08. Final Plat - Cedar CommonsCity of Kalispell
Planning Department
2"d Strom Ems, Suite 211, Kalispell, Montane. 59901
Telephone-, (406) 751-1850
Fax-, (406) 75 )1 - 18 5 8
Webs : kalispellplanning.com
REPORT TO:
SUBJECT
Kalispell Mayor and city council
Sean Cord, Senior Planner
James H. Patrick, city Manager
Final at for cedar commons
MEETING DATE: September 5, 2006
BACKGROUND: This is a request for final plat approval from Jackola
Engineering on behalf of Beargrass Holdings, LLC of cedar commons, a
residential subdivision which includes 6 lots and one common area lot on
approximately 1.. o acre. The subdivision request was given r lir nary plat
approval by the Kalispell city council on August 7, 2006, subject to 12
conditions.
The ro crt r is located on the cast side of Third Avenue East, approximately
350 feet south of the intersection of Third. Avenue East and 14th Street East,
across from the outlaw Inn. The properties included in the subdivision are
currently described as Lot A of the amended plat of lots 1, 2, 3 and 4 of Block
, Ryk r Addition to Kalispell and lots 5, 6 and 7 and the abandoned alley o
Bloch 1, Ryk r Addition to Kalispell* The property is located in the SW 1/4 o
Section 17, Township 28 North, Range 21. West.
The owner has requested to bond for the necessary improvements required as
part of the preliminary plat. A Subdivision Improvements Agreement (SIA) i
the amount o $284,875 has been submitted to secure completion o
infrastructure to serge the subdivision including grater, sewer, fire hydrants,
sidewalks, parking and landscaping. The letter of credit submitted with the
final plat application addresses the 25% of the estimated cost of remaining
improvements. The estimated completion date for the items listed in the SIA is
June 18, 2007.
RECOMMENDATION: A motion to approve the final at for Cedar commons
and accept the Subdivision Improvement Agreement would be in order.
FISCAL EFFECTS: Positive impacts once developed.
ALTERNATIVES: As suggested by the city council.
Respectfully submitted.,
Sean Conrad James H. Patrick
Senior Planner City Manager
Report compiled: August 28, 2006
Attachments: Letter of transmittal
Final plat application and supporting documents
Return to:
Theresa White
Kalispell city clergy
P.O. Box 1997
Kalispell, Montana 59903
APPENDIX
SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT, made and entered into this ,��� day of
R
_�. �_ , oo x by and between the CITY 56N IL, CITYOF
L SP L—L i i 'Ai A, Flathead Coy. nty, Montana, Party of the First Part and
hereinafter referred to as the CITY, , and BEARGRASS HOLDINGS, L .P, of P.O.
Box 7505, Kalispell, Montana , 59904, Party of the Second Part and hereinafter
referred to as DEVELOPER.
W I ■ I S S T H.
THAT WHEREAS, the Developer is the owner of a new subdivision known as
"CEDAR COMMONS", located in Section 17, T28 , R21W, PMN, Flathead County
ands
WHEREAS, the city has conditioned it's approval of the final plat of "CEDAR
COMMONS", upon the conditions as set forth in the Preliminary Plat 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 125 of the estimated total cost of construction of
said improvements as evidenced by are estimate prepared by a licensed public
engineer or the contractor included herewith as "Exhibit ", and
WHEREAS, the estimated total cost of construction of said improvements is
the sum of . 0.
HOW THEREFORE, in consideration of the approval of the final plat of said
Subdivision by the city, the Developer hereby agrees as follows:
. The Developer shall deposit as collateral: with the city a Letter of credit, or
other acceptable collateral as determined by the city council, city of Kalispell,
Montana, in the amount of $284,,875.00. Said Letter of credit or other collateral
shall have an expiration date of at least sixty days following the date set for
completion of the improvements, certifying the following:
a. That the creditor guarantees funds in the sum of # o, the estimated
cost of completing the required improvements in toCEDAR COMMONS
b. That if the Developer fails to complete the specified improvements within
the required period, the creditor will pay the City immediately, and without further
action, such funds as are necessary to finance the completion of those
improvements Grp to the limited of credit stated in the letter;
2. That said required improvements shall be fully completed by JUNE 181,
2007.
3. That upon completion of the required improvements, the Developer shall
cause to be filed with the City e 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:
and
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 have been filed with the city;
f. All applicable fees and surcharges have been paid.
. 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.
IT 1S 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.
.
CEDAR COMMONS
BEARGRASS HOLDINGS, L P
-------------------
STATE OF MONTANA
ss
COUNTY of Flathead
On this ` da of A14- 2QO6 before -me, a Notary Public for the
State of Montana, personalty ppared -&t1C-ia.� _.V( and known
to me to be a member o A GI ASS HOLDINGS,L.P and whose name Is
subscribed to the foregoing instrument and acknowledged to me that he executed
the sane for said LLP.
IN WITNESS WHEREOF, I have h ,A, o
..sets rtw, d and affixed my Notarial
Seal the day and year first above Sri
- A F
jot
H. Burton
Public for the state o Montana OF MID
o t Kalispell, Montana
My Commission Expires 11 i oo
MAYOR, CITY OF KALISPELL
ATTEST:
MAYOR �..�.�.�__.�,�.�,��..��..�__.�_�..��..�.�,�.�.��..� CITY Ll K
COST TO COMPLETE CEDAR COMMONS I
ITEM I
DESCRIPTION
COST
%
AMOUNT TO
COMPLETED
COMPLETE
STORM WATER
Includes excavation, installation and backfill. Includes material
$ 26,000.00
0%
$ 26,O00.00
RETENTION SYSTEM
and labor.
WATER MAIM WITH
Includes excavation, installation and backfill of mainlines and
HYDRANTS
$ 28,000.00
0%
$ 28,000.00
service lines to buildings. Includes all material and labor.
Includes excavation, installation and backfill for main line
SEINER MAIN
extension and service lines to buildings, Includes all material and
$ 34,000.00
0°fin
$ 34,000.00
labor.
ELECTRIC, CABLE &
utility company charges & installing vaults, conduit, trench &
PHONE MAIN
backfill from source to buildings (includes 2" conduit for cable
$ 10,400.00
0%
$ 10,400.00
EXTENSION
and direct bury hone
Strip soils for parking lot, place fabric per NTL report, import and
EXCAVATION
place 4" minus rock in max. 12" lifts with compaction. Includes
$ 40,000.00
0%
$ 40,000.00
all corn action testing, backfill and final grade as per lan.
concrete - maximum slope 1:20, 4' wide concrete walks to unit
entries; G' wide sidewalks with finished face/curb where parallel
SIDEWALKS
to parking areas - 5' wide along 3rd Ave east; all concrete
$ 18A&00
0%
$ 18,000.00
flatwork shall be a broom finish, Mailbox pad and 2 cluster
mailboxes
2.5 spaces per unit (three are on 3rd Ave East - includes 4" of
3/4" crush base, placing & compaction and 3" asphalt; Striping
PARKING
and marking for (4) handicap spaces, Includes parking
$ 45,000.00
0%
$ 45,000.00
bumpers, striping; pave patches in parking lot next door and in
street.
final grade with native soils import top soil as required.
LANDSCAPING
Landscape and install sprinkler system. Includes plants and sod
$ 18,5DQ.a0
0%
$ 18,500.00
per plan.
TRASH ENCLOSURE &
6' Chain link three sides with vinyl slats. Install 4ea. 6" bollards
$ 2,000.00
0%
$ 2,000.00
BOLLARDS
around fire hydrant. � �
Total to Complete Infrastructure � m
$ 227,900.00
0%
$ 227,900.00
additional re aired
E1250%
$ 0,975.00
- Amount of Letter of Credit
$ 284,875.00
a
n
ti
A
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IRREVOCABLE SAY LETTER OF CREDIT
ISSUER- WHITEFISH CREDIT UNION
PO BOX 37
WHITEFISH, ITT 59937
Date of Issue. 08. 1 -...GG
...............
Amount- U.S. S 284,875.00
Letter of Credit Number., mber., 151
TWO HUNDRED EIGHTY FOUR THOUSAND FIGHT HUNDRED SEVERITY FIVRAND I M A.R
For Benefit f- For Account Of:
Benefletary Name and Address Applicant. Name and Address
THE CITY OF KALISPELL BEARGRASS HOLOINGS, LLP
KALISPELL, MT 59901
PO BOX 70
LISP LL, MT 59904
1 E,M' l OF CREDIT. Issuer establishes this Irrevocable Standby later of Credit (Letter of Credit) in favor of Beneficiary in the
amount indicated above. Beneficiary may draw on this Letter of Credit with a Draft or Drafts, if the maximum number of drawings is
greater than one) together with the documents described below, Each Draft shall be signed on behalf ofBeneficiary and be marked
"Drawn n under [Issuer name] Letter of Credit No. ILetter of Credit number] dated [Letter of Credit date]." Drafts must be presented at
Issuer's address shown above on or before the Expiration Date. The presentation of any Draft shall reduce the Amount t available under
this Letter of Credit by the amount of the .Draft.
This Letter of Credit sets forth in full the terms of Issuer's obligaLion to Beneficiary. 11is obligation e m t be modified by any
reference in this Letter of Credit, or any document to hich this 1.,et er of Credit may be related.
This Letter of Credit expires on the Expiration Date:.
DRAWINGS.
Partial drawings shall not be permitted under this Letter of Credit.
0 Partial drawings are permitted. The maximum number of drawings that may be made is
DOC'UMENTS. Each Draft must be accompanied by the following, in original and two copies except as stated:
The original Letter of Credit, together with any amendments.
El A sight draft drawn by .beneficiary on Issuer.
El A signed statement by Beneficiary including the following statement:
El Other er docw-ne ts-
Issuer shall be entitled to accept a draft and the documentation described above, as required by the terms of this Utter of Credit, from
any person purporting to be an authorized officer or representative of Beneficiary without any obligation or duty on the part of Issuer to
verify the identify or authority of the person presenting the draft and such documentation.
I) C,I.AI.., INSTRUCTIONS:
:
EXPIRATION DATE. This Letter of Credit expires at the close of business at Issuer's address at 1 :0 Tim
on G • 1 * 7 (Date) . Issuer agrees to horror all Drafts presented i
strict compliance with the provisions of this Letter of Credit on or before the expiration Date.
El If Beneficiary bas not drawn the full amount of ti-ds Letter of Credit prior to the Expiration Date, the Expiration Date shall be
extended for a period of days from the Expiration Date, unless Issuer notifies Beneficiary in writing at least
days prier to the Expiration Date that Issuer elects not to extend this Letter of Credit. In any event, this Letter
of Credit shall expire on without any notice from Issuer to Beneficiary.
� � 4� 2001 Bankers Syst9ms, Inc., St Cioud, M N Form LG.-ST NDBY 7 1 0 page I of )
Cl*ty of Kalispell
Panning Department
Street East, Suite 211 , Kalispell,, Montana 59901
Telephone: 5 - 1 80
:fax:751-18158
August 2, 2006
James H. Patrick, City Manager
City of Kalispell
P.O. Drawer 1997
Kalispell, Mir' 59901
Re: Final Plat for Cedar Commons
Dear Jim:
This is a request for final plat approval from Ja.ck la. Engir eer g on behalf of
Beargrass Holdings, LLP for Cedar Commons, a. residential subdivision rhich
includes 6 lots and one common area lot on approximately 1.0 acre. The subdivision
request was given preliminary plat approval by the Kalispell City Council on August 7,
2006 subject to 12 conditions.
The property is located on the east side of Third Avenue .ue East, approximately ately 350 feet
south of the Mterseetion of Third venue East and 1 th Street East, across from the
Outlaw Inn. The properties included in the subdivision are currently described as Lot
A of the amended e plat of lots 1, 2, 3 and 4 of Block 1, Ryker Addition to Kalispell and
lots 5, 6 and 7 and the abandoned alley of Block 1, Ryker Addition to Kalispell. The
property is located in the SW 1/4of Section 17, Township 28 North, Range 21 West.
The owner has requested to bond for the necessary improvements required as part of
the preliminary plat. A Subdivision Improvements Agreement S1 . in the amount of
$284,875 has been submitted to secure completion of infrastructure to serge the
subdivision including water, sever, fire hydrants, ts, sidewalks, parkiLng and
landscaping. The letter of credit submitted with the final plat application addresses
the 125% of the estimated cost of remaining improvements. The estimated
completion date for the items listed in the SIA is June 18, 2007.
The preliminary plat was approved with conditions as outlined below. The following is
a. discussion of compliance with each of these conditions as well as innings of
compliance with the city subdivision regulations and zoning r i ance.
Final Plat for cedar commons
August 2, 2006
Page 2
C MOPLIANCE WITH CONDITIONS APPROVAL:
Condition No. 1. That the development of the site shall e in substantial
stantial
compliance lianc with the r lim ary plat. (Kalispell Subdivision Regulations,
Appendix c - Final Plat)
This condition is met. The final plat complies cr t the approved prehminary plat.
Condition No. 2. The project site's frontage g along Third Avenue East shall be
improved in accordance with the city of Kalis ell's Standards for Design and
Construction and. Montana a Public Works Standards; are.d shall be certified by
an engineer he r. sed. in the state of Montana. a. All work shy be reviewed and
approved by the Kalispell Public Works Department prior to construction. This
infrastructure shall include but not be lixm'ted to streets, street lighting, street
s gnage, curb, gutter, boulevard and sidewalk and shall be installed along
Third. Avenue East. New infrastructure along 'Third. Avenue East shall tie r t
the existing street infrastructure. (Kalispell Design and. Constr-uction
Standards)
This condition is met. The Public Works Department has reviewed the
construction lans and. the SIA and has approved both per a letter from. Frank
Castles, Assistant start city Engineer, dated August 25, 2006.
Condition No. 3. The developer shall submit to the Kalispell Public Works
Department an engineered drainage plan that meets the requirements of the
current city standards for design and construction. ction. Prior to final plat, a
certification shall be submitted to the Public Works Department artment stating that
the improvements have been built as designed and approved. (Kalispell Design
and Construction Standards)
This condition is met. The Public Works Department has approved an engineered
drainage plate for the site.
Condition No. 4. The developer shall submit it to the Kalispell Public Works
Department are erosion sediment t control lan for review and approval. Prior t
final plat, the approved plan shall be implemented. ted. (Kalispell Design and
Construction Standards
This condition s met, Along with the drainage plan the public Works Department
t
approved are erosion sediment control lan.
Condition No. 5. A letter from the Kalispell Public Works Department artmen.t shall be
submitted stating that all new infrastructure .re has been accepted by the city of
Kalispell. Kahs ell Design and Construction Standards)
Final Plat for Cedar Commons
August 2,200
Page 3
Prior to re .easing the letter of credit for the SIA the Public Works Department ent wl
verify all infrastructure has been i staged per the approved plans.
Condition No. 6. The following requirements shall e met per the Kalispell Fire
Department: arty, ent: Kalispell Subdivision Regulations, Section 3.20).
a. Water mains ns designed to provide mi-nimum fire flows shaH be installed per City
specifications at approved locations. Minimum fire flows shall be in
accordance with the Inter atlona Fire Code (2003).
. Fire hydrants shall be provided per City specifications at locations approved by
this department,, ent, prior to combustible construction.
C. Fire Department access shall be provided in accordance with International Fire
Code (2003).
+ The approved construction plans for the site include hydrants and waiter lines capable
of providing the required fire flogs. Construction on the site wiH not be petted until
hydrants are �r staled and flow tested and access is provided in accordance with the
Intern a.tiona . Fire Code.
Condition No. 7. Al utilities shall be Mstalled underground. Kal is en Subdivision
Regulations, Section. 3.17).
This condition is met. All utilities will be installed underground per the approved
plains.
Condition. No. S. A homeowners association ion shall be established for the mite ance
of the landscaping in the boulevard along 'Third Avenue East and the common
area., including but not meted to, the stormwater serge tanks, landscaping,
parking lot and sidewalks. (Findings of Fact, Section D)
This condition is met. The draft set of covenants, ts, conditions, restrictions and
easements for Cedar Commons submitted with the final plait application Mcl des the
creation of a homeowners association. 'rhe association is charged with ma x taining
the landscaping in the boulevard along Third Avenue East and the common areas,
including the stormwater surge tanks, landscaping, g, arking lot and sidewalks.
Condition No. 9. All areas disturbed during development ent of the subdivision shall be
re -Vegetated with a weed -free nn'x immediately alter development.
All areas disturbed will be re -Vegetated upon finial completion of Cedar Commons.
ons.
Condition No. 10. Prior to filing the final plait a letter from the U.S. Postal. Service
shall be included stating the Service has reviewed and approved of the design.
Final Plat for Cedar Commons
August 28, 200
Page
and location of the mail delivery site. The mail dehvery site shall be installed or
bonded for prior to final plat. In addition, the mail delivery site and
improvements shall also be included in the plans to be reviewed by the Public
Works Department. (Kalispell Subdivision. Regulations, Section 3.22) .
The plan for mail service has been approved by the U.S. Postal Service in a letter
to Jackola Engineering dated August 18, 200.
Condition N. 11. Cross easements shall be recorded on the common area lot for
ingress/egress and parking for each of the six sublots and to allow future
connections to parking lots or drive aisles to the property immediately south.
This condition is met. The cross easements are included in the covenants, conditions,
restrictions and easements for Cedar Commons.
Condition No. 12. That preliminary approval shall be valid for a penod of three years
from the date of approval. (Kalispell Subdivision Regulations, Section. 2.04)
This condition has been met. The preliminary plait has been submitted prior to the
expiration of the rehmm' ary plat approval which is July 18, 2008.
C MPLkCE WITH THE SU SION REGULATIONS:
NS:
This subdivision plait has been found to be in compliance with the State and City
Subdivision Regulations.
C MPSCE WITH THE ZONING REGULATIONS
This subdivision conies with. the Kalispell Zoning Ordinance and. the -2 zoning for
the property.
REChMEN:
All of the conditions of preliminary plat approval have been adequately addressed.
The staff recommends that the Kalispell City Council approve the final plait for this
subdivision. Please schedule this matter for the September 5, 2006 regular city
council meeting if possible. You may call me at 1-1 52 if l can be of assistance to
you regarding this matter.
Final Plat for Cedar Commons
August 28, 2006
Page
Sincerely,
f
Sean Conrad
Senior Planner
Attachments: I opaque my ar of final plat
1 reproducible myar of final plat
blueline of final plat
11 x 17 reduction
Final plat application dated 8/ 16 J 06
Letter from ,Jackola Engineering dated 8/ 18/05
Letter from .Public Works dated 8%25/06
Letter from MDEQ dated 5/31/06
Letter from USPS dated 8/ 18/06
Title report # 7208926-1337 dated 8 J 8/ 06
Consent to Play from Whitefish Credit Union. dated S/ 16/46
Subdivision Improvement Agreement
Treasurer's certification date. 8 / 06
Covenants, Conditions, Restrictions and. Easements for Cedar
Commons dated8/25/06
w atta m nts: Theresa White, Kalispell City Clerk
c w attachments: Jackola Engineering, P.O. Box 1134, Kalispell, MT 59903
argrass Holdings LLP, P.O. Box 7505, Kalispell, Mt
59904
City of Kali*spell
Planning Department
1 - ' Street East, Suite 2-11. Kalispell, Montana 59901
Telephone:751-1850
a:751-1858
FINAL PLAT APPLICATIQN
Project /Subdivision Name: t1 .Sf, P44 � (
Contact Person.:
Name: G�o tQ �GAeeYLL1 �;
Address:_ S(p_
Phone No.: q06 - 7�_S '`�'02'00
Date of PreliminaryPlat Approval -
Type of Subdivision: Residential X Industrial
Ownera Mailing ,address:
r
r
�}
Commercial Other
Total Number of Lots in Subdivision ip + Mon Aroet
Land in Project (acres) 4010
.
Parkland es
N. of Lots by ire:
Single Family
Duplex
Commercial
Condominium
Cash -in -Lieu
Townhouse
Mobile .dome Park
Exempt - V�f_
Apartment Recreational Vehicle Park
Industrial Planned Unit Development
Multi -Family Other
Legal Description of the Property S"9. a.'�' e � � wr'r_*7nff145;ns /(5c.4, 15, a , 1(14
FILING FEE ATTACHED
Minor Subdivision with approved preliminary plat $ $1 5/lot
Major Subdivision with approved preliminary plat $ 5 $1 / lot
Subdivisions with Waiver of Preliminary Mat $ $1 lot
Subdivision Improvements Agreement $ 5
Attached
Not Avolicable CHECK
Health Department Certification (Original
Title Report (Original, not more than 90 days old)
Tax Certification (property taxes must be paid)
Consent(s) to Plat (originals and. notarized)
Subdivision Improvements Agreement (Attach collateral)
Parkland Cash -in -Lieu (Check attached)
.77-
Maintenance Agreement
4Z
Plats: lopaque OR 2 mylar
rrryar copy I signed belie
br e Ines 4 bl .elr es,unsi*gned
IX17 Copy lIX17 Copy
**The plat must be signed by all owners of record, the surveyor and the examining land surveyor.
Attach a letter, which lists each condition of preliminary plat approval, and individually state hover
each condition has specifically been met. In eases where documentation is required., such as an
engineer's certification, State Department of Health certification, etc., original letters shall be
submitted. a .et statements stating, for example, "all improvements are in place" are not
acceptable.
A complete final plat application must be submitted no less than days prior to expiration date of
the preliminary plat.
When all application materials are submitted to the Kalispell Planning Department, and the staff
finds the application is complete, the staff will submit a report to the governing body. The governing
body must act within 30 days of receipt of the revised preliminary plat application and staff report.
Incomplete submittals will not be accepted and will not be forwarded to the governing body for
approval. Changes to the approved preliminary plat may necessitate reconsideration by the
planning board.
I certify that all information submitted is true, accurate and complete, I understand that
incomplete information will not be accepted and that false information will delay the application and
may invalidate any approval. The signing of this application signifies approval for Kalispell Planning
staff to be preset 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 last applicatlions be accompanied with a digital copy.
/(a 67
Owner(s) Signature Date
**A digital copy of the final plat in a Drawing Interchange File X format or an AutOCAD file
format, consisting of the fo _ ov .rig layers:
1. Exterior boundary of subdivision
2. Lot or park boundaries
3. Easements
. Roads or rights -of -moray
5. A tie to either are existing subdivision, corner or a corner of the public rand survey system
2
August I , 200
Mr. Tom Jentz
Tri-City Planning Office
11 Second S. East, Suite 211
Kalispell, Montana 59901
Re: Final Plat
SUBDIVISION PLAT of CEDAR COMMONS
Sec. 17, T28N, R21W. PMM, M,
City of 1 .l i spell
Dear Tom:
En
closed nor your review i IL -he data n
or Final. Plat
review on the above refe-3--enced Subdivision. The following
conditions for approval are as of lows ;
1. That the development of the site shall be i
substantial co-icace with preliminary plat.
The Subdivision is in compliance with the
conditions of approval.
2. The project site's frontage along Third. Avenue Easy
shall be ,improved in accordance with the City o--IF-
Kalispell's Standards for Design and Construction
and Montana Public Works Standards: and shy e
ce �. e . by an e inee.� -licensed in the Sate o
Montana. 1- work shall be reviewed and approved
y the Kalispell public Works Department R i o o
construction i s dune shall include by
not De m e . to streets, screen lighting, greet
i cae, curb, nutter, boulevard and side and
shall be insta-Iled along `third Avenue East. New
infrastructure along Third Avenue East shall tie
into the existing sheet infrastructure.
This is being bonded for and will be certified at
time of the request for bond release.
(P)40 .755. 0S (F)4 1 .7 1 PIS 8oX1 134 -1 8 0 "0 E E SWTE 0 , KALISPELL, MT.5 01
. The developer shall submit to the Kalispell Public
Works Department an engineered drainage plan that
meets the requirements of the current city
standards for des-iand construction. Prior to
final plat, erti f iC-at ion shall be submitted to
the Public Works Department stating that the
improvements have been built as designed and
approved.
This is being bonded ford will be certified at
time of the request for bond release.
4. The developer shall submit to the Kalispell Public
Works e. .e erosion/sediment control plan
for review and approval. Prior final plat, the
approved plan shall be implemented.
This is being bonded for and will be certified at
time of the request for bond release.
* A letter from the Kalispell Public Wo.�s
Department shall e submitted stat-ing that a l l new
infrastructure has been aci(.-.epted by the City o
Kalispell.
This is being bonded for and will certified at
time of the request for bond release*
.e following requirements shall be met per the
Kalispell Fire Department.
. Water mains designed to provide minimum fire
flows shall be installed per City
specifications at approved locations , Minimum
fire flows shall e in accordance � �e
International � e Code.
b. Fire hydrants shall be provided peg City
eiiions at locations approved by this
department, prior �o combustible construction.
. Fire Department access shall be provided
accordance with International Fire erode.
Design of the wateir mains and hydrant locations
have been approved by the Fire Department City o
Kalispell.
() 40 6.7 5 5,3 2 0 (F) 406.75 5.3 2 1 8 R 0 Box 1 1 3 4 -1 S 3 0 3"0
1. IT C3 2, KALt EL.L-r MT. 59 9 0 1
. All utilities shall be installed underground.
All utilities will be installed underground and is
bonded.
homeowners association shall be established for
the maintenance of the landscaping in the boulevard
along Third Avenue East and the common area,
including but not limited to, the stormwater surge
tanks, landscaping, parking lot and sidewalks.
See enclosed Declarat±on of Covenants, o ±t±o ,
R.os and Easements for Cedar Commons.
9. All areas disturbed during development of the
subdivision shall be re -vegetated with a weed -free
mix immediately after development
Disturbed areas will be re-vegetatedn bonded
for.
. Prior to filing the final plat a .fetter from the
U. S. Postal Service shall be included stating she
Service has been reviewed and approved of the
design and location of the mail de-I.Avery site.
the maildelivery site shall e i ; I led or bonded
for prior ' i-1 plat . di �i
delivery site and improvements shall also be
led in the plans to be revs eel by the Public
Works e me .
See enclosed letter.
11.Cross easement shall be recorded an the Iona
area. :got for ingress/egress and parking for each
o_'E� the six sublots and to allow future connections
o parking lotEs or drive aisles to the o e Ey
immediately south.
See Declaration of Covenants, Conditions,
Restrictions Easement for Cedar Commons.
(P)40 .7Cl (F)406,755.321 SRO BOX 1 134 -1 E30 R0 AvE E SuiTE302, KALI PELL,MT. 59901
12.That Preliminary Plat approval shall be valid for
a period of three years from the date of approval.
(August 7, 2006)
This condition has been met.
Should you have any questions, please do not hesitate
to contact me. Thank you. I remain
ncerely,
(I n"'r
JImes H. Bur on
F
(P)406.755.320B (F)406.755,321 B PO 8c3xl 1 34 -1 830 3'O AVE E SUITE 302, KALtSPELL,MT.59901
v��✓k �kry �ti}V:
'Kal' -%rks Dp*%artmc"'�nt
k",/Ity kii Z� U11 Public WO %W11-0
06) 58-
p
August 25, 2006
-arrass Holdings, LLP
P.O. Box 7505
Kalispell, Montana 59904
Attention: Michael Blend
Re: Cedar Commons
Gentlemen
The City of Kalispell Public Works Department has examined the "Cost to Complete
Cedar Commons Infrastructure" as certified by Marc E. Pitman, P..., on August 15,
2006, t is our opinion that the costs to complete the infrastructure appear adequate.
The referenced project does not have water service or sanitary sewer service*
If you have any questions, please de net hesitate to contact this office.
Si Cr
Frank Castles,, P.E.
Assistant City Engineer
Cc: Sean Conrad, Senior Planner
Kalispell Planning Office
Montana Department I of 7UAIJTY
ENNURONMENTAL[(Q--
Y
�0. Box Helena., M .
May 31, 2006
Schwarz rchtteeture & Enuincering Inc
Jeff G-oudreau
100 fi a eial Dr Suite 120
Kalispell MT 5990
Dear Mr Gou.d.rca:
Brian Schweitzer, Go rn l-
E: Cedar Commons `1 Avenue East Project
Municipal i a ili s Exclusloll
EQ#06-3219
City of Kalispell
Flathead County
'his is to eer ti fy that the 1 nformatio and fees rece1ved by the Department o f Environmental Quality relating to
this subdivision are in compliance with 76-4-12 , MCA and ARN4 17.36.602. Under 76- -1 2 d. , MCA,
this SUbdivision is not subject to review, and the plat can be filed w1th the county clerk and recorder.
Plans and specifications roust be submitted when extensions of municipal facilities for the supply of eater or
disposal of sewage are proposed ' 76- - (3), MCA . Construction of water o � sever extensions sions prior to
DEQ,'Public Water Supply Section"s approval is prohibited, and is subject to penalty as prescribed in Tide 75),
Chapter 6 and. Title 76, Chapter 4.
This file has been may. ed to the Public Water Supply Section., Kalispell Office for review of the extensions.
S Inc ere I ,
S
.tact Skaarlad
Compliance Specialist
Subdivision Section
(406) 444-1801 — ema'l
�.
cc* City Engineer
County Sanitarian
Y
�� I e
RECEIVED JUN 02 2006
E,nforeement Divisdon- Permitting &Compliance Division Planning, Prevention Assistance Division - Remediftfion Division
UNITEDSTATES
P OS O L SERVICE
KALISP LL, MT 5990 -999
August 1, 2006
Jel
1 3 3d Ave East, Ste 32
P.O. Box 1134
Kalispell, IVIT 59903
w Final Plat Approval
To whom It May Concern:
Delivery for Cedar Commons four-plexes has been approved for Cluster Box Unit
(CBU) delivery. The developer will provide one 16-unit CBU, one --unit CBS! a 4 x
-foot cement pad on 3r Ave E. Cement paid placement will be south of existing
pad for 1435 TdAve E. The pad will be abutted and level with the existing paid.
Purchase of C 's will he arranged one month prior to the first occupancy and
arrangements made for delivery to -the main Post Office on Meridian lid. The Post
Office will install and then be responsible for the lock changes and maintenance f
the equipment.
Upon approval of the final plat through Kalispell Planning, a copy (no larger than
1 X showing addresses, will be provided to the Post Office. Please sign and
date the enclosed Made of Delivery Fact Sheet Site Plan Agreement and include this
with the copy of the final plat you provide to the Post Office.
If you have any questions regarding this matter, you may contact me at 55-64.
Sincerely,
Susil Carter
Growth Management
1
�71 I
t
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w
..�•.�` EAST i
14TH = i
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Maintenance Technical Support Center
MMO-069-04
24.00
Mali
.00-
24.00 MIN �
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I
4.0 1
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7
92,00 MAX �
SEE NOTE 4
34M
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24,00 MIN �
CBU PEDESTAL
4X O.5
ACkR BOLTS
PER CBU
-4X 4.50 MIN
4X 4. D
8.00 MIN
-- 24,00
MIN
4.00
...........
a � re��} "�a ,�,.a �5° • � ap lsb �e dYee �u�
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'h`ap {xsiG hreflKf<p°8��4aa��
R BOLTS, PER C U I-r
tf „-T V FEAVTI I N T N
BLOOM FINISH
1 6M
MAX
2,00
WAX
.00
8,00 ICI
iE-3l CBU
CHAMFER EDGES, IN LANDSCAPE AREAS,
TOOL EDGES EAU H WITH ADJOINING
SURFACES IN PAVED AREAS.
SLOPE SIJR A i .25 INCH PER FOOT
ON ALL SMES FOR DRAINA�E
BUTYL RUBBER ER PAD
ITH METAL PEDESTAL ONLY)
LATCH EXISTING GRADE IN
PAVED AREAS
SLOPE SURFACE .25 INCH PER FOOT
ON ALL SMES FOR DRAINAGE
E=
4 RODS ON ` 4.00 CENTERS MAXIMUM,
EACH I WAY
OPTIONAL OMPACT GRAVEL OR
CRUSHED TON NOWT WHERE
SDIAD ROCK OCCURS)
MAXIMUM FROST DEPTH
FIRM UNMSTURSED SOIL
RWELL—IPA TEED FILL
—.
TE.:.............._ .........._ -.._ ........... ............. ............ ....... ....... ...... ................. ....... .._-.
................
7 . CRT SHALL HAVE A, COMPRESSIVE
TREI�IGTH OF 000 PSI I 8 DAYS, CONTAIN 4 MIN — MAX
AIR ENTRAINMENT AND BE PLACED WITH A 3,50 — 4.50 SLUMP IN ACCORDANCE: WITH A I 301.
, REINFORCING STEEL RODS SHALL CONFORM TO ASTM A61 , GRADE 60.
4. A 3 CBU CONFIGURATION is DEPICTED. A 2 OR 4 CBU CONFIGURATION MAY ICE USED AS LONG AS THEY
ARE ARRANGED END IN GROUPS SUCH THAT THE OVERALL DIME SIGN OF THE CONCRETE BASE DOES NOT
EXCEED 192 INCHES,
Multiple Unit Standard Base Detail
Attachment 2 - 5
CONSENT To PLAT
We, the undersigned, WHITEFISH CREDIT UNION, do hereby consent
to the platting of the real property described a "SUBDIVISION PLAT
OF CEDAR COMMONS",, attached hereto, and by this reference made a
part hereof.
WHITEFISH CREDIT UNION
�ry
BY
STATE OF MONTANA
SS
County of Flathead
O
lk A� a _ ,{' 42006, before e, the
undersign a Notary P . ie or the State f Montana, ,personally
appeared _�� _�_¢� �;����_ and. known to rye to e
tie �' "...I�_�_� of WHITEFISH CREDIT UNION and
who serI bedname to the within instrument and acknowledged to
me i
at —ht executed the same. -WCO%=
+ * } a V4�1
&�� -- - - - -
_ _ r
ary Public the State o Montana 'F+.
♦ ,�] ♦ _ f J b os� Sou 119U� 9
ing at
My Commission E ire � � ��� •s �
a x`
�4/q•�7A ' * F
�� N
Plat Room
Flathead County, Montana
800 S. Main St.
Kalispell, MT 59901
(406)758-5510
This Form is for Subdivisions &Condominiums Only
Y: JACK .A
FOR' BEARGRASS HOLDINGS, LLP
SC : CEDAR COMMONS
(Arm. L,A of A. L.1 t .1
L.5 thru 7 & abd. alley B.1
Ryker Kidd. in 1"--1
DATE.8/9/06
t 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.
3
. . ........ ....... .
9
Deputy Treasurer
(seal)
PROPOSED
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS &EASEMENTS FOR
CEDAR COMMONS
THIS DECLARATION of Covenants, Conditions, Restrictions & Easements for Cedar
Commons ons, made this -'.I u� 2006, by Beargrass Holdings, L.L.P. a
Montana limited liability partnership. herei a ter referred to as"Declarant")
WINSS:
WHEREAS, Declarant is the owner of the real property situated in Kalispell,
Montana, to he developed and known as Cedar Commons; and
WHEREAS, Declarant is desirous of subjecting said real property to the
Covenants, �ondltio�s, Restrictions & Easements hereinafter set forth, each o which s
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 Par erty. 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, Mate 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 Cedar Commons.
'No other property, other than that described above, shall be deemed sect to this
Declaration unless and until specifically made subject thereto.
DEFINITIONS
1,1 "`Ar ie es' means the Articles of Incorporation of the Association,
as amended from time to time.
.2. "Assessme is,19 means the Common expense Assessments and
Special Assessments levied and assessed against each Lot pursuant to Article 7 of this
Declaration. n.
.2.3 "Assessments Lien" means the lien. granted to the Association to
s `e r the payment of Assessments, monetary penalties and other charges owed to the
Association.
. , "Association" means Cedar Commons Owners Associalon., a
Montana nonprofit corporation, its successors and assigns.
..2.2 "Board of Directol means the Board of Directors of the
Association.
.2.3 "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 on that agree to be bound by the terms of this Declaration.
ration.
.. "Buildings" means the structures designated as buildings on the
Plat.
. .5 "Bylaws"' means the Bylaws of the Association, as amended from
time to time
.2. "Claimant"' nt"' y Bound Party initiating a claim against any other
Bound Party.
.2. "'Common Property" means all portions of the Subdivision other
than the Buildings on Lots.
. . "Common Expenses'' means expenditures made by or nancl l
liabilities of the Association, together with any allocations to reserves, including., without
limitation, r the cost of inspection,, maintenance, management., operation, repair and
replacement of the Common Properly and all Improvements thereon, including clustered
mailboxes, private sidewalks and parkin; areas, fences, gates and those exterior parts of
the Buildings, which the Association has the responsibility of maintaining, taining, repairing and
replacing; i the cost of sever, centrally metered utilities and trash removal which are the
Common Property; ii 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, s l es, 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 Cedar Commons Documents such other funds as may be necessary to
provide general operating reserves and reserves for contingencies and replacements
deemed appropriate by the Board of .rectors; and i 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, , "Common Expense Assessment" means the assessment levied
against the Lots pursuant to Section 7.2 of this Declaration.
2,10 "Common Expense Liability" means the liability for common
expenses allocated to each Lot by this Declaration.
aration.
..2.11 "Declaration" means this declaration of covenants, conditions',
restrIcti.ons and casements as amended from time to time.
1.2.1.2 "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:
(1) Add real estate to the Subdivision;
(1i)Create easements, Lots, Common Property or .limited
Common Property erty within the Subdivision.
(.I*II) 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 Lot owner-,
1.2.13 "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.
1.2.1 "Lot' means the real property located in Flathead County,
Montana, which is described in Exhibit A as Lots I through 6, attached to this
Declaration, together with all buildings and other Improvements located thereon.
1.2.1.5 "'Lot near"' means the record owner, whether one or more
Persons, of beneficial or equitable title (and legal title if the sane has merged with the
beneficial or equitable title) to the fee simple interest of a Lot. .dot 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 orpurchase transaction.
1.2. ` Mt" means any Verson who is or becomes a member of the
association..
1.2.1 ' "CedarCommons Documentsly means this Declaration aration and the
Articles,, Bylaws, and the Rules.
1.2.1 "Period of Declarant Control" means the time peri-od
commencing on the date this Declaration is recorded with the County Recorder of
Flathead County, Montana., and ending on the earlier of: 1) days after the
conveyance of seventy-five (75%) of the Lots whieh may be created to Lot Owners other
than the Declarant; or (it) four (4) years after Declarant has ceased to offer Dots for sale
in the ordinary course of business.
1.2, .1 "Person" means a natural person, corporation, business trust.,,
estate trust, partnership, Limited Liability Company, association, joint venture,
o em ent, governmental subdivision or agency, or other legal or commercial entity.
1.2. o "Plat" means the Subdivision Flat for Cedar Commons, a
Subdivision, which plat has been recorded to Book of Maps, page_, records of
Flathead County, Montana, and any amendments, supplements or corrections thereto.
1.2.21 "Purchaser" means any Person, other than the Declarant, who by
mean of voluntary transfer becomes a Lot Owner.
1.2; 2 "'Respondent" Any Bound Warty that has received notice of
claim against any other Bound Warty.
1.2.23 "Rules" means the rules and regulations adopted by the
Association, as amended from time to time.
1.2. "Special Declarant Rights" means any right or combination of
rights reserved by or granted to the Declarant in this Declaration or by the Montana
Su divislon Act to do any of the following:
(1) Construct Improvements provided for in this .Declaration or
shown on the Flat;
(11) Exercise any Development Right;
(iii) Maintain management ent office and signs advertising the
Units, lots, buildings and or units for ,rent.
(iv) Use easement through the Common Property for the
pose of making Improvements within the Subdivision;
and
(v) Appoint or remove any office of the Association or any
member er of the board of Directors during the Period of
Declarant Control.
..2.25 "Subdivision" means the entire property including all lots
common Property. This additionally includes all subdivision
documents including this declaration
1.2.2"Unit" means a single dwelling unit wilbin a -ple ; on a lot.
ARTICLE
4
ALLOCATION OF PERCENTAGE INTERESTS, VOTES AND COMMON
EXPENSE LIABILITIES
2, 1 Al o ca tionof Commo n Propgr1j. Interest and C m mon Ex
Liabilities.
The allocation of undivided interests in the Common Property and in liability for the
Common Expenses of the Association shall be allocated at 16-2/3% e .e . Accordin y,
the initial interest in the Common Expenses of the Association for each Lot shall be
divided as per these percentages upon the Effective Date.
2.2.Allocationof 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 arnong all the .dots, with each Lot having one 1
rote.
RII t
]EASEMENTS
NTS
3,1 U 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, sever, drainage, ditches, telephone, cable television and electricity. By virtue o
this easement, it shall be expressly permissible for the providing utility company to erect
and maintain tai the necessary equipment on the Common Property, but no severs, electrical
lines, water limes, or other utility or service lanes may be installed or located on the
Common Property erty 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 Coon Property. Declarant, the Board o.f the
Association, does hereby rese /e 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.eca.rant's or the Board's opinion.
3.2 Easements f~ss and Egress.. There is hereby created
easements for ingress and egress :for pedestrian traffic over, through and across
sidewalks, paths, driveways and parking areas, and lanes that :From time to time may exist
upon the Common . Property and on individual lots. 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 all Lot owners
and all occupants of the Units and their guests, families, tenants and invitees.
. There is hereby created a ' wide easement for ingress and egress
for pedestrian traffic and vehicular traffic between the lout e .most end of the driving
lane of the parking lot and the southern property line. The purpose of this easement is to
ki
provide for possible connectivity between the Cedar Commons parking lot and a future
parking lot, should one be developed, to the south. The intent and purpose of this
easement is to allow safer ingress and egress for the local bus service and the fire
department. This easement is subject to the owners of the property to the south agreeing
to and entering into an appropriate and reasonable "shared maintenance agreement" and
providing Cedar Commons owners Association and property owners an indemnity
agreement suitable to all parties. This easement shall be effective only in the event the
future development to the south is residential in nature, and is strictly prohibited if the use
is industrial or commercial. Commercial through track traffic is prohibited with the
exception of local buses serving residents, fire trucks, maintenance and repair vehicles
and/or equipment to he used 'n the regular maintenance, repair or replacement of any part
of the infrastructure or buildings belonging to Cedar Commons Owners Association or
any of the Cedar Commons lot owners. Future use ofthis easement shall not be
unreasonably withheld should the conditions exist that fit the intent of creating; this
easement.
3;3 Lot owners' Easements of Eniument.
3.3.1 Every Lot Owner shall
have a right and easement of enjoyment 1n and to the Common Property, whieb right and
easement shall be appurtenant to and shall pass with the title to even 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 Bruited to, the rights and easements granted
to the Declarant by Section 3.4 of this ec.aration.;
(111)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;3#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 terra of the lease.
3. .3 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 he deemed to he eonveyed, 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. Declarants Rights and Easements.
6
3.4.1 Declarant shall have the right and an easement on and over the
Common on Property and the exterior area of all lots to construct the Common Property and
the Buildings shorn 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, ,2 Declarant shall have the right and an easement on, over and
under those portions of the Common property and the exterior area of all lots not located
within the Buildings for the purpose of maintaining and correcting drainage of surface,
roof or storm water. The easement created by this Subsection expressly includes the right
to cut any trees, bushes, or shrubbery, remove fences and 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 and the exterior area of all lots and buildings shall he 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 the exterior area of all lots and
buildings 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 limes and conduits which are a part of or serge any Lot and which pass
across or through a portion of the Cocoon :property and/or the exterior area of any or all
lots.
3.5.2 For the installation, repair. maintenance, use, removal or
replacement of lighting fixtures, electrical receptacles, panel hoards and other electrical
installations which are a part of or serve any Building but which are on an exterior
surface of a building and/or 1n the exterior area of any or all of the lots, 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 Coon Property,
adversely affect either the thermal or acoustical character of the Buildings, or impair or
structurally weaken the Buildings.
ARTICLE
USE AND OCCUPANCY RESTRICTION
4.1 Residential Use, All Lots and Units shall he 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; l the existence or operation of the business
activity is not apparent or detectable by sight, sound or smell from outside the Unit: li
7
the business activity does not involve persons coming on to the Unit or the door-to-door
solicitation of residents in the Subdivision, and Ov) the business activity is consistent
th 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; such activity is engaged in full or part time; ii such activity is intended or
does generate a profit; or it a .license if required for such activity. The leasing of a Unit
by the Lot Owner thereof shall not be considered a trade or business within. the meaning
;
of this Section.
4.2 Utifitv 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 conununication 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 incidental to the construction of
Buildings or structures permitted under this Declaration.
.3 Improvements and Alterations. Any Lot owner may male nonstructural
additions, alterations and improvements within their :wilding without the prior Witter
approval of the Board of lrrectors, 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 to 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 male any addition, alteration or improvement to the
Common property without the prior written approval of the Board of Directors.
4.4 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
c.}ollectiOD 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.
.5 Machin u ment. No machinery or equipment of any .kind shall
e placed, operated or maintained upon the Subdivision except such. machinery or
equipment as is usual and customary in connection with the use, maintenance or
8
construction of buildings, improvements or structures which are within the uses permitted
by this Declaration, and except that ,Bich Declarant. or the Association may require for
the construction. operation, repair and maintenance ofthe Common Property.
.1. 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 1n 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 ed to determine,, in its sole discretion and on a case -by -case basis, whether any
particular animal or pet 1s to be considered as a `generally recognized special assistance
pet". No permitted pets shall be allowed to make e an seasonable amount of noise., cause
an offensive odor within a building or to neighbors, deposit urine or feces within any
building or common area., or to become a nuisance. All dogs shall be kept on a leash not
to exceed six 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 al] 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.
.2 Tempora.U.Qccuvanc . No trailer, tent., shack, garage, or other
structure, and no temporary Improvement of any kind shall be used at any time for
residence either temporarily or permanently. Temporary buildings or structures used
during construction of buildings or structures approved by the Board of Directors shall be
permitted but must be removed promptly upon completion of the construction of the
building or structure.
#3 Clothes Drying Facilities, outside clotheslines or other outside facilities
for drying or airing clothes shall not be erected, placed or maintained in the Subdiv sion.
4.4 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- o
any kind, gravel, earth, or any earth substance of any kind.
.5 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.
1 Trucks Trailers Cary ens and Boats. No commercial truck over I.0,000
.1b Gross vehicle Weight, mobile home., travel trailer, teat 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.
4.1.E Motor vehicles. Except for emergency repairs, no automobile,
motorcycle, motorbike or other motor vehicle shall he 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.
..3 Towing f Vehicles. The Board of Directors shall have the right to have
any truck., mobile hone, 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 ex.pe se 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.
4.1.4 Signs. No signs, With the exception of "For Sale" r "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.
.15 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 he observed. Any violation of such
laws, zoning ordinances or regulations shall. be a violation of this Declaration.
4.16 Nuisances and Offensive Activity. No nuisance shall be permitted to
exist or operate upon the Subdivision and no activity shal 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.
4.17 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.
4.1.8 Limitation on Leasing,Units. All leases shall be InwTiting and shall
provide that the terms of the lease shall be sub 0ect in all respects to the provisions of the
Subdivision Documents', , and any failure by the lessee to comply with the teams of the
Subdivision documents shall be a default under the lease. Upon leasing of a Unit, a
1.0
Building Owner shall promptly, within five 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 ofthe lease. All lease
contracts shall provide that the tee ofthe lease is not less than one month.
4.19 Declarant Auroval'.ReQuired. After the expiration of the Period of
Declarant Control and for so long as the Declarant owns any Lot, any action for which
the consent or approval of the Board of Directors is required under this Declaration may
be taken only if such action. is also consented to or approved by the Declarant.
ARTICLE
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, including all exterior surfaces of buildings and
exterior areas on individual lots. The cost of all such inspection, maintenance, repairs
and replacements shall be paid for by the Association.
5.1.1 Exterior Maintenance. The association is responsible to maintain
the parking lot, sidewalks, storm -grater collection systern and all exterior landscaping
including the boulevard on Third Ave East. In addition to maintenance upon the
Common Property, the Association shall provide exterior maintenance upon each lot
hick is subject to assessment hereunder, and is limited to the following specific items. -
painting of siding, -soffits; repair and/or replacement of roofing, gutters, downspouts,
exterior light fixtures and siding. Such exterior maintenance shall not include exterior
doors and windows or 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 ntenance items within a Lot shall be the responsibility of
each tot Owner; provided however, that If a tot owner shall fail to maintain or make the
.repairs or replacements whicb are the responsibility of such Lot Owner, then, upon vote
of the majority of the Board of Directors, and after not less than thirty 30days 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 cast 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 pernnitted 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
I
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
amounts in the same manner and to be the same extent as provided for this Declaration
for the collection of the Assessments.
5.4 Lot Owner's Failure to Maintain. If a Lot owner 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 days after wTitten. tice has
been given to the Lot Owner by the Association, the Association shall have the right, but
not the obligation, to perform the required maintenance, repair or replacement. The cost
of any such maintenance, repair or replacement shall be assessed against the non-
performing Lot owner pursuant to Subsection 7.21...5 of the Declaration..
ARTICLE
THE ASSOCIATION; RIGHTS AND DUTIES, AND MEMBERSHM
.1 Riphts, 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 ent .ty 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, pourers and duties as may be deemed reasonably necessary in order to effectuate
the objectives and purposes of the Association as set forth in this Declaration. The
Association shall have the right to finance capital improvements in the Subdivision by
encumbering future .Assessments, if such action is approved by written consent or
affirmative vote of the Lot Owners representing more than fifty percent %) 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 he
valid if given or taken by the Board. Notwithstanding anything herein to the contrary,, so
long as the Declarant owns any Lot, the prior written consent of the Declarant shall be
required for any decision by the Association to establish self -management when
professional management had previously been in place. The Association shall, , upon
request, make available to the Declarant., Mortgage Holders, Lot owners and Eligible
Insurers, Guarantors, or Title Companies current copies of the Declaration, Bylaws,
Articles, Rules and other books, records and financial statements of the Association from
time to time for such pasties. Such requests shall be in writing, and the Association shall
have the right to charge for copying expenses. See also Paragraph 9.2
.2 Directors and Officers.
.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 he Lot Owners.
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6.2.2 Upon the termination of the Period of Declarant Control, the Lot
Owners shall elect the Board of Directors, which must consist oat least three (3)
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
include a president, vice president, secretary and treasurer. The terns and conditions of
office shall be as set forth in the bylaws. The offices of secretary and treasurer may, in
lien of an elected individual or individuals, be delegated to a manager or management
company.
#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 t 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 tines 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.
.5 Personal Liabifill. 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 perso .a ly 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 sal not apply
any person who has failed to act in good faith or has engaged in willful. or intentional
misconduct. The Association shall full: 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 indenmity
obligations 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 la.
6,6 ,Implied i ts., The Association .nay exercise any .right or privilege given
to the Association expressly by the Subdivision Documents or this Declaration and every
other right or privilege reasonably to 'be implied from the existence of any right or
privilege given to the Association by the Subdivision Documents or reasonably necessary
to effectuate any such right or privilege.
6.7 Voi R its. 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
Owner, o any Assoclatio matter which is put to vote of the membership � accordance
with this Declaration', the Articles and/or the Bylaws.
6,8 Votinz.-Procedures. No change in the ownership of a Lot shall be effective
for voting .poses unless and until the .hoard 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 kv
more than one I Berson and such Lot ONNmers 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 .utter 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 east 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 TransferMembers i The rights and obligations of any Member other
than Declarant shall not be assigned, transferred, pledged, conveyed or alienated In any
ay except upon transfer of the ownership of a Lot owner's Lot and then only to the
transferee of the ownersh.1p 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 o7 in effect or may hereafter be established under
or pursuant to laws of the State of Montana. Any attempt to rake a prohibited transfer
shall be void. Any transfer of ownership of 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 1 days after becoming the
Lot Owner of a Lot.
.10 Suspension of Voting.Ri his. If any Lot Owner falls 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
vl.olatlon, the Board of Directors shall have the right to suspend such Lot owners right to
vt tii such time as all pa.yme.ts. including interest and atto.rey's foes, 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 members appointed by the
Board of Directors to regulate the external design, appearance, use and maintenance of
14
each Building and to perform such other f mctions and duties as are imposed upon it by
the Subdivision Documents or the Board of Directors.
6.1..E Convevance or Encumbrance of Common .Property. The Common
Property shall not he mortgaged, transferred, dedicated., or encumbered. without the prior
ritter consent or affirmative vote of Lot Owners representing at least two-thirds 2 o
the votes allocated to Lot Owners. In addition, any conveyance, ce, 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.
.13 maws, Declarant shall establish the initial bylaws for the .Association
and its rion-profit corporation.. The bylaws may be amended from time to time by the
Board, by a two-thirds 2 affirmative vote of all Board Members. Amendments to
bylaws are .got 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
ASSESSMENTS
7.1 Prenaration of Budget.
7..*1. At least sixty days before the heirin.g 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 he
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 S hdIvision; ili the amount required to reader
to the Lot owners all services required to be rendered by the Association under the
SubdivisionDocuments; and i such amounts as may be necessary to provide general
operati.ng 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 ofthe Declaration.
' ...2 Within thirty clays, after the adoption of a budget, the Board of
Directors shall send to each Lot Owner a sums ary of the budget and a statement of the
amount of the Common Expense Assessment assessed against the Lot and the lot Owners
ire accordance with Section .2--of this Declaration. The faflure or delay of the Board of
Directors to prepare or adopt a budget for any fiscal year shall not constitute a waiver or
release in any manner of a Lot Owner's obligation to pay his allotted share of the
15
Con n on Expenses as provided in Section 7.2.of this Declaration, and each Lot Owner
shall continue to pay the Common Expense Assessment against h1s Lot as established for
the previous fiscal year until notice of the Common Expense Assessment for the new
fiscal al year has been established by the Board of Directors.
7. .3 The Board of Directors is expressly authorized to adopt and amend
budgets for the Associat .on, and no ratification of any budget or amended budget by the
Lot Owners shall be required.
7.2 Common Expense Assessment.
7.2.. For cacti 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. of the Declaration) shall be assessed against each Lot as to which
provisions of the Declaration then are effective, in proportion to the Lot's Common
Expense Liability as set forth in Section ?..I 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 11mitation,
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 maxirnn annual Common :Expense
Assessment for each Lot shall be $2,400.00.
(11)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. . The Common Expense Assessment shall commence as to a I 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. 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
reconstruction of a total or partial Building loss, the Association shall assess that
Common Expense exclusively against his lot.
7.2.6 The personal obligation of a Lot Owner for Assessments, monetary
penalties and other fees and charges leered against his Lot shall pass to the Lot Owner's
successors ire title except as prodel Article 7.5 and Article .
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 AsseSSMeDt shall have
first been approved by Lot Owners representing; two-thirds 2 ) 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 days after they are levied by the .association and notice of the
Special Assessment is given to the Lot Owners.
7.4 Effect of Nonpa ent of Assessments• Remedies of the
Association.
7.4.1 any ,Assessment, or any installment of an Assessment, which
is not paid within fifteen 1 days after the .Assessment First became due shall be deemed
delinquent and shall hear interest from the date of delinquency at the rate of ten percent
(10%) per ann. m. 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..E 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 Len, 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 nonce setting forth the
amount of any delinquent t assessments, ents, monetary penalties or other fees or charges
imposed or levied against a Lot or the Lot Owner which are secured by the assessment
Dien.
7. .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 Assoeiat on in any maiiner allowed by law including, but not limited
to: i bringing an action at law against the Lot Owner personally ob gated to pay the
delinquent amounts and such action may he brought without waiving the Assessment
Lien securing any such delinquent amounts; or .1 bringing an action to foreclose its
17
Assessment Lien against the Lot in the manner provided by law for the foreclosure of a
realty mortgage. The Association shall have the poorer to bid in. at any foreclosure sale
and to purchase, acquire, hold, lease, mortgage and convey any and all Lots purchased at
such sale.
7.5 Subordination of Assessment Lien to Mortgages, The Assessment
Lien shall be subordinate to the lien of any First Mortgage, Any First Mortgagee or any
other party acquiring title or coming into possession of a Lot through foreclosure of a
`first Mortgage, purchase at a foreclosure sale or trustee sale, or through any equivalent
proceedings, such as, but not limited to, the taking of a deed in lieu of foreclosure, shall
acquire title free and clear of any claims for unpaid Assessments, monetary .penalties and
other fees and charges against the Lot which became.e 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
obfigation of the defaulting; Lot Owner,
7.6 Certificate of P m„dent. The Association on written request shall
furnish to a lien holder, Lot owner or person designated by a Lot owner a recordable
statement setting forth the amount of unpaid Assessments against his Lot. The statements
shall be fumished within twenty 2 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 o
Directors for each such statement.
'." No offsets. All Assessments, monetary penalties and ether 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 claimclalm that the Association is not
properly exercising its duties and powers as provided in the Subdivision Documents.
7.8 Monetan Penalties„. In accordance with the procedures set forth in
the Bylaws, the .hoard 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
INSURANCE
.1 Purchase Insurance. The Association shall have the power to
purchase insurance for either or both the common areas and all or an)7 part of the diving
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
18
that the Board of Directors of the Association shall deem to be equitable. Premium costs
for risks associated with the common area shall be part of the uniform assessment
provided in Article 7 and risks associated with individual dwelling units shall be special
assessments attaching only to such dwelling.
#2 liabili Insurance. Public liability insurance may be :purchased by
the Board, or acquired by assx rnent from Declarant, as promptly as possible following
its election. The premium thereon is to he paid out of the Association's funds, The
insurance shall be carried with a reputable company authorized to do business in
Montana. The minimum amounts of coverage shall be $ oo,000.00 for personal injury to
any one person, $ I,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.
. other Insurance. The .hoard of Directors of this
Association may purchase additional insurance as the Board may determine to be
advisable inclu.din ,, but not limited to, Workman's Compensation Insurance, demolition
insurance to remove improvements that are not rebuilt, e ors 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* ow errs Additional Insurance. An owner shall carry
such personal liability and property damage insurance respecting his individual lot and
building; however, any such policy shall include a waiver of subrogation clause against
the Association and all other owners.
c. M� y ec'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 b7 its
mortgage.
3 Damage -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 ofthe 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 livin.g 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 suect
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. Ali 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 ofDirectors of the Association and the
City of Kalispell Building Department.
In the event that improvements ents 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 he removed
and the area cleared and landscaped in the most efficient and estl et-iea.11y pleasing
manner possible. Should the Board of Directors select this option, they shall retain the
services of a professional engineer, licensed in the State of Montana to develop a plan to
remove the debris, seal common walls that are now exposed to weather and protect the
shallow, now Imrotected foundation from frost 'heave. The demolition and restoration
plans shall then be reviewed by the Kalispell Building Department. Alteration or
removal of any concrete foundation is strictly prohibited without the review and
approval of a professional engineer, licensed in the State of Montana, and the Kalispell
Building Department. The lot may be sold by the owner and any subsequent owner
would he 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 improvement 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 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 Fail 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 enter into contracts for the
repair- and reconstruction of any damaged ed improvements. The excess of any proceeds,
.not requ.iring 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 actin.g 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 .f 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 he specially
20
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
.I RIGHTS OF FIRST MORTGAGEES. The holders of first
mortgages or trust indentures on Lots may, Jointly or singly, pay taxes or other eh.arges
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 ' e owed
immediate reimbursement therefore from the owner's association.
.I.1 No action may be taken by the Developer, by theOwner'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 rirst mortgages or
trust indentures, in the ease of a distribution to .dot Owners of insurance proceeds or
condemnation awards for lasses to or taking of any Common property.
9.2 Right, of Inspection of Records. Any Lot owner, First Mortgagee or
Eligible :insurer or Guarantor will, upon written request, be entitled t i inspect the
current copies of the Subdivision Documents and the boobs, .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. iwitten 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 sha.1 be deemed
confidential and shall not be released to any other party or to the public.
9.3:Liens Prior~ to First Mort a c0 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.
ARTICLE Io
GENERAL PROVISIONS
.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.
1.0.2 SeverSeverabili 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.
0.3 Duration. 'rh.e covenants and restrictions of this Declaration shall
run with and bind the Subdivision for a term of t venty 20 years from the date this
Declaration is recorded, after which time they shall be automatically extended for
successive periods often I 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 tion shall be in
writing and shall be deemed to have been duly given and served if delivered personally or
sent by US nail. If delivery is made by nail, 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 nailed. Notices shall be addressed
to each person at the address given by such person to the Association for the purpose of
service of such notice or to the address obtained from. the County Tax Assessors office.
A Lot owner may change his address on file with the Association for receipt of notices
by delivering a written notice of change of address to the Association pursuant to this
Section. If a Lot is owned by more than one person,, notice to one of the Lot Owners
shall constitute notice to all Lot owners of the same Lot. Each Lot owner shall file his
correct mailing address with the Association and shall promptly notify the Association in
writing of any subsequent change of address.
10.5 Bindiag.Effect, By acceptance of a deed or by acquiring any
ownership interest in any poilion 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. fin 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, F rthernnore, each such person fully understands and
acknowledges that the Subdivision Documents shall be mutually beneficial, prohibitive
and enforceable by the various subsequent and future .dot 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 core.,eyed, 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.
22
10.6 Gender. The singular, wherever used In this Declaration, shall be
construed to mean the plural when applicable, and the necessary grammatical changes
required to make the provisions of this Declaration apply either to corporations or
individuals, or men or women, shall in all cases be assumed as though in each case fully
expressed.
o, * The marginal or topical headings of the sections
contained in the Declaration are for convenience only and not define, limit or construe
the contents of the sections of this Declaration.
10.8 Survival of Liabifily. 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 comiected 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 llabi I hies and obligations of each of the i oint Lot Owners set forth In, or impos d
by, the Subdivision Documents shall be joint and several.
10.11 Guests and Fens. Each Lot owner shall be responsible for
compliance by his agents, tenants, guests, invitees, licensees and their respective
servants' agents, and employees with the provision of the Subdivision Documents. A Lot
Owner's failure to insure compliance by such Persons shall be grounds for the sane
action available to the Association or any other Lot owner by reason. of such LotOwner's
own noncompliance.
10.1.2 o e 's Fees* In the event the Declarant, .arant, 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 acti-on,
10.13 Number of D .,,s. In computing the number of days for purposes of
any provisions ns of the Subdivision Documents, all days shall be counted including
Saturdays, Sundays and holidays; provided, however, that if the final clay 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.
231
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 ofthe
Subdivision Documents. The notice shall be executed and acknowledged by an officer of
the Association and shall contain substantially the following infofnnat on: (1) -the none o
the LotOwner; 00 the legal description of the Lot against which the notice is being
recorded; ii a brief description of the nature of the violation-, i a statement that the
notice is being recorded by the association pursuant to this Declaration; and 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 SubdivIslon Documents. If, after the recordation of such notice, it is determined by
the Association that the violation referred to in the notice does not exist or that the actual
violation referred to in the notice has been cured, the Association shall record a Notice of
Compliance which shall state the legal description of the Lot against which the 'Notice of
Violation was recorded, the recording data of the Notice of violation, and shall say that
the violation referred to in the Notice of violation has been cured, or if such be the case,
that it did .not exist.
10.15 .resolution of Di es 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 1 .1 .1 and
Subsection 10. I 5.2 naive their respective rights to purse 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 1 .1. .1. and Subsection 1. 0.,1.they are
giving up thee- respective rights to have such disputes tried before a court or jury.
Aecordingly, each. Bound .Party covenants and agrees to submit any all claims, grievances
r disputes described in Subsection 10.1 .1 (collectively "Claims") to the procedures set
forth in Subsection 10.1.5.2.
1. , 5.1 Unless specifically exempted below in Subsection 10.1 .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 sub ect to the provisions of Subsection. 0,1 . .
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:
24
(i) the nature of the Clain, 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 Clam arises;
(111) The proposed remedy; y; 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 .e every effort to meet
in person and confer for the purpose of resolving the Claim by good faith negotiation. if
requested in wfifing, accompaniedby 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 3 o 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 3 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.
(ill)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. Maim; 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 3 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 shad issue a notice of termination "Termination of Mediation.
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 Warty shall share equally all charges
rendered by the mediator. r. If the Parties agree to a resolution of any Claim through
negotiation or mediation in accordance with this Subsection l o.15.2 and any Party
thereafter Fails to abide by the terns of such agreement, then any other Party may file suit
25
or mitiate administrative proceedings to enforce such agreement without the need t
again comply with the procedures set forth in this Subsection _ 1 . 15.2. In su.ch event, the
Party taking the action to enforce the agreement shall be entitled to recover from the non-
complying Party or ifmore than one non -complying Party, from all such Parties pro
rata all cost incurred in enforcing such agreement, including, without limitation,
attorneys fee and related court cost.
(c) Upon Termination of Mediation, Claimant shall thereafter
be entitled to submit the matter to binding arbitration. Any arbitiration proceeding shall
be i proceed in Kalispell, Montana (unless all parties agree to a different location); 11
be govemed by the Federal Arbitration .act (Title 9 of the United States Code); and 111
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 ply to the other requesting arbitration. If the
parties are unable to agree upon an arbitrator within such ten 1 day period, at any time
thereafter either party may require that the arbitrator be selected according to the
Commercial Arbitrator Rules of AAA. The arbitrator shall be a neutral attorney who
practices In the area of real estate, commercial or business law, who NEED NOT be
registered., licensed or certified before the AAA. The arbitrator shall determine whether
or not an issue is arbitrated and will give effect to the statues of limitation in determining
any Claim.. Judgment upon the axxard 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 2 days before the bearing 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 sbct to final determination
by the arbitrator upon a showing that the request for discovery is essential for the arty'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:
(i) In advance of the meeting described in
Subsection. 10.1 .2 di.i below, the Board of Directors has provided full disclosure in.
Ming to all Members mber of all material information. relating - o the Claim. or action. The
material information shall include, without limitation, a statement that describes the
manner in whichthe 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.
(11)The Association has held a duly called .meeting
of .its Members and the .hoard 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 -finfitfing of
the action, as applicable.
(ill.) The Board of Directors has authorized the
submittal of the Claim to arbitration or the fifing of the action as applicable.
10.1 .3 'Notwithstanding the Foregoing Subsection 10.1 .1 and su sect on
10.1 .2 Unless all parties thereto otherwise agree, the following shall not be Claims and
shall not be subject to the provisions of Subsection 10, 1.5.1 and Subsection 10.l 5.2
which sha-11 be known. as Claims Exempt From Dispute:
(a) Any snit or action by the Associati.on against any
BOUnd .party for delinquent Assessments;
(b) Any suit between or among Owners, which does not
i .cl ude Dee 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
.11mi .at o s has ex l.red. or Mould expire within one hundred and eighty 1 o days o
.i V i Jig not ce req aired by S ubsecti.on .1 o.l . 2.
ARTICLE 11
AMENDMENT
1.1.1 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:
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. .2 At the annual meeting, the precise, proposed cranes will be
distributed to each member in attendance.
27
11.1..3 The Association will discuss the merits of each proposed
change.
ge.
1. 1.1.4 The Association will provide each member in attendance with a
written ballot for each proposed change.
11#1. 'lie members will vote by written ballot. The Ballots will be
counted by the Association"s secretary and by at least one other
individual appointed to assist the secretary
11.* . i The results of the h llot 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 ch ge .
11-1.7 If two-thirds (2/3) ofalf members in attendance NO 2 3 of
the total membership) vote in favor of the Proposed a.me e t , 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, subject to the
approval of the Kalispell Planning Office.
11.1.8 The proposed amen eat shall be submitted to the Kalispell
Planning Office for review. The Kalispell Planning Office shall review
the amendment(s) for Code compliance and issue an approval, denial
or recommend a correction within thirty 3 days from submittal. If
the Kalispell Planning Office does not respond within thirty(30)
calendar days then the amendment(s) shall be deemed approved by the
City and may be recorded as Per 11..1. 10
14... The president and secretary shall give Britten certification,
under oath, that these steps have been followed and that a change(s)
have been approved.
11.1.10 The cha ge s , together with the certification, shall be
recorded with the Flathead County Clerk and Recorder's office.
WN
1 ..1.11 The effective date of all changes shall be 30 days from the date
they are recorded, or as specified within the proposed change.
E. RGR.SS HOLDINGS,, LL
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Its.- General Partners Its: LimAed Partners
Wote of Montana
STATE OF MONTANA
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County of Flathead
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The fo reg i instrument c was acknowledged before m hlsz day of
, by the Partners of Beargrass Holdings, LLP,
a M a limited liability a. t..e�rsf i on a f h company.
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PRELIMINARY SU DIWS oN CERTIFICATE OF TITLE
Policy No. 7208926- 13 3 7
CHICAGO TITLE INSURANCE COMPANY
Flathead
and the City of K l i S 11 Ain Fontana
CHICAGO TITLE INSURANCE COMPANY, a corporation organized and existing nder the laws of the State
of l iisso r', with its principal office in the City of Chicago, Illinois, and duly authorized to insure titles in
Montana hereby certifies that from its examination of these public records which impart constructive notice o
matters affecting the title to the real estate described In Schedule A hereof, as of the 8th day o
, at 5 o'clock P-M the title to the described real estate was indefeasibly vested in fee
simple of record in:
Montana Limited Liability Partnership
subject only to the objections, liens charges, encumbrances and other matters shown under Schedule B hereof.
The maximum liability of the undersigned under this certificate is limited to the sum of .
This certificate of title is made in consideration of the payment of the premium by the subdivider of the land and
or the use of the County and City above named.
issued by
STERLING TU Sr-
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CHICAGO TITLE INSURANCE COMPANY
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ATTEST nma.n
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Reorder Form No. 9113 (Reprinted 1 to Preliminary Subdivision Cenificate of `title
For Use In Montana
SCHEDULE
Page 2 Certificate No.. 20 2 -13 3
Our File No.: CG-52 1
Being the legal description of the real estate covered by this certificate.
The following -described parcels of real estate:
A tract of land, situated, lying, and being in the Southeast Quarter of the Southwest Quarter
(SEI/4SW14 Section , Township 28 North, Range 21 West, ,M.,M., Flathead County,
Montana, and containing Lots 5, 6, 7 and the abandoned alley of Block 1 of Ryker Addition to
Kalispell, and Lot A of the amended Subdivision flat of Lots 1, 2, 3, 4 of Block 1 of Ryker
Addition to Kalispell, records of Flathead County and more particularly described as follows:
Commencing at the NW comer of said Lot 5 of Ryker Addition to Kalispell and which point lies
on the Easterly right-of-way boundary of Third Avenue East and which point is the True
Point of Beginning; thence
North '42' 50"' East, on and along the North boundary of said Lot 5, an extension thereof and
on and along the North boundary of said Lot A, a distance of 333.19 feet to a. point and which
point is the NE comer of said Lot .A; thence
South 12°07" " East,, on and along the East boundary of said Lot A, a distance of 122.15 feet to
a point; thence
South 12'24'07" East, continuing on and along said East boundary of Lot A, a distance of 10.0
feet to a point and which point is the SE comer of said Lot A; thence
South ''31" West, on and along the South boundary of said Lot A, a distance of 332.96 Feet
to a point and which point is the SW corner of said Lot A and which point lies on said
Easterly right-of-way boundary of Third Avenue East; thence
North 121' 1 ' "' West, on and along said Easterly right-of-way boundary, a distance of 131.99
feet to the True Point of Beginning.
o Be Known s: CEDAR COMMONS
Page 3 Certificate No.. 722-
onr File No.: CG-45 2 81
Being all of the estates, interests, equities, lawful claims, or demands, defects, or objections
whatsoever to title; and all easements, restrictions, liens, charges, taxes (general, special, or
inheritance, or assessments of whatever nature), or encumbrances; and all other natters
whatsoever affecting said premises, or the estate, right, title, or interest of the record owners,
which now do exist of record.
1. Property erty taxes, including any assessments collected with the taxes, for the year 2006.
2. Reservations in Patents or the acts authon'zing the issuance thereof:
. Mineral rights, claims or title to minerals in or under said land, including but not limited to
metals, oil, gas, coal, or other hydrocarbons, sand, gravel or stone, and casement or other
nghts relating thereto, whether express or implied, recorded or unrecorded.
. Delinquent water and sewer charges of the City of Kalispell, if any.
5. Easement for transmission line and related purposes granted to Mountain States Power
Company, by instrument recorded October 24, 1949 under Recorder's Fee #5368, in Book
307, page 359, records of Flathead County, Montana.
. Terms and provisions contained in Resolution 'No. 3881, regarding annexation to the City of
Kalispell, Montana, and zoning, recorded June 9, 1989 as Document #8916008330, records
of Flathead County, Montana.
7. Trust Indenture dated June 3, 2005 to secure payment of $150,124.00, together with interest
and any other obligations secured thereby, recorded June 3, 2005 as Document
#200515416160, records of Flathead County, Montana.
Grantor: Montana Rentals, LC, William Schottelkorb and Susan Schottell orb
Trustee: Sterling Title Services
Beneficiary: Whitefish Credit Union as to a portion)
. Terms and provisions contained in Resolution No. 5106, regarding the alleyway in Block I of
By er Addition being abandoned, recorded June 6, 2006 as Document #200615710000,
records of Flathead County, Montana.
. Any rights of the public as to the use of that portion located within the abandoned alleyway,
and any rights granted for utility services located within that portion of the abandoned
alleyway.
10. Utility easement certificate as shown on the Amended Subdivision Plat of Lots 1, 21 3, 4 of
Block 1 of Byer Addition to Kalispell, Montana.
Page 4 Certificate No.: 2 2 --133
Our File No.: CG-45281
1 .Utility easement certificate as shown on the unrecorded plat of Cedar Commons.
12. No search been made for water rights and unpatented mining claims, and liability thereon
is excluded from coverage this Certificate.
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