Staff Report/Final Plat, Phase 5REPORT TO:
FROM:
�4_?Vffo*11
City of Kalispell
Planning Department
17 - 2nd Street Past, Sine 2.11, Kalispell, Montana 59901
Telephone: (406) 751-1850
Fax: (406) 751-1858
Website: kalispellplanning.corn
Kalispell Mayor and City Council
Sean Conrad, Senior Planner
James H. Patrick, City Manager
Final Plat for Empire Estates Phase 5
MEETING DATE: September 5, 2006
BACKGROUND: This is a request for final plat approval of Empire Estates
Phase 5, a residential subdivision which includes 35 single-family lots and 34
townhouse lots on approximately 12.26 acres. Phase 5 lies in the northeast
corner of the Empire Estates Subdivision and is accessed off of Parkridge Drive.
Phase 5 is a portion of Assessor's Tract 3, located in the SW 1/4 of Section 1,
Township 28 North, Range 22 West, P.M.M., Flathead County, Montana.
The property owners of Empire Estates Phase 5 recently requested an
amendment to the approved preliminary plat of Phase 5. The amendment
would allow 7 additional lots within Phase 5. The amendment request was
given preliminary plat approval by the Kalispell City Council on July 3, 2006,
subject to 17 conditions.
As a requirement of the preliminary plat, at least two-thirds of the required
improvements have been installed per a letter from Paul Wells, P.E. of WMW
Engineering. A Subdivision Improvements Agreement (SIA) in the amount of
$224,615 has been submitted to secure completion of the remaining
improvements which consist primarily of road work, landscaping, paving and
sidewalks. 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 remaining items listed in the SIA is May 1,
2007.
RECOMMENDATION: A motion to approve the final plat for Empire Estates
Subdivision Phase 5 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
Senior Planner
Report compiled: August 24, 2006
jw6s H. Patrick
City Manager
Attachments: Letter of transmittal
Final plat application and supporting documents
SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT, made and entered into this 4th day of August,
2006, by and between the CITY COUNCIL, CITY OF KALISPELL, MONTANA, Party
of the First Part and hereinafter referred to as the CITY, and
Just Dirt LTD a
(Name of Developer)
a
Co oration
(individual, Company or Corporation)
located at 3300 HM 2 West Kalil ell Flathead Count
Montana 59901 ,
(Street Address/P. O. Box) (City, County, State, Zip)
Party of the Second Part and hereinafter referred to as DEVELOPER.
WITNESSETH:
THAT WHEREAS, the Developer is the owner and developer of a new
subdivision known as Erxa ire Estates- Phase 5
(Name of Subdivision)
located at Section 1 T'ownshi 28 North Ran e 22 West P.M. M. Flathead Coun _
(Location of Subdivision)
and,
WHEREAS, the City has conditioned it's approval of the final plat of __Empire
Estates- Phase 5 , upon the conditions as set forth in the Preliminary Plat of the
(Name of Subdivision)
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 sub -divider shall
provide a financial security of 125% of the estimated total cost of construction of said
improvements as evidenced by an estimate prepared by a licensed public engineer
included herewith as "Exhibit B"; and
WHEREAS, the estimated total cost of construction of said improvements is the
sum of $ 179,692
NOW THEREFORE, in consideration of the approval of the final plat of said
Subdivision by the City, the Developer hereby agrees as follows:
1. The Developer shall deposit as collateral with the City a Letter of Credit, or
other acceptable collateral as determined by the City Council, in the amount of
$ 224 615 . Said Letter of Credit or other collateral shall have an expiration
date of at least sixty (60) days following the date set for completion of the improvements,
certifying the following:
a. That the creditor guarantees funds in the sum of $�224,615� the estimated
cost of completing the required improvements in Empire Estates _Phase 5 .
(Name of Subdivision)
b. That if the Developer fails to complete the specified improvements within
the required period, the creditor will pay to the City immediately, and without further
action, such funds as are necessary to finance the completion of those improvements up
to the limited of credit stated in the letter;
2. That said required improvements shall be fully completed by May 1, 2007
3. That upon completion of the required improvements, the Developer shall cause
to be filed with the City a statement certifying that:
a. All required improvements are complete;
b. That the improvements are in compliance with the minimum standards
specified by the City for their construction and that the Developer warrants said
improvements against any and all defects for a period of one (1) year from the date of
acceptance of the completion of those improvements by the City;
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 has been filed with the City;
f All applicable fees and surcharges have been paid.
4. The Developer shall cause to be filed with the City copies of final plans,
profiles, grades and specifications of said improvements, with the certification of the
registered professional engineer responsible for their preparation that all required
improvements have been installed in conformance with said specifications.
IT IS ALSO AGREED BY AND BETWEEN THE PARTIES HERETO AS
FOLLOWS, TO -WIT:
That the Developer shall provide for inspection of all required improvements by a
registered professional engineer before the Developer shall be released from the
Subdivision Improvement Agreement.
That if the City determines that any improvements are not constructed in
compliance with the specifications, it shall furnish the Developer with a list of specific
deficiencies and may withhold collateral sufficient to insure such compliance. If the City
determines that the Developer will not construct any or all of the improvements in
accordance with the specifications, or within the required time limits, it may withdraw
the collateral and employ such funds as may be necessary to construct the improvement
or improvements in accordance with the specifications. The unused portions of the
collateral shall be returned to the Developer or the crediting institution, as is
appropriate.
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals
the day and year herein before written.
Empire Estates -- Phase 5
(Name of Subdivision/Developer/Firm)
by President
Hubert . Turner (Title)
STATE OF MONTANA
COUNTY OF FLATHEAD
On this day of , 2t] , before .me, a Notary Public
for the State of Montana, personally appeared Hubert J. Turner known to me to be the
President _ of Just Dirt LTD , whose name is subscribed to the foregoing
instrument and acknowledged to me that he/she executed the same.
IN WITNESS WHEREOF, I. have hereunto set my hand and affixed my Notarial Seal this day
and year first above written.
Notary Public for the State of .Montana
Residing at
My Commission Expires
MAYOR, CITY OF KALISPELL ATTEST -
IF,
FINANCE DIRECTOR
EXHIBIT B
EMPIRE ESTATES PHASE 5
PROJECT CONSTRUCTION COSTS
PAID FOR AND/OR TO BE COMPLETION
IM.P.ROVEMENTS COMPLETED COMPLETED DATE
Sub -Grade .Excavation
$ 21,000
Road Base
$ 70,200
$ 1,000
3/4 Crushed Gravel
$ 11,000
$ 2,000
5/l/07
Curb/Gutter
$ 0
$ 38,400
5/1/07
Water
$ 93,500
$ 1,000
5/1/07
Sewer
$ 89,400
$ 1,000
5/1/07
Storm Sewer
$ 0
$ 33,600
5/1/07
Telephone
$ 16,995
Power
$ 54,416
Conduit
$ 75,000
Gas
$ 21,863
Materials (.Pipe, catchbasins,
$ 75,000
and appurtenances)
Misc.
$ 45,000
Landscaping/Bike Path
$ 0
$ 31,420
5/1/07
Paving
$ 0
$ 67,872
5/t/07
Sidewalks
$ 45,000
$ 3,000
Signs
$ (3
$ 400
5/1/07
TOTAL
$ 618,374
$ 179,692
SUMMARY
Completed To Date $ 618,374
To Be Completed $179,692
Total Project Cost $ 7981066
Percent Completed = 77.48%
Total Collateral Required = 125% of $179,692 = $224,615
WEST OMF BANK
July 28, 2006
Irrevocable Letter of Credit No. 114
Wayne E. Turner
3300 Hwy 2 West
Kalispell, MT 59901
City of Kalispell
312 1" Ave E.
Kalispell, MT 59901
We hereby establish this irrevocable Letter of Credit in your favor for one or more
drawings up to United States, $249,500.00. This Letter of Credit is payable at the West
One Bank office at 222 W. Idaho, Kalispell, MT 59901, and expires with our close of
business on July 28, 2007.
Each draft so drawn must be marked "Drawn under West One Bank, 222 W. Idaho,
Kalispell, MT 59901, Letter of Credit Number #114 and accompanied by signed
statements of the Kalispell City Attorney that Wayne E. Turner has failed to honor his
contractual agreement with the City of Kalispell. This letter of credit shall reduce
proportionally with the road and landscaping as it is completed on the Empire Estates
Subdivision Phase V.
We hereby agree with you that all drafts drawn under and in compliance with the terms of
this credit will be duly honored if drawn and presented for payment to our office, West
One Bank, 222 W. Idaho, Kalispell, MT 59901.
Sincerely,
West One, Ban
BY:
Print Name: Rod Leese
Its: President
222 ids. IDAHO - PO, BOX 75 - KALISP LL, NIT 59904-0758 Member
`•A ER EL. 0 - 55- 17 ; - FAX 0 -979 o www.we to . o
17 - 2`1 Street East, Suite 211. Kalispell., Montana 59901
Telephone: (406) 751-1850
Fax: (406) 751-1 55
Website: ka.lispel.lplanning.corn
August 24, 2006
.lames H. Patrick, City Manager
City of Kalispell
P.O. Drawer 1997
Kalispell, MT 59901
Re: Final Plat for Empire Estates Phase 5
Dear Jim.:
This is a request for final plat approval of Empire Estates Phase 5, a residential subdivision
which includes 35 single-family lots and 34 townhouse lots on approximately 12.26 acres.
Phase 5 lies in the northeast corner of the Empire Estates Subdivision and is accessed off of
Parkridge Drive. Phase 5 is a portion of Assessor's Tract 3, located in the SW 1/4 of Section 1,
Township 28 North, Range 22 West, P.M.M., Flathead County, Montana.
The property owners of Empire Estates Phase 5 recently requested an amendment to the
approved preliminary plat of Phase 5. The amendment would allow 7 additional lots within
Phase 5. The amendment request was given preliminary plat approval by the Kalispell City
Council on July 3, 2006, subject to 17 conditions.
As a requirement of the preliminary plat, at least two-thirds of the required improvements
have been installed per a letter from Paul Wells, P.E. of WMW Engineering. A Subdivision
Improvements Agreement (SIA) in the amount of $224,615 has been submitted to secure
completion of the remaining improvements which consist primarily of road work, landscaping,
paving and sidewalks. 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 remaining items listed in the SIA is May 1, 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 findings of compliance with
the city subdivision regulations and zoning ordinance.
COMPLIANCE WITH CONDITIONS OF APPROVAL:
Condition No. 1. Development of the subdivision shall be platted in substantial
compliance with the preliminary plat as amended and approved which governs the
location of lots and roadways within the subdivision.
Final Plat for Empire Estates Phase 5
August 24, 2006
Page 2
• This condition has been met. The subdivision has been platted in compliance with the
approved preliminary plat.
Condition No. 2. New infrastructure required to serve the subdivision shall be designed
and constructed in accordance with the City of Kalispell's Standards for Design and
Construction and Montana Public Works Standards; and shall be certified by an engineer
licensed in the State of Montana. All work shall be reviewed and approved by the Kalispell
Public Works Department prior to construction.. This infrastructure shall include but not
be limited to streets, street lighting, street signage, curb, gutter, boulevard and sidewalk
and shall be installed along all new streets within the subdivision. (Kalispell Design and
Construction Standards)
This condition is met. A letter from Frank Castles, Assistant City Engineer, dated
August 8, 2006 approved the engineered drainage plan. A letter from Paul Wells of
WMW Engineering dated August 4, 2006 states that all work to date has been installed
according to the approved plans and specifications.
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. Prior to final plat, a certification shall be submitted to the Public
Works Department stating that the improvements have been built as designed and
approved. (Kalispell Design and Construction Standards)
This condition is met. A letter from Frank Castles, Assistant City Engineer, dated
August 8, 2006 approved the engineered drainage plan. A letter from Paul Wells of
WMW Engineering dated August 4, 2006 states that all work to date has been installed
according to the approved plans and specifications.
Condition No. 4. A letter from the Kalispell Public Works Department shall be submitted
stating that all new infrastructure has been accepted by the City of Kalispell. (Kalispell
Design and Construction Standards)
• This condition is met. A letter from Frank Castles, Assistant City Engineer, dated
August 9, 2006 approves of the existing completed improvements within the
subdivision except those listed in the SIA.
Condition No. 5. The roads within the subdivision shall be named and signed in
accordance with the policies of the Kalispell Public Works Department and the Uniform
Traffic Control Devices Manual and be subject to review and approval of the Kalispell Fire
Department. (Kalispell Subdivision Regulations, Section 3.09)
• The developer has included the signs in the SIA. Once the signs are in place the
Public Works Department and Fire Department will approve them.
Condition No. 6. A homeowner's park shall be shown in the area of lots 3, 4 and 5 in
Block 15. The park shall be a minimum size of 16,000 square feet. (Findings of Fact,
Section D)
• This condition is met. A homeowner's park is shown on the final plat in the area of
lots 3, 4 and 5 in Block 15 and is a minimum size of 16,000 square feet.
Final Plat for Empire Estates Phase 5
August 24, 2006
Page 3
Condition No. 7. A bike/pedestrian path easement, 20-feet wide, shall be shown on the
final plat
a. The bike/pedestrian path shall be constructed out of concrete and be a minimum
width of 10 feet.
• This condition is met. A 20-foot wide bike/pedestrian path easement is shown
between lots 11 and 12A of Block 12. The actual bike/pedestrian path is included in
the SIA for the subdivision.
Condition No. S. A homeowner's association shall be created for the maintenance of the
park and bike/pedestrian path. (Findings of Fact, Section D)
This condition is met. A draft copy of the homeowner's association bylaws
covenants, conditions, restrictions and easements of Empire Estates Phase 5
been submitted with the final plat
bike/pedestrian path are included
easements of Empire Estates Phase S.
application. The maintenance of the park
in the covenants, conditions, restrictions
and
have
and
and
Condition No. 9. Prior to filing the final plat a letter from the US Postal Service shall be
included stating the Service has reviewed and approved of the design and location of the
mail delivery site. The mail delivery 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 the
developer dated July 12, 2006.
Condition No. 10. The following requirements shall be met per the Kalispell Fire
Department: Kalispell Subdivision Regulations, Section 3.20).
a. Water mains designed to provide minimum fire flows shall be installed per City
specifications at approved locations. Minimum fire flows shall be in accordance
with Uniform Fire Code (1997) Appendix III -A.
b. Fire hydrants shall be provided per City specifications at locations approved by this
department, prior to combustible construction.
c. Fire Department access shall be provided in accordance with Uniform Fire Code
(1997) Article 9.
40 This condition is met. A letter from the Kalispell Fire Department dated August 9,
2006 approves of the fire hydrant locations and fire flows. The letter adds that until
the roads are paved and signed, no building permits will be issued within the
subdivision.
Condition, No. 11. The required boulevards for streets within the subdivision shall be a
minimum of 5 feet wide and a payment in lieu of landscaping provided to the Department
of Parks and Recreation for the installation of street trees and seeding of the boulevard.
(Findings of Fact Section D)
Final Plat for Empire Estates Phase 5
August 24, 2006
Page 4
• This condition is met. Five-foot boulevards are shown on the approved road plans and
the developer has included the landscaping of the boulevards in the SIA. A letter from
the Kalispell Parks and Recreation Department dated August 3, 2006 approves of the
bonding amount.
Condition No. 12. Street lighting shall be located within the subdivision and shall be
shielded so that it does not intrude unnecessarily onto adjoining properties. (Kalispell
Subdivision Regulations Section 3.09(L))
• The developer has paid Flathead Electric Co-op to install the street lighting. Flathead
Electric Co-op anticipates the lighting to be installed by the middle of September of
this year.
Condition No. 13. All utilities shall be installed underground. (Kalispell Subdivision
Regulations, Section 3.17).
• This condition is met. All utilities will be installed underground per the approved
plans.
Condition No. 14. That a minimum of two-thirds of the necessary infrastructure for this
subdivision shall be completed prior to final plat submittal.
• The Subdivision Improvement Agreement accompanying the final plat application
states that 77% of the improvements have been completed.
Condition No. 16. All areas disturbed during development of the subdivision shall be re -
vegetated with a weed -free mix immediately after development.
• All areas disturbed will be re -vegetated upon final completion of Phase 5.
Condition No. 16. The following note shall be placed on the final plat: "Property owner(s)
are responsible for the boulevard strip for the length of their property boundaries.
Responsibilities include watering and mowing of the grass within the boulevard. Removal
of grass or trees within the boulevard is prohibited unless approved by the Kalispell
Department of Parks and Recreation." (Findings of Fact Section D)
• This condition is met. The note appears on the face of the final plat.
Condition No. 17. The preliminary plat approval shall be valid for a period of three years
from the date of approval. (Kalispell Subdivision Regulations, Section 2.04).
This condition is met. The final plat application has been submitted prior to the July
3, 2009 preliminary plat deadline.
COMPLIANCE WITH THE SUBDIVISION REGULATIONS:
This subdivision plat has been found to be in compliance with the State and City Subdivision
Regulations. The Subdivision Improvements Agreement expires on May 1, 2007.
Final Plat for Empire Estates Phase 5
August 24, 2006
Page 5
COMPLIANCE WITH THE ZONING REGULATIONS
This subdivision complies with the Kalispell Zoning Ordinance and the R-4 zoning for the
property.
RECOMMENDATION:
All of the conditions of preliminary plat approval have been adequately addressed. The staff
recommends that the Kalispell City Council approve the final plat for this subdivision. Please
note that the Subdivision Improvements Agreement should be accepted along with the final
plat approval. Please schedule this matter for the September 5, 2006 regular city council
meeting if possible. You may call me at 751-1852 if I can be of assistance to you regarding
this matter.
Sincerely,
Sean Conrad
Senior Planner
Attachments: 11 x 17 plat
1 opaque mylar of final plat
1 reproducible mylar of final plat
1 blueline of final plat
Final plat application. dated 8/ 15/06
Letter from Hubert Turner dated 7/5/06
Letters from Kalispell Public Works dated 8/8/06 and 8/9/06
Letter from MDEQ elated 10/7/03
Letter from Parks and Rec dated 8/3/06
Letter from LISPS dated 7/ 12/06
Letter from Kalispell Fire Department dated 8/9/06
Letter from WMW Engineering regarding the Subdivision Improvement
Agreement dated 8/4/06
Subdivision Improvements Agreement dated 8/4/06
Title report # 175105-CT dated 7/ 14/06
Treasurer's certification dated 8/9/06
Bylaws of Empire Estates Phase 5 Homeowners Association dated
8/24/06
Declaration of Covenants, Conditions, Restrictions and Easements for
Empire Estates Phase 5 dated 8/24/06
c w/attachments: Theresa White, Kalispell City Clerk
c w/o attachments- Hubert Turner, 3300 Hwy 2 West, Kalispell, MT 59901
City of Kalispell
Planning Department
F7 -2"d Street East, Suite 211. Kalispell, Montana -49901
Telephone: (406) 75 ]- 1850
Fax: (406) 7451-1858
I I J � M fp� WN WXJ 4 kl*Cly. i (a) �
Project /Subdivision Name: Empire Estates Phase 5
Contact Person:
Name: Hubert Turner
Address:_3300 Hwy 2 West
--- Kalispell, Montana 59901
Phone No.: 261-0728
Date of Preliminary Plat Approval: July 3, 2006
Owner & Mailing Address:
Just Dirt LTD
3300 Hwy 2 West
Kalispell, Montana 59901
Type of Subdivision: Residential _X Industrial Commercial _PUD Other
Total Number of Lots in Subdivision 69
Land in Project (acres) 12.269
Parkland (acres) 0.467 Cash -in -Lieu $_O Exempt
No. of Lots by Type:
Single Family ____:35_ Townhouse —34.
Duplex Apartment
Commercial Industrial
Condominium Multi -Family
Legal Description of the Property
FILING FEE ATTACHED $-7,945.
Mobile Home Park
Recreational Vehicle Park
Planned Unit Development
Other
Minor Subdivision with approved preliminary plat
Major Subdivision with approved preliminary plat
Subdivisions with Waiver of Preliminary Plat
Subdivision Improvements Agreement
$400 + $105/lot
$650 + $105/lot
$600 + $105/lot
$ 50
1
Attached Not Applicable (MUST CHECK ONES
�x Health Department Certification (Original)
x Title Report (Original, not more than 90 days old)
-X Tax Certification (Property taxes must be paid)
Consent(s) to Plat (Originals and notarized)
_x Subdivision Improvements Agreement (Attach collateral)
Parkland Cash -in -Lieu (Check attached)
x Maintenance Agreement
_x Plats: 1 opaque OR 2 mylars
1 mylar copy 1 signed blueline
4 bluelines 4 bluelines, unsigned
11X17 Copy 11X17 Copy
**The plat must be signed by all owners of record, the surveyor and the examining land surveyor.
Attach a letter, which lists each condition of preliminary plat approval, and individually state how
each condition has specifically been met. In cases where documentation is required, such as an
engineer's certification, State Department of Health certification, etc., original letters shall be
submitted. Blanket statements stating, for example, "all improvements are in place" are not
acceptable.
A complete final plat application must be submitted no less than fro 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 present on the property for routine monitoring and inspection during the
approval and development process.
**NOTE: Please be advised that the County Clerk & Recorder requests that all subdivision
final plat applications be accompanied with a digital copy.
Owner(s) gignature Date
**A digital copy of the final plat in a Drawing Interchange File (DXIa) format or an AutoCAD file
format, consisting of the following layers
1. Exterior boundary of subdivision
2. Lot or park boundaries
3. .Easements
4. Roads or rights -of -way
5. A tie to either an existing subdivision corner or a corner of the public land survey system
E
July 5, 2006
Sean Conrad, Planner
Tri-City Planning Office
17 Second Street East, Suite 211
Kalispell, IVIT 59901
RE: Empire Estates Phase 5
Dear Sean:
Attached please find the materials required for the review of Empire Estates, Phase 5 final plat.
This was granted preliminary plat approval on July 7, 2003 and will expire on June 7, 2007,
The following is the list of Conditions of Subdivision Approval and how each Condition was met.
1. Development of the subdivision shall be platted in substantial compliance with the
approved preliminary plat as amended and approved which governs the location of
lots and roadways within the subdivision.
FIFT711111 G1IItII1I*IIMM-
2. New infrastructure to serve the subdivision shall be designed and constructed in
accordance with the City of Kalispell's Standards for Design and Construction and
Montana Public Works Standards; and shall be certified by an engineer licensed in
the State of Montana.
This Condition has been met See the enclosed letter from Paul Wells of WMW
engineering.
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. Prior to final plat, a certification shall be submitted to the Public
Works Department stating that the improvements have been built as designed and
approved.
kIIIrI=HIM,T-TT7—=1 171-TWITM17=1
4. A letter from the Kalispell Public Works Department shall be submitted stating that
all new infrastructure has been accepted by the City of Kalispell.
I
5. The roads within the subdivision shall be named and signed in accordance with the
policies of the Kalispell Public Works Department and the Uniform traffic Control
Devices Manual and be subject to review and approval of the Kalispell Fire
Department.
tt It r-r=.
I. A homeowner's park shall be shown in the area of lots 3,4 and 5 in Block 15. Thcz
park shall be a minimum size of 16,000 square feet.
This condition has been met. Refer to the face of the final plat.
7. A bike / pedestrian path easement, 20 feet wide, shall be shown on the final plat.
The bike / pedestrian path shall be constructed out of concrete and be a minimum
width of 10 feet.
The easement has been set aside. Refer to the final plat. Construction of the
pathway is addressed in the landscaping section or the SIA.
8. A homeowners association shall be created for the maintenance of the park and
bike /pedestrian path.
This condition has been met. Refer to the enclosed Homeowners' Association
Documents. These Documents will be recorded with the final plat.
9. Prior to filing final plat a letter from the US Postal service shall be included stating
the Service has reviewed and approved the mail delivery site. The mail delivery site
shall be installed or bonded for prior to final plat. In addition, the mail delivery site
and improvements shall also included in the plans to be reviewed by the Public
Works Department.
This condition has been met. Refer to the enclosed letters from the LISPS and
Public Works.
10. The following requirements shall be met per the Kalispell Fire Department:
a. Water mains designed to provide minimum fire flows shall be installed per City
specifications at approved locations. Minimum fire flows shall be in accordance
with Uniform fire Code.
b. Fire hydrants shall be provided per City specifications at locations approved by
this department, prior to combustable construction.
c. Fire Department access shall be provided in accordance with Uniform Fire Code.
This condition has been met. Refer to the enclosed letter from the Fire
Department.
11. The required boulevards for streets within the subdivision shall be a minimum of 5
feet wide and a payment in leiu of landscaping provided to the Department of Parks
and Recreation for the intallation of street trees and seeding of the boulevard.
This Condition is addressed in the SIA. Please refer to the enclosed letter from
Mike Baker of Parks and Recreation.
does not intrude unnecessarily onto adjoining properties.
The street lights will be installed by Flathead Electric Cooperative. They have
been paid for and the conduit and bases have been installed.
13. All Utilities shall be installed under ground.
This condition has been met.
14. That a minimum of two-thirds of the nessesary infaastcture for this subdivision shall
be completed prior to final plat submittal.
Two thirds of the infrastructure has been completed. Refer to the SIA.
15. All areas disturbed during development of the subdivision shall be revegetated with
a weed free mix immediately after development.
This condition is addressed in the SIA.
16. The following note shall be placed on the final plat: "Property owner(s) are
responsible for the boulevard strip for the lenth of their property boundaries.
Responsibilities include watering and mowing of the grass within the boulevard.
Removal of grass or trees within the boulevard is prohibited unless approved by the
Kalispell Department of Parks and Recreation."
This condition has been met. Refer to the face of the final plat.
17. The preliminary plat approval shall be valid for a period of three years from the date
of approval.
Final plat application is being made within 3 years of Preliminary plat approval.
The preliminary plat is filed before the expiration deadline.
Thank you for your kind attention to this final plat. Please feel free to call should you have
questions, concerns or require additional information.
Sincere)
Hubert J. Turner
City of Kalispell Public Works Department
Pam office Bcm 1997, a 5 3-1997 - T (406)758-7720, Fax (406)758-7831
August g, 2006
Attention: Paul Wells, P.E.
Sincerely,
It bzzz--
Frank Cam, P.E.
Assistant City sneer
City of Kalispell Public Works Department
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1.
August 9, 2006
Wayne E. Turner
3300 Highway 2 West
Kalispell, Montana 59901
Re: Empire Estates, Phase V
Gentlemen:
The City of Kalispell Public Works Department hereby approves the existing, completed improvements
except those listed in the Subdivision Improvement Agreement, Exhibit B, for the referenced subdivision.
Approval by the City of Kalispell for the City owned and maintained improvements is granted based on
the following:
1. WMW Engineering, PC, letter certifying that the improvements within the referenced subdivision
have been inspected and installed in accordance with the City of Kalispell standards and the
approved plans and specifications.
2. Receipt of satisfactory bacteriological results for the water main disinfection.
3. Our video records of the sanitary sewer system.
4. Receipt of a Subdivision Improvement Agreement which contains the total estimated construction
costs plus 25 percent covering the estimated costs for the remaining infrastructure
improvements. The Subdivision Improvement Agreement is certified by Paul L. Wells, P.E., to
being an accurate accounting of anticipated costs for the remaining improvements.
The two-year warranty period for the construction will commence at the expiration date of the
Subdivision Improvement Agreement
if you have any questions, please do not hesitate to contact this office.
SiAny,
rank Castles, P.E.
Assistant City Engineer
Cc: Sean Conrad, Senior Planner
Kalispell Planning Office
Montana Department of
M �aNVMONMENTALQUAUTY Judy Martz, Governor
109 Cooperative' Way • Suite 105 • Kalispell, MT 59901-2389 • (406) 755-8985 • FAX (406) 755-8977
Paul L. Wells, P.E. October 7, 2003
WMW Engineering, PC
50 West Second. Street
Whitefish, MT 59937
RE: Empire Estates Water & Sewer Extensions and Sewer Lift Station, EQ#04-1543
Dear W. Wells:
Plans and specifications for the above -referenced project have been reviewed by personnel with
the Permitting & Compliance Division utilizing the certified checklist procedure for the water
and sewer extensions and DEQ-2 for the sewer lift station. The plans and specifications are
hereby approved with the condition as listed below. One set of plans and specifications bearing
the approval stamp of the Department of Environmental Quality is enclosed.
Condition:
Provide a valve pit at the junction of the sewer force mains on Three Mile Drive.
Install check valves up -stream of the junction on both lines with two shut-off
valves for each check valve.
Approval is based on plans and specifications received October 6, 2003 under the seal of: Paul L.
Wells, P.E. ## 7378E.
Approval is also given with the understanding that any deviation from the approved plans and
specifications will be submitted to the Department for reappraisal and approval. Within 90 days
after the project has been completed the project engineer shall certify to the Depaitinent that the
project was inspected and found to be installed in accordance with the plans and specifications
approved by the Department. This certification shall be accompanied by a. set of "as -built" record
drawings signed by the project engineer.
It is further understood that construction will be completed within three years of this date. If
more than three years elapse before completing construction, plans and specifications must be
resubmitted and approved before construction begins. This three-year expiration period does not
extend any compliance schedule requirements pursuant to a Department enforcement action
against a public water or sewage system,
Centralized Services Division • Enforcement Division • Permitting & Compliance Division • Planning, Prevention & Assistance Division • Remediation Division
RE: Empire Estates Water & Sewer Extensions and Sewer Lift Station, EQ#04-I543
Please be aware that this project may need a storm water general permit. Please contact the
Water Protection Bureau at 406-444-3080 for more information.
S'ncerely
a] er a er, Environmental Engineer Specialist
PWS/
Permitting & Compliance Division
cc: Wayne Turner
City of Kalispell, Department of Public Works
Flathead County Sanitarian
File
o Kalisp,
A.
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Parks and Recreation
August 3, 2006
Mr. Hubert Turner
3300 Hwy 2 west
Kalispell MT 59901
351 t Ave East -- P O Box 1997 — Kalispell IVIT 59903-1997
Phone: (406) 758-7718 Fax: (406) 758-7719
Email: parknrecr@kalispell.com
Re: Empire Estates Phase Five Landscaping
Dear Hubert:
If reference to Exhibit B, Empire Estates Phase 5, Project Construction Costs, regarding
the assessment for improvement costs for Empire Estates Phase Five landscaping to
include boulevard trees, seeding of boulevards and the bike trail in the amount of
$31,420 is an accurate estimate and approved by this department.
The developer will be responsible for providing a plat with specifics relating to number of
trees, square footage of seeding and/or sod (boulevards) and lineal feet of pedestrian
path required.
We will work with you at a later date (when the majority of home construction is finished
and people are living in the subdivision) in regards to specifics on boulevard tree
planting locations.
If these improvements have not been installed by final plat, please be aware they need
to be bonded for at a rate of 125%. Kalispell Planning can further advise you on this
process if you desire.
If you have any concerns or questions please give me a call.
Sin erely,
'JIA.A
Michael B
Cc:
Tom
nning
UNI TED STZTES
POSTAL SERVICE
350 N MERIDIAN RD
KALISPELL, MT 59901-9998
July 12, 2006
Hubert Turner
3300 US HWY 2 W
Kalispell, MT 59901
RE: Final Plat Approval
To Whom It May Concern:
Delivery for Empire Estates Phase 5 subdivision has been approved for Cluster Box
Unit (CBU) delivery in a turnout format. The developer will provide five 16-unit
CBU's or four 16-unit and one 8-unit CBU's. The developer will also provide two
4 x 8-foot cement pads (a total of 16 feet of concrete) on Getty Dr, Block 13; Lot 4.
Please see attached map for approved location and enclosed specs.
Purchase of CBU's will be arranged one month prior to the first occupancy and
arrangements made for delivery to the Main Post Office on Meridian Rd. The Post
Office will install and then be responsible for the lock changes and maintenance of
the equipment.
Upon approval of the final plat through Kalispell Planning, a copy (no larger than
11X17) showing addresses, will be provided to the Post Office. Please sign and
date the enclosed Mode 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 755-6450.
Sincerely,
Susii Carter
Growth Management
KALISPELL FIRE DEPARTMENT
312 First Avenue East
Randy Brodehi —Fire Chief - Kalispell, .Montana 59301
Dan Diehl -- Assistant ChiefX)perations (406} 758 776Q
Brent L. Christopherson — Assistant Chief/Prevention FAX: (406) 758-7452
August 9, 2006
Hubert Turner
3300 Highway 2 West
Kalispell, MT 59901
Re: Final plat approval — Empire Estates, Phase V
Dear Mr. Turner,
In response to your request for approval of the above -referenced project, our department
approves final plat application for Empire Estates Phase V, with the following information
and conditions:
Fire hydrant locations and fire flows are approved by this department.
• It is agreed that combustible construction shall not commence prior to the roads
being paved, and the street name signs in place.
Please contact me if u have any questions.
Sincerely,
� f ,
Brent. L. Christophersonj
Assistant Chief/Preventio
cc: Tom Jentz, Kalispell Planning Office
"Assisting our community in reducing, preventing, and mitigating emergencies. "
i f>
Paul Wells, P.E
Principal Engineer
August 4, 2006
Mayor Pam Kennedy and
Members of Kalispell City Council
City of Kalispell
312 First Avenue East
Kalispell, Montana 59901
Dear Mayor Kennedy and Council Members,
Consulting Engineers
50 West Second Street
Whitefish, Montana 59937
Phone (406) 862-7826
Fax (406) 862-7827
Re: Empire Estates — Phase 5
The Work to date for Empire Estates Subdivision has been installed according to
approved plans and specifications. M
Further, I have looked over.thle estimated costs to complete Phase 5 of Empire Estates,
and it is my opinion that they accurately and realistically reflect the amount of money
required to complete this phase of the subdivision.
Based uvon these estimated amounts, we have calculated the acceptable collateral to post
aloe►g With the enclosed Subdivision Improvements Agreement.
Should you have any questions please call.
Plat Room
Flathead County, Montana
800 S. Main St.
Kalispell, MT 59901
(406) 758-55 1 0
This Form is for Subdivisions & Condominiums Only
SANDS SURVEYING
BY:
FOR: TURNER
DESCP: EMPIRE ESTATES PH 5
(TR 3 IN 1-28-22)
DATE: 7/19/2006
PURPOSE: PLAT
I hereby certify that there are no outstanding taxes on the property
assigned the assessor numbers listed above, for the years indicated for
each assessor number.
r,r De a ya.—I Surer
4
.fin.
Subdivision Guarantee
Guarantee No.: 175105-CT
Issued by
Citizen's Title and Escrow Company
704 South Nlain/P, O. Box 1310, Kalispell, NIT 59901
Title Officer: Ted Gigrich
Phone: (406)752 5388
FAX.• (406)752-9617
Form No. 1282 (Rev 12/15195)
Subdivision. Guarantee
Guarantee No.: 175105-CT
Form 1349
CLTA Guarantee Face Page
(Revised 12/15/95)
First American Title Insurance Company
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE LIMITS OF LIABILITY AND THE CONDITIONS AND
STIPULATIONS OF THIS GUARANTEE,
FirstAmerican Title Insurance Company
a corporation, herein called the Company
GUARANTEES
the Assured named in Schedule A against actual monetary loss or damage not exceeding the liability amount
stated in Schedule A, which the Assured shall sustain by reason of any incorrectness in the assurances set forth
in Schedule A.
Citizen's Title and Escrow Company
AUTHORIZED SIGNATORY
Subdivision Guarantee
Guarantee No.: 175105-CT
SUBDIVISION OR PROPOSED SUBDIVISION GUARANTEE
Order No.: 175105-CT
Guarantee No.: 175105-C;T
Fee: $100.00
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE LIMITS OF LIABILITY, AND OTHER PROVISIONS
OF THE CONDITIONS AND STIPULATIONS HERETO ANNEXED AND MADE A PART OF THIS GUARANTEE,
FIRST AMERICAN TITLE INSURANCE COMPANY, A CORPORATION HEREIN CALLED THE COMPANY
GUARANTEES:
Just Dirt, LTD
FOR THE PURPOSES OF AIDING ITS COMPLIANCE WITH FLATHEAD COUNTY SUBDIVISION
REGULATIONS,
in a sum not exceeding $5,000.00.
THAT according to those public records which, under the recording laws of the State of Montana, impart
constructive notice of matters affecting the title to the lands described on the attached legal description:
A TRACT OF LAND, SITUATED, LYING, AND BEING IN THE WEST HALF OF THE SOUTHWEST
QUARTER OF SECTION 1, TOWNSHIP 28 NORTH, RANGE 22 WEST,P.M.M., FLATHEAD
COUNTY, MONTANA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS TO WIT:
BEGINNING AT THE NORTHEAST CORNER OF THE WEST HALF OF THE SOUTHWEST QUARTER
OF SECTION 1, TOWNSHIP 28 NORTH, RANGE 22 WEST, P.M.M., FLATHEAD COUNTY,
MONTANA, WHICH IS A FOUND IRON PIN; THENCE ALONG THE EAST BOUNDARY OF SAID
W1/2SW1/4, S00° 45' 42" W 1447.27 FEET TO A SET IRON PIN ON THE EASTERLY R/W OF
THE PROPOSED KALISPEL BY-PASS, WHICH IS ON THE CHORD OF A SPIRAL CURVE;
THENCE ALONG SAID R/W AND ALONG SAID SPIRAL CHORD N270 07' 30" W 192.576 FEET
TO A SET IRON PIN; THENCE N 290 43' 28" W 498.82 FEET TO A SET IRON PIN AND THE T.S.
OF A SPIRAL CURVE; THENCE ALONG THE SPIRAL CHORD OF SAID CURVE N270 15114" W
326.72 FEET TO A SET IRON PIN AND THE S.C. OF A 1164.70 FOOT RADIUS CURVE,
CONCAVE NORTHEASTERLY (RADIAL BEARING N671* 53' 28" E); THENCE NORTHWESTERLY
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 150 06' 10" AN ARC LENGTH OF 307.01
FEET TO THE C.S. OF A SPIRAL CURVE; THENCE ALONG THE SPIRAL CHORD OF SAID CURVE,
N010 51' 40" W 263.04 FEET TO A SET IRON PIN ON THE NORTH BOUNDARY OF SAID
W1/2SWI./4; THENCE LEAVING SAID R/W AND ALONG SAID NORTH BOUNDARY S890 18'
24" E 589.55 FEET TO THE POINT OF BEGINNING.
To be known as EMPIRE ESTATES, PHASE S.
(A) Parties having record title interest in said lands whose signatures are necessary under the
requirements of Flathead County Subdivision Regulations on the certificates consenting to the recordation
of Plats and offering for dedication any streets, roads, avenues, and other easements offered for
dedication by said Plat are:
Just Dirt, LTD., a Montana corporation, as Owner
Wayne E. Turner, as Beneficiary
(B) Parties holding liens or encumbrances on the title to said lands are:
Subdivision Guarantee
Guarantee No.: 1751€15-C'T
1. 2006 taxes and special assessments are a lien; amounts not yet determined or payable. The first
one-half becomes delinquent after November 30th of the current year, the second one-half
becomes delinquent after May 31st of the following year.
General taxes as set forth below. Any amounts not paid when due will accrue penalties and
interest in addition to the amount stated herein:
Year 1st Half 2nd Half Parcel Number
2005 $1547.91 paid $1547.89 paid 75-0851800 Affects
premises and
other property
2, Trust Indenture, to secure an original indebtedness of $3,350,000.00, dated May 17, 2006 and
any other amounts and/or obligations secured thereby
Recorded: June 6, 2006 , Document No. 2006-157-13080
Grantor: Just Dirt, Ltd., a Montana corporation
Trustee: Citizen's Title of Kalispell, Montana
Beneficiary: Wayne E. Turner.
Affects: Premises and other porperty
(C) Easements, claims of easements and restriction agreements of record are:
3. Water Well Agreement upon the terms, conditions and provisions contained
therein:
DATED : October 26, 1903
PARTIES : Richard M. Asher and H. H. Dingman
RECORDED: October 17, 1907, in Book 90, Page 131, as Doc.
No. 4219, records of Flathead County, Montana.
4. Possible easement created by Permit to Appropriate Water by and between the
State of Montana Water Resource Division and Paul Grosswiler, dated December 7,
1979 and recorded December 31, 1979, in Book 685, Page 512, as Doc. No. 19911,
records of Flathead County, Montana.
5.
C:j
E:II
Petition To Annex And Notice Of Withdrawal From Rural Fire District executed by
Wayne E. Turner, recorded July 14, 2003, as Doc. No. 2003-195-11400, records of
Flathead County, Montana.
Resolution No. 4805 executed by the City of Kalispell for annexation, recorded
July 14, 2003, as Doc. No. 2003-195-11410, records of Flathead County, Montana.
Articles of Incorporation of Empire Estates Homeowner's Association Inc.,
recorded June 9, 2004, as Doc. No. 2004-161-12130, records of Flathead County,
Montana.
Bylaws of Empire Estates Homeowner's Association, Inc., recorded June 9, 2004,
as Doc. No. 2004-161-12160, records of Flathead County, Montana.
Subdivision Guarantee
Guarantee No.: 175105-CT
9. Covenants, conditions and restrictions, recorded June 9, 2004, as Doc. No.
2004-161-12170, records of Flathead County, Montana, but deleting any covenant,
condition or restriction indicating a preference, limitation or discrimination
based on race, color, religion, sex, handicap, familial status, or national
origin to the extent such covenants, conditions or restrictions violate 42 USC
3604(c).
Amendment to said covenants, recorded September 29, 2005, as Doc. No.
2005-272-13480, records of Flathead County, Montana, but deleting any covenant,
condition or restriction indicating a preference, limitation or discrimination
based on race, color, religion, sex, handicap, familial status, or national
origin to the extent such covenants, conditions or restrictions violate 42 USC
3604(c).
10. Terms and conditions of Amended Resolution Designation of Controlled Access Highway and
Facility, recorded October 8, 2004, Document No. 2004-282-08180.
11. All matters, covenants, conditions, restrictions, easements and any rights, interest or claims
which may exist by reason thereof, disclosed on the pending plat of said subdivision, but deleting
any covenant, condition or restriction indicating a preference, limitation or discrimination based
on race, color, religion, sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c).
12. Any right, title or interest in any minerals, mineral rights, or related matters, including but not
limited to oil, gas, coal, and other hydrocarbons.
13. County road rights -of -way not recorded and indexed as a conveyance of record in the office of
the Cleric and Recorder to Title 70, Chapter 21, M.C.A., including, but not limited to any right of
the Public and the County of Flathead to use and occupy those certain roads and trails as
depicted on County Surveyor's maps on file in the office of the County Surveyor of Flathead
County.
Date of Guarantee: July 14, 2006 at 7:30 A.M.
STATE OT'I -NIO A T'AI'JA )
SS.
COUNTY or FLATITEAD t
I la.is is sttaameaat ;gas acknowledged t e[c? e xaae {jai 3 . st day of Julv,— 2D06 by
Charles E . Vernon, Jr, as.Assistant Sec.re.tat }= of Citizens
Title c. , sctoxv (-o.n.upany.
Ttl
Rv PUB' IC for 'he
NO IA I
State o Montan £
4;O p'€e;zx
Subdivision Guarantee
Guarantee No.: 175105-CT
SCHEDULE OF EXCLUSIONS FROM COVERAGE OF THIS GUARANTEE
1. Except to the extent that specific assurance are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the following:
(a) Defects, liens, encumbrances, adverse claims or other matters against the title, whether or not shown by the public records.
(b) (1) Taxes or assessments of any taxing authority that levies taxes or assessments on real property; or, (2) Proceedings by a public agency which may result in taxes
or assessments, or notices of such proceedings, whether or not the matters excluded under (1) or (2) are shown by the records of the taxing authority or by the public
records.
(c) (1) Unpatented mining claims; (2) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (3) water rights, claims or title to water, whether
or not the matters excluded under (1), (2) or (3) are shown by the public records.
2. Notwithstanding any specific assurances which are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the
following:
(a) Defects, liens, encumbrances, adverse claims or other matters affecting the title to any property beyond the lines of the land expressly described in the description set
forth in Schedule (A), (C) or in Part 2 of this Guarantee, or title to streets, roads, avenues, lanes, ways or waterways to which such land abuts, or the right to maintain therein
vaults, tunnels, ramps, or any structure or improvements; or any rights or easements therein, unless such property, rights or easements are expressly and specifically set forth
in said description.
(b) Defects, liens, encumbrances, adverse claims or other matters, whether or not shown by the public records; (1) which are created, suffered, assumed or agreed to by
one or more of the Assureds; (2) which result in no loss to the Assured; or (3) which do not result in the invalidity or potential invalidity of any judicial or non judicial
proceeding which is within the scope and purpose of the assurances provided.
(c) The identity of any party shown or referred to in Schedule A.
(d) The validity, legal effect or priority of any matter shown or referred to in this Guarantee.
GUARANTEE CONDITIONS AND STIPULATIONS
1. Definition of Terms.
The following terms when used in the Guarantee mean:
(a) the "Assured": the party or parties named as the Assured in this Guarantee, or
on a supplemental writing executed by the Company.
(b) "land": the land described or referred to in Schedule (A) (C) or in Part 2, and
improvements affixed thereto which by law constitute real property. The term "land"
does not include any property beyond the lines of the area described or referred to in
Schedule (A) (C) or in Part 2, nor any right, title, interest, estate or easement in
abutting streets, roads, avenues, alleys, lanes, ways or waterways.
(c) "mortgage": mortgage, deed of trust, trust deed, or other security instrument.
(d) "public records" : records established under state statutes at Hate of
Guarantee for the purpose of imparting constructive notice of matters relating to real
property to purchasers for value and without knowledge.
(e) "date": the effective date.
2. Notice of Claim to be Given by Assured Claimant.
An Assured shall notify the Company promptly in writing in case knowledge shall
come to an Assured hereunder of any claim of title or interest which is adverse to the
title to the estate or interest, as stated herein, and which might cause loss or damage
for which the Company may be liable by virtue of this Guarantee. If prompt notice
shall not be given to the Company, then all liability of the Company shall terminate
with regard to the matter or matters for which prompt notice is required; provided,
however, that failure to notify the Company shall in no case prejudice the rights of
any Assured under this Guarantee unless the Company shall be prejudiced by the
failure and then only to the extent of the prejudice.
3. No Duty to Defend or Prosecute.
The Company shall have no duty to defend or prosecute any action or proceeding to
which the Assured is a party, notwithstanding the nature of any allegation in such
action or proceeding.
4. Company's Option to Defend or Prosecute Actions; Duty of Assured
Claimant to Cooperate.
Even though the Company has no duty to defend or prosecute as set forth in
Paragraph 3 above:
(a) The Company shall have the right, at its sole option and cost, to institute and
prosecute any action or proceeding, interpose a defense, as limited in (b), or to do
any other act which in its opinion may be necessary or desirable to establish the title
to the estate or interest as stated herein, or to establish the lien rights of the
Assured, or to prevent or reduce loss or damage to the Assured. The Company may
take any appropriate action under the terms of this Guarantee, whether or not it shall
be liable hereunder, and shall not thereby concede liability or waive any provision of
this Guarantee. If the Company shall exercise its rights under this paragraph, it shall
do so diligently.
(b) if the Company elects to exercise its options as stated in Paragraph 4(a) the
Company shall have the right to select counsel of its choice (subject to the right of
such Assured to object for reasonable cause) to represent the Assured and shall not
be liable for and will not pay the fees of any other counsel, nor will the Company pay
any fees, costs or expenses incurred by an Assured in the defense of those causes of
action which allege matters not covered by this Guarantee.
(c) Whenever the Company shall have brought an action or interposed a defense
as permitted by the provisions of this Guarantee, the Company may pursue any
litigation to final determination by a court of competent jurisdiction and expressly
reserves the right, in its sole discretion, to appeal from an adverse judgment or order.
(d) In all cases where this Guarantee permits the Company to prosecute or
provide for the defense of any action or proceeding, an Assured shall secure to the
Company the right to so prosecute or provide for the defense of any action or
proceeding, and all appeals therein, and permit the Company to use, at its option, the
name of such Assured for this purpose. Whenever requested by the Company, an
Assured, at the Company's expense, shall give the Company all reasonable aid in any
action or proceeding, securing evidence, obtaining witnesses, prosecuting or
defending the action or lawful act which in the opinion of the Company may be
necessary or desirable to establish the title to the estate or interest as stated herein,
or to establish the lien rights of the Assured. If the Company is prejudiced by the
failure of the Assured to furnish the required cooperation, the Company's obligations
to the Assured under the Guarantee shall terminate.
5. Proof of Loss or Damage.
In addition to and after the notices required under Section 2 of these Conditions and
Stipulations have been provided to the Company, a proof of loss or damage signed
and sworn to by the Assured shall be furnished to the Company within ninety (90)
days after the Assured shall ascertain the facts giving rise to the loss or damage. The
proof of loss or damage shall describe the matters covered by this Guarantee which
constitute the basis of loss or damage and shall state, to the extent possible, the
basis of calculating the amount of the loss or damage. If the Company is prejudiced
by the failure of the Assured to provide the required proof of loss or damage, the
Company's obligation to such Assured under the Guarantee shall terminate. In
addition, the Assured may reasonably be required to submit to examination under
oath by any authorized representative of the Company and shall produce for
examination, inspection and copying, at such reasonable times and places as may be
designated by any authorized representative of the Company, all records, books,
ledgers, checks, correspondence and memoranda, whether bearing a date before or
after Date of Guarantee, which reasonably pertain to the loss or damage. Further, if
requested by any authorized representative of the Company, the Assured shall grant
its permission, in writing, for any authorized representative of the Company to
examine, inspect and copy all records, books, ledgers, checks, correspondence and
memoranda in the custody or control of a third party, which reasonably pertain to the
Loss or Damage. All information designated as confidential by the Assured provided
to the Company, pursuant to this Section shall not be disclosed to others unless, in
the reasonable judgment of the Company, it is necessary in the administration of the
claim. Failure of the Assured to submit for examination under oath, produce other
reasonably requested information or grant permission to secure reasonably necessary
information from third parties as required in the above paragraph, unless prohibited
by law or governmental regulation, shall terminate any liability of the Company under
this Guarantee to the Assured for that claim.
Form No. 1282 (Rev. 12/15195)
Subdivision Guarantee
Guarantee No,: 175105-CT
6. Options to Pay or Otherwise Settle Claims: Termination of Liability.
In case of a claim under this Guarantee, the Company shalt have the following
additional options:
(a) To Pay or Tender Payment of the Amount of Liability or to Purchase the
Indebtedness.
The Company shall have the option to pay or settle or compromise for or in the name
of the Assured any claim which could result in loss to the Assured within the coverage
of this Guarantee, or to pay the full amount of this Guarantee or, if this Guarantee is
issued for the benefit of a holder of a mortgage or a lienholder, the Company shall
have the option to purchase the indebtedness secured by said mortgage or said lien
for the amount owing thereon, together with any costs, reasonable attorneys' fees and
expenses incurred by the Assured claimant which were authorized by the Company up
to the time of purchase.
Such purchase, payment or tender of payment of the full amount of the Guarantee
shall terminate all liability of the Company hereunder. In the event after notice of
claim has been given to the Company by the Assured the Company offers to purchase
said indebtedness, the owner of such indebtedness shall transfer and assign said
indebtedness, together with any collateral security, to the Company upon payment of
the purchase price.
Upon the exercise by the Company of the option provided for in Paragraph (a) the
Company's obligation to the Assured under this Guarantee for the claimed toss or
damage, other than to make the payment required in that paragraph, shall terminate,
including any obligation to continue the defense or prosecution of any litigation for
which the Company has exercised its options under Paragraph 4, and the Guarantee
shall be surrendered to the Company for cancellation.
(b) To Pay or Otherwise Settle With Parties Other Than the Assured or With the
Assured Claimant.
To pay or otherwise settle with other parties for or in the name of an Assured claimant
any claim Assured against under this Guarantee, together with any costs, attorneys'
fees and expenses incurred by the Assured claimant which were authorized by the
Company up to the time of payment and which the Company is obligated to pay.
Upon the exercise by the Company of the option provided for in Paragraph (b) the
Company's obligation to the Assured under this Guarantee for the claimed loss or
damage, other than to make the payment required in that paragraph, shalt terminate,
including any obligation to continue the defense or prosecution of any litigation for
which the Company has exercised its options under Paragraph 4.
7. Determination and Extent of Liability.
This Guarantee is a contract of Indemnity against actual monetary loss or damage
sustained or incurred by the Assured claimant who has suffered loss or damage by
reason of reliance upon the assurances set forth in this Guarantee and only to the
extent herein described, and subject to the Exclusions From Coverage of This
Guarantee.
The Liability of the Company under this Guarantee to the Assured shall not exceed the
least of:
(a) the amount of liability stated in Schedule A or in Part 2;
(b) the amount of the unpaid principal indebtedness secured by the mortgage of an
Assured mortgagee, as limited or provided under section 6 of these Conditions and
Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the
time the loss or damage Assured against by this Guarantee occurs, together with
interest thereon; or
(c) the difference between the value of the estate or interest covered hereby as
stated herein and the value of the estate or interest subject to any defect, lien or
encumbrance Assured against by this Guarantee.
S. Limitation of Liability.
(a) If the Company establishes the title, or removes the alleged defect, lien or
encumbrance, or cures any other matter Assured against by this Guarantee in a
reasonably diligent manner by any method, including litigation and the completion of
any appeals therefrom, it shall have fully performed its obligations with respect to that
matter and shalt not be liable for any loss or damage caused thereby.
(b) In the event of any litigation by the Company or with the Company's consent,
the Company shall have no liability for loss or damage until there has been a final
determination by a court of competent jurisdiction, and disposition of ail appeals
therefrom, adverse to the title, as stated herein.
(c) The Company shall not be liable for loss or damage to any Assured for liability
voluntarily assumed by the Assured in settling any claim or suit without the
prior written consent of the Company.
9. Reduction of Liability or Termination of Liability.
All payments under this Guarantee, except payments made for costs, attorneys' fees
and expenses pursuant to Paragraph 4 shall reduce the amount of liability pro tanto.
10. Payment of Loss.
(a) No payment shall be made without producing this Guarantee for endorsement
of the payment unless the Guarantee has been lost or destroyed, in which case proof
of loss or destruction shall be furnished to the satisfaction of the Company.
(b) When liability and the extent of loss or damage has been definitely fixed in
accordance with these Conditions and Stipulations, the loss or damage shall be
payable within thirty (30) days thereafter.
11. Subrogation Upon Payment or Settlement.
Whenever the Company shall have settled and paid a claim under this Guarantee, all
right of subrogation shall vest in the Company unaffected by any act of the Assured
claimant.
The Company shall be subrogated to and be entitled to all rights and remedies which
the Assured would have had against any person or property in respect to the claim had
this Guarantee not been issued. If requested by the Company, the Assured shall
transfer to the Company all rights and remedies against any person or property
necessary in order to perfect this right of subrogation. The Assured shall permit the
Company to sue, compromise or settle in the name of the Assured and to use the
name of the Assured in any transaction or litigation involving these rights or remedies.
If a payment on account of a claim does not fully cover the loss of the Assured the
Company shall be subrogated to all rights and remedies of the Assured after the
Assured shalt have recovered its principal, interest, and costs of collection.
12. Arbitration.
Unless prohibited by applicable law, either the Company or the Assured may demand
arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration
Association. Arbitrable matters may include, but are not limited to, any controversy or
claim between the Company and the Assured arising out of or relating to this
Guarantee, any service of the Company in connection with its issuance or the breach
of a Guarantee provision or other obligation. All arbitrable matters when the Amount
of Liability is $1,000,000 or less shall be arbitrated at the option of either the Company
or the Assured. All arbitrable matters when the amount of liability is in excess of
$1,000,000 shall be arbitrated only when agreed to by both the Company and the
Assured. The Rules in effect at Date of Guarantee shall be binding upon the parties.
The award may include attorneys' fees only if the laws of the state in which the land is
located permits a court to award attorneys' fees to a prevailing party. Judgment upon
the award rendered by the Arbitrator(s) may be entered in any court having
jurisdiction thereof.
The law of the situs of the land shall apply to an arbitration under the Title insurance
Arbitration Rules.
A copy of the Rules may be obtained from the Company upon request.
13. Liability Limited to This Guarantee; Guarantee Entire Contract.
(a) This Guarantee together with all endorsements, if any, attached hereto by the
Company is the entire Guarantee and contract between the Assured and the
Company. In interpreting any provision of this Guarantee, this Guarantee shall be
construed as a whole.
(b) Any claim of loss or damage, whether or not based on negligence, or any action
asserting such claim, shalt be restricted to this Guarantee.
(c) No amendment of or endorsement to this Guarantee can be made except by a
writing endorsed hereon or attached hereto signed by either the President, a Vice
President, the Secretary, an Assistant Secretary, or validating officer or authorized
signatory of the Company.
14. Notices, Where Sent.
Ail notices required to be given the Company and any statement in writing required to
be furnished the Company shall include the number of this Guarantee and shall be
addressed to the Company at 1 First American Way, Santa Ana, CA. 92707,
Form No. 1282 (Rev. 12/15195)
Subdivision Guarantee
Guarantee No.: 175105-CT
Citizens Title and Escrow Company
704 South Main/P.O. Box 1310, Kalispell, MT 59901
Phone(406)752-5388 - Fax(406)752-9617
PRIVACY POLICY
We Are Committed to Safeguarding Customer Information
In order to better serve your needs now and in the future, we may ask you to provide us with certain information. We understand
that you may be concerned about what we will do with such information — particularly any persona[ or financial information. We
agree that you have a right to know how we will utilize the personal information you provide to us. Therefore, together with our
parent company, The First American Corporation, we have adopted this Privacy Policy to govern the use and handling of your
personal information.
Applicability
This Privacy Policy governs our use of the information which you provide to us. It does not govern the manner in which we may
use information we have obtained from any other source, such as information obtained from a public record or from another person
or entity. First American has also adopted broader guidelines that govern our use of personal information regardless of its source.
First American calls these guidelines its Fairinformation Values, a copy of which can be found on our website at www.firstam.com.
Types of Information
Depending upon which of our services you are utilizing, the types of nonpublic personal information that we may collect include:
• Information we receive from you on applications, forms and in other communications to us, whether in writing, in person,
by telephone or any other means;
Information about your transactions with us, our affiliated companies, or others; and
• Information we receive from a consumer reporting agency.
Use of Information
We request information from you for our own legitimate business purposes and not for the benefit of any nonaffiliated party.
Therefore, we will not release your information to nonaffiliated parties except: (1) as necessary for us to provide the product or
service you have requested of us; or (2) as permitted by law. We may, however, store such information indefinitely, including the
period after which any customer relationship has ceased. Such information may be used for any internal purpose, such as quality
control efforts or customer analysis. We may also provide all of the types of nonpublic personal information listed above to one or
more of our affiliated companies. Such affiliated companies include financial service providers, such as title insurers, property and
casualty insurers, and trust and investment advisory companies, or companies involved in real estate services, such as appraisal
companies, home warranty companies, and escrow companies. Furthermore, we may also provide all the information we collect, as
described above, to companies that perform marketing services on our behalf, on behalf of our affiliated companies, or to other
financial institutions with whom we or our affiliated companies have joint marketing agreements.
Former Customers
Even if you are no longer our customer, our Privacy Policy will continue to apply to you.
Confidentiality and Security
We will use our best efforts to ensure that no unauthorized parties have access to any of your information. We restrict access to
nonpublic personal information about you to those individuals and entities who need to know that information to provide products or
services to you. We will use our best efforts to train and oversee our employees and agents to ensure that your information will be
handled responsibly and in accordance with this Privacy Policy and First American's Fair Information Values We currently maintain
physical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal information.
0 2001 The First American Corporation • All Rights Reserved
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After recording return to:
Vincent G. Rieger
Law Office of Vincent G. Rieger, P.C.
4Meridian Court
Kalispell, MT 59901
BYLAWS
OF
EMPIRE ESTATES PHASE 5 HOMEOWNERS' ASSOCIATION INC.
ARTICLE 1
NAME AND LOCATION
The name of the corporation is Empire Estates Phase 5 Homeowners' Association, Inc. (the
"Association"), a Montana nonprofit corporation. The principal office and address of the corporation
is located at 3300 Highway 2 West, Kalispell, Flathead County, Montana.
ARTICLE II
DEFINITIONS, PURPOSES AND ASSENT
Section 2.01. Definitions. The definitions in the Declaration of Covenants, Conditions,
Restrictions and Easements for Empire Estates Phase 5, as amended from time to time and recorded in
the office of the Clerk and Recorder of Flathead County, Montana (the "Declaration"), will apply to
these Bylaws, and all defined terms in these Bylaws will have the same meaning as the defined terms
used in the Declaration, unless the defined terms in these Bylaws or the context of these Bylaws clearly
indicate otherwise.
Section 2.02, Purposes. The specific purposes for which the Association is formed are (i) to
provide for the maintenance, preservation, and control of the Common Area in the Empire Estates
Phase 5 subdivision located in Flathead County, Montana; and (ii) to promote the health, safety, and
welfare of the Owners and users of Empire Estates Phase 5.
Section 2.03. Assent. All present or future Owners, their families, present or future tenants,
and their guests and invitees, and any other person using the facilities of Empire Estates Phase 5 in any
manner are subject to the Empire Estates Phase 5 Documents, including these Bylaws and any rules
adopted by the Board of Directors. The acquisition or rental of any of the Lots in Empire .Estates Phase
5 or the occupancy of any of the Lots will constitute ratification and acceptance of these Bylaws and an
agreement to comply with those rules.
ARTICLE III
MEMBERSHIP
Section 3.01 Membership. Every Owner of a Lot, by virtue of being an Owner,
and for so long as he is an Owner, will be a Member of the Empire Estates Phase 5 Homeowners'
Association. The Declarant shall be considered an Owner and shall be a Member of the Empire
Estates Phase 5 Homeowners' Association with all of the same privileges of the other Owners and
Members.
Section 3.02. Representation on Board of Directors. If title to a Lot is held by a firm,
corporation, partnership, association, other legal entity or any combination thereof, or if any
individual or entity holds title to more than one Lot, then in either case, that individual or entity may
appoint, by a writing furnished to the Association, a delegate to represent each such Lot as a candidate
for, and if elected, as a member of, the Board of Directors. Such delegate will not vote as a member of
the Association unless such person is appointed by a proxy executed in conformance with these Bylaws
to cast the voting interest of the Lot which he represents.
Section 3.03. Responsibilities of Members. Any person, including Declarant, on becoming an
Owner, will automatically become a Member and be subject to these Bylaws. Such membership will
terminate without any formal Association action whenever such person ceases to own a Lot, but such
termination will not relieve or release any such former Owner from any liability or obligation incurred
under the Declaration or in any way connected with the Association during the period of such
ownership, or impair any rights or remedies which the Board of Directors or others may have against
such former Owner arising out of ownership of the Lot and membership in the Association and the
covenants and obligations incident thereto.
Section 3.04. Classes of Membership. The Association will have one class of voting
membership, composed of all Owners, including Declarant.
Section 3.05. Voting Privileges. All Members will be entitled to vote on Association matters
on the basis of one vote for each Lot owned.
When more than one person holds an interest in any Lot, all such persons will be Members.
The vote for such Lot will be exercised by one person or alternative persons as the Owners among
themselves determine. If more than one of the multiple Owners are present at a meeting in person or
by proxy, the vote allocated to their Lot may be cast only in accordance with the agreement of a
majority in interest of the Owners. There is majority agreement if any one of the multiple Owners
casts the vote allocated to his Lot without protest being made promptly to the person presiding over the
meeting by any of the other Owners of the Lot.
Section 3.06. Proof of Membership. Any person or entity, on becoming an Owner, will
furnish to the Secretary of the Association a photocopy of the deed vesting that person or entity with an
ownership interest. An Owner will not be deemed a Member of the Association in good standing and
will not be entitled to vote at or be entitled to notice of any annual or special meeting of the members
FA
unless this requirement is first met. Other means of proving Lot ownership shall be allowed at the sole
discretion of the Association.
ARTICLE IV
ASSOCIATION: MEETINGS, QUORUM, VOTING, PROXIES
Section 4,01. Place and Frequency of Meetings. Meetings of the Members will be held at
least once a year at such place, within or without the State of Montana, as the Board of Directors may
determine.
Section 4.02. Annual Meetings. The first annual meeting of the Members will be held in or
before July 31, 2008. Each subsequent annual meeting of the Members will be held on a date and at a
time set by the Board of Directors. The purpose of the annual meetings is for the election of the Board
and the transaction of such other business of the Association as may properly come before the meeting.
Section 4.03. Special Meetings. Special meetings of the Members may be called at any time
by the President of the Association, or by a majority of the Board of Directors, or upon written request
of the Members who are collectively entitled to vote at least 20% of all of the votes in the Association.
Section 4.04. Notice of Meetings. Written notice stating the place, day, and hour of the
meeting and the agenda for the meeting will be delivered not less than 10 nor more than 50 days before
the date of the meeting, personally or by mail or fax or otherwise as permitted by the Montana Non -
Profit Corporation Act, by or at the direction of the President, or the Secretary, or the persons calling
the meeting, as provided in these Bylaws, to the registered mailing address for notice (as provided in
the Declaration) of each Member entitled to vote at such meeting.
Section 4.05. Quorum. A quorum is deemed present throughout any meeting of the
Association if Members entitled to cast (or proxies entitled to cast) 20% of the votes of the Association
are present at the beginning of the meeting. If, however, such quorum is not present or represented at
the meeting, the Members entitled to vote at the meeting will have the power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until a quorum is present or
represented by proxy.
Section 4.06. Actions Binding on Members. A majority of votes cast by Members
constituting a quorum in person or by proxy will be sufficient to make decisions binding on all
Owners, unless a different number or method of voting is expressly required by statute or by the
Declaration, the Articles, or these Bylaws.
Section 4.07. Majority of Owners. As used in these Bylaws, the term "majority" will mean
those votes, Owners, or other groups as the context may indicate totaling more than 50 percent of the
total number.
Section 4.08. Voting by Mail. Voting by mail is permitted for election of the Board of
Directors, amendment of the Articles, adoption of a proposed plan of merger, consolidation or
dissolution pursuant to the provisions of the Montana Nonprofit Corporation Act, each as amended
from time to time, or other questions that come before the Association. In the case of a vote by mail,
the Secretary will give written notice to all Members, which notice will include (i) a proposed written
resolution setting forth a description of the proposed action, (ii) a statement that the Members are
3
entitled to vote by mail for or against such proposal, (iii) a statement of a date not less than 20 days
after the date such notice will have been given by which all votes must be received, and (iv) the
specified address of the office to which all votes must be sent. Votes received after that date will not
be effective. Delivery of a vote in writing to the designated office will be equivalent to receipt of a
vote by mail at such address for the purpose of this section.
Section 4.09. Proxies. Any Member may cast such Member's vote in person or by proxy, but
no proxy will be valid if it is not dated or if it purports to be revocable without notice. Further, no
proxy will be valid after eleven months from the stated date of its execution unless otherwise provided
in the proxy or unless voluntarily revoked upon notice, amended, or sooner terminated by operation of
law. Finally, no proxy will be valid unless filed with the Secretary of the Association at or before the
appointed time of the meeting at which the proxy will be voted.
Section 4.10. Designation of Voting Representative by Non -.individual Owners —Requirement
for Proxy. If the title to a Lot is held in whole or in part by a firm, corporation, partnership,
association, or other legal entity, the voting privilege appurtenant to that ownership may be exercised
only by a proxy executed on behalf of such party or parties, filed with the Secretary of the Association,
and appointing and authorizing one person or alternate persons to attend all annual and special
meetings of the Members and to cast the vote allocated to that Lot at the meeting.
Section 4.11. Designation of Voting Representative by Multiple Owners — Use of Proxy. If
title to a Lot is held by more than one Owner, each Owner may vote or register protest to the casting of
votes by the other Owners of the Lot through a duly executed proxy. An Owner may not revoke a
proxy given pursuant to this Section except by actual notice of revocation to the person presiding over
a meeting of the Association.
Section 4.12. Waiver of Notice. Waiver of notice of a meeting of the Members will be
deemed the equivalent of proper notice. Any Member may waive, in writing, notice of any meeting of
the Members, either before or after such meeting. Attendance at a meeting by a Member, whether in
person or by proxy, will be deemed waiver by such Member of notice of the time, date and place of the
meeting unless such Member specifically objects to lack of proper notice at the time the meeting is
called to order. Attendance at a special meeting will also be deemed waiver of notice of all business
transacted at the meeting unless objection to the calling or convening of the meeting, of which proper
notice was not given, is raised before the business is put to a vote.
ARTICLE V
BOARD OF DIRECTORS; SELECTION; TERM OF OFFICE
Section 5.01. Number, Qualification and Initial Board. The affairs of this Association will
be managed by a Board of not less than three and no more than five Directors. Except as provided
below regarding Directors appointed by Declarant, the Directors will be Members of the Association or
the delegates of Members appointed by proxy under Article IV above. The number of the Board of
Directors will be established from time to time by amendment to these Bylaws.
The initial number of members of the Board of Directors will be three. The names and
addresses of the three persons who are to serve on the initial Board of Directors until their Successors
are appointed are as listed below:
4
NAME ADDRESS
Tom Bowen 50 Spring Mountain Road
Kalispell, MT 59901
Hubert J. Turner 1053 Stillwater Road
Kalispell, MT 59901
Wesley W. Turner 103 Swiss Drive
Kalispell, MT 59901
Section 5.02. Directors During Declarant Control. During the Period of Declarant Control
the Board of Directors will be selected by Declarant and will serve at the sole discretion of Declarant.
During the Period of Declarant Control, the Declarant may appoint or remove Directors by written
notice given to the Association. The Directors selected by Declarant need not be Members of the
Association. Unless Declarant directs otherwise, and subject to these Bylaws, the initial Board of
Directors named in the Articles will continue to serve throughout the Period of Declarant Control.
Declarant will surrender its right to select the Board of Directors upon termination of the period of
Declarant Control, as provided below.
Section 5.03. Election of Directors After Period of Declarant Control. Upon termination of
the Period of Declarant Control in accordance with the Declaration, a special meeting of the
Association will be called, at which Declarant will turn control of the Association over to the
Members. The Members will elect a new Board of Directors, and any terms of Directors appointed by
Declarant that have not expired will terminate at that time. Subsequently, Directors will be elected by
the Members at each annual meeting of the Members. At the first general election of the Beard by
Members and at subsequent elections, the Members may cast as many votes as they are entitled to
exercise under the provisions of Section 3.06 above. Voting for Directors will be by secret written
ballot.
Section 5.04. Term of Office or Directors After Period of Declarant Control. The term of
office for the initial Directors elected by the Members will be fixed at the time of their election as they
themselves will determine in order to establish a system of three-year terms in which at least one-third
of the Board is elected each year, and the Board will identify in which year the directorships for each
category of representation are subject to election. For example, if the number of Directors on the initial
Board is set at three pursuant to Section 5.01 above, one Director will serve for a one-year terra, one
Director will serve for a two-year term, and one Director will serve for a three-year tern. At the
expiration of the initial terra of office of each respective Director, a successor will be elected to serve
three years. Each Director will hold office until such Director's successor is elected by the Members
and qualified to take over the office.
Section 5.05. Removal of Directors. Any Director other than one appointed by Declarant
may be removed, with or without cause, at any regular or special meeting of the Members by two-
thirds of the votes of the Members voting in person or by proxy at a meeting at which a quorum is
present. A successor to any Director removed may be elected at such meeting to fill the vacancy
created by removal of the .Director. A Director whose removal is proposed by the Members will be
given notice of the proposed removal at least 10 days prior to the date of such meeting and will be
given an opportunity to be heard at such meeting. Any Director appointed by Declarant may be
5
removed, with or without cause, at any time by Declarant, and a successor to any Director so removed
may be appointed by Declarant.
Section 5.06. Vacancies.
(a) During Period of Declarant Control. During the Period of Declarant Control,
if a Director appointed by Declarant dies, becomes disabled or resigns, Declarant will appoint a new
Director to serve the balance of the term of the resigning, disabled or deceased Director; and if a
Director elected by the Members dies, becomes disabled or resigns, the remaining Directors will
appoint a new Director from among the members other than Declarant to serve the remainder of the
term of the resigning, disabled or deceased Director representing Members other than Declarant.
(b) Following Period of Declarant Control. After the expiration or termination of
the Period of Declarant Control, any vacancy occurring on the Board may be filled by the affirmative
vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors.
The term of the Director so elected will be coincident with the term of the replaced Director.
Section 5.07, Compensation. No Director will receive compensation for any service rendered
to the Association. However, any Director may be reimbursed for actual expenses incurred in the
performance of his duties as a Director.
ARTICLE VI
MEETING OF DIRECTORS
Section 6.01. Regular Meetings. Regular meetings of the Board of Directors will be held at
such regular times as set by the Board of Directors, at such place and hours as may be fixed from time
to time by resolution of the Board. Should a regularly scheduled meeting fall upon a legal holiday,
then that meeting will be held at the same time on the next day which is not a legal holiday.
Section 6.02, Special Meetings. Special meetings of the Board of Directors will be held
when called by the President of the Association, or by any two Directors, after not less than three days'
notice to each Director.
Section 6.03. Quorum. A quorum is deemed present throughout any meeting of the Board of
Directors if persons entitled to cast 50% of the votes on the Board are present at the beginning of the
meeting.
Section 6.04. Actions Binding on Directors. Every action taken or decision made by a
majority of the Directors present at a duly held meeting at which a quorum is present will be regarded
as the act of the Board.
Section 6.05. Waiver of Notice. Attendance of a Director at any meeting will constitute a
waiver of notice of such meeting, except when a Director attends a meeting for the express purpose of
objecting to the transaction of any business because the meeting is not lawfully called or convened.
Before, at, or after any meeting of the Board of Directors, any member of the Board may waive in
writing notice of such meeting, and such waiver will be deemed equivalent to the giving of such notice.
Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the waiver of notice of such meeting.
Co
Section 6.06. Action Taken Without a Meeting. The Directors will have the right to take any
action which they could take at a meeting in the absence of a meeting by obtaining the written approval
of all the Directors. Any action so approved will have the same effect as though taken at a meeting of
the Directors.
ARTICLE VII
POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 7.01. General. The Board of Directors will have the powers and duties necessary for
the administration of the affairs of the Association. Except as provided by these Bylaws or the
Declaration, the Board of Directors may do all such acts and things which are not specifically required
to be done by the Members and may otherwise act in all instances on behalf of the Association.
Section 7.02. Speck Powers and Duties. Without limiting the generality of powers and
duties set forth in Section 7.01 above, the Board of Directors will have the following powers and
duties, in each case subject only to applicable requirements of the Montana Nonprofit Corporation Act:
(a) To administer and enforce the covenants, conditions, restriction, easements,
uses, limitations, obligations, and all other provisions set forth in the Declaration.
(b) To establish, make, amend from time to time, and enforce compliance with
such reasonable rules and regulations as may be necessary for the operation, use, and occupancy of
Empire Estates Phase 5, subject to the provisions of the Declaration. A copy of such rules and
regulations will be delivered or mailed to each Member promptly after adoption.
(c) To keep in good order, condition, and repair all of the Common Area and all
items of personal property, if any, used in the enjoyment of the Common Area. No approval of the
members is required for expenditures for these purposes, except as otherwise required by the
Declaration or these Bylaws.
(d) To fix, determine, levy, and collect the Annual Assessments to be paid by each
of the Members towards the gross expenses of the Empire Estates Phase 5 subdivision, and to adjust,
decrease, or increase the amount of the Assessments, and to credit any excess of Assessments over
expenses and cash reserves to the Members against the next succeeding Assessment period.
(e) To levy and collect Special Assessments whenever, in the opinion of the Board,
it is necessary to do so in order to meet increased operating or maintenance expenses or costs, or
additional capital expenses, or because of emergencies. All Special Assessments will be in statement
form and will set forth in detail the various expenses for which the Special Assessments are being
made.
(f) To levy and collect Default Assessments for violation of the Association
Documents or because the Association has incurred an expense on behalf of a Member under the
Association Documents.
(g) To collect delinquent Assessments by suit or otherwise and to enjoin or seek
damages from an Owner as provided in the Declaration and these Bylaws; and to exercise other
remedies for delinquent Assessments as set forth in the Declaration.
(h) To borrow funds in order to pay for any expenditure or outlay required pursuant
to the authority granted by the provisions of the Declaration and these Bylaws and to authorize the
appropriate officers to execute all such instruments evidencing such indebtedness as the Board of
Directors may deem necessary; provided, however, that the Board will not borrow more than $10,000
or cause the Association to be indebted for more than $20,000 at any one time without the prior
approval of a majority of votes of Members present and voting in person or by proxy on the issue.
(i) To enter into contracts within the scope of their duties and powers.
0) To establish a bank account for the operating account of the Association and for
all separate funds as required or deemed advisable by the Board of Directors.
(k) To cause to be kept and maintained full and accurate books and records
showing all of the receipts, expenses, or disbursements. Upon having been provided forty-eight (48)
hours written notice and an appointment scheduled, to permit examination of the books and records by
Members or their mortgagees.
(1) To cause any and all access roads, parking areas, and roadways in and to the
Empire Estates subdivision and across the property to be maintained to the extent those facilities are
within the jurisdiction or control of the Association, subject to the provisions of the Declaration.
(m) To cause the maintenance of the lawn, trees, shrubs, and other vegetation and
any sprinkler or other irrigation systems located on the Common Area for the benefit of the Members.
(n) To delegate to any other person or entity such of the Association's duties or
responsibilities as may be more conveniently or efficiently performed by someone other than by the
Association, and to agree to assess to the Members a reasonable fee for such services, except that the
duties set forth in subparagraphs (d), (e), (f), (g) and (i) of this Section 7.02 and duties reserved to the
Board by law will not be so delegated.
Section 7.03. Accounts and Reports. The following management standards of performance
will be followed unless the Board, by resolution, specifically determines otherwise:
(a) A segregation of accounting duties should be maintained, and disbursements by
check in any amount greater than $1,000 will require two signatures. Cash disbursements will be
limited to amounts of $200 or less.
(b) Cash accounts of the Association will not be commingled with any other
accounts.
(c) No remuneration will be accepted by the Board of Directors from vendors,
independent contractors, or others providing goods or services to the Association, whether in the foram
of commissions, finder's fees, service fees, prizes, gifts, or otherwise. Anything of value received will
be for the benefit of the Association.
(d) Any financial or other interest that a member of the Board of Directors may
have in any firm (other than Declarant) providing goods or services to the Association will be disclosed
promptly to the Board of Directors.
(e) Commencing at the end of the calendar quarter in which the first Lot is sold by
Declarant and closed, and continuing on at least an annual basis, financial reports will be prepared for
the Board of Directors containing the following:
(i) An income statement reflecting all income and expense activity for the
preceding three months;
(ii) A balance sheet as of the last day of the fiscal year; and
(iii) A delinquency report listing all Owners who have been delinquent
during the preceding twelve-month period in paying the periodic installments of
Assessments and who remain delinquent at the time of the report, and
describing the status of any action to collect such installments which remain
delinquent.
(f) A balance sheet as of the last day of the Association's fiscal year and an
operating statement for the fiscal year will be distributed to the Members at the Association's annual
meeting. At the written request of an Owner or mortgagee, such statements will be audited at the
requesting party's expense. Any such audited statements will be delivered to any Owner requesting the
report and to the Association upon payment of a reasonable fee for copying.
Section 7.04. Hearing Procedure. The Board will not impose a fine, suspend voting, or
suspend any rights of a .Member or other occupant for violations of rules and regulations or of the
provisions of the Empire Estates Phase 5 Documents unless and until the procedure below is followed:
(a) Demand. Written demand to cease and desist from the alleged violation will be
served upon the alleged violator specifying:
(i) The alleged violation;
(ii) The action required to abate the violation; and
(iii) A time period of not less than 10 days during which the violation may
be abated without further sanction, if such violation is a continuing one, or a
statement that any additional similar violation may result in the imposition of a
sanction after notice and hearing, if the violation is not continuing.
(b) Notice. At any time within 12 months of such demand, if the violation
continues past the period allowed in the demand for abatement without penalty or if the same rule is
subsequently violated, the Board or its delegate will serve the violator with written notice of a hearing
to be held by the Board. The notice will contain the following:
(i) The nature of the alleged violation;
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(ii) The time and place of the hearing, which time will not be less than 10
days from the giving of the notice;
(iii) An invitation to attend the hearing and produce any statement,
evidence, and witness on the Member's behalf; and
(iv) The proposed sanction to be imposed.
(c) Hearing. The hearing will be held pursuant to the notice, affording the Member
a reasonable opportunity to be heard. Prior to the effectiveness of any sanction under these Bylaws,
proof of notice and the invitation to be heard will be placed in the minutes of the meeting. Such proof
will be deemed adequate if a copy of the notice, together with a statement of the date and manner of
delivery, is entered by the officer, director, or agent who delivered such notice. The notice requirement
will be deemed satisfied if the alleged violator appears at the meeting. The minutes of the meeting will
contain a written statement of the results of the hearing and the sanction, if any, imposed. Written and
oral evidence may be presented. The presenting party will provide copies of any written evidence to
the other party or parties. The decision of the Board will be final.
(d) Appeal. The Board may, in its discretion, appoint a Hearing Committee to
hear the matter. In such event the above procedure will apply except that either party may appeal the
decision of the Hearing Committee to the Board by written notice to the Hearing Committee, the other
party and the Board. The Board will consider the minutes of the hearing and report the decision of the
:Board within a reasonable period of time not exceeding 60 days after receipt of the notice. The
decision of the Board will be final.
These above -described procedures will not be necessary in order to impose any sanction or penalty for
nonpayment of a delinquent Assessment.
ARTICLE VIII
OFFICERS AND THEIR DUTIES
Section 8.01. Enumeration of Officers. The officers of the Association will be a President,
Vice -President, Secretary and Treasurer, and such other officers as the Board may from time to time
create by resolution.
Section 8.02. Election of Officers. The election of officers will take place at the first meeting
of the Board of Directors following each annual meeting of the Members.
Section 8.03. Term. The officers of the Association will be elected annually by the Board,
and each will hold office for one year or until his successor is duly elected and qualified, unless he
sooner resigns, or is removed, or is otherwise disqualified to serve.
Section 8.04, Special Appointments. The Board may elect such other officers as the affairs of
the Association may require, each of whom will hold office for such period, have such authority, and
perform such duties as the Board may from time to time determine.
Section 8.05. Resignation and Removal. Any officer maybe removed from office with or
without cause by the Board. Any officer may resign at any time by giving written notice to the Board,
10
the President, or the Secretary. Such resignation will take effect on the date of receipt of such notice or
at any later time specified in the notice, and unless otherwise specified in the notice, the acceptance of
such resignation will not be necessary to make it effective.
Section 8.06. Vacancies. A vacancy in any office may be filled by appointment by the
Board. The officer appointed to such vacancy will serve for the remainder of the term of the officer
replaced.
Section 8.07. Multiple Qjjiees. Any two or more offices may be held by the same person.
Section 8.08. Duties. The duties of the officers are as follows:
(a) President. The President will preside at all meetings of the Association and the
Board of Directors; will see that orders and resolutions of the Board are carried out; will sign all leases,
mortgages, deeds, and other written instruments; will co-sign all promissory notes; cause to be
prepared and will execute, certify and record amendments to the Declaration on behalf of the
Association; and will exercise and discharge such other duties as may be required of the President by
the Board.
(b) Vice -President. The Vice -President will act in place and stead of the President
in the event of his absence, inability, or refusal to act, and will exercise and discharge such other duties
as may be required by the Board.
(c) Secretary. The Secretary will record the votes and keep the minutes of all
meetings and proceedings of the Board and of the Members; keep the corporate seal of the Association
and place it on all papers requiring said seal; serve notice of meetings of the Board and of the
Members; keep appropriate current records listing the Members together with their addresses; and
perform such other duties as required by the Board.
(d) Treasurer. The Treasurer will receive and deposit in appropriate bank accounts
all monies of the Association and will disburse such funds as directed by resolution of the Board of
Directors; sign all checks of the Association unless the Board specifically directs otherwise, and co-
sign all promissory notes of the Association; keep proper books of account; at the discretion of the
Board, cause an annual audit of the Association books to be made by a public accountant at least once
every three fiscal years; and prepare an annual budget and a statement of income and expenditures to
be presented to the Members at their regular annual meeting, and deliver or make copies available of
each to the Members.
ARTICLE IX
COMMITTEES
The Board of Directors may appoint a Hearing Committee as described in Article VII above,
and other committees as the Board deems appropriate in carrying out its purposes. The Board of
Directors will also appoint the Architectural Review Committee.
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ARTICLE X
INDEMNIFICATION
To the extent permitted by law and consistent with the Articles of Incorporation, the
Association will indemnify every member of the Board of Directors, and every officer, employee
and agent of the Association and every person who serves at the request of the Association as a
director, officer, employee, fiduciary, or agent of any other foreign or domestic corporation or of
any partnership, joint venture, trust or other enterprise or employee benefit plan against liability
asserted against or incurred by such person in such capacity or arising out of that person's capacity
as such. The indemnification permitted under this Article will not extend, in any event, to any act
or omission occurring prior to the date of incorporation of the Association. All liability, loss,
damage, cost and expense arising out of or in connection with the foregoing indemnification
provisions will be treated and handled by the Association as a Common Expense.
ARTICLE XI
NONPROFIT CORPORATION
The Association is not organized for profit. No member of the association, member of the
Board of Directors, or person from whom the Association may receive any property or funds will
receive or will be lawfully entitled to receive any pecuniary profit from the operations of the
Association, and in no event will any part of the funds or assets of the Association be paid as a
dividend or be distributed to, or inure to the benefit of, any member of the Board of Directors.
Notwithstanding the foregoing, (i) reasonable compensation may be paid to any Member or Manager
acting as an agent or employee of the Association for services rendered in effecting one or more of the
purposes of the Association, (ii) any Member or Manager may, from time to time, be reimbursed for
actual and reasonable expenses incurred in connection with the administration of the affairs of the
Association, and any Director may be reimbursed for actual expenses incurred in the performance of
his duties.
ARTICLE XII
AMENDMENTS
These Bylaws may be amended, at a regular or special meeting of the Board, by a vote of a
majority of a quorum of Directors present in person or by proxy, but amendment of Article V, X, XII
or any portion of those Articles will require approval of all Directors.
ARTICLE XIII
MISCELLANEOUS
Section 13.01, Fiscal Year. The fiscal year of the Association will begin on the first day of
January and end of the 31" day of December every year, except that the first fiscal year will begin on
the date of incorporation.
Section 13.02. Corporate Seal. The Association will have a seal in circular form having
within its circumference the words: "Empire Estates Phase 5 Homeowners' Association, Inc."
12
Section 13.03. Conflicts of Documents. In the case of any conflict between the Articles of
Incorporation and these Bylaws, the Articles will control; and in the case of any conflict between the
Declaration and these Bylaws, the Declaration will control.
The undersigned members of the initial Board of Directors have executed these Bylaws this
24t' day of August, 2006.
STATE OF MONTANA
:ss
County of Flathead
Tom Bowen
Hubert J. Turf err
We ey W. Turner
This instrument was acknowledged before me on this 24 b day of August, 2006, by Tom
Bowen, Hubert J. Turner and Wesley W. Turner.
\,\\``; O-T Glflfii � f,/i
otary Public for the State of Mont -Ana
Residing at Kalispell, Montana
My commission expires: April 1, 2008
%r Or t"''O%��'�
13
After Recording Please Return To:
Vincent G. Rieger
Law Office of Vincent G. Rieger, P.C.
4 Meridian Court
Kalispell, MT 59901
DECLARATION
OF COVENANTS, CONDITIONS,
..
RESTRICTIONS AND EASEMENTS FOR
EMPIRE ESTATES PHASE 5
This Declaration of Covenants, Conditions, Restrictions and Easements for EMPIRE
ESTATES PHASE 5 (the "Declaration") is made this 241h day of August, 2006, by Just Dirt Ltd., a
Montana corporation (hereinafter the "Declarant").
ARTICLE I
STATEMENT AND PURPOSE AND IMPOSITION OF COVENANTS
Section L L Owner. The Declarant is the owner of the property in Flathead County,
Montana, more particularly described as follows (the "Property"):
A tract of land, situated, lying and being in the West half of the Southwest Quarter of
Section 1, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana, and
more particularly described as follows to wit:
Beginning at the Northeast corner of the West Half of the Southwest Quarter of Section
1, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana, which is a
found iron pin; Thence along the East boundary of said W1/2W 1/4 S00°45'42"W
1363.92 feet to a set iron pin; Thence S76°40'01"W 40.15 feet to a set iron pin on the
Easterly RIW of the proposed Kalispell By -Pass, which is on the chord of a spiral curve;
Thence along said R/W and along said spiral chord N27107'30"W 109.32 feet to a set
iron pin; Thence N29°43'28"W 498.82 feet to a set iron pin and the T.S. of a spiral curve;
Thence along the spiral chord of said curve N2715' 14"W 326.79 feet to a set iron pin
and the S.C. of a 1146.70 foot radius curve, concave northeasterly (radial bearing
N67°53'28"E); Thence Northwesterly along said curve through a central angle of
15'06' 10" an arc length of 307.01 feet to the C.S. of a spiral curve; Thence along the
spiral chord of said curve NO1°51'40"W 263.04 feet to a set iron pin on the North
boundary of said W I /2W 1A; Thence leaving said RAV and along said boundary
S89018'24"E 589.55 feet to the point of beginning and. containing 12.269 Acres.
The above -described tract of land is known as Empire Estates, Phase 5.
Section 1.2. Purpose. The purpose of the Declarant in making this Declaration is to create
a development of single-family and town home sites known as Empire Estates Phase 5 on the
Property (the "Project" or "Empire Estates Phase 5").
The Declarant further intends to ensure the attractiveness of the Property, including the
residences and other improvements constructed on it; to prevent any future impairment of the
Property and to guard against the construction on the Property of improvements of improper or
unsuitable materials or with improper quality or methods of construction; to protect and enhance the
values and amenities of the Property; to provide for the operation, administration, use and
maintenance of the common areas within the Property; to preserve, protect and enhance the values
and amenities of the Property; and to promote the health, safety, and welfare of the owners of the
Property.
Section 1.3. Imposition of Covenants. To accomplish the purposes indicated above, the
Declarant hereby declares that from the date of recording this Declaration forward, the Property will
constitute a planned community known as Empire Estates Phase 5, and will be held, sold, and
conveyed subject to the following covenants, conditions, restrictions and easements (collectively,
these "Covenants"). These Covenants will run with the land and will be minding upon all persons or
entities having any right, title, or interest in all or any part of the Property (including Declarant) and
their heirs, successors, and assigns, and their tenants, employees, guests, and invites. These
Covenants will inure to the benefit of each owner of the Property.
ARTICLE II
DEFINITIONS
The following terms, as used in this Declaration, are defined as follows:
Section 2.1. "Annual Assessment " means the Assessment levied annually pursuant to
Section 9.3.
Section 2.2. "Architectural Review Committee" or "Committee" means the committee
formed pursuant to Article VI to maintain the quality and architectural harmony of improvements in
Empire Estates Phase 5.
Section 2.3. "Articles " or "Articles of Incorporation " means the Articles of Incorporation
of the Empire Estates Phase 5 Homeowners' Association, Inc., a Montana non-profit corporation,
which have been filed with the Montana Secretary of State, as such articles may be amended from
time to time.
Section 2.4. "Assessments "means the Annual, Special and Default Assessments levied
pursuant to Article 1X to meet the estimated cash requirements of the Empire Estates Phase 5
Homeowners' Association.
2
Section 2.5. "Default Assessment " means the Assessment levied annually pursuant to
Section 9.5,
Section 2.6. "Bylaws" means the bylaws of the Empire Estates Phase 5 Homeowners'
Association which establish the methods and procedures of its operation, as such bylaws may be
amended from time to time.
Section 2.7. "Empire Estates Phase 5 Documents" means the basic documents creating
and governing Empire Estates Phase 5, including, but not limited to, this Declaration, the Articles of
Incorporation and Bylaws, the Design Guidelines and any other procedures, rules, regulations or
policies adopted under such documents by the Empire Estates Phase 5 Homeowners' Association, all
as may be amended from time to time.
Section 2.8. "Empire Estates Phase 5 Homeowners' Association " means the Empire
Estates Phase 5 Homeowners' Association, Inc., a Montana nonprofit corporation, and any successor
of that entity by whatever name.
Section 2.9. "Empire Estates Phase 5 Rules" means the rules and regulations adopted by
the Empire Estates Phase 5 Homeowners' Association from time to time.
Section 2.10. "Common Area" means all of the areas shown as common areas or as a park
or as a bike path as depicted on the Final Plat of Empire Estates Phase 5, records of Flathead County,
Montana and any other property in which the Empire Estates Homeowners' Association owns an
interest for the common use, benefit and enjoyment of the Members.
Section 2.11. "Common Expenses " means (i) premiums for the insurance carried by the
Empire Estates Phase 5 Homeowners' Association under Article X1I; (ii) all other expenses incurred
by the Empire Estates Phase 5 Homeowners' Association in administering, servicing, conserving,
managing, maintaining, repairing or replacing the Common Area and any Improvements located on
it; (iii) all expenses expressly declared to be Common Expenses by the Empire Estates Phase 5
Documents; (iv) all expenses lawfully determined to be Common Expenses by the Board of
Directors; and (v) all expenses to be allocated among the Owners as provided in Article IX.
Section 2.12. "Declarant" means Just Dirt, Ltd., a Montana corporation, or its successors
or assigns, including any Successor Declarant.
Section 2.13. "Default Assessment" means any Assessment levied by the Empire Estates
Phase 5 Homeowners' Association pursuant to Section 9.6. below.
Section 2.14. "Design Guidelines" means the guidelines and rules published and amended
and supplemented from time to time by the Architectural Review Committee.
Section 2.15. "Development Rights" is defined in Section 11.1.2.
Section 2.16. "Improvement(s) " means all buildings, parking areas, fences, walls, hedges,
plantings, lighting, poles, driveways, roads, ponds, trails, gates, signs, changes in any exterior color
or shape, excavation and all other site work, including, without limitation, grading, road construction,
utility improvements, removal of trees or plantings, and any new exterior construction or exterior
improvement which may not be included in the foregoing. "mprovement(s)" does not include turf,
3
shrub, or tree repair or replacement of a magnitude which does not change exterior colors or exterior
appearances. "lmprovement(s)" does include both original improvements and all later changes and
improvements.
Section 2.17. "Lot" means a parcel of land designated as a lot on any Plat of the Property.
Section 2.18. "Maintenance Fund" means the fund created by Assessments and fees levied
pursuant to Article IX below to provide the Empire Estates Phase 5 Homeowners' Association with
the funds required to carry out its duties under this Declaration.
Section 2.19. "Member" means any person or entity holding membership in the Empire
Estates Phase 5 Homeowners' Association.
Section 2.20. "Owner" means the owner of record (including Declarant, and including
the most recent contract purchaser, but excluding all contract sellers), whether one or more
persons or entities, of fee simple title to any Lot or, if the Lot is subject to one or more contracts
for deed, the owner of the purchaser's interest in the most recent contract for deed, but "Owner"
does not mean or refer to any person or entity who holds such interest merely as security for the
performance of a debt or other obligation, including a mortgage or trust indenture, unless and
until such person or entity has acquired fee simple title pursuant to foreclosure or other
proceedings.
Section 2.21. "Period of Declarant Control" means the period beginning on the date this
Declaration is first recorded in the office of the Clerk and Recorder of Flathead County, Montana,
and ending on the earlier of: (a) the date which is 10 years later, or (b) the date on which the
Declarant has sold 90% of the Lots.
Section 2.22. "Person" (whether or not in capitalized form) means a natural person, a
corporation, a partnership, a limited liability company, an association, a trust or any other entity or
combination of the foregoing.
Section 2.23. "Plat" means any surveyor surveys of all or part of the Property, together
with such other diagrammatic plans and information regarding the Property as may be required by
applicable law, or as may be included in the discretion of Declarant, as each such survey may be
amended and supplemented from time to time, and all as recorded in the office of the Clerk and
Recorder for Flathead County, Montana.
Section 2.24. "Property" means and includes the property described on Section ]. ] and
initially subjected to this Declaration, and also refers to any additional real property that may be
incorporated in the Project from time to time and made subject to these Covenants pursuant to the
provisions of this Declaration.
Section 2.25. "Special Assessment" means an Assessment levied pursuant to Section 9.4.
Section 2.26. "Special Declarant Fights" is defined as set forth in Section 11.1 below.
Section 2.27. "Successor Declarant" means any party or entity to who Declarant assigns
any or all of its rights, obligations or interest as Declarant, as permitted by Section 16.7 and
10
evidenced by an assignment or deed of record in the office of the Clerk and Recorder of Flathead
County, Montana, designating such party as a Successor Declarant, signed by the transferor and the
transferee. Upon such recording, Declarant's rights and obligations under the Declaration will cease
and terminate to the extent provided in such document, and all such rights and obligations shall be
transferred to and assumed by the Successor Declarant to the extent provided in such document.
ARTICLE III
EXPANSION AND PLAT
Section 3.1. Development Rights. Declarant reserves the right to exercise all
Development Rights in connection with the Empire .Estates Phase 5 subdivision in accordance with
Article X1 below.
Section 3.2. Declaration of Lot Boundaries. The boundaries of each Lot are delineated on
the Plat, and each Lot is identified by the number noted on the Plat.
Section 3.3. Plat. The Plat will be filed for record in the office of the Clerk and Recorder
of Flathead County, Montana. The Plat may be filed as a whole or as a series of Plats from time to
time.
ARTICLE IV
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
Section 4.1. Membership. Every Owner, by virtue of being an Owner, and for so long as
he is an Owner, will be a Member of the Empire Estates Phase 5 Homeowners' Association.
Membership will be appurtenant to and may not be separated from ownership of any Lot. No Owner,
whether one or more persons, will have more than one membership per Lot owned, but all of the
persons owning each Lot will be entitled to rights of membership and of use and enjoyment
appurtenant to such ownership. The Declarant shall be considered an Owner and shall be a Member
of the Empire Estates Phase 5 Homeowners' Association with all of the same privileges of the other
Owners and Members. For purposes of voting, the Declarant shall have one vote for each Lot owned
by the Declarant. For purposes of assessments, the Declarant shall be exempt from all forms of
assessments imposed pursuant to this Declaration.
Section 4.2. Transfer of Membership. An Owner may not transfer, pledge or alienate its
membership in the Empire Estates Phase 5 Homeowners' Association in any way except upon the
sale or encumbrance of his Lot, and then only to the purchaser or Mortgagee of his Lot.
Section 4.3. Classes of Membership. The Empire Estates Phase 5 Homeowners'
Association will have one class of voting membership, composed of all Owners, including Declarant,
except that the Declarant shall have such additional rights and responsibilities as expressly provided
in this Declaration.
Section 4.4. Voting Rights, All Members will be entitled to vote on the Empire Estates
Phase 5 Homeowners' Association matters on the basis of one vote for each Lot owned.
Section 4.5. Appointment of Officers and Directors by Declarant. Until the expiration of
the Period of Declarant Control, Declarant will retain the exclusive powers to appoint, remove and
replace Directors and officers of the Empire Estates Phase 5 Homeowners' Association.
5
Section 4.6. Proof of Membership. An Owner will not be entitled to notice or to vote at
any annual or special meeting of the Members unless the following requirements are first met:
4.6.1 Any person or entity, within fourteen (14) days of becoming an Owner, will
furnish to the Secretary of the Empire Estates Phase 5 Homeowners' Association a photocopy of the
deed vesting that person or entity with an ownership interest. Other means of proving Lot ownership
shall be allowed at the sole discretion of the Empire Estates Phase 5 Homeowners' Association.
4.6.2 Within fourteen (14) days of becoming an Owner, the Owner or Owners shall
furnish in writing to the Secretary of the Empire Estates Phase 5 Homeowners' Association one (1)
mailing address and one (1) telephone number, regardless of the number of Owners, that shall be
utilized for all notices and all other Empire Estates Phase 5 Homeowners' Association business.
ARTICLE V
POWERS AND DUTIES OF EMPIRE ESTATES PHASE 5
HOMEOWNERS' ASSOCIATION
Section 5.1. Empire Estates Phase 5 Homeowners' Association Management Duties.
Subject to the rights and obligations of Declarant as set forth in this Declaration, the Empire Estates
Phase 5 Homeowners' Association will be responsible for the administration and operation of Empire
Estates Phase 5. The Board of Directors will exercise for the Empire Estates Phase 5 Homeowners'
Association all powers, duties and authority vested in or obligated to be taken by the Empire Estates
Phase 5 Homeowners' Association and not reserved to Declarant or the other Members by this
Declaration, or by other applicable law.
Section 5.2. Common Area.
5.2.1. Conveyance by Declarant. On or before the expiration of the period of
Declarant Control, Declarant will convey to the Empire Estates Phase 5 Homeowners' Association,
by written instrument recorded with the Clerk and Recorder of Flathead County, Montana, the
Common Area located on the Property.
5.2.2. Use of Common Area. The Common Area generally is designated by this
Declaration for the common use, benefit and enjoyment of the Owners and their families, tenants,
employees, guests and invitees.
5.2.3. Empire Estates Phase 5 Homeowners' Association's Responsibility for
Common Area. The Empire Estates Phase 5 Homeowners' Association, subject to the rights and
obligations of the Owners set forth in this Declaration, will be responsible for the management,
maintenance and control of the Common Area.
5.2.4. Association's Agreements Regarding Common Area. The Empire Estates
Phase 5 Homeowners' Association, acting through the Board of Directors, may grant easements,
rights -of -way, leases, licenses and concessions through or over the Common Area without the
independent approval by the Owners. Without limiting the generality of the foregoing, the Empire
Estates Phase 5 Homeowners' Association may grant such rights to suppliers of utilities serving the
Project or property adjacent to the Project, and to developers or owners of property adjacent to the
G
Project for the purpose of accommodating minor encroachments onto the Common Area or other
purposes that do not unreasonably interfere with the use and enjoyment of the Common Area by the
Owners.
Section 5.3 Water and Sanitary Sewer Facilities.
5.3.1. Sanitary Sewer Service. Each Lot shall be served by the sanitary sewer
system of the City of Kalispell, Montana. Each Owner shall be responsible for the operation,
repair, maintenance, and replacement of all sewer facilities located on that Owner's Lot,
including but not limited to, the service line running from the house to the sewer main located at
or near the property line.
5.3.2. Water Service. Each Lot shall be served by the water system of the City of
Kalispell, Montana. Each Owner shall be responsible for the operation, repair, maintenance, and
replacement of all water facilities located on that Owner's Lot, including but not limited to, the
service line running from the house to the shutoff valve located at or near the property line.
Section 5.4. Delegation by Empire Estates Phase S Homeowners' Association.
5.4.1. Committees. The Empire Estates Phase 5 Homeowners' Association may
delegate any of its rights, duties or responsibilities to any committee or other entity (in addition to the
Architectural Review Committee) that the Board may choose to form.
5.4.2. Limitation. Any delegation by the Board under this Section is subject to
compliance with the Bylaws and the requirement that the Board, when so delegating, will not be
relieved of its responsibilities under the Empire Estates Phase 5 Documents.
Section 5.5. Roads and Driveways. Empire Estates Phase 5 shall be served by City of
Kalispell, Montana streets. Maintenance of the private driveways located on the Lots shall be the
responsibility of the Owners of the Lots.
Section 5.6. Books and Records. Upon being provided forty-eight (48) hours written
notice and at a scheduled appointment occurring during normal business hours, the Empire Estates
Phase 5 Homeowners' Association will make available for inspection by Owners and Mortgagees,
current copies of the Empire Estates Phase 5 Documents, and the books, records, and financial
statements of the Empire Estates Phase 5 Homeowners' Association prepared pursuant to the
Bylaws.
Section 5.7. Reserve Account. The Empire Estates Phase 5 Homeowners' Association
will establish and maintain an adequate Maintenance Fund from Annual Assessments levied pursuant
to Section 9.3. below for maintenance, repair or replacement of the private roads, parks and
landscaping or other Improvements located within the Common Area.
Section 5.8. Successor to Declarant. The Empire Estates Phase 5 Homeowners'
Association will succeed to all of the rights, duties and responsibilities of the Declarant under this
Declaration upon termination of the Period of Declarant Control.
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ARTICLE VI
ARCHITECTURAL REVIEW COMMITTEE
Section 6.1. Committee. There is hereby established an Architectural Review Committee,
which will be responsible for the review and approval of all proposed Improvements on the Lots.
Section 6.2. Committee Membership. The Committee will be composed of three or
more persons. All of the members of the Committee will be appointed, removed, and replaced by
Declarant, in its sole discretion, until the expiration of the Period of Declarant Control or such earlier
time as Declarant may elect to voluntarily waive this right by notice to the Empire Estates Phase S
Homeowners' Association, and at that time the Board of Directors will succeed to Declarant's right
to appoint, remove, or replace the members of the Committee.
Section 6.3. .Purpose and General Authority. No Improvement will be erected, placed,
reconstructed, replaced, repaired or otherwise altered, nor will any construction, repair or
reconstruction be commenced until plans for the Improvements have been approved by the
Committee; provided, however, that Improvements that are completely within a building may be
undertaken without such approval. The Owner shall submit a site plan and elevations showing the
design, location, material, and exterior finish of proposed Improvements to the Architectural Review
Committee. All Improvements will be constructed only in accordance with approved plans.
Section 6.4 Design Guidelines. The Architectural Review Committee may publish
Design Guidelines which set forth the procedures and criteria for review of Improvements to be
constructed on any Lot, and for review of landscaping plans. Failure to follow procedures or
criteria set forth in the current published Design Guidelines shall form an adequate basis for
rejection of the submitted site plan and elevations; provided, however, that this requirement shall
not be construed as preventing the Declarant or the Architectural Review Committee, at their
option, from waiving or amending the Design Guidelines at any time or with respect to any
application. Failure to follow such procedures or criteria set forth in the Design Guidelines shall
also be deemed a breach of this Declaration by such Owner and shall entitle the Association or
the Architectural Review Committee to exercise and pursue the rights and remedies provided
herein with respect to such breach.
Section 6.5. .Failure to Act. In the event the Architectural Review Committee fails to
approve or disapprove such design, location, materials, and exterior finish within thirty days after
the detailed site plan and elevations have been submitted to it, approval shall not be required and
such Owner shall be deemed in compliance with this Article. Any plans, elevations and
proposals so approved, either expressly in writing or by the expiration of the thirty day period
hereinabove provided, shall then permit the Owner to commence construction in accordance with
said plans and elevations, but any deviation from said plans and elevations which in the
judgment of said Architectural Review Committee is a substantial detriment to the appearance of
the structure or of the surrounding area shall be corrected to conform with the plans and
elevations as submitted.
Section 6.6. Committee Discretion. The Committee will exercise its best judgment to see
that all Improvements conform and harmonize with any existing structures as to external design,
quality and type of construction, materials, location on the Lot, height, grade and finished ground
elevation, and the schemes and aesthetic considerations set forth in the Design Guidelines and the
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other Empire Estates Phase 5 Documents, The Committee, in its sole discretion, may excuse
compliance with such requirements as are not necessary or appropriate in specific situations and may
permit compliance with different or alternative requirements.
Section 6.7. Binding Effect. The actions of the Committee in the exercise of its discretion
by its approval or disapproval of plans and other information submitted to it, or with respect to any
other natter before it, will be conclusive and binding on all interested parties.
Section 6.8. Organization and Operation of Committee.
6.8.1. Term. The term of office of each member of the Committee will be one year,
commencing January 1 of each year, and continuing until his or her successor shall have been
appointed. Should a Committee member die, retire or become incapacitated, or in the event of a
temporary absence of a member, a successor may be appointed as provided in Section 6.2.
6.8.2. Chairman. So long as Declarant appoints the Committee, Declarant will
appoint the chairman. At such time as the Committee is appointed by the Board of Directors, the
chairman will be elected annually from among the members of the Committee by a majority vote of
the members. In the absence of a chairman, the party responsible for appointing or electing the
chairman may appoint or elect a successor, or if the absence is temporary, an interim chairman.
6.8.3. Operations. The Committee chairman will take charge of and conduct all
meetings and will provide for reasonable notice to each member of the Committee prior to any
meeting. The notice will set forth the time and place of the meeting, and notice may be waived by
any member.
6.8.4. Voting. The affirmative vote of majority of the members of the Committee
will govern its actions and be the act of the Committee.
Section 6.9. Other Requirements. Compliance with the Empire Estates Phase 5
architectural review process is not a substitute for compliance with City of Kalispell, Montana
building, zoning and subdivision regulations, and each Owner is responsible for obtaining all
approvals, licenses, and permits as may be required prior to commencing construction.
Section 6.10. Enforcement.
6.10.1 Inspection. Any member or authorized consultant of the Architectural
Review Committee, or any authorized officer, Director, employee or agent of the Empire Estates
Phase 5 Homeowners' Association may enter upon any Lot at any reasonable time after notice to the
Owner, without being deemed guilty of trespass, in order to inspect Improvements constructed or
under construction on the Lot to determine whether the Improvements have been or are being built in
compliance with the Empire Estates Phase 5 Documents and the plans and specifications approved
by the Architectural Review Committee.
6,10.2. Deemed Nuisances. Every violation of these Covenants is hereby declared to
be and to constitute a nuisance, and every public or private remedy allowed for such violation by law
or equity against Member will be applicable. Without limiting the generality of the foregoing, these
Covenants may be enforced as provided below.
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(i) Fines for Violations. The Committee may adopt a schedule of fines
for failure to abide by the Committee rules and the Design Guidelines,
including fines for failure to obtain any required approval from the
Committee.
(ii) Removal of Nonconforming Improvements. The Empire Estates Phase
5 Homeowners' Association may, upon request of the Committee and after
reasonable time after notice to the Owner, without being deemed guilty of
trespass, remove any Improvement constructed, reconstructed, refinished,
altered, or maintained in violation of these Covenants. The Owner of the
Improvement will immediately reimburse the Empire Estates Phase 5
Homeowners' Association for all expenses incurred in connection with such
removal. If the Owner fails to reimburse the Empire Estates Phase 5
Homeowners' Association within 34 days after the Empire Estates Phase 5
Homeowners' Association gives the Owner notice of the expenses, the slim
owed to the Empire Estates Phase 5 Homeowners' Association will bear
interest at the maximum rate permitted under Montana law from the date the
expense was incurred by the Empire Estates Phase 5 Homeowners'
Association through the date of reimbursement in .full, and all such sums and
interest will be a Default Assessment enforceable as provided in Article IX.
Section 6.11. Continuity of Construction. All Improvements commenced on the Property
will be prosecuted diligently to completion. If an Improvement is commenced and construction is
then abandoned for more than ninety days, or if construction is not completed within the required
twelve-month period described below in Section 7.7, then after notice and opportunity for hearing as
provided in the Bylaws, the Empire Estates Phase 5 Homeowners' Association may impose a fine of
not more than $50.00 per day to be charged against the Owner of the Lot until construction is
resumed, or the Improvements are completed, as applicable.
ARTICLE VII
PROPERTY USE RESTRICTIONS
Section 7. L General Restriction. The Property will be used only for the purposes set
forth in these Covenants, as permitted by the applicable regulations of the City of Kalispell, Montana
Flathead County, Montana and the laws of the State of Montana and the United States, and as set
forth in the Empire Estates Phase 5 Documents or other specific recorded covenants affecting all or
any part of the Property and no structure which fails to meet the following minimum standards shall
be erected, placed or allowed to remain on any Lot, and the Architectural Review Committee shall
have no power to approve any structure failing to at least meet these minimum standards:
Section 7.2. Setbacks. All single family residences, town homes, garages, sheds,
kennels, swimming pools, outbuildings, and other structures of any kind or nature whatsoever
shall be constructed and located entirely within the setbacks as set forth in the current City of
Kalispell, Montana zoning regulations.
Section 7.3. Height, Size, etc. Upon obtaining the approval of the Architectural Review
Committee, one single-family residence or town home may be built on each Lot. No structure shall
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be erected, altered, placed, or permitted on any such Lot other than a single-family dwelling or town
home not to exceed two -stories and thirty five (35) feet in height, including a private garage, or
outbuilding. For the purposes of these restrictions, "two -stories" shall mean two -stories above grade
on at least one overall dimension of the structure, except "split-level" structures will be permitted.
All single -story single-family residences shall contain at least 1,100 square feet on the main floor,
exclusive of basements, porches, patios, and garages. All two-story or split-level single-family
residences shall contain at least 900 square feet on the ground or main floor and 300 square feet on
the second or upper floor, exclusive of basements, porches, patios, and garages. All single -story
town homes shall contain at least 900 square feet per unit, exclusive of basements, porches, patios
and garages. All two-story or split-level town homes shall contain at least 600 square feet on the
main floor and 300 square feet on the second or upper floor, exclusive of basements, porches, patios
and garages, per unit. Except as provided below, all single family residences shall, at a minimum,
have a two car garage measuring at least 576 square feet and all town homes shall, at a minimum,
have a one car garage measuring at least 384 square feet per unit. The Architectural Review
Committee may, in its sole discretion, approve smaller garages if necessary due to specific site
constraints located on a Lot. All single-family residences and town homes must provide adequate
off-street parking to meet the City of Kalispell requirements. Upon obtaining the approval of the
Architectural Review Committee, outbuildings may be built on the Lots on the condition that they
conform in appearance with the single-family residence or town home.
Section 7.4. New Construction. All Improvements erected on any Lot shall be of new
construction, and no mobile homes, trailers, or old buildings shall be placed or moved onto the
Lots.
Section 7.5. Maintenance Free Exterior. All Improvements erected on any Lot shall
be sided with and have a low maintenance exterior. All siding must be primarily horizontal
siding. Siding, roofing and other exterior finish items must be approved by the Architectural
Review Committee.
Section 7.6. Roofing Materials. All improvements shall be roofed with roofing materials
rated as Class A or Class B by the National Fire Protection Association. Wood shake and metal
roofing is not permitted.
Section 7.7. Completed Construction. No basement or structure on any Lot may be
used for dwelling purposes until after its area, as defined by the foundation, has been completely
enclosed according to the plans and until it has been substantially completed, with sanitary
facilities and utilities permanently installed. No tent, shack, or other outbuilding may be used as
a residence, temporarily or permanently. All construction must be completed within twelve
months from the commencement of construction. Except as provided below, all landscaping
must be completed within the same calendar year as completion of construction. If construction
is not completed by September l", the landscaping must be completed by July I5t of the
following year.
Section 7.8. Satellite, Antennae, etc. Television, radio, satellite dishes, or other
antennae shall be permitted on the following condition that the location, height and size of such
dish and antennae must be approved in advance by the Architectural Review Committee. In
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general, dishes or antennae shall be located on the rear of the residence or town home unless the
Architectural Review Committee approves otherwise for valid cause.
Section 7.9. Fences. Fences, retaining walls and other types of screens shall not
exceed six feet in height. All fences must be constructed of maintenance free material. The
location, design, material and color of fences, walls and screens must be approved by the
Architectural Review Committee.
Section 7.1 Q. Temporary Structures. Trailers or other temporary living conveniences
shall not be kept on Lots during construction.
Section 7.11. Trash, .Debris, etc. No trash, debris, or organic waste shall be permitted to
accumulate on any Lot or in any roadway adjacent thereto, and shall be promptly disposed of.
No vacant Lot shall be used as a dumping ground or burial pit. Trash incinerators are not
permitted. Outside trash and refuse cans and receptacles shall be screened from view by a
structure approved by the Architectural Review Committee.
Section 7.12. Signs. Other than signs advertising Lots or residences for sale or rent or signs
of a type and size approved by the Architectural Review Committee displayed to identify the address
of the Owner or occupant of a residence, no sign, billboard or advertising structure of any kind shall
be erected, used or maintained on any Lot.
Section 7.13. Outbuildings. All outbuildings, garages and secondary structures located
on any Lot shall match the external design of the primary structure.
Section. 7.14. Outhouses. No outhouse or privy shall be permitted or maintained on any
Lot, except that a chemical toilet shall be permitted on a Lot during the time a residence is being
constructed.
Section 7.15, Wood Heat. No structure shall be constructed on any Lot wherein wood
heat is the primary heat source. No outdoor firewood stacks, piles or wood storage facility shall
be kept or maintained on any Lot unless it is screened from view.
Section 7.16. Hunting, etc. No hunting, trapping or the discharge of any rifle, shotgun,
pistol or other firearm shall be permitted on any Lot or in the Common Area.
Section 7.17. Animals. No swine, poultry, goats, horses, cows, livestock or other
animals, other than ordinary household pets, shall be raised, kept or cared for on any of the Lots.
No Owner shall raise or care for permitted pets on a commercial basis. No permitted pets shall
be allowed off of the Owner's Lot unless in the immediate company of their Owner or such
Owner's agents. No Owner shall have or keep any dog which barks or whines on a regular or
continuous basis, or which otherwise creates an ongoing disturbance for any other Owner. The
Board of Directors may at any time limit the number of ordinary household pets on any Lot, any
may withdraw permission for any ordinary household pet from any Owner who violates or
abuses the restrictions set forth in this paragraph.
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Section 7.1 S. Landscaping. The layout, design and installation of all landscaping,
grasses, lawns or ground cover, except those in confined gardens or planters must be approved
by the Architectural Review Committee. Each Owner shall plant and maintain at least one tree
in the front yard. A timed, underground sprinkler system shall be installed on each Lot that
irrigates the front yard and side yards to the midpoint of the primary structure. Sod or other
approved ground cover shall be installed in the front yard and to the amid point of the side yards
on each Lot. All yards and landscaping shall be maintained and shall not be allowed to become
unsightly. Lawns shall be mowed on a regular basis. Undeveloped Lots must be mowed at least
twice each year and may not be used as a dumping area for trimmings or grass clippings.
Section 7.19. Noxious Weeds. All weeds, including noxious weeds, shall be eradicated
or controlled by Owners and all Owners shall fully comply with state and local law regarding the
control and eradication of noxious weeds.
Section 7.20. Commercial Activity. Except as expressly provided herein, no Lot or any
building or Improvement erected thereon shall at any time be used for the purpose of any trade,
profession, manufacturing or business of any description. Owners may operate professional or other
low -impact home -based businesses from their Lot on the condition that it does not materially
increase traffic within Empire Estates Phase 5. No approved business operated from any Lot shall
employ or engage more than two non-resident employees or independent contractors.
Notwithstanding the foregoing, no Owner shall operate any daycare, pre-school or other child or
person care facility on their Lot.
Section 7.21. Nuisance. No noxious or offensive activities shall be carried on, nor shall
anything be done on any Lot that may become an annoyance or nuisance to the other Owners.
Section 7.22. Vehicles. No unlicensed, unsightly, or inoperative motor vehicles or
equipment, bodies or parts thereof shall at any time be allowed to remain in public view or the
view of adjoining Owners on any Lot or along the City of Kalispell streets or private roadways
located within the Property. All commercial vehicles shall be parked or stored in a garage or
outbuilding or otherwise screened from view.
Section 7.23. Fuel Tanks. No above or below ground fuel tanks shall be permitted on any
Lot.
Section 7.24. City Imposed Restrictions. All conditions or restrictions imposed by the
City of Kalispell during the subdivision process are hereby incorporated by reference.
Section 7.25. Natural Gas Service. All residences located on any Lot shall utilize
natural gas service from Northwestern Energy, or its successor.
Section 7.26. Telephone Service. All Owners shall obtain landline telephone service
from Centurytel, or its successor, within two (2) years from the completion of construction on
any Lot.
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ARTICLE VIII
OWNER'S OBLIGATIONS FOR MAINTENANCE
Section 8. L Owner's Responsibility for Lot. All maintenance of a Lot and the
Improvements located on it will be the sole responsibility of the Owner of the Lot. The Empire
Estates Phase 5 Homeowners' Association will, in the discretion of the Board, assume the
maintenance responsibilities of such Owner if, in the opinion of the Board, the level and quality of
maintenance being provided by such Owner is not satisfactory. Before assuming the maintenance
responsibilities, the Board will notify the Owner in writing of its intention to do so, and if the Owner
has not commenced and diligently pursued remedial action within thirty days after the mailing of
such written notice, then the Empire Estates Phase 5 Homeowners' Association will proceed. The
expenses of the maintenance by the Board will be reimbursed to the Empire Estates Phase 5
Homeowners' Association by the Owner within thirty days after the Empire Estates Phase 5
Homeowners' Association notifies the Owner of the amount due, and any sum not reimbursed within
that thirty day period will bear interest at the maximum rate permitted under Montana law from the
date of the expenditure until payment in full.
Section 8.2. Owner's Negligence. If the need for maintenance, repair or replacement of
any portion of the Common Area (including Improvements located on it) arises because of the
negligent or willful act or omission of an Owner or his family member, guest, invitee or tenant, then
the expenses incurred by the Empire Estates Phase 5 Homeowners' Association for the maintenance,
repair or replacement will be a personal obligation of that Owner. If the Owner fails to repay the
expenses incurred by the Empire Estates Phase 5 Homeowners' Association within thirty days after
the notice to the Owner of the amount owed, then those expenses will bear interest at the maximum
rate permitted under Montana law from the date of the advance by the Empire Estates Phase 5
Homeowners' Association until payment by the responsible Owner in full.
ARTICLE IX
ASSESSMENTS
Section 9.1. Creation of Lien and Personal Obligation for Assessments. Except as
otherwise provided by this Declaration, Declarant, for each Lot owned within the Property, hereby
covenants, and each Owner of any Lot, by accepting a deed for a Lot, is deemed to covenant to pay
to the Empire Estates Phase 5 Homeowners' Association (1) the Annual Assessments imposed by the
Board of Directors as necessary to generally carry out the functions of the Empire Estates Phase 5
Homeowners' Association; (2) Special Assessments for capital improvements and other purposes as
stated in this Declaration; and (3) Default Assessments which may be assessed against a Lot pursuant
to the Empire Estates Phase 5 Documents for the Owner's failure to perform an obligation under the
Empire Estates Phase 5 Documents or because the Empire Estates Homeowners' Association has
incurred an expense on behalf of or caused by the Owner under the Empire Estates Phase 5
Documents.
Notwithstanding the ownership of any Lot, the Declarant shall not be obligated to pay any of
the Assessments described in this Declaration.
All Assessments, together with fines, interest, costs, and reasonable attorneys' fees, will be a
charge on the land and will be a continuing lien upon the Lot against which each such Assessment is
made until paid.
14
Each such Assessment, together with fines, interest, costs, and reasonable attorneys' fees and
costs, will also be the personal and individual obligation of the Owner of such Lot as of the time the
Assessment falls due, and two or more Owners of a Lot will be jointly and severally liable for such
obligations. No Owner may exempt himself from liability for any Assessments by abandonment of
his Lot or by waiver of the use or enjoyment of the Common Area. Suit to recover a money
judgment for unpaid Assessments and related charges as listed above may be maintained without
foreclosing or waiving the Assessment lien provided in this Declaration.
Section 9.2. Purpose of Assessments. The Assessments levied by the Empire Estates
Phase 5 Homeowners' Association will be used exclusively to promote the recreation, health, safety,
and welfare of the Owners and occupants of the Empire Estates Phase 5.
Section 9.3. Annual Assessments.
9.3.1. Calculation of Annual Assessments. The Board of Directors will prepare a
budget before the close of each fiscal year of the Empire Estates Phase 5 Homeowners' Association.
Annual Assessments for Common Expenses will be based upon the estimated net cash flow
requirements of the Empire Estates Phase 5 Homeowners' Association to cover items including,
without limitation, the cost of routine maintenance, repair and operation of the Common Area; and
premiums for insurance coverage as deemed desirable or necessary by the Empire Estates Phase 5
Homeowners' Association; snow removal, landscaping, care of grounds and common lighting within
the Common Area; routine renovations within the Common Area; wages; common water and utility
charges for the Common Area; legal and accounting fees; expenses and liabilities incurred by the
Empire Estates Phase 5 Homeowners' Association under or by reason of this Declaration; payment
of any deficit remaining from a previous Assessment period; and the supplementing of the reserve
fund for general, routine maintenance, repairs and replacement of improvements within the Common
Area on a periodic basis, as needed.
9.3.2. Apportionment of Annual Assessments. Except as otherwise provided herein,
each Owner will be responsible for that Owner's share of the Common Expenses, which will be
divided equally among the Lots included in the Project under this Declaration from time to time.
Accordingly, at any given time, an Owner's share of Common Expenses will be determined as a
fraction, the numerator of which is the number of Lots owned by the Owner, and the denominator of
which is the number of Lots then platted and incorporated into the Project.
9.3.3. Collection. Annual Assessments will be collected in periodic installments as
the Board may determine from time to time, but until the Board directs otherwise, they will be
payable annually in advance on the date determined by the Board. The omission or failure of the
Empire Estates Phase 5 Homeowners' Association to fix. the Annual Assessments for any
Assessment period will not be deemed a waiver, modification, or release of the Owners from their
obligation to pay the same.
Section 9.4. Special Assessments.
9.4.1. Determination by Board. The Board of Directors may levy, in any fiscal
year, one or more Special Assessments, applicable to that year only, for the purpose of defraying, in
whole or in part, the cost of any construction or reconstruction, repair or replacement of a described
capital improvement upon the Common Area, including the necessary fixtures and personal property
15
related thereto, or, after adopting and submitting a revised budget to the Empire Estates Phase 5
Homeowners' Association as may be required to make up any shortfall in the current year's budget.
9.4.2. Apportionment and Collection of Special Assessments. The Board will
apportion Special Assessments among the Lots and collect payment according to the same guidelines
as set forth for Annual Assessments in Section 9.3.2
9.4.3. Notice. Notice of the amount and due dates for such Special Assessments
must be sent to each Owner at least 30 days prior to the due date.
Section 9.5. Default Assessments. All monetary fines, penalties, interest or other charges
or fees (excluding Annual and Special Assessments) levied against an Owner pursuant to the Empire
Estates Phase 5 Documents, or any expense of the Empire Estates Phase 5 Homeowners' Association
which is the obligation of an Owner or which is incurred by the Empire Estates Phase 5
Homeowners' Association on behalf of the Owner pursuant to the Empire Estates Phase 5
Documents, and any expense (including without limitation attorneys' fees and costs) incurred by the
Empire Estates Phase 5 Homeowners' Association as a result of the failure of an Owner to abide by
the Empire Estates Phase 5 Documents, constitutes a Default Assessment, enforceable as provided in
this Declaration below.
Section 9.6. General remedies of Empire Estates Homeowners' Association for
Nonpayment of Assessment. Any installment of an Annual Assessment, Special Assessment or
Default Assessment which is not paid within 30 days after its due date will be delinquent. 1n the
event that an installment of an Annual Assessment or Special Assessment becomes delinquent, or in
the event any Default Assessment is established under this Declaration, the Empire Estates
Homeowners' Association, in its sole discretion, may take any or all of the following actions:
9.6.1. Assess a late charge for each delinquency at uniform rates set by the Board of
Directors from time to time;
9.6.2. Charge interest from the date of delinquency at the maximum rate permitted
under Montana law;
9.6.3. Suspend the voting rights of the Owner during any period of delinquency;
9.6.4. Accelerate all remaining Assessment installments for the fiscal year in
question so that unpaid Assessments for the remainder of the fiscal year will be due and payable at
once;
9.6.5. Bring an action at law against any Owner personally obligated to pay the
delinquent Assessment charges;
9.6.6. File a lien with the Flathead County Clerk and Recorder with respect of the
Lot and foreclose as set forth in more detail below.
The remedies provided under this Declaration will not be exclusive, and the Empire Estates
Phase 5 Homeowners' Association may enforce any other remedies to collect delinquent
Assessments as may be provided by law.
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Section 9.7. Assessment Lien. Any Assessment chargeable to a Lot will constitute a lien
on the Lot, effective the due date of the Assessment. To evidence the lien, the Empire Estates Phase
5 Homeowners' Association may, but will not be obligated to, prepare a written lien statement with
respect to the Lot, setting forth the name of the Owner, the legal description of the Lot, the name of
the Empire Estates Phase 5 Homeowners' Association, and the delinquent Assessment amounts then
owing. Any such statement will be duly signed and acknowledged by an officer or Director of the
Empire Estates Phase 5 Homeowners' Association and will be served upon the Owner of the Lot by
mail to the address of the Lot or at such other address as the Empire Estates Phase 5 Homeowners'
Association may have in its records for the Owner. At least ten days after the Empire Estates Phase 5
Homeowners' Association mails the statement to the Owner, the Empire Estates Phase 5
Homeowners' Association may record the statement in the office of the Clerk and Recorder of
Flathead County, Montana. Thirty days following the mailing of such notice to the Owner, the
Empire Estates Phase 5 Homeowners' Association may proceed to foreclose the lien in the same
manner as provided for the foreclosure of mortgages under the statues of the State of Montana.
Section 9.8. Successor's Liability for Assessment. All successors to the fee simple title of
a Lot, except as provided in Section 9.9. will be jointly and severally liable with the prior Owner or
Owners thereof for any and all unpaid Assessments, interest, late charges, costs, expenses, and
attorneys' and legal assistants' fees against such Lot without prejudice to any such successor's right
to recover from any prior Owner any amounts paid by such successor.
Section 9.9. Exempt Property. The following portions of the Property will be exempt
from the Assessments, charges, and liens created under this Declaration:
9.9.1. Any easement or other interest in the Property dedicated and accepted by the
City of Kalispell or Flathead County and devoted to public use;
9.9.2. Any Lot owned by Declarant;
9.9.3. All utility lines and easements; and
9.9A. Common Areas.
Section 9.10. Statement of Status of Assessments. The Empire Estates Phase 5 Homeowners'
Association will furnish to an Owner or his designee or to any Mortgagee, within fourteen days of
request, a statement setting forth the amount of unpaid Assessments then levied against the Lot i
which the Owner, designee or Mortgagee has an interest.
Section 9.11. Failure to Assess. The omission or failure of the Board to fix the Assessment
amounts or rates or to deliver or mail to each Owner an Assessment notice will not be deemed a
waiver, modification, or a release of any Owner from the obligation to pay Assessments. In such
event, each Owner will continue to pay Annual Assessments on the same basis as for the last year for
which an Assessment was made until a new Assessment is made, at which time any shortfalls in
collections may be assessed retroactively by the Empire Estates Phase 5 Homeowners' Association.
ARTICLE X
PROPERTY RIGHTS OF OWNERS
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Section 10.1. Owner's Easements of Access and Enjoyment. Every Owner has a perpetual,
non-exclusive easement for ingress, egress and utilities to and from his Lot and for the use and
enjoyment of the Common Area, which easement is appurtenant to and will pass with the title to
every Lot, subject to the provisions set forth in this Declaration.
Section 10.2. Easements of Record and of Use. The Property will be subject to all
easements shown on any recorded Plat and to any other easements of record or of use as of the date
of recordation of this Declaration.
ARTICLE X
SPECIAL DECLARANT RIGHTS
AND ADDITIONAL RESERVED RIGHTS
Section 11.1. General Provisions. Until the expiration of the Period of Declarant Control,
Declarant will have the following Special Declarant Rights:
11.1.1. Completion of Improvements. The right to complete infrastructure and
Improvements as indicated on any Plat filed with respect to the Property.
11.1.2. Development Rights. The right to exercise all Development Rights in
connection with the development of the Empire Estates Phase 5 Project, including without limitation
the right or combination of rights hereby reserved by Declarant, as follows:
(i) The right to create Lots and Common Area on the Property.
(ii) The right to subdivide Lots and convert Lots into Common Area on
any part of the Property.
(iii) The right to withdraw real estate from Empire Estates Phase 5.
11.1.3. Sales Activities. The right to maintain sales and management offices, signs
advertising Empire Estates and model residences on the Common Area and on Lots owned by
Declarant.
11.1.4, Easements. The right to use easements through the Common Area on the
Property for the purpose of making Improvements on the Property.
11.1.5. Association Directors and Officers, The right to appoint any officer or
Director of the Empire Estates Phase 5 Homeowners' Association, as provided in this Declaration or
the Bylaws.
11.1.6. Order of Exercise of Declarant's Rights. Declarant makes no representations
and gives no assurances regarding the legal description of the boundaries of any phase of the
Property or the order or time in which the phases of the Property may be developed or incorporated
in the Empire Estates Phase 5, or whether or to what extent any of the Property will be developed or
incorporated into the Project. Further, the fact that Declarant may exercise one or more of
Declarant's Development Rights or other Special Declarant Rights on one portion of the Property
will not operate to require Declarant to exercise a Development Right or other Special Declarant
Right with respect to any other portion of the Property.
10.
Section 11.2. Supplemental Provisions Regarding Declarant's Rights. Without limiting the
generality of the foregoing, certain of these Special Declarant Rights are explained more fully in this
Article below. Further, Declarant reserves the right to amend this Declaration and any Plat in
connection with the exercise of any Development Right or any other Special Declarant Right, and
Declarant also reserves the additional rights retained for the benefit of Declarant in this Article and in
other provisions of this Declaration.
Section l l .3. Utility Easements. There is .hereby created an easement upon, across, over,
in, and under the Common Area, the public roadways, the private roadways and the areas designated
on the final Plat of Empire Estates Phase 5 as utility easements for the installation, replacement,
repair and maintenance of all utilities, including but not limited to water, sewer, gas, telephone,
electrical, television and other communications systems. By virtue of this easement, it will be
expressly permissible and proper for the companies providing utility services to install and maintain
necessary equipment on and under the Common Area, the private roadways and the areas designated
on the final Plat of Empire Estates Phase 5 as utility easements and to affix and maintain utility pipes,
wires, circuits, conduits and other equipment under those areas. Any utility company using this
easement will use its best efforts to install and maintain the utilities provided for without disturbing
the uses of the Owners, the Empire Estates Phase 5 Homeowners' Association and Declarant; will
prosecute its installation and maintenance activities as promptly and expeditiously as reasonably
possible; and will restore the surface to its original condition as soon as possible after completion of
its work. Should any utility company furnishing a service covered by the easement granted above
request a specific easement by separate recordable document, either Declarant or the Empire Estates
Phase 5 Homeowners' Association will have, and are hereby given, the right and authority to grant
such easement upon, across, over, or under any part or all of the Common Area, the private roadways
and the areas designated on the final Plat of Empire Estates Phase 5 as utility easements without
conflicting with the terms of this Declaration. This easement will in no way affect, avoid, extinguish,
or modify any other recorded easement on the Property.
Section l l.4. Reservation for Expansion and Construction. Declarant hereby reserves for
itself and its successors and assigns and for Owners a perpetual easement and right-of-way for access
over, upon, and across the Property for construction, utilities, drainage, ingress and egress, and for
use of the Common Area. The location of these easements and rights -of -way may be made certain
by Declarant or the Empire Estates Phase 5 Homeowners' Association by instruments recorded in
Flathead County, Montana.
Declarant further reserves the right to establish from time to time, by dedication or otherwise,
utility, ingress and egress, and other easements over and across the Common Areas, and to create
other reservations, exemptions, and exclusions convenient or necessary for the use and operation of
any other property of Declarant.
Section l l .5. Reservation of Easements, Exceptions, and Exclusions far Utilities,
Infrastructure, and Access. Declarant reserves for itself and its successors and assigns and hereby
grants to the Empire Estates Phase 5 Homeowners' Association, acting through the Board of
Directors, the concurrent right to establish from time to time, by declaration or otherwise, utility and
other easements, permits, or licenses over the Common Area, for purposes including but not limited
to streets, paths, walkways, drainage, recreational areas and parking areas, and to create other
reservations, exceptions, and exclusions in the interest of the Owners and the Empire Estates Phase 5
Homeowners' Association.
Section 11.6. Maintenance Easement. An easement is hereby reserved to Declarant for
itself and its successors and assigns and granted to the Empire Estates Phase 5 Homeowners'
Association, and any member of the Board of Directors, and their respective officers, agents,
employees, and assigns, upon, across, over, in and under the Property and a right to make such use of
the Property as may be necessary or appropriate to make emergency repairs or to perform the duties
and functions which the Empire Estates Phase 5 Homeowners' Association is obligated or permitted
to perform pursuant to the Empire Estates Phase 5 Documents.
Section 11.7. Drainage Easement. An easement is hereby reserved to Declarant for itself
and its successors and assigns and granted to the Empire Estates Phase 5 Homeowners' Association,
its officers, agents, employees, successors and assigns to enter upon, across, over, in, and under any
portion of the Property for the purpose of changing, correcting, or otherwise modifying the grade or
drainage channels of the Property so as to improve the drainage of water. Reasonable efforts will be
made to use this easement so as not to disturb the uses of the Owners, the Empire Estates Phase 5
Homeowners' Association and Declarant, as applicable, to the extent possible; to prosecute such
drainage work promptly and expeditiously; and to restore any areas affected by such work to a
sightly and usable condition as soon as reasonably possible following such work.
Section l l.8. Declarant's Rights Incident to Construction. Declarant, for itself and its
successors and assigns, hereby retains a right and easement of ingress and egress over, in, upon,
under and across the Common Area and the right to store materials thereon and to make such other
use thereof as may be reasonably necessary or incident to the construction of the hriprovernents on
the Property or other real property owned by Declarant; provided, however, that no such rights will
be exercised by Declarant in such a way as to unreasonably interfere with the occupancy, use,
enjoyment or access to an Owner's Lot by that Owner or his family, tenants, employees, guests, or
invites.
Section 11.9. Easements Deemed Created. All conveyances of Lots hereafter made,
whether by Declarant or otherwise, will be construed to grant and reserve the easements contained in
this Article, even though no specific reference to such easements or to this Article appears in the
instrument for such conveyance.
ARTICLE XII
INSURANCE
Section 12.1. Authority to Purchase. All insurance policies relating to the Common Area
will be purchased by the Board of Directors or its duly authorized agent. The Board of Directors and
the Declarant will not be liable for failure to obtain any coverage required by this Article or for any
loss or damage resulting from such failure if such failure is due to the unavailability of such coverage
from reputable insurance companies, or if such coverage is available only at demonstrably
unreasonable costs.
Section 12.2. General Insurance Provisions. All such insurance coverage obtained by the
Board of Directors will be governed by the following provisions:
12.2.1. As long as Declarant owns any Lot, Declarant will be protected by all such
policies in the same manner as any other Owner.
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12.2.2. The deductible, if any, on any insurance policy purchased by the Board of
Directors may be treated as a Common Expense payable from Annual Assessments or Special
Assessments (allocable to all of the Lots or to only some of the Lots, if the claims for damages arise
from the negligence of particular Owners, or if the repairs benefit only particular Owners), or as an
item to be paid from working capital reserves established by the Board of Directors.
Section 12.3. Physical Damage Insurance on Common Area. The Empire Estates Phase 5
Homeowners' Association will obtain insurance for such insurable Improvements and with such
coverages, limits, deductibles and other terms and conditions as the Board may determine from time
to time.
Section 12.4. Liability Insurance. The Empire Estates Phase 5 Homeowners' Association
will obtain a comprehensive policy of public liability insurance and property damage insurance with
such coverages and limits as the Board of Directors may from time to time determine, insuring each
member of the Board of Directors, the Empire Estates Phase 5 Homeowners' Association, and the
respective employees, agents, and all persons acting as agents against any liability to the public or the
Owners (and their guests, invites, tenants, agents, and employees) arising in connection with the
ownership, operation, maintenance or use of the Common Area and streets and roads within Empire
Estates Phase 5 and any other areas under the control of the Empire Estates Phase 5 Homeowners'
Association. Declarant will be included in the coverage as an additional insured in Declarant's
capacity as an Owner or Director,
ARTICLE XIII
ENFORCEMENT OF COVENANTS
Section 13.1. Violations Deemed a Nuisance. Every violation of this Declaration or any
other violation of the Empire Estates Phase 5 Documents is deemed to be a nuisance and is subject to
all the remedies provided for the abatement of the violation. In addition, all public and private
remedies allowed at law or equity against anyone in violation of these Covenants will be available.
Section 13.2. Compliance. Each Owner or other occupant of any part of the Property will
comply with the provisions of the Empire Estates Phase 5 Documents as the same may be amended
from time to time.
Section 13.3. Failure to Comply. Failure to comply with the Empire Estates Phase 5
Documents will be grounds for an action to recover damages or for injunctive relief to cause any
such violation to be remedied, or both. Reasonable notice and an opportunity for a hearing as
provided in the Bylaws will be given to the delinquent party prior to commencing any legal
proceedings.
Section 13.4. no may Enforce. Any action to enforce the Empire .Estates Phase 5
Documents may be brought by Declarant or the Board in the name of the Empire Estates Phase 5
Homeowners' Association on behalf of the Owners. If, after a written request from an aggrieved
Owner, none of the foregoing persons or entities commences an action to enforce the Empire Estates
Phase 5 Documents, then the aggrieved Owner may bring such an action.
Section 13.5. Nonexclusive .Remedies. All the remedies set forth herein are cumulative and
not exclusive.
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Section 13.6. No Waiver. The failure of the Board of Directors, Declarant, or any
aggrieved Owner to enforce the Empire Estates Phase 5 Documents in any one or more instances will
not be deemed a waiver of the right to do so for any subsequent violations or of the right to enforce
any other part of the Empire Estates Phase 5 Documents at any future time.
Section 13.7. No Liability. No member of the Board of Directors, the Declarant or any
Owner will be liable to any other Owner for the failure to enforce any of the Empire Estates
Documents at any time.
Section 13.8. Recovery of Costs. If legal assistance is obtained to enforce any of the
provisions of the Empire Estates Phase 5 Documents, or in any legal proceeding (whether or not suit
is brought) for damages or for the enforcement of the Empire Estates Phase 5 Documents or the
restraint of violations of the Empire Estates Phase 5 Documents, the prevailing party will be entitled
to recover all costs incurred by it in such action, including reasonable attorneys' fees (and legal
assistant's fees) as may be incurred, or if suit is brought, as may be determined by the court.
ARTICLE XIV
RESOLUTION OF DISPUTES
If any dispute or question arises between Members or between Members and the Empire
Estates Phase 5 Homeowners' Association or relating to the interpretation, performance or
nonperformance, violation, or enforcement of the Empire Estates Phase 5 Documents, such dispute
or violation may be subject to a hearing and determination by the Board in accordance with the
procedures set forth in the Bylaws.
ARTICLE XV
DURATION OF THESE COVENANTS AND AMENDMENT
Section 15.1 Terre. This Declaration and any amendments or supplements hereto will
remain in effect from the date of recordation until the 30'h anniversary of the date this Declaration is
first recorded in the office of the Clerk and Recorder of Flathead County, Montana. Thereafter these
Covenants will be automatically extended for five successive periods of ten years each, unless
otherwise terminated or modified as provided below.
Section 15.2. Amendment. Subject to Section 15.3. this Declaration, or any provision of
it, may be terminated, extended, modified or amended, or revoked as to the whole or any portion of
the Property as follows:
15.2.1. Prior to Sale of Lots. Prior to the sale of any Lot, the Declarant (including a
Successor Declarant) may terminate, extend, modify, amend or revoke this Declaration as to the
whole or any portion of the Property by recording in the records of Flathead County, Montana, a
document signed by the Declarant stating the action taken.
15.2.2. After Sale of Lots but During, Period of Declarant Control. After the sale of a
Lot but before expiration of the Period of Declarant Control, Declarant (including any Successor
Declarant) may terminate, extend, modify, amend or revoke this Declaration as to the whole or any
portion of the Property. A copy of the document stating the action intended to be taken by the
Declarant and a notice of the Owners' rights under this Section shall be mailed to each Owner by
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first class mail, postage prepaid, to the address of the Owner on the records of Empire Estates Phase
5 Homeowners' Association. Unless written objection is received by the Declarant from the Owners
holding 80% or more of the votes within 30 days of the mailing of the notice to the Owners, the
action proposed to be taken by the Declarant shall be considered approved and shall become final.
The Declarant shall then record in the records of Flathead County, Montana, a document stating the
action taken, together with a certificate certifying that notice was given to the Owners as required
herein and that fewer than 80% of the Owners objected to the action.
15.2.3. After the Period of Declarant Control. After the Period of Declarant Control,
this Declaration, or any provision of it, may be terminated, extended, modified or amended, or
revoked as to the whole or any portion of the Property upon the written consent of Owners holding
67% or more of the votes in the Empire Estates Phase 5 Homeowners' Association. Any document
will be immediately effective upon recording in the records of Flathead County, Montana, a copy of
such executed and acknowledged by the necessary number of Owners, or alternatively, upon the
recording in the records of Flathead County, Montana, of a copy of the document together with a
certificate signed by an officer of the Empire Estates Phase 5 Homeowners' Association stating that
the required number of consents of Owners were obtained.
Section 15.3. Declarant 's Approval. Notwithstanding the provisions of Section 15.2. no
termination, extension, modification or amendment of this Declaration will be effective in any event
during the Period of Declarant Control unless the written approval of Declarant is first obtained.
Section 15.4. Effect of Amendments. Amendments made pursuant to this Section will
inure to the benefit of and be binding upon all Owners, their families, guests, invitees and employees,
and their respective heirs, successors, and assigns. Joinder of the First Mortgagees shall not be
required in order to effect an amendment.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.1. Severability. This Declaration, to the extent possible, will be construed or
reformed so as to give validity to all of its provisions. Any provision of this Declaration found to be
prohibited by law or unenforceable will be ineffective to the extent of such prohibition or
unenforceability without invalidating any other part hereof.
Section 16.2, Construction. In interpreting words in this Declaration, unless the context
will otherwise provide or require, the singular will include the plural, the plural will include the
singular, and the use of any gender will include all genders.
Section 16.3. Headings. The headings are included only for purposes of convenient
reference, and they will not affect the meaning or interpretation of this Declaration.
Section 16.4. Waiver. No failure on the part of the Empire Estates Phase 5 Homeowners'
Association or the Board to give notice or default or to exercise or to delay in exercising any right or
remedy will operate as a waiver, except as specifically provided above in the event the Board fails to
respond to certain requests. No waiver will be effective unless it is in writing and signed by the
President or Vice President of the Board on behalf of the Empire Estates Phase 5 Homeowners'
Association.
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Section 16.5. Limitation of Liability. Neither the Declarant, the Empire Estates Phase 5
Homeowners' Association nor any partner, officer or member of either the Declarant or the Board
will be liable to any party for any action or for any failure to act with respect to any matter arising by,
through, or under the .Empire Estates Phase 5 Documents if the action or failure was made in good
faith. The Empire Estates Phase 5 Homeowners' Association will indemnify all of the officers and
Board members with respect to any act taken in their official capacity to the extent provided in this
Declaration and by law and in the Articles of Incorporation and Bylaws.
Section 16.6. Conflicts Between Documents. In case of conflict between this Declaration
and theArticles of .Inncorporation or the Bylaws, this Declaration will control. In case of conflict
between the Articles of Incorporation and the Bylaws, the Articles of Incorporation will control.
Section 16.7. Assignment. Declarant may assign all or any part of the Special Declarant
Rights or any of Declarant's other rights and reservations hereunder to any successor who takes title
to all or part of the Property in a bulk purchase for the purpose of development and sale. Such
successor will be identified, the particular rights being assigned will be specified, and, to the extent
required, concomitant obligations will be expressly assumed by such successor, all in a written
instrument duly recorded in the records of the Clerk and Recorder of Flathead County, Montana.
IN 'FITNESS WHEREOF, Declarant has signed this Declaration on the Date shown above.
STATE OF MONTANA
: ss
County of Flathead
JUST DI R LTD.
Hubert J. er, President
This instrument was acknowledged before me on this 24 h day of August, 2006, by
Hubert J. Turner as President of Just Dirt Ltd.
+ L �
��i�,� Notary Public for the State of Mon na
...........
Residing at Kalispell, Montana
:,,�AO AR),gj�' 53 My commission expires April 1, 2008
cn.1. E A L :`,. .
O ,,
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