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Return To:Pedersen Si Hardy1001 South 24th Street West, Suite 110Billings MT 59102
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\ SUPPLEMENTAL DECLARATION OF RESTRICTIONS FORISLAND AT ROCK CREEK SUBDIVISION
On this ^ r<JU day of r \,£tvv— 2006, the
undersigned, being all of the Owners and tire Developer of the
following described real property and all portions thereof,
located in Red Lodge, Carbon County, Montana, hereby
establish and declare the following covenants all of which
shall be applicable to said real property:
Lots 1 , 2 and 3 , of island At Rock CreekSubdivision, Phase 1, according to the officialplat thereof on file and of record in the office ofthe Clerk and Recorder of Carbon County, Montana,
; as Plat No. 1552, AM. •
At the time of the execution of this Supplemental
Declaration, the Developer, Kiely Construction, L.L.C., plans
to also plat all or part of the following • described real
property hereinafter referred, to as the ' "Expansion Property" :
Tracts A and B of Certificate of Survey 1552 lying-inthe City of Red Lodge and located in- the ME1/4 and theSE1/4 of Section 27, Township' 7 South, Range 20 East,P.M.M. , Carbon .County, Montana.
EXCEPTING therefrom Lots 1, 2 and 3 of Island at RockCreek Subdivision,, Phase 1, according to. the officialplat thereof on file and of record in the office ofthe Clerk and Recorder of Carbon County, Montana, asPlat No. 1552 AM.
Developer hereby reserves the right, in Developer's sole
discretion, to subject Lots which are later platted on the
expansion property to some or all of the provisions of this
Supplemental Declaration and the Island At Rock Creek
Subdivision . Declaration of Restrictions, Covenants and
Conditions (the "Original Declaration") filed in the office
of the Clerk and Recorder of Carbon County, Montana as
Instrument File No. 319575, by executing and recording an
amendment to this Supplemental Declaration and the Original
Declaration, thereby subjecting those Lots to some or all of
the' provisions of this Supplemental Declaration and the
Original Declaration, as they may be amended from time to
time. The amendment shall' be made in Developer's sole
discretion and without consent of any other person, entity,
or party. Neither the consent of the Island at Rock Creek
Homeowners Association, (the Association) , nor of any other
Lot owner, mortgagee, or trustee or beneficiary of any trust
indenture, shall be required for such amendment. From and
after the recording date of such amendment, if any, the
owners of any Lots thereby made subject to any one or all the
provisions of this Supplemental -Declaration and/or the
Original Declaration shall be members of the Association,
shall be bound by the provisions' of this Supplemental
Declaration, the Original Declaration and the Bylaws of the
Association as the same may be amended from time to time,
shall share in the costs of improvements and maintenance, and
shall be obligated to pay such assessments as the
Association, in its authority, assesses.•
The undersigned place these restrictions upon the Lots
for the benefit of the owners of all of the above-described
Lots in Island at Rock Creek Subdivision and any Lots later
subjected to the provisions of this Supplemental Declaration
for the purpose of protecting the value and desirability of
all of said Lots and to amend and supplement the original
Declaration as amended from time to time.
DEFINITIONS
In the interpretation of this Supplemental Declaration,
the following definitions shall ;apply:-
"Developer" means Kiely Construction, L.L.C., or any person
or entity to whom Kiely Construction, L.L.C. transfers or
assigns its development rights.
"Association" means The island at Rock Creek Owners
Association.
"Expansion Property' means:
Tracts A and B of Certificate of Survey 1552 lying inthe City of Red Lodge and located in the NE1/4 and theSE1/4 of Section 27, Township 7 South, Range 20 East,P.M.M., Carbon County, Montana.
EXCEPTING therefrom Lots 1, 2 and 3 of Island at RockCreek Subdivision, Phase 1, according to the officialplat thereof on file and of record in the office ofthe Clerk and Recorder of Carbon County, Montana, asPlat No. 1552 AM.
"Board" and "Board of Directors" means the Directors of
the Association.
"Lots" means all Lots now subject or later subjected to
this Supplemental Declaration.
"Lot owners" means the owners, of any of the Lots or of
any condominium unit, townhome, or patio home constructed on
a Lot. :
"Original Declaration" means Island At Rock Creek
Subdivision Declaration of Restrictions, Covenants and
Conditions filed in the office of the Clerk and Recorder of
Carbon County, Montana as Instrument File No. -319575, as
amended from time to time.
"Subdivision" is The Island at Rock Creek Subdivision.
GENERAL RESTRICTIONS
1. Use. Lots shall be used only for residential
purposes except that an occupant may use a portion of his
residence for an office so long as the activities therein
shall not interfere with the quiet .enjoyment or comfort of
any other owner or occupant and provided the use complies
with the applicable zoning ordinances of the City of Red
Lodge. In addition, Developer shall have the right to
maintain a construction office and a sales office on the
property until all units are sold.
ARCHITECTURAL COMMITTEE
2 . The following hereby supplements the Section
entitled "Architectural 'Committee" in the Original
Declaration:
(a) Membership. So long as Developer owns any of the
Lots in the subdivision, or any of the expansion property, it
.shall have the sole authority to appoint an Architectural
Committee, henceforth "AC" , and to review any and all Plans
for residences or for improvements to any Lpt subject to this
Declaration. The initial AC members shall be Bill Kiely, Sue
Kiely and Henry P. Martin. Upon sale of all Lots by
Developer, the Association shall appoint the members of the
AC. Developer, in its sole discretion, may elect to turn
over its power to appoint the AC members to the Association
at any time prior to sale of1 all Lots. Once the Association
is empowered to appoint the AC members, the AC shall have a
at least three (3) and no more than five (5) members.
(d) Non-Liability. Neither the • AC nor any of its
members, nor the Developer nor any member, manager, officer,
employee, agent, successor, or assign of the Developer, shall
be liable to the . Association, .any Lot owner, or any other
person for any loss, 'damage, or injury arising out of or
connected with the AC members' performance :of their duties
and responsibilities by reason of . a mistake in judgement,
negligence, or nonfeasance arising out of or in connection
with the approval, ' disapproval., or failure to approve an
application. The aforementioned parties will not make
decisions on and assume no responsibility for the following:4
a) the structural capacity, safety features, or building code
compliance of any residence or other improvement; b) whether
the proposed location of a residence or other improvement is
free from possible geologic or natural hazards or other
possible hazards caused by conditions occurring either on or
off the subject property; c) the internal operation or
functional integrity of any residence or other improvement;
or d) conformity with or violation of any City of Red Lodge
zoning ordinance or any applicable building code.
•Every person who submits an application to the AC, by
submission of such an application, and every Lot owner by
acceptance of a deed to any Lot agrees not to bring any
action or suit against the Association, its Board, members of
the AC, or the Developer or its members, officers, employees,
agents, successors, or assigns to recover damages resulting
from the architectural review process set forth herein.
(e) Enforcement. The decisions of the AC and the
requirement to obtain approval of the AC may be enforced by
the Association or by any Lot owner by bringing an action for
specific performance or for an injunction,; prohibitory or
mandatory. Such actions- shall be timely if1 brought within
four months after it becomes apparent that any' Lot owner has
not obtained the required approval or has deviated from the
approved Plans, whichever occurs later. In any such action,
the prevailing party shall be • entitled to recover from the
losing party all costs and attorney fees incurred.
^HOMEOWNERS ASSOCIATION
3. Membership in Association. All Lot owners and
Developer shall be members of . a Montana non-profit
corporation, formed or about to be formed, known as "ISLAND
AT ROCK CREEK HOMEOWNERS ASSOCIATION", herein called
"Association". "Lot owner" shall mean each person, as shown
by the records of 'the Carbon County Clerk and Recorder,
owning all of or an undivided interest in a Lot, or in the
5
case of condominiums, townhomes, or patio homes constructed
upon a Lot, owning all of or an undivided interest in any
Unit thereof. If an owner has sold to a third person under
the terms of an agreement for future delivery of title, and
notice of such agreement is recorded with the Carbon County
Clerk and Recorder, the purchaser shall be deemed to be the
Lot owner. Co-owners or joint owners of a Lot or Unit shall
be deemed to be one member for the purposes of voting and
assessment. The affairs of the Association shall be governed
by its Bylaws/ attached hereto as Exhibit "B".
4. Obligations of the Association. The Association
shall have the responsibility for maintaining those areas and
facilities within the subdivision which are available for use
by the public or by all Lot owners, unless such areas or
facilities are maintained by the City of Red Lodge, and for
determining and assessing the costs of such maintenance to
the Lot Owners.
5. Annual assessments. The Association, through its
Board of Directors, shall establish and collect an annual
assessment from each Association member to pay for all costs
of the maintenance described above, for liability insurance
insuring the Association and its members against liability
resulting from the Association's maintenance of the
facilities described above, for Officer's and Director/s
"liability insurance, for administrative and legal expenses,
and for any other expenses authorized or required by the
provisions of the Original Declaration and this Supplemental
Declaration. The Architectural Committee will not determine
the assessments.
6. Payment o£ assessments. Each Lot . owner shall be
responsible for the payment of assessments within 30 days
after the Board gives notice of the assessment. Assessments
paid more than 3 0 days after the date when. due shall bear
interest at the rate of 12% per annum from the due date until
paid. All payments shall be applied first 'to interest and
then ' to the earliest assessment due. Interest collected
S
shall become part of the Association's account. In no event
shall the interest charged be more than permitted by the
Montana usury, statutes. All assessments collected by the
Association may be commingled in a single fund. The
Secretary-Treasurer of the Association shall maintain records
showing the amounts of all assessments paid and unpaid. Such
records shall be available for inspection at all reasonable
times by Lot owners or their representatives.
7 . Covenant to pay maintenance assessments. Each Lot
owner, by acceptance of a deed, whether or not it shall be
expressed in said deed/ is deemed to covenant and agree to
pay to the Association all assessments lawfully made by the
Association and to waive any right said Lot owner may have,
under the laws of the United States or the State of Montana,
to claim a homestead exemption for 'said assessments. Lot
owners and their grantees s.hall be jointly and severally
liable for all unpaid assessments due .and payable at the time
of conveyance of any Lot, b.ut without prejudice to the rights
of the grantee to recover from the grantor the amounts paid
by the grantee therefor. The Secretary-Treasurer of the
Association shall notify third parties, upon their request,
of the amount of unpaid assessments on any Lot.
8. Remedies for non-payment of assessments. All unpaid
sums assessed by the Association to any Lot, together with
interest, collection costs, costs of • suit, and .reasonable
attorney fees/ shall constitute a lien on such Lot, arid if
.filed of record,- may be foreclosed in the same manner as a
'construction lien. Such lien shall not .take priority over
any sums unpaid on a first mortgage or trust indenture of
record prior to the recording of the lien for assessments.
Each assessment, together with ' interest, collection costs,
costs of suit, and reasonable attorney fees shall also be the
personal obligation of the Lot owner of the Lot against which
the assessment was made at the time the assessment fell due.
Furthermore, suit to recover a money judgment for unpaid
assessments shall be maintainable by the Association against
7
said Lot owner without foreclosing or waiving the lien
securing the same. All costs of collection of delinquent
assessments, including but not limited to, court costs, costs
of filing liens, and attorney fees, shall be the obligation
of the non -paying Lot owner, and may be added to the next
regular assessment for that Lot. No sale or transfer of a
Lot shall relieve the grantee or transferee from liability
for past due assessments or from the lien thereof. All
rights, remedies and privileges granted to the Association or
the Lot owners pursuant to the terms hereof shall be deemed
to be cumulative.
MISCELLANEOUS
9. Severability. Invalidation of any one of these
covenants by judgment or court order shall in no way affect
any of the other provisions which shall remain in full force
and effect.
10. Alterations to these restrictions. Unless otherwise
provided herein, any alteration or amendment to the Original
Declaration or this. Supplemental Declaration must be in
writing and signed by all of owners of no less than 75% of
the number of Lots, townhomes and condominium units subj ect
to the Original Declaration and this Supplemental
Declaration. These restrictions may be revoked in whole or
in part and additional provisions may be added by written
amendment signed by al 1 owners of no less than 90% of the
total number of • Lots and the total' number of individual
fcownhome or condominium units subject to these restrictions.
No amendment shall be effective until it is recorded in the
office of the Carbon County Clerk and Recorder. Unless
approved by Developer, in writing, no amendment or revocation
of these any of the original Declaration or- this Supplemental
Declaration shall take effect prior .to sale of all Lots by
Developer.
11. Enforcement. The Association and each and every one
of the Lot owners shall have the right to enforce the
provisions of the Original Declaration and the restrictions
and covenants in this Supplemental Declaration, and any and
all amendments thereto, by civil action, including the right
to injunctive relief and for damages. It is presumed that
some damage would be occasioned by reason of the failure of
any Lot owner or owners to comply with these restrictions and
the covenants herein contained. If litigation is commenced,
the prevailing party shall have, in addition to any other
remedy applicable at law or in equity, a reasonable
attorney's fee and expenses.
In the event that any Lot owner shall permit the
exterior of any residence or other improvement, including any
landscaping which it is the responsibility of such Lot owner
to maintain, to fall into disrepair so as to create a
dangerous, unsafe, unsightly, or unattractive condition, or
violate the provisions of the Original Declaration, the
Association may notify the Lot owner to take corrective
action. If corrective action is not taken by the Lot owner
within a reasonable time, as determined by the Board, the
Board may cause such corrective action to be taken and shall
assess the expense of correction to the Lot owner as a
special assessment, payable only by that Lot. owner. If a Lot
owner fails or refuses to pay such an assessment, the
Association may file and foreclose a lien for the amount of
the assessment.
12. Conflicts. . In the event of a conflict between the
provisions of the Original Declaration and this Supplemental
Declaration, the provisions of this Supplemental Declaration
• shall control and be binding upon all Lot owners and all
residents of the Lots.•
13. Exhibit "A" . Exhibit "A" , referenced in the
Original Declaration is attached hereto.
Except as provided herein, the Declaration of
Restrictions, Covenants' and Conditions for ^Island of Rock
Creek Subdivision described above, shall remain as written.
9
The covenants, restrictions and' conditions herein
contained shall run with the land and 'shall be binding on all
owners of the Lots and. all persons claiming under_ them. The
grantees of any of the lots -or of any duplex unit,
condominium, townhorne, or patio home constructed on a Lot, by
acceptance of a conveyance, covenanb and agree faithfully to
observe and abide by all of said conditions,, covenants and
restrictions.
IN WITNESS WHEREOF, _ the parties have executed this
Supplemental Declaration of Restrictions for Island at Rock
Creek Subdivision, the day a/id̂ year first above written.
KIELY Caka.Kie
INSTRUCTION, L .L .C.Ly/Construction Company LLC
Its Manager
COLT COMMUNICATIONS, LLfl: MONEYPURCHA.$9 /P^SIOl/ PLA^J- ':
ROCKY MQUitfTAIN PIPE & ^CEEL, aMontan
By:
DONALD ALLEN THOMAS
STATE OF MONTANA
COUNTY OF CARBON
This instrument was acknowledged before me on May 32006, by W i l l i a m Kie.ly, Manager of kieLy Construction,L.L.C, aka Kiely Construction Company LLC
SHELLY LINK
\Y PUBLIC MONTANA
/ tosldina In Red Lodes, MontanaJ
.EXPIRES JUNE 28,20Tfj
Z5
Nunary P db 1 i c f o/fV t h e "state of MTResiding at Red Vodge , MT •My Commission Expires: 6-28-2009
10
The covenants, restrictions and conditions herein
contained shall run with the land and shall be binding on all
owners of the Lots and all persons claiming under them. The
grantees of any of the lots or of any duplex unit,
condominium, townhome, or patio home constructed on a Lot, by
acceptance of a conveyance, covenant and agree faithfully to
observe and abide by all of said conditions, covenants and
restrictions.
IN WITNESS WHEREOF, the parties have executed this
Supplemental Declaration of Restrictions for Island at Rock
Greek Subdivision, the day and year first above written.
KIELY CONSTRUCTION, L.L.C.aka Kiely Construction Company LLC
•By: ;Its Manager
COLT COMMUNICATIONS, LLC MONEY-PURCHASE PENSION PLAN
By:.Its:
ROCKY MOUNTAIN PIPE & STEEL, aMontana corporation.
By:Its:
DONALD ALLEN THOMAS
10 a
STATE OF MONTANA
County ofS3 .
-1
This instrument was acknowledged cte&oref me on' "S 2 0 0 6 , by C ^ .._ ,- [*- * Z^ . «L 1 j ^ . f
of COLT COMMUNICATIONS, LLC MONEYasPURCHASE PENSION PLAN.
(prinf or r>pe nn/Ae oj notary)
Notary Public for the Stfete ofResiding atMy Commission Expires \ 200
STA1 MONTANA
County ofss .
This instrument was_, 2006, by*
of ROCICflcorporation.
wledgted I before \e on\s
EN PIPE & STEEL, a Montana
(print or type nam£ oj notary)
Notary Public^for.the Stat^ ofResiding at ~ - --''My Commission Expires yy
STATE OF MONTANA
County ofss .
This instrument was acknowledged before me on'' 2006, by DONALD ALLEN THOMAS.
(SEAL}
(print or type name of notary)
Notary Public for the State ofResiding at 'My Commission Expires
11
STATE OF MONTANA
County of
This
ss .
instrument was, 2006, by
acknowledged before me on
as . •__PURCHASE PENSION PLAN.
Of COLT COMMUNICATIONS, LLC MONEY
(SEAL;
'(print or type name of notary) ~"Notary Public for the State ofResiding atMy Commission Expires
STATE OF MONTANA ) . .
County of
200
ss .
This instrument was acknowledged before me on, 2006, by , asof ROCKY MOUNTAIN PIPE & STEEL, a Montana
corporation.
(SEAL)
~(prini~or~fype name 'of notary)
Notary Public for the State ofResiding atMy Commission Expires
STATE OF
County of
-This
*#
(SEAL)
ss .
instrument was ' acknowledged beforel. 3-X *~ , 2005 , by*)DONALD. ALLEN THOMAS.
me on
'(print ortypename oj notary) 7Notary Public for-.-the State ofResiding, atMy Commission Expires
OFFICIAL SEALROBERT T. SIEGEL
NOTARY FU8UC - State of Arizonalla
Lots 1, 2 and 3, of Island At Rock CreekSubdivision, Phase 1, according to the officialplat thereof on file and of record in the office ofthe Clerk and Recorder of Carbon County, Montana',as Plat No. 1552.AM.
EXHIBIT' "A1
BYLAWS OF ISLAND AT .ROCK CREEK
' OWNERS' ASSOCIATION
(a non-profit corporation)
The initial Board of Directors of ISLAND. AT'ROCK CREEK OWNERS'
ASSOCIATION, a Montana. non-profit corporation, ("the Association"), hereby
adopts the following Bylaws:
DEFINITIONS
In the interpretation of these Bylaws the following definitions shall apply:
"Class "C" Control Period" means the period of time during which the
Developer, as the Class "C" Member, is entitled to appoint a majority of the
members of the Board. The Class "C" Control'Period shall terminate on the first
to occur of the following:
(a) when 75% of the total acreage "of property described in the MasterPlan for The Island Of Rock Creek has been conveyed to persons otherthan Developer and 75% of the total number of residences permittedby applicable zoning for such property have been issued certificates ofoccupancy and have been conveyed to Class "A" or Class "B" Membersother than Developer;
(b) 20 years after the date on which tills Declaration is recorded in theOffice of the Clerk and Recorder for Carbon County, Montana; or
(c) when, in its discretion, the Class "C" Member so determines.
"Developer" means Kiely Construction, L.L.C., or any, person or entity to
whom Kiely Construction, . L.L.C. transfers or assigns its, development rights
hereunder. '. • . '
"Original Declaration" means Island At Rock Creek Subdivision Declaration
of Restrictions, Covenants and Conditions filed in the office of the Clerk and
Recorder of Carbon County, Montana as Instrument File No. 319575, as amendedfrom time to time.
" Supplemental Declaration" means the Supplemental Declaration of
Restrictions for Island at Rock Creek Subdivision.
"Subdivision" is The Island at Rock Creek Subdivision.
EXHIBIT "B"
OFFICES
1. Principal Office. The principal" office of this Association is situated at
501 North Hauser, Red Lodge Montana 59068. The Board of Directors may change
the principal office,
MEMBERS
2. Membership- Each owner of the following described lots, including
each owner of a unit of Aspens on Rock Creek Townhomes located on Lot 1,
described below, shall be a; Member of the Association, together with all of the
owners of Townhome Units or Lots in all subsequent phases of Island At Rock
Creek Subdivision, if the Lots or townhonie units in subsequent phases of Island at
Rock Creek Subdivision are subjected to the provisions of the Original Declaration
and the Supplemental Declaration.Lots 1, 2 and 3, of Island At Rock Creek Subdivision, Phase 1,according to the official plat thereof on file and of record in theoffice of the Clerk and Recorder of Carbon County, Montana, as PlatNo. 1552 AM.
Co-owners, or joint owners of a Lot or Unit shall be deemed to be oneMember for the purposes of voting and assessment. If any Lot is subsequently
subdivided or subjected to the provisions 'of the Montana Unit Ownership Act, the
owners of each subdivided Lot and the owners of each Unit shall be members of
the Association.3. Classes of Membership and Voting Rights. The Association initially
shall have three classes of membership, Class "A", Class "B" and Class "C" as follows:(a) Class "A". : Class "A" Members .shall be all owners of townhome
units, except the Class "C" Member. Class "A" Members shall haveone equal vote for each townhome unit owned.
(b) Class "B". Class "B" Members shall be all owners of residentialsingle-family lots units, except the Class "C" Member. Class "B"Members shall have one equal vote for each Lot owned.
(c) Class "C". ..The sole Class "C" Member shall be the Developer, KielyConstruction, L.L.C., aka Kiely Construction Company, LLC, or itsassigns. The Class "C" Member shall have one vote for each singlefamily lot owned by it, and one vote for each townhome unit ownedby it. In .addition, the consent .of the Class "C" Member shall berequired for various actions of the Board, the members and
committees of the Board, as specifically provided herein. The Class"C" member may appoint a majority of the members of the Boardof Directors during the Class "C" Control Period, as specified below.Additional rights of the Class "C" Member are specified herein.After termination of the Class "C" Control Period, the Class "C"Member shall have a right to disapprove actions of the Board, themembership and committees as provided below. Upon terminationof the Class "C" membership, Developer shall be entitled to class"A" membership and voting rights for each residential townhomeunit which it owns and Class "B" membership and voting rights foreach single-family residential lot which it owns.
4. Voting Rights. Only the Class "A" Members and the Class "C" Membershall be permitted to vote on those issues which relate to and affect only residentialtownhome units, and only the Class "B" Members and the Class "C" Member shall bepermitted to vote on those issues which affect only single-family Lots. All Members
shall be entitled to vote on matters affecting the entire subdivision.5. Animal Meeting. The annual meeting of the Members for election of
Directors, approval of an annual budget, and the transaction of such other businessas may properly come before them shall be held at the principal office of thisAssociation or at such other .place that shall be set forth in the Notice of meeting.The annual meeting shall be held on the first Saturday of June, 2007, at 1:00 o'clockP.M. and on the first Saturday 'of June of each and every year thereafter.
6. Notice of Annual Meeting. The Secretary-Treasurer of thisAssociation shall give written notice stating the place, day and hour of the meetingby delivering the same not less than ten (10) days .prior to the, date of the meeting, ifnotice is personally delivered, or not less than thirty days, nor more than fifty (50)days before the date of the meeting, if notice is delivered by.mail, to each Memberof record entitled to vote at such meeting. The notice shall be deemed deliveredwhen deposited, postage prepaid, in the United'States mail addressed to the Memberat the Member's address as it appears on records of the Association with postageprepaid thereon. : .
7. Special Meeting., Special meetings .of the Members may be called bythe Board of Directors or by not less than 25% of all the Members entitled to vote atthe meeting. Notice of said special meeting shall' be given in the same manner asnotice for the annual meeting as outlined in' Section 6 above, except that the notice,in addition to all other requirements, must state the purpose or purposes for whichthe meeting is called. No business other than that specified in the Notice of Meetingshall be transacted at any such special meeting.
8. Quorum of .Members. A majority of the Members in each class31
entitled to vote and represented in person or by proxy shall constitute a quorum at
a meeting of Members. The Members present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal of
enough Members to leave :less than a quorum. If a quorum is present, theaffirmative vote of the majority of Members represented, at the meeting and
entitled to vote on the subject matter shall be the act of the Members unless thevote of a greater .number is required by the Articles of Incorporation, these Bylaws,
or the Original Declaration or Supplemental-Declaration.
If a meeting cannot be organized because a quorum is not present, thosepresent .may adjourn the meeting from time to time until a quorum is present and at
which time any business may be transacted that could have been transacted at the
meeting as originally called.
9. Proxies. Every proxy must be dated and signed by the Member and
given to the Secretary-Treasurer before or at the :time of the meeting. No proxy
shall be valid -after the expiration of eleven (11) months from the date of itsexecution. Every proxy shall be revocable by the Member executing it. Said
revocation must be in writing,, dated and signed by the Member and given to the
Secretary-Treasurer before or at the time of:the Association's next meeting.
10. Order of Business. The order, of ^business at all meetings of the
Members shall be as follows: :(a) Proof of notice of meeting or waiver of notice.
(b) Reading of minutes of preceding meeting.
(c) Reports.
(d) Business.
11. Informal Action. Resolutions required or permitted to be approved by
Members may be approved without a meeting of Members if the written resolution
is signed by at least 51% of the Members in each class entitled to vote, approved by
the Class "C" Member and filed with the corporate records.
BOARD OF DIRECTORS i
.12. Directors. The Association shall be governed by a Board of than five(5) persons, all of whom shall be Members of the Association and who shall beelected by majority vote of the Members of each Class present at the annual
meeting. Until termination of the Class "C" Control period, Class "A" Members
shall elect one Director, Class "B" Members shall elect one Director, and the Class
"C" Member shall elect the remaining three (3) Directors. After termination of the
Class "C" control period, two Directors shall be elected by the Class "A" Members,
two by the Class "B" Members, and one by-the Class "C" Member. The Directors
shall serve without compensation.
13. Term. At the first annual meeting of the Association, five Directors
shall be elected. The term of three of the Directors shall be fixed for one year.
The term of two of the Directors shall be fixed at two years. At the expiration of
the initial term of each Director, an election shall be held; all successor Directors
shall serve two-year terms. .A Director may be re-elected to successive terms.
' 14. Initial Directors. Until the first annual meeting, WILLIAM KIELY
and SUE KIELY, shall serve as the only Directors.
15. Powers and Duties of Directors. The Board of Directors shall have the
powers and duties necessary for the administration of the affairs of the
Asspciation, and may do all acts and things as are not by law, by these Bylaws, by
the Original Declaration, or by the Supplemental Declaration directed to be
exercised and done by the Members.
(a) The Directors shall have the poAver to contract for improvements toand maintenance of the areas of Island at Rock Creek Subdivisiondescribed in .the Supplemental Declaration, and such othermaintenance as may be required by vote of a majority of themembers of each class entitled to vote.
(b) The Board shall have the power to levy and collect regular annualassessments for. the purposes set forth in the SupplementalDeclaration.
(c) The Board shall have the power to levy and collect specialassessments approved by a majority the Members in each voting class.
. • (d) The Board shall prepare an annual.;budget-and obtain contractors'bids for insurance, and/or maintenance for which the Association isresponsible.
(e) The Board shall have the authority to take appropriate legal action tocollect delinquent assessments, to file a lien against any Lot havingdelinquent assessments, and to levy penalties and interest charged inaccordance with the Original Declaration and the SupplementalDeclaration.
(f) The Board shall have the power to enter into and carry out contractsas necessary to its duties herein.
(g) The Board shall have the power to establish a bank account for the5
Association and to keep records in accordance with commonaccounting procedures.
(h) The Board shall have the power to employ and pay a •Secretary-Treasurer.
(i) The Board shall file annual corporate reports with the MontanaSecretary of State and to pay the required fee, and to prepare andfile tax returns for the Association and to pay any taxes due.
16. Removal of Directors. At any regular or special meeting of the
Association called for that purpose, any Director may be removed for good cause
by a vote of a majority of the Members in each Class which elected the Director by
the Members of that Class. In the event of such removal, a successor may then
and there be elected to fill the vacancy thus created.
17. Vacancies in Board of Directors. Vacancies in the Board of Directors
caused by resignation of a Director shall be filled by a vote of the majority of the
remaining Directors, and each person so selected shall serve until the next annual
meeting of the Association, a successor shall be elected.
IS. Regular Meetings. Regular meetings of the Board of Directors may be
held at such time and place as shall be determined, from time to time, by a
majority of the Directors, but at least one 'such meeting shall be held during each
fiscal year. Notice of such regular meetings of the Board of Directors shall be
given to each Director, personally or by mail, telephone, or facsimile at least threedays prior to the date of such meeting.
19. Special Meetings. Special meetings of the Board of Directors may be
called by the President on three days' notice to each Director. Notice may be givenpersonally or by mail, telephone, or facsimile and shall state the time, date, place,
and purpose of the meeting.
20. Quorum. A quorum of the Board for transaction of business at anymeeting shall be a majority of the Directors.
21. Proxies. Only Directors will be allowed an official vote. No proxiesshall be allowed under any circumstances.
'• OFFICERS22. Designation. The Officers of this Association shall be a President, a
Vice-President, and a Secretary-Treasurer.23. Election and Term of Officers. The Officers shall be elected by the
Board of Directors for a one-year term. Officers may be re-elected for successiveterms. The President and Vice-President shall be Members of the Association; the
6
Secretary-Treasurer need not be a Member of the Association.
24. Payment of Officers. The President and Vice-President shall serve
without salary; the Secretary-Treasurer may be paid a reasonable salary, as
determined by the Board.
25. Removal of Officers. Any Officer may be removed at any time for
cause by vote of a majority, of the Directors then in office.
26. Filling Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or otherwise, may be filled by a vote of a
majority of the Board of Directors. The newly elected Officer shall serve for the
unexpired portion of' the term.
27. President. The President shall be the chief executive officer of this
Association and shall, subject to the control of the Board of Directors, have general
supervision, direction, and control of the affairs of this Association. The President
shall preside at all meetings of the Board of Directors and of the Members.
28. Vice-President. In the absence or disability of the President, the
Vice-President shall perform all the duties of the President, and when so acting,
the Vice-President shall have, all the powers of the President and shall be subject to
all the restrictions upon the President.
29. Secretary-Treasurer. The Secretary-Treasurer shall keep the minutes
of every meeting held and conduct such correspondence as the Board deems
necessary. The Secretary-Treasurer shall have the care and custody of and be
responsible 'for all funds and securities of this Association and shall deposit such
funds and securities in the name of this Association in such bank or safe deposit
companies as the Board of Directors may designate. The Secretary-Treasurer shallalso have authority to pay out and dispose of all orders for payment of money
under the direction of the President or the Board of Directors. The
Secretary-Treasurer shall keep at the principal office of this Association accurate
books of accounts of all its business and transactions and shall at all reasonable
hours exhibit books and accounts to any Director or Member of this Association.
The Secretary-Treasurer shall render a report of the condition of the finances ofthis Association, at each regular meeting of the Board of Directors and regular
meeting of Members and shall perform all other duties incident to the office ofSecretary-Treasurer.
CONTRACTS. CHECKS, DEPOSITS AND FUNDS
30. Contracts and Instruments. The President or Vice-President shall signand approve all contracts and instruments on behalf of this Association after
7
authorization has been granted and approval obtained from a majority of the
Board of Directors,31. Checks and Drafts. All checks, drafts, or other orders for payment of
money, notes, or other evidence of indebtedness, issued in the name of or payable
to this Association, shall be signed or endorsed by such person or persons and in
such manner as, from time to time, shall be determined by resolution of the Board
of Directors. In the absence of such determination by the Board of Directors, such
instruments shall be signed by any two of the Officers of this Association.
32. Depository- All funds of this Association shall be deposited from time
to time to the credit of this Association in such banks, trust companies, or other
depositories as the Board of Directors may select.
DEVELOPER RIGHTS
33. Administration,
(a) Right of Class "C" Member to disapprove Actions. So long as the Class
"C" Membership exists, the Class "C" Member shall have a unilateral right to
disapprove any action, policy or program of the Association, the Board and any
committee which, in the sole judgment of the Class "C" Member, would tend to
impair rights of Developer or Builders under the Declaration or these Bylaws, orinterfere with development or construction of any portion of the subdivision, or
diminish the level of services being provided by. the Association. The Class "C"
Member may exercise this right to disapprove to block proposed action or to
require reversal of actions taken in violation of this Section. The Class "C"
Member-otherwise may not use its unilateral right to disapprove: to require anyaction on behalf of any committee, the Board, or the Association; to reduce thelevel of services which the Association is obligated to provide; to prevent capitalrepairs; or to block any action or expenditure required to comply with applicablelaws and regulations.
No action, policy or program subject • to the right of disapproval set forthherein shall become effective or be implemented until and unless the requirementsof subsection (b) below have been met and either-the Class "C" Member has waivedits right to disapprove or a 15-day period has expired without the Class "C"Member exercising its right to disapprove. Any action taken in violation of thisSection or in disregard of the Class "C" Member's exercise of such right ofdisapproval shall be outside the scope of the Association's authority and invalid and
the Class "C" Member shall be entitled to pursue any and' all remedies available atlaw or in equity, including damages or injunctive relief, to remedy such violation
of its rights hereunder. In the event of such action, the prevailing party shall beentitled to collect its costs and attorney fees, incurred in the action.
(b) Notice. The Class "C" Member shall be give written notice of allmeetings and proposed actions approved at meetings (or by Avritten consent in lieuof a meeting) of the Association, the Board or any committee. Such notice shall begiven by certified mail, return receipt requested, or by personal delivery at theaddress the Class "C" member has registered with the Secretary of the Association,which notice shall set forth with reasonable particularity the agenda to be followedat such meeting.
.(c) Opportunity to be Heard. The Class "C" Member shall be given theopportunity at any such meeting to join in or to have its representatives or agentsjoin in discussion from the .floor of any prospective action, policy, or programwhich would be subject to the right to disapproval set forth herein.
34. Amendment of Declaration.(a) Prior to termination of the Class "C" Control Period, the Class "C"
Member may unilaterally amend these Bylaws for any purpose. Thereafter,Developer may unilaterally amend these Bylaws1 if such amendment is necessary (a)to bring any provision in to.: compliance with anyi applicable governmental statue,rule, regulation, or judicial determination; (b); to enable any reputable titleinsurance company to issue title insurance coverage on the lots or units; (c) toenable any institutional or governmental lender, purchaser, insurer or guarantor ormortgage loans, including, for example, the Federal National Mortgage Associationor Federal Home Loan Mortgage Corporation, to make purchase, insure orguarantee mortgage loans on the lots or units; of (iv) to satisfy the requirements ofany local, state, or federal governmental agency.
In addition, so long as Developer owns property described in Exhibit "C" fordevelopment, it may' unilaterally amend these Bylaws for any other purpose,provided the amendment has no material adverse effect upon any right of anyowner without such owner's consent in writing.
(b) Validity' and Effective Date of Amendments. Amendments to theseBylaws shall become effective upon, recordation^unless a later effective date isspecified therein. ' • ' '
No amendment may remove, revoke, or :modify any right or privilege ofDeveloper or the Class "C"! Member without the'written consent of Developer, the
. • ' 9 i
Class "C" Member, or the.assignee of such right or privilege.
MISCELLANEOUS PROVISIONS
35. Waiver of Notice. Whenever any notice is required to be given'under
the provisions of law or under the provisions of the Articles of Incorporation orthese Bylaws, or the Original or Supplemental Declaration, a waiver thereof in awriting signed by the person or persons entitled to such notice, whether before orafter the time stated therein, shall be deemed equivalent to the giving of such
notice.36. Amendment of Bylaws. Except as otherwise provided in these Bylaws,
at any regular meeting or at any special meeting of this Association these Bylaws
may be altered, amended, or repealed, and new Bylaws may be adopted by 75% ofthe Members of each Class.
37. Transfer of Membership. .One Class "A" or Class "B" Membership isattached to each of the lots and units subject to the Original Declaration and
Supplemental Declaration. Class "A" and Class "B" Membership shall not betransferable except upon transfer of said Lot or Unit. Said Membership is
appurtenant to and runs with the Lot or Unit.38. Expulsion of Members. Members may not be expelled from the
Association and their voting rights cannot be canceled. No Member may withdrawfrom the Association so long as that Member owns a Lot or Unit in Island At RockCreek Subdivision.
39. Reimbursement of Costs and Expenses. All Officers and Directorsshall be reimbursed their costs and expenses directly incurred in work performedin furthering the purposes of. this Association.
40. Dissolution. The Association shall be dissolved only if improvementsor.maintenance required to be done by the Association is assumed by some otherentity. In the event of dissolution of the Association, the funds of the Associationshall be divided equally among its Members after payment of all debts of theAssocic
,AWS DATED /WdUA^-M ji^^^ 2006.
WfLLTAMDirector
10
STATE OF MONTANA
County of Carbon; ss,)
This instrument w&s acknowledged before me onWILLIAM KIELY as Director of the Associajj
(SEAL)
2006 by
fprfntln black
Notary Public lor the State of MontanaResiding at Red Lodge, MontanaMy Commission Expires , 200.
SHELLY LINKNOTARY PUBLIC MQNTAKA
- '•• SEAL, /T/ ReskJlnQ In Red Lodoe, Montana
"^OF^O^MY COHM- m^s 4UNE 2fl' 20
11
Tracts A and B of Certificate of Survey 1552 lying in the City of Red Lodge andlocated in the NE1/4 and the SE1/4 of Section-27, Township 7 South, Range 20 East,P.M.M., Carbon County, Montana. • .
EXCEPTING therefrom Lots 1, 2 and 3 of Island at Rock Creek Subdivision, Phase1, according to the official plat thereof on file and of record in the office of theClerk and Recorder of Carbon County, Montana, as Plat No. 1552 AM.
EXHIBIT "C"
Return To:Pedersen & Hardy1001 S. 24th Street West, Suite 110Billings MT 59102Copyristx 2006File No. 34144
SUlc of Mon,a« t « ThtS mSlCl"'rl '1Ie **' myCounlj'.oi Carbon J " office UlisJ3/< ty °1 rert'l 20JLfcu_
at j/j:<?7p'ctock P _m.Lierfa M.'Ladvah.
County ejcrk/- Recorder
322352
PARTY 'WALL AGREEMENT FORTHE ASPENS ON ROCK CREEK
. The undersigned, being the sole owner of all townhomes in The Aspens On RockCreek, located on the following described real property in Carbon County, Montana,hereby establishes and declares that the following party wall restrictions shall beapplicable to said townhomes and the real property on which they are located:
Lot 1 of Island at Rock Creek Subdivision, Phase 1, according to theofficial plat thereof on file and of record in the office of the Clerk andRecorder of Carbon County, Montana, as Plat No. 1552 AM.
KIELY CONSTRUCTION. L.L.C., aka Kiely Construction Company LLC or itsassigns, has the right, but is not obligated, to expand The Aspens On Rock Creek projectin the future, to include all or part of the following real property, hereinafter referredto as the expansion property:
Tracts A and B of Certificate of Survey 1552 lying in the City of RedLodge and located in the 'NE174 and the SE1/4 of Section 27, Township 7South, Range 20 East, P.M.M., Carbon County, Montana.
EXCEPTING therefrom Lots 1, 2 and 3 of Island at Rock CreekSubdivision, Phase 1, according to the 'official plat thereof on file and ofrecord in the office of the Clerk and Recorder of Carbon County,Montana.
In the event an amendment to the Declaration, of Unit Ownership for The AspensOn Rock Creek, which includes all or any part of the expansion property in The AspensOn Rock Creek project, is placed of record in the office of the Carbon County Clerkand Recorder, the provisions : of this Party Wall Agreement shall thereafter beapplicable to all of the property included in The Aspens On Rock Creek project and toall persons who use the facilities of the project.
1. General Rules ol Law to. Apply. Each wall which is .built as a part of theoriginal construction of The Aspens On Rock Creek and which is shared by twotownhomes shall constitute a party wall, and, to the extent not inconsistent with theprovisions of this Agreement, the general rules of law regarding party walls andliability for property damage due to negligence or willful acts or omissions shall applythereto.
2.' Sharing of Repair and Maintenance. The cost of reasonable repair and
maintenance of a party wall shall be shared by the owners of the townhomes who makeuse of the wall in proportion to such use.
3. Destruction by Fire p_i Other Casualty. If a party wall is destroyed ordamaged by fire or other casualty, The Aspens On Rock Creek Homeowners Associationshall restore it if the owners sharing use of the Party "Wall refuse to do so, using theproceeds of insurance purchased .by those owners, without prejudice, however, to theright of any owner or the Association to maintain an action against another ownerunder any rule of law regarding liability for negligent or willful acts or omissions andsubject to the right of tie owners of all townhomes in The Aspens On Rock Creekproject to determine not to repair or restore the party wall with consent of the holdersof all mortgages or trust indentures on any townhome in the project.
4. Weather proof ing. Notwithstanding any other provision of this Agreement,an owner who by his negligent or willful act causes the party wall to be exposed to theelements shall bear the whole cost of furnishing the necessary protection against suchelements.
5. Provisions of this Agreement Run With Land. The covenants, provisionsand restrictions contained herein shall be appurtenant to the land and shall pass to suchowner's successors in title and all parties and persons claiming under them.
6. Arbitration. In the event of any dispute arising concerning a party wall,or under the provisions of this Agreement, each party shall choose one arbitrator, andsuch arbitrators shall choose one additional arbitrator, and the decision shall be by amajority of .all the arbitrators.
DATED this day of 2006.
STRUCTION, L.L.C.onstrtf&ion Company LLC
STATE OF MONTANA
County of Carbon
; On this I ML day of UlfaJt; 2006,before me, the undersigned, a Notary Public for the State of Montana, personallyappeared JAJILUAM ftl&L\ as M/=/&&£& of KIELY CONSTRUCTION,L.L.C., aka Kiely Construction Company LLC.
*(SBState of Montana
T*S-
,T
Jrwtf or type name of notary]
Notary Public f or• .
Residing atMy Commission Expires / — £=>
or
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