. The affirmative vote of a majority of the members of the Committee will govern its actions and be the act of the Committee. Section 6.9. Other Requirements. Compliance with the Willow Creek architectural review process is not a substitute for compliance with City of Kalispell, Montana building, zoning and subdivision regulations, and each Owner is responsible for obtaining all approvals, licenses, and permits as may be required prior to commencing construction. Section 6.10. Enforcement. 610.1 Inspection. Any member or authorized consultant of the Architectural Review Committee, or any authorized officer, Director, employee or agent of the Association may enter upon any Lot at any time, without being deemed guilty of trespass, in order to inspect Improvements constructed or under construction on the Lot to determine whether the Improvements have been or are being built in compliance with the Willow Creek Documents and the plans and specifications approved by the Architectural Review Committee. 6.10.2. Deemed Nuisances. Every violation of these Covenants is hereby declared to be and to constitute a nuisance, and every public or private remedy allowed for such violation by law or equity against Member will be applicable. Without limiting the generality of the foregoing, these Covenants may be enforced as provided below. (1) Finesfor Violations. There shall be a $1,000 initial fine for failing to obtain the written approval of the Committee prior to commencing construction. Commencing on the twentieth (20 th ) day of non -correction and/or noncompliance, there shall be a $10 0 per day fine for failing to obtain the written approval of the Committee prior to commencing construction or for failing to abide by Committee rules and/or the Design Guidelines. (ii) Removal ofNonconforming Improvements. The Association may, upon request of the Committee and after reasonable time after notice to the Owner, without being deemed guilty of trespass, remove any Improvement constructed, reconstructed, refinished, altered, or maintained in violation of 9 these Covenants. The removed Improvements or debris therefrom shall become the property of the Association and the Association shall not be liable for any damage to the Owner's Lot or for damaged Improvements. The Owner of the Improvement will immediately reimburse the Association for all expenses incurred in connection with such removal. If the Owner fails to reimburse the Association within 30 days after the Association gives the Owner notice of the expenses, the sum owed to the Association will bear interest at the maximum rate permitted under Montana law from the date the expense was incurred by the Association through the date of reimbursement in full, and all such sums and interest will be a Default Assessment enforceable as provided in Article IX. Section 6.11. Continuity of Construction. All Improvements commenced on the Property will be prosecuted diligently to completion. If an Improvement is commenced and construction is then abandoned for more than ninety days, or if construction is not completed within the required twelve-month period described below in Section 7.7, then after notice and opportunity for hearing as provided in the Bylaws, the Association may impose a fine of not more than $50.00 per day to be charged against the Owner of the Lot until construction is resumed, or the Improvements are completed, as applicable. ARTICLE VII PROPERTY USE RESTRICTIONS Section 7. 1. General Restriction. No Improvement will be erected, placed, reconstructed, replaced, repaired or otherwise altered, nor will any construction, repair or reconstruction be commenced on any Lot until plans for the Improvements have been approved in writing by the Architectural Review Committee pursuant to the procedures set forth in Article VI and the Design Guidelines. No Improvement which falls to meet the following minimum standards shall be approved by the Architectural Review Committee. Compliance with the following minimum standards does not ensure or in any way guarantee approval by the Architectural Review Committee. On a case -by -case basis, the Committee shall have the discretion to grant individual variances. The grant of a variance shall in no way be deemed to set a precedent for future variances or to otherwise waive the restrictions contained in these Covenants or the Design Guidelines. Section 7.2. Setbacks. All single family residences, garages, sheds, kennels, swimming pools, outbuildings, and other structures of any kind or nature whatsoever shall be constructed and located entirely within the setbacks as specified in the Willow Creek Subdivision Planned Unit Development adopted by the City of Kalispell, Montana. Section 7.3. Height andMinitnurn Size. Upon obtaining the prior written approval of the Architectural Review Committee, one (1) single-family residence may be built on each Lot. Except as provided below no structure shall be erected, altered, placed, or pertnitted on any such Lot other than one (1) single-family dwelling not to exceed two (2) stories and thirty five (35) feet in height, including a private garage. For the purposes of these restrictions, "two (2) stories" shall mean two (2) stories above grade on at least one (1) overall elevation of the structure. Additionally, approved "split-level" residences will be permitted. Minimum square footage requirements are set forth in the Design Guidelines for Willow Creek. 10 Section 7.4. Garages andParking. If located on a Lot abutting an alley, all garages and off street parking must be facing and accessed from the alley. All Lots must provide adequate off- street parking to meet the City of Kalispell requirements. Section 7.5. Accessory Buildings. The requirements regarding accessory building are set forth in the Design Guidelines for Willow Creek. Section 7.6. ATew Construction. All Improvements erected on any Lot shall be of new construction, and no mobile homes, trailers, or old buildings shall be placed or moved onto the Lots. Section 7.7. Exterior Materials and Colors. Requirements regarding exterior materials and colors are set forth in the Design Guidelines for Willow Creek. Section 7.8. Roofing Materials. Requirements regarding roofing materials and roofing colors are set forth 'in the Design Guidelines for Willow Creek. Section 7.9. Completed Construction. No basement or structure on any Lot may be used for dwelling purposes until after its area, as defined by the foundation, has been completely enclosed according to the plans and until it has been substantially completed, with sanitary facilities and utilities permanently installed. No tent, shack, or other outbuilding may be used as a residence, temporarily or permanently. All construction must be completed within twelve months from the commencement of construction. Except as provided below, all landscaping must be completed within the same calendar year as completion of construction. If construction is not completed by September I", the landscaping must be completed by July I" of the following year. Section 7.10. Satellite, Antennae, etc. 'Me installation and location of satellite dishes and antennae shall be governed by the Design Guidelines for Willow Creek. Section 7.11. Fences. Fencing restrictions and requirements are set forth in the Design Guidelines for Willow Creek. Section 7.12. Temporary Structures. Trailers or other temporary living conveniences shall not be kept on Lots or on the public or private roadways or in the alleys within the project during construction. Section 7.13. Trash, Debris, etc. No trash, debris, or organic waste shall be permitted to accumulate on any Lot or in any roadway or alley adjacent thereto, and shall be promptly disposed of No vacant Lot shall be used as a dumping ground or burial pit. Trash incinerators are not permitted. Outside trash and refuse cans and receptacles shall be screened from view by a structure approved in writing by the Architectural Review Committee. During construction, all Lots shall be kept neat and orderly and all construction debris shall be routinely disposed of Section 7.14. Signs. Other than signs advertising Lots or residences for sale or rent or signs of a type and size approved in writing by the Architectural Review Committee displayed to identify I I the address of the Owner or occupant of a residence, no sign, billboard or advertising structure of any kind shall be erected, used or maintained on any Lot. Section 7.15. Outhouses. No outhouse or privy shall be permitted or maintained on any Lot, except that a chemical toilet shall be permitted on a Lot during the time a residence is being constructed. Section 7.16. WoodHeat. No structure shall be constructed on any Lot wherein wood heat is the primary heat source. No outdoor firewood stacks, piles or wood storage facility shall be kept or maintained on any Lot unless it is screened from view. Section 7.17. Hunting, etc. No hunting, trapping or the discharge of any rifle, shotgun, pistol or other firearm shall be permitted on any Lot or in the Common Area. Section 7.18. Animals. No swine, poultry, goats, horses, cows, livestock or other animals, other than ordinary household pets, shall be raised, kept or cared for on any of the Lots. No Owner shall raise or care for permitted pets on a commercial basis. No permitted pets shall be allowed off of the Owner's Lot unless in the immediate company of their Owner or such Owner's agents. No Owner shall have or keep any dog or other pet which barks or whines on a regular or continuous basis, or which otherwise creates an ongoing disturbance for any other Owner. 'Me Board of Directors may at any time limit the number of ordinary household pets on any Lot, any may withdraw permission for any ordinary household pet from any Owner who violates or abuses the restrictions set forth in this paragraph. Section 7.19. Landscaping. Landscape requirements and guidelines are set forth in the Design Guidelines for Willow Creek. Section 7.20. Noxious Weeds. All weeds, including noxious weeds, shall be eradicated or controlled by Owners and all Owners shall fully comply with state and local law regarding the control and eradication of noxious weeds. Section 7.21. CommercialActivity. Except as expressly provided herein, no Lot or any building or Improvement erected thereon shall at any time be used for the purpose of any trade, profession, manufacturing or business of any description. Owners may operate professional or other low -impact home -based businesses from their Lot on the condition that it does not materially increase traffic within the Project. No approved business operated from any Lot shall employ or engage more than two non-resident employees or independent contractors. Notwithstanding the foregoing, no Owner shall operate any dayeare, pre-school or other child or person care facility on their Lot. Section 7.22. Nuisance. No noxious or offensive activities shall be carried on, nor shall anything be done on any Lot that may become an annoyance or nuisance to the other Owners. Section 7.23. Vehicles. No unlicensed, unsightly, or inoperative motor vehicles or equipment, bodies or parts thereof shall at any time be allowed to remain in public view or the view of adjoining Owners on any Lot or along the City of Kalispell streets, alleys, or private 12 roadways located within the Property. All commercial vehicles shall be parked or stored in a garage or outbuilding or otherwise screened from view. Section 7.24. Fuel Tanks. No above or below ground fuel tanks shall be permitted on any Lot. Section 7.25. Natural Gas Service. All residences located on any Lot shall utilize natural gas service from Northwestern Energy, or its successor. Section 7.26. Telephone Service. All Owners shall obtain landline telephone service from Centurytel, or its successor, within two (2) years from the completion of construction on any Lot. Section7.27. City Imposed Restrictions. All conditions or restrictions imposed by the City of Kalispell during the subdivision process are hereby incorporated by reference. ARTICLE VIII OWNER'S OBLIGATIONS FOR MAINTENANCE Section 8.1. Owner's Responsibilityfor Lot. All maintenance of a Lot and the Improvements located on it will be the sole responsibility of the Owner of the Lot. The Association will, in the discretion of the Board, assume the maintenance responsibilities of such Owner if, in the opinion of the Board, the level and quality of maintenance being provided by such Owner is not satisfactory. Before assuming the maintenance responsibilities, the Board will notify the Owner in writing of its intention to do so, and if the Owner has not commenced and diligently pursued remedial action within thirty days after the mailing of such written notice, then the Association will proceed. The expenses of the maintenance by the Board will be reimbursed to the Association by the Owner within thirty days after the Association notifies the Owner of the amount due, and any sum not reimbursed within that thirty day period will bear interest at the maximum rate permitted under Montana law from the date of the expenditure until payment in full. Section 8.2. Owner's Negligence. If the need for maintenance, repair or replacement of any portion of the Common Area (including Improvements located on it) arises because of the negligent or willful act or omission of an Owner or his family member, guest, invitec or tenant, then the expenses incurred by the Association for the maintenance, repair or replacement will be a personal obligation of that Owner. If the Owner falls to repay the expenses incurred by the Association within thirty days after the notice to the Owner of the amount owed, then those expenses will bear interest at the maximum rate permitted under Montana law from the date of the advance by the Association until payment by the responsible Owner in full. ARTICLE IX ASSESSMENTS Section 9. 1. Creation ofLien andPersonal Obligation for Assess ments. Except as otherwise provided by this Declaration, Declarant, for each Lot owned within the Property, hereby covenants, and each Owner of any Lot by accepting a deed for a Lot, is deemed to covenant to pay to the Association (1) the Annual Assessments imposed by the Board of Directors as necessary to generally carry out the functions of the Association; (2) Special Assessments for capital 13 improvements and other purposes as stated in this Declaration; and (3) Default Assessments which may be assessed against a Lot pursuant to the Willow Creek Documents for the Owner's failure to perform an obligation under the Willow Creek Documents or because the Association has incurred an expense on behalf of or caused by the Owner under the Willow Creek Documents. Notwithstanding the ownership of any Lot, the Declarant shall not be obligated to pay any of the Assessments described 'in this Declaration. All Assessments, together with fines, interest, costs, and reasonable attorneys' fees, will be a charge on the land and will be a continuing lien upon the Lot against which each such Assessment is made until paid. Each such Assessment, together with fines, interest, costs, and reasonable attorneys' fees and costs, will also be the personal and individual obligation of the Owner of such Lot as of the time the Assessment falls due, and two or more Owners of a Lot will be jointly and severally liable for such obligations. No Owner may exempt himself from liability for any Assessments by abandonment of his Lot or by waiver of the use or enjoyment of the Common Area. Suit to recover a money judgment for unpaid Assessments and related charges as listed above may be maintained without foreclosing or waiving) the Assessment lien provided in this Declaration. Section 9.2. Purpose ofAssessments. The Assessments levied by the Association will be used exclusively to promote the recreation, health, safety, and welfare of the Owners and occupants of the Willow Creek. Section 9.3. AnnualAssessments. 9.3.1. Calculation ofAnnual Assessments. The Board of Directors will prepare a budget before the close of each fiscal year of the Association. Annual Assessments for Common Expenses will be based upon the estimated net cash flow requirements of the Association to cover items including, without limitation, the cost of routine maintenance, repair and operation of the Common Area; and premiums for insurance coverage as deemed desirable or necessary by the Association; snow removal, landscaping, care of grounds and common lighting within the Common Area; routine renovations within the Common Area; wages; common water and utility charges for the Common Area; legal and accounting fees; expenses and liabilities incurred by the Association under or by reason of this Declaration; payment of any deficit remaining from a previous Assessment period; and the supplementing of the reserve fund for general, routine maintenance, repairs and replacement of improvements within the Common Area on a periodic basis, as needed. 9.3.2. Apportionment ofAnnualAssessments. Except as otherwise provided herein, each Owner will be responsible for that Owner's share of the Common Expenses, which will be divided equally among the Lots included in the Project under this Declaration from time to time. Accordingly, at any given time, an Owner's share of Common Expenses will be determined as a fraction, the numerator of which is the number of Lots owned by the Owner, and the denominator of which is the number of Lots then platted and incorporated into the Project. 9.3.3. Collection. Annual Assessments will be collected in periodic installments as the Board may determine from time to time, but until the Board directs otherwise, they will be payable annually in advance on the date determined by the Board. The omission or failure of the 14 Association to fix the Annual Assessments for any Assessment period will not be deemed a waiver, modification, or release of the Owners from their obligation to pay the same. Section 9.4. Special Assessments. 9.4.1. Determination by Board. The Board of Directors may levy, in any fiscal year, one or more Special Assessments, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, repair or replacement of a described capital improvement upon the Common Area, including the necessary fixtures and personal property related thereto, or, after adopting and submitting a revised budget to the Association as may be required to make up any shortfall in the current year's budget. 9.4.2. Apportionment and Collection ofSpecial Assessments. TheBoardwill apportion Special Assessments among the Lots and collect payment according to the same guidelines as set forth for Annual Assessments in Section 9.3.2 9.4.3. Notice. Notice of the amount and due dates for such Special Assessments must be sent to each Owner at least 30 days prior to the due date. Section 9.5. Default Assessments. All monetary fines, penalties, interest or other charges or fees (excluding Annual and Special Assessments) levied against an Owner pursuant to the Willow Documents, or any expense of the Association which is the obligation of an Owner or which is incurred by the Association on behalf of the Owner pursuant to the Willow Creek Documents, and any expense (including without limitation attorneys' fees and costs) incurred by the Association as a result of the failure of an Owner to abide by the Willow Creek Documents, constitutes a Default Assessment, enforceable as provided in this Declaration below. Section 9.6. General Remedies of Willow Creek Homeowners 'Association for Nonpayment ofAssessment. Any installment of an Annual Assessment, Special Assessment or Default Assessment which is not paid within 30 days after its due date will be delinquent. In the event that an installment of an Annual Assessment or Special Assessment becomes delinquent, or in the event any Default Assessment is established under this Declaration, the Association, in its sole discretion, may take any or all of the following actions: 9.6.1. Assess a late charge for each delinquency at uniform rates set by the Board of Directors from time to time; 9.6.2. Charge interest from the date of delinquency at the maximum rate permitted under Montana law; 9.6.3. Suspend the voting tights of the Owner during any period of delinquency; 9.6.4. Accelerate all remaining Assessment installments for the fiscal year in question so that unpaid Assessments for the remainder of the fiscal year will be due and payable at once; 9.6.5. Bring an action at law against any Owner personally obligated to pay the delinquent Assessment charges; 15 9.6.6. File a lien with the Flathead County Clerk and Recorder with respect of the Lot and foreclose as set forth in more detail below. The remedies provided under this Declaration will not be exclusive, and the Association may enforce any other remedies to collect delinquent Assessments as may be provided by law. Section 9.7. AssessmentLien. Any Assessment chargeable to a Lot will constitute a lien on the Lot, effective the due date of the Assessment. To evidence the lien, the Association may, but will not be obligated to, prepare a written lien statement with respect to the Lot, setting forth the name of the Owner, the legal description of the Lot, the name of the Association, and the delinquent Assessment amounts then owing. Any such statement will be duly signed and acknowledged by an officer or Director of the Association and will be served upon the Owner of the Lot by mail to the address of the Lot or at such other address as the Association may have in its records for the Owner. At least ten days after the Association malls the statement to the Owner, the Association may record the statement in the office of the Clerk and Recorder of Flathead County, Montana. Thirty days following the mailing of such notice to the Owner, the Association may proceed to foreclose the lien in the same manner as provided for the foreclosure of mortgages under the statues of the State of Montana. Section 9.8. Successor's Liability for Assess ment. All successors to the fee simple title of a Lot, except as provided in Section 9.9. will be jointly and severally liable with the prior Owner or Owners thereof for any and all unpaid Assessments, interest, late charges, costs, expenses, and attorneys' and legal assistants' fees against such Lot without prejudice to any such successor's right to recover from any prior Owner any amounts paid by such successor. Section 9.9. Exempt Property. The following portions of the Property will be exempt from the Assessments, charges, and liens created under this Declaration: 9.9.1. Any casement or other interest in the Property dedicated and accepted by the City of Kalispell or Flathead County and devoted to public use; 9.9.2. Any Lot owned by Declarant; 9.9.3. All utility lines and easements; and 9.9.4. Common Areas. Section9.10. Statement ofStatus ofAssessments. The Association will furnish to an Owner or his designee or to any Mortgagee, within fourteen days of request, a statement setting forth the amount of unpaid Assessments then levied against the Lot in which the Owner, designee or Mortgagee has an interest. Section9.11. Failure to Assess. The omission or failure of the Board to fix the Assessment amounts or rates or to deliver or mail to each Owner an Assessment notice will not be deemed a waiver, modification, or a release of any Owner from the obligation to pay Assessments. In such event, each Owner will continue to pay Annual Assessments on the same basis as for the last year for which an Assessment was made until a new Assessment is made, at which time any shortfalls in collections may be assessed retroactively by the Association. 16 ARTICLE X PROPERTY RIGHTS OF OWNERS Section 10. 1. Owner's Easements ofAccess and Enjoyment. Every Owner has a perpetual, non-exclusive easement for ingress, egress and utilities to and from his Lot and for the use and enjoyment of the Common Area, which easement is appurtenant to and will pass with the title to every Lot� subject to the provisions set forth in this Declaration. Section 10.2. Easements ofRecord and of Use. The Property will be subject to all casements shown on any recorded Plat and to any other casements of record or of use as of the date of recordation of this Declaration. ARTICLE XI SPECIAL DECLARANT RIGHTS AND ADDITIONAL RESERVED RIGHTS Sectionll.l. General Provisions. Until the expiration of the Period of Declarant Control, Declarant will have the following Special Declarant Rights: 11. 1. 1. Completion ofImprovements. The night to complete infrastructure and Improvements as indicated on any Plat filed with respect to the Property. 11. 1.2. Development Rights. The tight to exercise all Development Rights in connection with the development of the Willow Creek Project, including without limitation the night or combination of rights hereby reserved by Declarant, as follows: (i) The tight to create Lots and Common Area on the Property. (ii) The tight to subdivide Lots and convert Lots into Common Area on any part of the Property. (iii) The tight to withdraw real estate from Willow Creek. (iv) The tight to expand Willow Creek by annexing Expansion Property into the Project. 11. 1.3. Sales Activities. The tight to maintain sales and management offices, signs advertising Willow Creek and model residences on the Common Area and on Lots owned by Declarant. 11. 1.4. Easements. The right to use easements through the Common Area on the Property for the purpose of making Improvements on the Property. 11.1.5. Association Directors and Qfficers. The tight to appoint any officer or Director of the Association, as provided in this Declaration or the Bylaws. 17 11.1.6. Order ofExercise ofDeclarant's Rights. Declarant makes no representations and gives no assurances regarding the legal description of the boundaries of any phase of the Property or the order or time in which the phases of the Property may be developed or incorporated in the Willow Creek, or whether or to what extent any of the Property will be developed or incorporated into the Project. Further, the fact that Declarant may exercise one or more of Declarant's Development Rights or other Special Declarant Rights on one portion of the Property will not operate to require Declarant to exercise a Development Right or other Special Declarant Right with respect to any other portion of the Property. Sectionll.2. Supplemental Provisions Regarding Declarant's Rights. Without limiting the generality of the foregoing, certain of these Special Declarant Rights are explained more fully 'in this Article below. Further, Declarant reserves the right to amend this Declaration and any Plat in connection with the exercise of any Development Right or any other Special Declarant Right� and Declarant also reserves the additional rights retained for the benefit of Declarant in this Article and 'in other provisions of this Declaration. Section 11.3. Utility Easements. There is hereby created an easement upon, across, over, in, and under the Common Area, the public roadways, the private roadways and the areas designated on the final Plat of Willow Creek as utility easements for the installation, replacement, repair and maintenance of all utilities, including but not limited to water, sewer, gas, telephone, electrical, television and other communications systems. By virtue of this easement, it will be expressly permissible and proper for the companies providing utility services to install and maintain necessary equipment on and under the Common Area, the private roadways and the areas designated on the final Plat of Willow Creek Phase 5 as utility easements and to affix and maintain utility pipes, wires, circuits, conduits and other equipment under those areas. Any utility company using this easement will use its best efforts to install and maintain the utilities provided for without disturbing the uses of the Owners, the Association and Declarant; will prosecute its installation and maintenance activities as promptly and expeditiously as reasonably possible; and will restore the surface to its original condition as soon as possible after completion of its work. Should any utility company furnishing a service covered by the easement granted above request a specific easement by separate recordable document, either Declarant or the Association will have, and are hereby given, the right and authority to grant such easement upon, across, over, or under any part or all of the Common Area, the private roadways and the areas designated on the final Plat of Willow Creek as utility easements without conflicting with the tenris of this Declaration. This easement will in no way affect, avoid, extinguish, or modify any other recorded easement on the Property. SectionlI.A. Reservation for Expansion and Construction. Declarant hereby reserves for itself and its successors and assigns and for Owners a perpetual easement and right-of-way for access over, upon, and across the Property for construction, utilities, drainage, ingress and egress, and for use of the Common Area. The location of these easements and rights -of -way may be made certain by Declarant or the Association by instruments recorded in Flathead County, Montana. Declarant further reserves the right to establish from time to time, by dedication or otherwise, utility, ingress and egress, and other easements over and across the Common Areas, and to create other reservations, exemptions, and exclusions convenient or necessary for the use and operation of any other property of Declarant. Section 11.5. Reservation ofEasements, Exceptions, and Exclusions for Utilities, In/rastructure, andAccess. Declarant reserves for itself and its successors and assigns and hereby is grants to the Association, acting through the Board of Directors, the concurrent right to establish from time to time, by declaration or otherwise, utility and other easements, permits, or licenses over the Common Area, for purposes including but not limited to streets, paths, walkways, drainage, recreational areas and parking areas, and to create other reservations, exceptions, and exclusions 'in the interest of the Owners and the Association. Sectionll.6. Maintenance Easement. An easement is hereby reserved to Declarant for itself and its successors and assigns and granted to the Association, and any member of the Board of Directors, and their respective officers, agents, employees, and assigns, upon, across, over, in and under the Property and a right to make such use of the Property as may be necessary or appropriate to make emergency repairs or to perfonn the duties and functions which the Association is obligated or permitted to perform pursuant to the Willow Creek Documents. Section 11.7. Drainage Easement. An easement is hereby reserved to Declarant for itself and its successors and assigns and granted to the Association, its officers, agents, employees, successors and assigns to enter upon, across, over, in, and under any portion of the Property for the purpose of changing, correcting, or otherwise modifying the grade or drainage channels of the Property so as to improve the drainage of water. Reasonable efforts will be made to use this easement so as not to disturb the uses of the Owners, the Association and Declarant, as applicable, to the extent possible; to prosecute such drainage work promptly and expeditiously; and to restore any areas affected by such work to a sightly and usable condition as soon as reasonably possible following such work. SectionlI.8. Declarant's Rights Incident to Construction. Declarant, for itself and its successors and assigns, hereby retains a right and easement of ingress and egress over, in, upon, under and across the Common Area and the right to store materials thereon and to make such other use thereof as may be reasonably necessary or incident to the construction of the Improvements on the Property or other real property owned by Declarant; provided, however, that no such rights will be exercised by Declarant in such a way as to unreasonably interfere with the occupancy, use, enj oym. ent or acces s to an Owner's L ot by that Owner or his fam ily, tenants, employees, guests, or invites. SectionlI.9. Easements Deemed Created. All conveyances of Lots hereafter made, whether by Declarant or otherwise, will be construed to grant and reserve the easements contained in this Article, even though no specific reference to such easements or to this Article appears in the instrument for such conveyance. ARTICLE X11 EXPANSION AND WITHDRAWAL Section12.1. Reservation ofRight to Expand. Declarant reserves the right, but will not be obligated, to expand the effect of this Declaration to include all or part of the Expansion Property. The consent of the existing Lot Owners and Mortgagees will not be required for any such expansion, and Declarant may proceed with such expansion without limitation at its sole option. Declarant will have the unilateral right to transfer to any other person this right to expand by an instrument duly recorded. 19 Section 12.2. Cornpletion OfExpansion. When Declarant has determined that no further propefty shall be added to the Project, Declarant shall notify the Association in writing. Until such notice is given, Declarant retains the night to designate additional propefty as Expansion Property. Section 12.3. Declaration of-4nnexation. Any expansion of the Project may be accomplished by recording a Declaration of Annexation and one or more supplemental Plats in the records of the Clerk and Recorder of Flathead County, Montana, before the expiration of the Period of Declarant Control. The Declaration of Annexation will describe the real property to be expanded, submitting it to these Covenants and provide for voting rights and Assessment allocations as provided in this Declaration. Specifically, each new Lot in the annexed area will be allocated one vote and liability for the Common Expenses equal to the liability allocated to each of the other Lots, and the propoilionate voting interest and allocation of Common Expenses for the other Lots will be adjusted accordingly. Such Declaration of Annexation will not require the consent of Owners, the Association, or the Board of Directors. Any such expansion will be effective upon the filing for record of such Declaration of Annexation, unless otherwise provided therein. The expansion may be accomplished in stages by successive supplements or in one supplemental expansion. Upon the recordation of any such Declaration of Annexation, the definitions used in this Declaration will be expanded automatically to encompass and refer to Willow Creek as expanded. Such Declaration of Annexation may add supplemental covenants peculiar to the Expansion Property in question, or delete or modify provisions of this Declaration as it applies to the Expansion Property added. However, this Declaration may not be modified with respect to that poition of the Property already subject to this Declaration, except as provided below for amendment. Section 12.4. Withdrawal ofProperty. Declarant reserves the night to withdraw from the jurisdiction of these Covenants any parcel of the Property (including the Expansion Property), provided, however, that no parcel may be withdrawn after it has been conveyed to a purchaser. ARTICLE XIII INSURANCE Section 13. 1. Authority to Purchase. All insurance policies relating to the Common Area will be purchased by the Board of Directors or its duly authorized agent. The Board of Directors and the Declarant will not be liable for failure to obtain any coverage required by this Article or for any loss or damage resulting from such failure if such failure is due to the unavailability of such coverage from reputable insurance companies, or if such coverage is available only at demonstrably unreasonable costs. Sectionl3.2. General -Insurance Provisions. All such insurance coverage obtained by the Board of Directors will be governed by the following provisions: 13.2. 1. As long as Declarant owns any Lot, Declarant will be protected by all such policies in the same manner as any other Owner. 13.2.2. The deductible, if any, on any 'insurance policy purchased by the Board of Directors may be treated as a Common Expense payable from Annual Assessments or Special Assessments (allocable to all of the Lots or to only some of the Lots, if the claims for damages arise from the negligence of particular Owners, or if the repairs benefit only pafticular Owners), or as an item to be paid from working capital reserves established by the Board of Directors. 20 Sectionl3.3. Physical Damage Insurance on Common Area. The Association will obtain insurance for such insurable Improvements and with such coverages, limits, deductibles and other terms and conditions as the Board may determine from time to time. Section 13.4. Liability Insurance. The Association will obtain a comprehensive policy of public liability 'insurance and property damage insurance with such coverages and limits as the Board of Directors may from time to time determine, insuring each member of the Board of Directors, the Association, and the respective employees, agents, and all persons acting as agents against any liability to the public or the Owners (and their guests, invites, tenants, agents, and employees) arising in connection with the ownership, operation, maintenance or use of the Common Area and streets and roads within Willow Creek Phase 5 and any other areas under the control of the Association. Declarant will be included in the coverage as an additional insured in Declarant's capacity as an Owner or Director. ARTICLE XIV ENFORCEMENT OF COVENANTS Section 14. 1. Violations Deemed a Nuisance. Every violation of this Declaration or any other violation of the Willow Creek Documents is deemed to be a nuisance and is subject to all the remedies provided for the abatement of the violation. In addition, all public and private remedies allowed at law or equity against anyone in violation of these Covenants will be available. Section 14.2. Compliance. Each Owner or other occupant of any part of the Property will comply with the provisions of the Willow Creek Documents as the same may be amended from time to time. Section 14.3. Failure to Comply. Failure to comply with the Willow Creek Documents will be grounds for an action to recover damages or for injunctive relief to cause any such violation to be remedied, or both. Reasonable notice and an opportunity for a hearing as provided in the Bylaws will be given to the delinquent party prior to commencing any legal proceedings. Section 14.4. Who may Enforce. Any action to enforce the Willow Creek Documents may be brought by Declarant or the Board in the name of the Association on behalf of the Owners. If, after a written request from an aggrieved Owner, none of the foregoing persons or entities commences an action to enforce the Willow Creek Documents, then the aggrieved Owner may bring such an action. Section 14.5. Nonexclusive Remedies. All the remedies set forth herem' are cumulative and not exclusive. Section 14.6. No Waiver. The failure of the Board of Directors, Declarant, or any aggrieved Owner to enforce the Willow Creek Documents in any one or more instances will not be deemed a waiver of the right to do so for any subsequent violations or of the right to enforce any other part of the Willow Creek Documents at any future time. Section 14.7. No Liability. No member of the Board of Directors, the Declarant or any Owner will be liable to any other Owner for the failure to enforce any of the Willow Creek Documents at any time. 21 Section14.8. Recovery of Costs. If legal assistance is obtained to enforce any of the provisions of the Willow Creek Documents, or in any legal proceeding (whether or not suit is brought) for damages or for the enforcement of the Willow Creek Documents or tile restraint of violations of the Willow Creek Documents, the prevailing party will be entitled to recover all costs incurred by it in such action, including reasonable attorneys' fees (and legal assistant's fees) as may be incurred, or if suit is brought, as may be determined by the court. ARTICLE XV RESOLUTION OF DISPUTES If any dispute or question arises between Members or between Members and the Association or relating to the interpretation, performance or nonperformance, violation, or enforcement of the Willow Creek Documents, such dispute or violation may be subject to a hearing and determination by the Board in accordance with the procedures set forth in the Bylaws. ARTICLE XVI DURATION OF THESE COVENANTS AND AMENDMENT Section 16.1 Term. This Declaration and any amendments or supplements hereto will remain in effect from the date of recordation until the 30 th anniversary of the date this Declaration is first recorded in the office of the Clerk and Recorder of Flathead County, Montana. Thereafter these Covenants will be automatically extended for five successive periods of 10 years each, unless otherwise terminated or modified as provided below. Section 16.2. Amendment. Subject to Section 16.3. this Declaration, or any provision of it, may be terminated, extended, modified or amended, or revoked as to the whole or any portion of the Property as follows: 16.2. 1. Prior to Sale ofLots. Prior to the sale of any Lot, the Declarant (including a Successor Declarant) may terminate, extend, modify, amend or revoke this Declaration as to the whole or any portion of the Property by recording in the records of Flathead County, Montana, a document signed by the Declarant stating the action taken. 16.2.2. After Sale ofLots but During Period ofDeclarant Control. Afterthesaleofa Lot but before expiration of the Period of Declarant Control, Declarant (including any Successor Declarant) may terminate, extend, modify, amend or revoke this Declaration as to the whole or any portion of the Property. A copy of the document stating the action intended to be taken by the Declarant and a notice of the Owners' rights under this Section shall be mailed to each Owner by first class mail, postage prepaid, to the address of the Owner on the records of the Association. Unless written objection is received by the Declarant from the Owners holding 80% or more of the votes within 30 days of the mailing of the notice to the Owners, the action proposed to be taken by the Declarant shall be considered approved and shall become final. The Declarant shall then record in the records of Flathead County, Montana, a document stating the action taken, together with a certificate certifying that notice was given to the Owners as required herein and that fewer than 80% of the Owners objected to the action. 22 16.2.3. After the Period ofDeclarant Control. After the Period of Declarant Control, this Declaration, or any provision of it, may be terminated, extended, modified or amended, or revoked as to the whole or any portion of the Property upon the written consent of Owners holding 67% or more of the votes in the Association. Any document will be immediately effective upon recording in the records of Flathead County, Montana, a copy of such executed and acknowledged by the necessary number of Owners, or alternatively, upon the recording in the records of Flathead County, Montana, of a copy of the document together with a certificate signed by an officer of the Association stating that the required number of consents of Owners were obtained. Section16.3. Declarant's Approval. Notwithstanding the provisions of Section 16.2. no termination, extension, modification or amendment of this Declaration will be effective 'in any event during the Period of Declarant Control unless the written approval of Declarant is first obtained. Section 16.4. Effect ofAmendments. Amendments made pursuant to this Section will inure to the benefit of and be binding upon all Owners, their families, guests, invitees and employees, and their respective heirs, successors, and assigns. Joinder of mortgagees shall not be required in order to effect an amendment. ARTICLE XVII NUSCELLANEOUS PROVISIONS Section17.1. Severability. This Declaration, to the extent possible, will be construed or reformed so as to give validity to all of its provisions. Any provision of this Declaration found to be prohibited by law or unenforceable will be ineffective to the extent of such prohibition or unenforceability without invalidating any other part hereof. Section 17.2. Construction. In interpreting words in this Declaration, unless the context will otherwise provide or require, the singular will include the plural, the plural will include the singular, and the use of any gender will include all genders. Section 17.3. Headings. The headings are included only for purposes of convenient reference, and they will not affect the meaning or interpretation of this Declaration. Section 17.4. Waiver. No failure on the part of the Association or the Board to give notice or default or to exercise or to delay in exercising any right or remedy will operate as a waiver, except as specifically provided above in the event the Board fails to respond to certain requests. No waiver will be effective unless it is in writing and signed by the President or Vice President of the Board on behalf of the Association. Section 17.5. Lirnitation ofLiability. Neither the Declarant, the Association nor any partner, officer or member of either the Declarant or the Board will be liable to any party for any action or for any failure to act with respect to any matter arising by, through, or under the Willow Creek Documents if the action or failure was made in good faith. The Association will indemnify all of the officers and Board members with respect to any act taken in their official capacity to the extent provided in this Declaration and by law and in the Articles of Incorporation and Bylaws. 23 Section 17.6. Conflicts Between Docurnents. In case of conflict between this Declaration and the Articles of Incorporation or the Bylaws, this Declaration will control. In case of conflict between the Articles of Incorporation and the Bylaws, the Articles of Incorporation will control. Section 17.7. Assignment. Declarant may assign all or any part of the Special Declarant Rights or any of Declarant's other tights and reservations hereunder to any successor who takes title to all or part of the Property in a bulk purchase for the purpose of development and sale. Such successor will be identified, the particular rights being assigned will be specified, and, to the extent required, concomitant obligations will be expressly assumed by such successor, all in a written instrument duly recorded in the records of the Clerk and Recorder of Flathead County, Montana. IN WITNESS WHEREOF, Declarant has signed this Declaration on the Date shown above. STATE OF MONTANA ss County of Flathead Wayne E. Turner This instrument was acknowledged before me on this day of 2006, by Wayne E. Turner. Notary Public for the State of Montana Residing at Kalispell, Montana My commission expires April 1, 2008 24