HomeMy WebLinkAbout17- Declaration of Restrictive Covenants and Reservation of Easements - RTR Holdings II, LLC - Lot 2, South University District Phase 1 Minor Subdivision r Recording Please Return to:
CC - ozeman LLC
431 Offic ark Drive
Birmingham, bama 35223
Return to:
City of Bozeman
City Clerk
PC Box 1230
Bozeman, MT 59771-1230 PLATTED
2593368
Page: 1 of 8 09/20/2017 04:23:45 PM Fee $56.00
Charlotte Mills - Gallatin County MT MISC
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DECLARATION OF RESTRICTIVE COVENANTS
AND RESERVATION OF EASEMENTS
This DECLARATION OF RESTRICTIVE COVENANTS AND RESERVATION OF
EASEMENTS ("Declaration") is made as of the�" day of , 2017, by RTR Holdings H,
LLC, a Montana limited liability company("Declarant").
1. Description of Property, General Overview and Purpose. Declarant is the owner of certain real
property located in Gallatin County, Montana and more particularly described as follows(collectively,the
"Pro el "):
Lot 2 of South University District Phase 1 Minor Subdivision, City of Bozeman, Gallatin
County, Montana, according to the official plat thereof on file and of record in the office
of the County Clerk and Recorder of Gallatin County, Montana. (Plat Reference: J-518)
(the"Lot 2 Property");
AND
Lot 1 of South University District Phase 2 Minor Subdivision, City of Bozeman, Gallatin County,
Montana, according to the official plat thereof on file and of record in the office of the County
Clerk and Recorder of Gallatin County,Montana. (Plat Reference: J-605)(the"Lot 1 Property").
1.1.City Requirement. Declarant expects that the Property may be developed in the future, and as a
condition to approval of the plat for the Lot 1 Property the City of Bozeman, Montana (the"CW") has
requested that certain restrictions, rights and easements be granted and reserved with respect to snow
removal and storage for the benefit of the Property and the City.
1.2.Covenants, Restrictions and Easements. This Declaration imposes upon the Property mutually
beneficial covenants, restrictions and easements, as further described herein, under a general plan of
improvement for the benefit of the owners of each portion of the Property. Such covenants, restrictions
and easements are intended to benefit the overall development, administration, maintenance and
Declaration of Restrictive Covenants
and Reservation of Easements
Page 1 of 8
preservation of the Property. All of the Property and any additional property subjected to this Declaration,
and all improvements placed or constructed thereon, shall be held,sold,used and conveyed subject to the
covenants, restrictions, and easements set forth herein,which are for the purpose of protecting the value
and desirability of, and which shall run with title to, the real property subjected to this Declaration. This
Declaration shall be binding on all parties having any right, title, or interest in or to the Property or any
part thereof, and their respective heirs, successors, successors-in-title or interest, and assigns, and shall
inure to the benefit of each owner or holder thereof.
2. Reservation of Easement and Right-of-Way. Declarant hereby reserves for the benefit of the
owners of the Lot I Property and the Lot 2 Property, and their respective successors and assigns, and for
the benefit of the Lot I Property and the Lot 2 Property, a perpetual, non-exclusive, free and continuous
easement, use rights and rights-of-way on, over, and across that portion of the Lot 2 Property which has
been designated for snow storage, in the location and of the size and description as depicted on the attached
Exhibit A, which is incorporated by reference herein (the "Permanent Snow Storage and Access Area"),
and for the non-exclusive use of the Permanent Snow Storage and Access Area for the purposes of snow
storage and access to and from the Permanent Snow Storage and Access Area, but exclusively for the
movement and storage of snow from either the Lot 1 Property or other portions of the Lot 2 Property and
for the performance of the other obligations contemplated by this Declaration. Such snow storage easement,
use rights and rights-of-way are subject to the additional terms, conditions, obligations and requirements
set forth herein:
2.1.The Permanent Snow Storage and Access Area and access thereto shall be for the benefit of and
shared by the Lot 2 Property and the Lot I Property;
2.2.The owner of the Lot 1 Property and its successors or its assigns shall be responsible for the
construction and maintenance of the surfacing reasonably necessary to accommodate the Permanent Snow
Storage and Access Area and all other maintenance required in connection with use of the Permanent Snow
Storage and Access Area for snow storage as contemplated by this Declaration; and
2.3.The area, size and boundaries of the Permanent Snow Storage and Access Area may only be
relocated with the express written permission of the owners of the Lot 2 Property and Lot 1 Property and
the City.
3. Grant of Easement and Right-of-Way to City. Declarant hereby grants, sells,bargains and conveys
to the City a perpetual, non-exclusive, free and continuous easement, use rights and right-of-way in gross
on, over, and across the Permanent Snow Storage and Access Area for the purposes of snow storage and
access to and from the Permanent Snow Storage and Access Area, but exclusively for the movement and
storage of snow removed by the City or under the City's direction from either the Lot I Property or from
other portions of the Lot 2 Property. Such non-exclusive easement, use rights and right-of-way shall be
subject to the same additional terms, conditions, obligations and requirements set forth in subsections 2.1,
2.2, and 2.3 above.
4. Reservation and Grant of Temporary Access Easement. Together with the perpetual easements,
use rights and rights-of-way set forth in Sections 2 and 3 above,Declarant hereby reserves for the benefit of
the owners of the Lot 1 Property and the Lot 2 Property, and their respective successors and assigns, and
hereby grants, sells, bargains and conveys to the City, a temporary twelve(12)foot wide all weather access
easement and right-of-way over, on and across the Lot 2 Property for the purposes of ingress and egress to
and from the Permanent Snow Storage and Access Area in the approximate location shown on the attached
Exhibit A, which is incorporated by reference herein(the"Temporary Access Easement"),but exclusively
for the exercise of the easements, use rights and rights-of-way set forth in Sections 2 and 3 above. Such
Temporary Access Easement shall remain in place and available for use b y the owners of the Lot 1
Declaration of Restrictive Covenants
and Reservation.of Easements
Page 2 of 8
Property and the Lot 2 Property, and their respective successors and assigns, the City and the City's
designees, upon the following additional terms, conditions, obligations and requirements:
4.1.The owner of the Lot 1 Property shall maintain and keep in good repair the access roadway to be
located within Temporary Access Easement;and
4.2.The Temporary Access Easement shall terminate, cease and be vacated by the occurrence of all the
following events:
4.2.1. The owner of the Lot 2 Property constructs a suitable onsite, perpetual and permanent
roadway to and from the Permanent Snow Storage and Access Area(the"Permanent Access"), as the
same shall be approved by the City and the owners of the Lot 2 Property and Lot 1 Property(or their
successors and assigns),with such approvals not to be unreasonably conditioned or delayed;
4.2.2. At such time as the owner of the Lot 2 Property constructs and dedicates the Permanent
Access,the owner of the Lot 1 Property and the City shall be entitled to continued use of the Permanent
Snow Storage and Access Area, in accordance with the terms of this Declaration, with continued
perpetual ingress and egress via the Permanent Access in accordance with the terms of this Declaration;
4.2.3. The owner of the Lot 1 Property and the City shall release all right, title and interest in the
Temporary Access Easement;and
4.2.4. The owner of the Lot 1 Property shall maintain and keep in good repair the Permanent
Access for purposes of ingress and egress to and from the Permanent Snow Storage and Access Area for
the purposes set forth in this Declaration.
5. Restrictive Covenant. Declarant (on behalf of itself and its successors in interest with respect to
the Lot 2 Property) does hereby declare and place upon the Lot 2 Property the following restrictive
covenants for the benefit of the Property and for the benefit of the City,as set forth herein.
5.1.It is the intent of Declarant that the Permanent Snow Storage and Access Area and the Temporary
Access Easement(until the Permanent Access is constructed, and thereafter the Permanent Access in the
as-constructed location) be developed and used substantially in the location as depicted on Exhibit A
attached hereto (or the as-constructed location of the Permanent Access), and used for purposes of snow
storage and also access (including ingress and egress) thereto undertaken by the owners of the Lot 1
Property and Lot 2 Property, or their successors or assigns, by the City or under the direction of the City,
as provided for under this Declaration. Declarant (on behalf of itself and its successors in interest with
respect to the Lot 2 Property) hereby covenants and agrees that (i) the Permanent Snow Storage and
Access Area shall be used primarily for the purposes of snow storage and access thereto, and that the
Permanent Snow Storage and Access Area shall not be developed, modified or used in any manner that is
inconsistent with or would materially interfere with the use of the Permanent Snow Storage and Access
Area as contemplated by this Declaration, and (ii)the Temporary Access Easement(until the Permanent
Access is constructed, and thereafter the Permanent Access in the as-constructed location) shall be used
primarily for ingress and egress to and from the Permanent Snow Storage and Access Area, and that the
Temporary Access Easement (until the Permanent Access is constructed, and thereafter the Permanent
Access in the as-constructed location) shall not be developed, modified or used in any manner that is
inconsistent with or would materially interfere with the use of the Temporary Access Easement(until the
Permanent Access is constructed, and thereafter the Permanent Access in the as-constructed location) as
contemplated by this Declaration.
Declaration of Restrictive Covenants
and Reservation of Easements
Page 3 of 8
5.2.No use shall be made nor activity conducted on the Permanent Snow Storage and Access Area or
the Temporary Access Easement(until the Permanent Access is constructed,and thereafter the Permanent
Access in the as-constructed location) which would unreasonably interfere with the use thereof by the
owner of the Lot 1 Property or Lot 2 Property, the City or their respective designees as set forth in this
Declaration, including, but not limited to, the construction or placement (temporary or permanent in
nature) of any structure, building or other improvements (with such improvements including but not
limited to street lights, power poles, mailboxes, or signs) or any impermeable surface within the
Permanent Snow Storage and Access Area which would unreasonably interfere with the use thereof as
contemplated by this Declaration.
6. Easements, Rights-of-Way and Restrictive Covenants to Run With the Land. This Declaration and
all easements, rights-of-way, covenants, agreements, rights and obligations reserved, granted or created
hereby, shall run with, benefit and burden the Properly and additionally be for the benefit of the City in gross
as set forth herein, and shall be binding on and inure to the benefit of all persons having or acquiring fee
title to the Property or any portion thereof or interest therein, subject to the terms,provisions and conditions
set forth herein. The easements, rights-of-way, restrictive covenants and other rights reserved and granted
herein are for the use and benefit of the owner(s)of the Property and their successors and assigns and cannot
be severed from the Property, but are in gross as to the City as set forth herein. For the avoidance of doubt,
nothing in this Declaration is intended to prohibit or restrict conveyance of title to the Lot 1 Property and/or
the Lot 2 Property to any third party or third patties. Each person or entity gaining an interest in the Property
or any portion thereof, by acceptance of a deed or other conveyance of the Property or any portion thereof
or any other instrument conveying an interest therein, shall be subject to and bound by this Declaration,
regardless of whether this Declaration is referenced in such deed, conveyance or other instrument.
7. Insurance. To the extent reasonably practicable, the owner of the Lot 1 Property shall cause the
owner of the Lot 2 Property to be listed as an additional insured under any general liability insurance policy
maintained by the owner of the Lot 1 Property from time-to-time to the extent such policy covers the
Permanent Snow Storage and Access Area,the Temporary Access Easement,and/or the Permanent Access,
8, Miscellaneous.
8.1.Successors and Assigns. This Declaration shall be binding on and inure to the benefit of the owners
of the Property,their respective successor and assigns and the City.
8.2.Section Headings. The section headings herein are inserted only for convenience and reference
and shall in no way define, limit or prescribe the scope or intent of any provisions of this Declaration.
8.3.Enforcement. This Declaration may be enforced by the owners of the Lot 1 Property and Lot 2
Property, their respective successor and assigns, and by the City. Declarant shall have no rights under
this Declaration except by virtue of Declarant being the owner of the Property. If Declarant ceases to
own the Property all such rights of Declarant shall cease.
8.4.No Rights in Public. Nothing contained herein is intended to dedicate, grant or reserve to the
general public any right to possess, use or occupy the Property or any portion thereof.
8.5.Governing Law. The terms and provisions of this Declaration shall be governed and construed in
accordance with the laws of the State of Montana,without regard to conflict of law principles.
8.6.Amendment and Termination. This Declaration may not be amended, supplemented or terminated
except by a written instrument signed by the owner(s) of the Lot 1 Property and Lot 2 Property and the
City. No owner of the Lot 1 Property or the Lot 2 Property or the City shall withhold its consent to amend
Declaration of Restrictive Covenants
and Reservation of Easements
Page 4 of 8
this Declaration in connection with any development or redevelopment of the Lot 2 Property so long as
such amendment does not materially and adversely affect the intent and purpose of this Declaration.
8.7.Attorney Fees. The substantially prevailing party in any action brought to enforce or interpret this
Declaration shall be awarded its costs and reasonable attorney fees and costs (determined on an hourly
and not a contingency fee basis), including fees and costs incurred for any appellate review, in addition
to any other relief to which the substantially prevailing party is entitled.
8.8.Authority to Execute and Bind. Each person executing this Declaration represents and warrants
that he or she is duly authorized and empowered to execute this Declaration on behalf of, and to bind,the
party on whose behalf he or she is so executing.
8.9.Further Assurances. The owner(s) of the Property and the City shall use all reasonable efforts to
take, or cause to be taken, all actions necessary, proper or advisable to effective the intent and purpose of
this Declaration. If at any time after the recording of this Declaration any further action is necessary,
proper or advisable to carry out the intent and purpose of this Declaration, each such party shall use all
reasonable efforts to take, or cause to be taken, all such action.
8.10. Severability. Whenever possible, each provision of this Declaration will be interpreted in
such manner as to be effective and valid to the fullest extent permitted by law. If any provision of this
Declaration is determined to be invalid, illegal or unenforceable or if any easement, use right, right-of-
way or covenant is terminated or extinguished by operation of law, (i) the validity, legality and
enforceability of the remaining provisions are not affected or impaired in any way; and (ii)the owner(s)
of the Property and the City shall negotiate in good faith in an attempt to agree to another provision
(instead of the provision held to be invalid, illegal or unenforceable or terminated or extinguished by
operation of law) that is valid, legal and enforceable and carries out the intent and purpose of this
Declaration as closely as possible to effect the original intents and purposes of this Declaration.
8.11. Exculpation and Indemnity. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS DECLARATION, THE CITY SHALL NOT INCUR OR BE
RESPONSIBLE FOR ANY OBLIGATION,LIABILITY OR EXPENSE AS A RESULT OF THIS
DECLARATION. DECLARANT AGREES TO INDEMNIFY AND HOLD HARMLESS THE
CITY FROM AND AGAINST ANY AND ALL LIABILITIES,CLAIMS,DAMAGES,ACTIONS,
CAUSES OF ACTION, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEY
FEES AND COSTS AND COSTS OF LITIGATION) TO THE EXTENT ARISING OUT OF OR
RESULTING FROM THIS DECLARATION OR THE RIGHTS, RESTRICTIONS OR
OBLIGATIONS SET FORTH HEREIN, EXCEPT TO THE EXTENT CAUSED BY THE
WILLFUL OR NEGLIGENT ACTION OR OMISSION OF THE CITY.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
Declaration of Restrictive Covenants
and Reservation.of Easements
Page 5 of 8
IN WITNESS WHEREOF, Declarant has executed this Declaration as of the day and year first
written above.
DECLARANT
RTR Holdings II,LLC,
a Montana limited liability company
By: Three Rivers Capital, LLC, Manager
By: 9 -
Name: r, r.
Title: Yell cr<
STATE OF
S
COUNTY OF-f4,,q r61 UlGa )
�� L This instrument was acknowledged before me on ��� r� 20 �1, by
G^,el' , Three Rivers Capital, LLC as Manager of RTR Holdings II, LLC, a Montana limited
liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the date first above written.
[signature]
Notary Public for the State ofe—'(�Z'v 14
( SEAL) 0 4✓I � C'k 4,/1-y 9/-Ce—"t<'i
(Printed Name)
Residing at:-f 4-1 Ce-<-O 160 , G f r,11414
(City) (State)
gwi0;cHwtesFA4EM
AN. My commission expires: O Lf , 20 1
Notaty POlic-calitorNy (Month/Day/Year)
Sad Francisco county
commission#2t25263
}}} mg Comm.Ex Ices u 29,2019
Declaration of Restrictive Covenants
and Reservation of Easements
Page 6 of 8
The City of Bozeman, Montana hereby acknowledges and accepts the terms and conditions of this
Declaration.
City f Bozeman,Montana
By: •
Name: btW IS M .TAt,�IOY
Title: �Vj4f V1Vv,. YV ^�Y �`�B� '�•"
• '.
IT I
p���
Fah U • `,,� � � .�^
STATE OFF ) G�•• =c
:ss 1883 •.-
COUNTY OF ('�, \ ,�v� ) �TJ1y Co •�1�
This e instrument was acknowledged before me on"lj'�a q- u 20_LL, by
as' v� tiU9 A the City of Bozeman, Montana.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the date first above written.
LF ,:
RENDA SWEENEY �`- [signature]
Notary Public
N_otaiy P blic or the State f��
the State of Montana
Residing at: (Printed Name
Bozeman, Montana
Residin at:My Commission Expires: gDecember 02,2018 (City) (State)
My commission expires: -a , 20-a
(Month/Day/Year)
Declaration.of Restrictive Covenants
and Reservation of Easements
Page 7 of 8
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EXHIBIT A
R=210.00'
d=05728 01"
L=210.6J'
CHD BRNG=N6272'13'E sue"
CHD LGTH=201.91' State St.
R=220.00' Pee
d=030 32'48"
L=117.29' / I S0108 32"W
CHD B1?NG=N1633 47E /: I 66.80'
CHD LGTH=115.91'
� 58851287-
s
31.07' o
N01'172377 POs1
40.59' w� ul 1 U4' I N46 08 32'o� V 1 43.70' bNy�AS
S88 5128E
4� oiW Lot 2 SOut 1 90JJ'
wI University S460832"W
District I 259.12'
Phase 1 1
Campus Blvd. — — — —
Lot 1 South
University District
.nnnuna,q,gryy 4,4 Ph. 2
N TA
�* DA
X --STAHILY - oil17,�tl\r1 q 1Q0 200 4q0
2 LS }
�wa,� IN FEET
9yJ'3'/ (tCENSE� c��aa'' _
((Thle exhblt Is ,� RASIS OF BEARING,
valid only If seal la ONA� ANQ ? South Unlverell
signed and dated) n,,,11111tL,,,Tnu"`� DleMot Phase 2
Fin Plat
TEMPORARY ACCESS EASEMENT DESCRIPTION
An Access Easement located upon Lot 2 of South University District Phase 1 as platted and filed at the Gallatin
County, Montana office of the Clerk and Recorder, said easement being described as follows:
Beginning at a point (POB1)on the east public street easement line of said South University Phase 1 Plat from which
the southeast corner of said Lot 2 bears S43'02'54"E, 431.84 ft.; thence along said east easement line N01'17'23"E,
40.59 ft.; thence continuing along said east easement line 117.29 ft on a curve to the right with a radius of 220.00
ft.; a central angle of 30'32'48", and a chord that bears N16'33'47"E, 115.91 ft.; thence leaving sold east easement
line S88'51'28"E, 90.33 ft,; thence N46'08'32"E, 43.70 ft.; thence S88'51'28"E, 31.07 ft.; thence S46'08'32"W, 259.12 ft.
to the point of beginning, containing 11,428 square feet.
SNOW STORAGE EASEMENT DESCRIPTION
An Snow Storage Easement located upon Lot 2 of South University District Phase 1 as platted and filed at the Gallatin
County, Montana office of the Clerk and Recorder, said easement being described as follows:
Beginning at a point (POB2) on the public utility easement line of said South University Phase 1 Plat from which the
northeast corner of said Lot 2 bears N44'07'07'E, 75.55 ft.; thence S01'08'32"W, 66,80 ft.; thence N88'51'28"W, 91.90
ft.; thence S46'08'32"W, 43.70 ft.; thence N88'51'28"W, 78.61 ft. to a point on said public utility easement; thence
along said utility easement line 210.63 ft on a curve to the right with a radius of 210.00 ft.; a central angle of
57'28'01", and a chord that bears N62'12'13"E, 201.91 ft. to the point of beginning, containing 11,254 square feet.
STAHLY ENGINEERING &ASSOCIATES Snow Storage&Access Easements 0t5112xan"'
Er (' PROFESSIONAL ENGINEERS a SURVEYORS CHOW
ORS
Q1aD:COP
STAHLYWWW.aeoeng.com Located upon Lot 2 of South University District DAB 08/22/2017
1rn 404 W.ORGADWAY 35M CD M1AL DR. $51 SRIDW DR.stc 1 Phase 1
f �.r LEEMS W in 47
IIRi�' 01 e�A%WF 50715 Se2TM -�
F (W , tMfo= City of Bozeman,MT EXHIBIT A
Declaration of Restrictive Covenants
and Reservation of Easements
Page 8 of 8