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HomeMy WebLinkAbout20- Declaration of Protective Covenants and Restrictions - Center Arrow Partners, LLC - The Nest Subdivision at Westbrook J-677 After reco rdin , eturn to: o ii - 57-7I —V3 i PLATTED v j 2699408 Page: 1 of 8 09/10/2020 12:56:12 PM Fee: $56.00 m Eric Seer ad - Gallatin County, MT MISC I IIIIIII IIIIII III IIII IIIIIII IIIIII IIII IIII IIIII IIIII IIIII IIIIIII III IIIII IIIII IIIII IIII IIII DECLARATION OF PROTECTIVE COVENANTS AND RESTRICTIONS FOR THE NEST SUBDIVISION AT WESTBROOK THIS DECLARATION OF PROTECTIVE COVENANTS AND RESTRICTIONS FOR THE NEST SUBDIVISION AT WESTBROOK ("Declaration") shall be effective upon recordation and is hereby made and entered into this 3J tday of l vt , 20TO, by Center Arrow Partners, LLC, and its successors and assigns ("Declarant") to regulate the use and development of certain real property owned by the Declarant and legally described as follows: Lot R1 in Block 5 of Westbrook Subdivision, Phases 2, 3, and 4, 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 No. J-599] (Hereinafter referred to as the "Property".) The Property subject to this Declaration shall be known as The Nest Subdivision. RECITALS WHEREAS,Declarant is the owner of the Property located in the Nest Subdivision; WHEREAS, the Property is currently subject to the Declaration of Protective Covenants and Restrictions for Westbrook Subdivision, recorded in the office of the Clerk and Recorder for Gallatin County, Montana, on November 7, 2016 as Document No. 2563065 ("Westbrook Declaration"); WHEREAS, it is the Declarant's intent, by and through this Declaration, to establish and publish certain additional covenants, conditions, and restrictions to encumber the Property, to regulate and control the use and development of the Property, and to place building and use restrictions on the Property for the use and benefit of Declarant and present and future owners of the Property, in order to preserve and maintain the natural character, value, desirability, and aesthetic nature of the Property for the benefit of all owners of the Property or any part thereof, NOW THEREFORE, Declarant hereby establishes and declares that the Property shall be held, sold, conveyed, encumbered, leased, occupied, and improved, subject to the covenants, conditions,and restrictions set forth in this Declaration,as amended,modified,added to,or deleted from time to time. The covenants,conditions, and restrictions set forth in this Declaration shall be applicable to and binding upon the Property,and shall run with the land and shall be binding upon all persons having or who acquire any right,title,or interest in and to any part of the Property,and shall inure to the benefit of the Declarant,the Association,and each person who becomes an Owner of any part of the Property. Declarant herein makes the following covenants, conditions, and restrictions: ARTICLE I DEFINITIONS Unless the context expressly provides otherwise, the following definitions shall pertain throughout this Declaration and in the interpretation thereof: 1.1 Association or Westbrook Association shall mean the Westbrook Homeowners' Association,and its successors and assigns,as set forth in more detail in the Westbrook Declaration and any bylaws governing the Association. 1.2 Board or Board of Directors shall mean the Board of Directors of the Westbrook Homeowners'Association,as set forth in more detail in the Westbrook Declaration and any bylaws governing the Association. 1.3 Bylaws or Westbrook Bylaws shall mean the Bylaws promulgated by the Westbrook Homeowners' Association, as amended from time to time. 1.4 Common Area shall mean the roads,woonerfs,and public right-of-ways as shown on the Final Plat for the Nest P.U.D. Subdivision at Westbrook, and any amendments thereto, on file and of record with the County Clerk and Recorder for Gallatin County,Montana,and the storm water drainage system. 1.5 Common Open Space shall mean the Common Open Space as shown on the Final Plat for the Nest P.U.D. Subdivision at Westbrook, and any amendments thereto, on file and of record with the County Clerk and Recorder for Gallatin County, Montana, including all open space, parks, trails, and sidewalks within the open spaces. 1.6 Declaration shall mean this document and all exhibits attached hereto or incorporated by reference, as amended, modified, added to, or deleted from time to time. DECLARATION 2 1.7 Declarant means Center Arrows Partners, LLC, and its successors and assigns. Declarant expressly reserves the right to transfer or assign, in whole or in part, the Declarant's rights under this Declaration. Such transfer or assignment shall be memorialized in a writing expressly describing the rights transferred or assigned, signed by the Declarant, and recorded with the Clerk and Recorder for Gallatin County, Montana. 1.8 Design Manual means that The Nest PUD Subdivision Design Manual, attached to this Declaration as Exhibit 1, and any amendments thereto. 1.9 Lot means land so divided into a lot that is a portion of the Property; EXCEPT THAT if a condominiums or other type of multi-family housing is constructed on a Lot, "Lot" shall mean each separate unit contained in the multi-family house. For example, if a 4-plex condominium or townhome is constructed on a Lot, each unit in the four-plex condo or townhome shall be considered a separate Lot. 1.10 Lot Owner means the owner of a Lot or the owner of each unit in a multi-family home within the Property, including contract purchasers,but excluding those having an interest in the Lot merely as security for the performance of an obligation. 1.11 Governing Documents means the Declaration and any attachments, exhibits, amendments, modifications, additions, or deletions thereto, the Final Plat for the Nest P.U.D. Subdivision at Westbrook, and any amendments thereto, on file and of record with the County Clerk and Recorder for Gallatin County, Montana, and the Westbrook Declaration and the Westbrook Bylaws, and any amendments thereto. 1.12 Subdivision Design Committee ("SDC") shall mean the SDC established pursuant to the Westbrook Declaration. 1.13 Westbrook Declaration means the Declaration of Protective Covenants and Restrictions for Westbrook Subdivision, recorded in the office of the Clerk and Recorder for Gallatin County,Montana,on November 7,2016 as Document No.2563065,and any amendments thereto. ARTICLE II DESIGN MANUAL 3.1 Design Manual. The Design Manual is attached to this Declaration as Exhibit 1 and is incorporated herein in its entirety.All Lot Owners shall abide by all provisions of the Design Manual. 3.2 Amendments to Design Manual. Notwithstanding any other provision of this Declaration, any provision of the Design Manual may be amended at any time by the Declarant so long as the Declarant still owns a Lot in The Nest Subdivision.After the Declarant no longer owns a Lot in The Nest Subdivision,the Design Manual may only be amended pursuant to Article DECLARATION 3 Any amendment to the Design shall be effective upon recording the amendment with the County Clerk and Recorder for Gallatin County, Montana. ARTICLE III EASEMENTS 3.1 Easement Through Common Areas and Open Spaces. A non-exclusive easement is reserved to the Declarant and its successors, assigns, and authorized representatives, and to third parties, over, under, and through the Common Areas and Common Open Spaces as may be required for the construction, installation, maintenance, repair, replacement, and improvement of utility services, including without limitation electric, water, sewer, power, telephone, natural gas, computer lines, cable television, and other similar utilities. 3.2 Perpetual Access Easement to Public. The general public shall have a non- exclusive easement perpetual easement for ingress and egress through the Common Open Spaces. ARTICLE IV COMMON OPEN SPACE AND COMMON AREAS 4.1 Conveyance of Common Open Spaces and Common Areas.As part of obtaining Final Plat for The Nest Subdivision, the Declaration shall convey the Common Open Space and Common Areas to the Westbrook Association. 4.2 Control, Management, and Maintenance of Common Open Spaces and Common Elements. The Westbrook Association, through its Board, shall have the right and obligation to manage, control, and maintain the Common Open Space and Common Areas. For purposes of this provision, "maintenance" includes all vegetative ground cover, boulevard trees, and irrigation systems in the public right-of-way boulevard strips along all external perimeter development streets and adjacent to public parks or other Common Open Spaces and Common Areas. 4.3 Encroachment Easement. During the construction, installation, repair, maintenance, replacement, or improvement of any improvements to The Nest Subdivision, an encroachment easement over the Common Open Spaces and Common Elements is reserved and granted unto the Declarant, its contractors, subcontractors, agents, representatives, employees, successors, and assigns for movement and temporary storage of equipment, machinery, construction materials, and parking for workers. V ASSESSMENTS 5.1 Levying Assessments - When Made - Purposes. Assessments shall be levied against the Lots and Lot Owners in accordance with the Westbrook Declaration and Westbrook DECLARATION 4 Bylaws. ARTICLE VI CITY REQUIRED COVENANTS 6.1 City Required Covenants. Any covenant that is included in this Article is a condition of final plat approval and is required by the City of Bozeman Commissioners and may not be amended or revoked without the mutual consent of the Owners in accordance with the amendment procedures in this Declaration and the governing body for the City of Bozeman. 6.2 The Control of Noxious Weeds. The control of Noxious Weeds by the Owners Association on those areas for which the Owners Association is responsible and the control of Noxious Weeds by individual owners on their respective lots shall be as required by the Montana Noxious Weed Control Act(§ 7-22-2101, MCA through § 7-22-2153, MCA as amended) and the rules, regulations and management Plans of the Gallatin County Weed District. Both unimproved and improved lots shall be managed for Noxious Weeds.In the event a Landowner does not control the Noxious Weeds after 10 days' notice from the Owners Association, the Owners Association may cause the Noxious Weeds to be controlled. The cost and expense associated with such weed management shall be assessed to the lot and such assessment may become a lien if not paid within thirty (30) days of the mailing of such assessment. The Owners Association is responsible for control of state and county declared Noxious Weeds in the subdivisions parks, open spaces, community areas, trails, and roadways. Nothing herein shall require or obligate the Gallatin County Weed District to undertake any management or enforcement on behalf of the Owners Association or Landowners that is not otherwise required by law of the Gallatin County Weed District Management Plan 6.3 Reserved. VII ENFORCEMENT AND REMEDIES 7.1 Compliance with Governing Documents. Each Lot Owner shall strictly comply with the provisions of the Governing Documents,as the same may be lawfully amended,modified, added to, deleted, or changed from time to time. 7.2 Enforcement. Failure to comply with any provision of the Governing Documents shall be grounds for enforcement by the Declarant,any Lot Owner in The Nest Subdivision,and/or by the Westbrook Association by and through its Board of Directors. 7.3 Remedies Cumulative.For any violation of any provision herein,the Declarant, a Lot Owner, and/or the Westbrook Association shall be entitled to all remedies provided for in the Westbrook Declaration and the Westbrook Bylaws, this Declaration, any properly enacted rules and regulations, and any other remedy allowed pursuant to Montana law, including without limitation: DECLARATION 5 (1) Specific performance; (2) An injunction to require the performance of or to prevent the performance of actual or threatened violations of this Declaration; (3) Damages; (4) Foreclosure of a lien; and (5) Reimbursement of attorneys' fees, costs, and expenses. No remedy shall be exclusive of any other remedy which may now be, or are hereafter, available to the Declarant, Westbrook Association, or to any Lot Owner. 7.4 Attorneys'Fees,Costs,and Expenses.In the event the Declarant,any Lot Owner, or the Westbrook Association shall take any action to enforce any provision of the Governing Documents, or in the event the Declarant, and Lot Owner, or the Westbrook Association shall initiate any lawsuit to interpret, enforce,or otherwise arising out of the Governing Documents,the substantially prevailing party shall be entitled to reimbursement of all attorneys' fees, costs, other expenses incurred in connection therewith. "Attorneys' fees" includes without limitation fees to determine the amount of fees and fees incurred in any appeal. 7.5 Liens. The attorneys' fees, costs, and expenses referenced in Section 7.4 shall constitute assessments against the Lot Owner's Lot and shall constitute a lien on the Lot Owner's Lot,which may be recorded against the Lot in the County Clerk and Recorder's Office for Gallatin County, Montana, and the lien shall be prior to all other liens and encumbrances upon the Lot, except for real estate taxes and except for all sums unpaid on a first mortgage of record. If a lien is recorded, the notice of lien to the Lot Owner shall set forth (i) a statement of the amount due, (ii)the name of the Lot Owner, and (iii)the address or legal description of the Lot. Such lien may be foreclosed in a court law. VIII DURATION AND AMENDMENT 8.1 Duration. The provisions of this Declaration shall be continuous and binding for a terms of twenty-five (25) years from the date hereof, after which they shall be automatically extended for successive periods of ten(10) years. 8.2 Amendment by Declarant.Except for those covenants and restrictions set forth in Article VI, so long as the Declarant owns one (1)Lot in The Nest Subdivision,the Declarant may amend, modify, delete, add to, or change any provision of this Declaration. DECLARATION 6 8.3 Amendment by Association. After 90%of the Lots in The Nest Subdivision have been conveyed by the Declarant to third parties,the Lots Owners may amend, modify, delete, add to, or change any provision of this Declaration of this Declaration by the execution of an amendment signed and acknowledged by 75%of the Lots, EXCEPT THAT (1) for so long as the Declarant owns one (1) Lot in The Nest Subdivision, no amendment, modification, deletion, addition to,or change to any provision shall be made without the Declarant's written approval; (2) any amendment, modification, deletion, addition to, or change to any provision contained in Article VI must also receive the written approval of the City of Bozeman; and(3)the amendment shall also be approved by two-thirds (2/3) of the votes of the Westbrook Association. IX MISCELLANEOUS 9.1 Exhibits. All Exhibits referenced in this Declaration are incorporated herein by reference as is set forth in full herein. 9.2 Benefit.This Declaration shall be binding upon and shall inure to the benefit of the Declarant, each Lot Owner, the Westbrook Association, and the heirs, personal representatives, successors and assigns of each. 18.1 Disclaimer of Warranties. Declarant expressly makes no warranties or representations concerning The Nest Subdivision; the construction or design integrity of the The Nest Subdivision, the improvements constructed in The Nest Subdivision; or the Declaration or deeds of conveyance except as specifically set forth therein, and no one may rely upon such warranty or representation not so specifically expressed therein. 18.2 Waiver.The failure of Declarant, any Lot Owner,or the Westbrook Association to enforce any provision of the Declaration or the Governing Documents shall not be deemed a waiver or in any way prejudice the rights to later enforce any provision of the Declaration or the Governing Documents, or to collect damages for any subsequent breach thereof. The non-action of the Declarant, any Lot Owner, or the Westbrook Association in the event of a violation of any provision of the Declaration or the Governing Documents by a particular Lot Owner shall not be deemed to delete or waive the provision or enforcement thereof as it pertains to other Lot Owners. 18.1 Interpretation. The provisions of the Declaration shall be liberally construed to effectuate the purpose of the Declaration. 18.2 Severability. The provisions of this Declaration shall be deemed independent and severable and the invalidity, partial invalidity, or unenforceability of any one or more provisions shall not affect the validity or enforceability of any other provision hereof. 18.3 Conflicts in Documents. In case of conflicts between the provisions of this Declaration, the Declaration shall control first, then the Design Manual, then the Westbrook Declaration,then the Westbrook Bylaws. DECLARATION 7 18.4 Other Associations. In the event that a condominium or townhome is built on any Lot,the person building the condominium or townhome or other multi-family housing may create a separate homeowner or condominium association and declarations, covenants, and restrictions to oversee, manage, regulate, maintain, repair, and improve the lot, private open space, private sidewalks and driveways,the building,the improvements,the units contained within the building, etc., and the owners of units therein may be subject to the association created and to all assessments, use restrictions, enforcement provisions, etc., contained in any such declaration, covenants, and restrictions. IN WITNESS WHEREOF, the Declarant has caused this Declaration to be made and executed on the date first written above. CENTER ARROW P,R RS, LL By: Its: STATE OF MONTANA ) ss. County of Gallatin ) On this day of �- , 20 2-D , before me, a Notary Public in and for he State of Montana,personally appeared i G�kA, 4 u' S , the of Center Arrow Partners, LLC, and acknowledged to me that he/she executed the same on behalf of Center Arrow Partners, LLC. IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written. SS�N SUSAN H�ALP bR a Notary of Mo^tan Notary Public for the State of Montana 2�,PLMA9`riP°-for the State at: yam. o�ARiA�_y Ftes-ding onta^a Printed Name: _ * Zeman, ion ExxPlres * . SE� s MY corm July 6,2023 = q .. oFMo; EXHIBIT 1 DESIGN MANUAL DECLARATION 8