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HomeMy WebLinkAboutNWX Declaration of Reciprocal EasementsAfter recording, return to: __________________________ __________________________ __________________________ __________________________ DECLARATION OF RECIPROCAL EASEMENTS THIS DECLARATION OF RECIPROCAL EASEMENTS (this "Declaration") is made effective as of _______________, 20___, by __________________________, a(n) __________________________ (the "Declarant"), whose address is __________________________, for the benefit of Declarant, all future owners of the property described below, and their respective successors and assigns (each individually, an "Owner" and collectively, the "Owners"). RECITALS A. Declarant is the owner of the following adjacent parcels of real estate located in the County of Gallatin, State of Montana, more particularly described as follows: Lots 1, 13, and 14, Northwest Crossing Subdivision – Tract 5 of Certificate of Survey No. 2552, a tract of land being the NE1/4 of Section 4, Township 2 South, Range 5 East, P.M.M., 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. For purposes of this Declaration, Lots 1, 13, and 14 are each individually referred to as a "Lot" and collectively as the "Lots." B. Declarant intends to develop the Lots as part of a single multi-family apartment complex with related amenities and improvements and in connection therewith, Declarant desires to grant to and reserve in favor of each Lot and the Owners, and subject each Lot to mutual, reciprocal, perpetual and non-exclusive easements for utilities; storm water runoff and detention; the usage of amenities and facilities on each Lot; open space; cross parking for vehicles (including use of electric vehicle charging stations) and bicycles on each Lot; pedestrian, vehicular, and bicycle ingress and egress over and across the Lots; and such easements shall be appurtenant to and run with the Lots and in each case upon and subject to the terms and conditions hereinafter set forth. C. Declarant further intends to make all Permittees (as hereinafter defined) of the Owners beneficiaries of this Declaration. #2883897v3 Page 2 of 6 DECLARATION 1. Recitals. The foregoing recitals are true, accurate, a material part of this Declaration, and incorporated as if fully set forth herein. 2. Declaration. Declarant, for and on behalf of the Lots, hereby declares that the Lots shall be owned, used, occupied and improved subject to the Easements (defined below) as more fully set forth in this Declaration. The provisions of this Declaration are intended to benefit the Lots and all or any portions thereof, and existing and all future Owners of the Lots, and all other persons or entities having or acquiring any right, title or interest to the Lots or any portion thereof, including, without limitation, the Permittees of each Owner. 3. Easements. Declarant hereby grants to and reserves in favor of all present and future Owners of each Lot and their respective Permittees and for the benefit of each of the Lots, and subjects each of the Lots to, mutual, reciprocal, perpetual and non-exclusive easements (collectively the "Easements") for the following: a. the passage of vehicles over and across the parking areas, driveways, drive aisles and curb cuts and the passage and parking of vehicles over and across the parking areas of each of the Lots (including use of electric vehicle charging stations), as the same may from time to time be constructed and maintained for such use; b. the passage and accommodation of pedestrians over and across the parking areas, driveways, drive aisles, sidewalk areas and other pedestrian walkways of each of the Lots, as the same may from time to time be constructed and maintained for such use; c. the passage and accommodation of bicycles over and across the parking areas, driveways, drive aisles, and bicycle ways of each of the Lots, as the same may from time to time be constructed and maintained for such use; d. the installation, maintenance, and use of one or more (i) mailboxes or facilities used for receiving or sending mail, and (ii) bicycle racks; e. the installation, operation, maintenance, repair, reconstruction and removal of such utility equipment and lines as may be reasonably required by the Owner of each Lot, which may include, but not be limited to, sanitary sewer lines, water lines, gas lines, phone/data/cable lines, electric lines, storm sewer drains, manholes, connections, vents and related facilities and improvements; f. the discharge and drainage of storm and surface water and the usage of all lines, ditches, piping, drains, manholes, connections, vents, retention and storage ponds/systems and all related improvements and equipment that may from time to time be constructed and maintained on each of the Lots; and #2883897v3 Page 3 of 6 g. the usage of any and all Common Elements (as hereinafter defined) that may from time to time be constructed and maintained on each of the Lots. Each Owner may promulgate reasonable non-discriminatory rules and regulations that govern the usage and operation of the Common Elements located on such Owner's Lot. For purposes hereof the term "Common Elements" will mean any and all open space, improvements, or amenities that exist or are constructed or installed for the common benefit and usage of the Permittees of each Lot and will include, but not be limited to, swimming pools, clubhouses, workout facilities, conference/business centers and leasing offices. All portions of the Lots now or hereafter improved with improvements that are consistent or subject to the forgoing Easements are hereinafter collectively referred to as the "Easement Area." Declarant hereby reserves unto itself and its Permittees the right to use the Easements and Easement Area for all other uses not inconsistent with the uses as set forth in this Declaration. 4. Permittees. "Permittees" shall mean and refer to any and all tenants, subtenants, licensees, occupants, employees, contractors, invitees and visitors of all Owners of the Lots. 5. Performance of the Maintenance and Repair of the Easement Area. Each Owner shall be responsible, at its expense, for (a) ongoing ordinary maintenance, as may be reasonably appropriate, on its Lot or Lots (collectively, the "Maintenance"); and (b) all repair, replacement and restoration (collectively, the "Repairs") of the Easement Area and associated improvements located on such Owner's Lot or Lots. Such Maintenance and Repairs shall include, but not be limited to, the following: a. keeping the surfaces of all areas in clean, unlittered, orderly and sanitary condition, including replacements as necessary; b. removing when reasonably necessary snow, ice and other debris; and c. repairing and replacing any improvements (including, without limitation, the Common Elements) used in connection with the Easements as may be reasonably necessary. All Maintenance and Repairs shall be performed in accordance with generally accepted maintenance and repair standards and in compliance with all applicable building codes, ordinances, laws and regulations. Each Owner may temporarily impede the Easement for purposes of Maintenance and Repairs as described herein. 6. Indemnity. Each Owner agrees to indemnify the other Owner and their respective agents, assigns, officers, employees and representatives from any claim, dispute, liability or damage, including attorneys' fees and costs, arising out of the use, occupancy or maintenance of such Owner, its agents, assigns and invitees, of the portion of the Easement Area located on its Lot. #2883897v3 Page 4 of 6 7. Notices. All notices, consents or other instruments or communications provided for under this Declaration shall be in writing, signed by the party giving the same, and shall be deemed properly given and received when actually delivered and received or three (3) business days after mailed, if sent by certified mail, postage prepaid or delivered via nationally recognized overnight courier, to: If to Declarant: __________________________ __________________________ __________________________ __________________________ If to any other Owners of the Lots: To the tax mailing address on file with the County Assessor for such Lots (unless an Owner designates a different address for notices as set forth immediately below) or to such other address as Declarant or any Owner may designate by written notice to Declarant and/or the other Owner(s). In addition, all Owners agree to provide all notices required or permitted to be given to the other Owner to the holder of a first mortgage on any Lot at the address for such mortgagee provided by each Owner to the other Owner from time to time; provided that said Owner has notified the other Owner of the existence of such first mortgage and submitted such mortgagee's name and address to the other Owner in compliance with this Section. 8. Taxes. Each Owner shall be responsible for the timely payment of all taxes attributable to its portion of the property which lies within the Easement Area on its Lot during its respective period of ownership. 9. No Interference. Except with the consent of the Declarant, (a) no building, improvement, structure or other above or below ground obstruction will be placed, erected, installed or permitted upon the Easements that will interfere with the purposes aforesaid; and (b) no party shall unreasonably interfere with or obstruct the use and enjoyment of the Easement Area. 10. Mechanics' Lien. Nothing contained herein shall authorize any Owner, or any person or entity acting through, with or on behalf of such Owner, to subject the other Owner's Lot, or any portion thereof, to mechanics' liens. 11. No Public Dedication. Nothing contained herein shall be deemed to be a grant or dedication of any portion of the Lots to the general public or for the general public or for any public purposes whatsoever, it being the intention of Declarant that this Declaration be strictly limited to the purposes herein expressed. Furthermore, any Owner may limit or preclude #2883897v3 Page 5 of 6 vehicular or pedestrian access over its Lot to the extent reasonably necessary to prevent any third party claim of an implied public dedication or of the acquisition of prescriptive easement or ownership rights impacting such Lot. 12. Successors and Assigns. Declarant hereby declares and each Owner, by its acquisition of title to any of the Lots, hereby covenants and agrees that the terms and provisions of this Declaration shall operate as covenants running with the land and shall inure to the benefit of and be binding upon the Owners, their respective Permittees, and each of their respective successors and assigns; provided, however, any Owner selling or transferring its interest in its Lot shall automatically be released from any liability hereunder subsequent to such sale or transfer but not as to any liability for periods during its ownership. No Owner may assign or otherwise convey its rights and obligations under this Declaration to any third party which is not a successor in fee simple ownership of the subject Lot. 13. Severability. In the event any clause, sentence or any portion of the terms, conditions, covenants and provisions of this Declaration are deemed illegal, null or void for any reason, or are held by any court of competent jurisdiction to be so, the remaining portions of this Declaration shall remain in full force and effect. 14. Captions for Convenience. All headings and captions used herein are for convenience only and are of no meaning in the interpretation or effect of this Declaration. 15. Exhibits. All exhibits, if any, to this Declaration are incorporated herein and made a part hereof as if fully set forth herein. 16. Attorneys' Fees. If any legal action or any arbitration or other proceedings are brought for the enforcement of this Declaration, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Declaration, the successful or prevailing party shall recover from the losing party all costs and expenses incurred therein, including reasonable attorneys' fees, expert witness fees and court costs. 17. Modifications. This Declaration contains the sole and entire understanding among the parties with respect to its subject matter and, except as may otherwise be provided herein, this Declaration shall not be modified or amended except by an instrument in writing executed by the then Owners of all of the Lots. 18. No Waiver. No waiver by an Owner of any default under this Declaration shall be effective or binding upon such party unless made in writing. No waiver of any default shall be deemed a waiver of any other or subsequent default hereunder. 19. Compliance with Laws. Each Owner shall be entitled to the use of the Easements as provided herein only to the extent that such use does not violate, or cause the violation of, any federal, state or local statute, ordinance, rule or regulation. 20. Governing Law. This Declaration shall be governed by and construed in accordance with the laws of the State of Montana. #2883897v3 Page 6 of 6 IN WITNESS WHEREOF, the undersigned executed this Declaration as of the day and year first above written. Declarant: _____________________________, a(n) _________________________ By: ____________________________________ Name: ____________________________________ Title: ____________________________________ STATE OF _______________ ) ) __________ OF ___________ ) On this ____ day of ________________ in the year 20___ before me, ________________ ______________________, a Notary Public in and for said state, personally appeared _________________ of _________________, a(n) _________________, known to me to be the person who executed the within Declaration in behalf of said limited liability company and acknowledged to me that he executed the same for the purposes therein stated. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in _________________ and State aforesaid, on the day and year first above written. Notary Public Print Name: My Commission Expires: SUBORDINATION AGREEMENT The undersigned, being the holder of the Note secured by the ___________ _______________________________________ (the "Deed of Trust") recorded at Book _____ Page _____ in the office of the Recorder of Deeds of the County of Gallatin, State of Montana, which encumbers the Lots described in the Declaration of Reciprocal Easements, in consideration of the payment of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, does hereby: (i) consent and agree to the terms and provisions of the foregoing Declaration of Reciprocal Easements; (ii) subordinate the lien of the Deed of Trust to the Declaration of Reciprocal Easements, which will be deemed prior and superior to the lien of the Deed of Trust; and (iii) agree that the foreclosure of the Deed of Trust, sale of the Lots, or the exercise of any right or remedy under the Deed of Trust will not affect the foregoing Declaration of Reciprocal Easements. IN WITNESS WHEREOF, the undersigned holder of the Note secured by the Deed of Trust has executed this Subordination Agreement this ____ day of _________________, 20___. By: Name: Title: STATE OF _______________ ) ) __________ OF ___________ ) On this ____ day of _____________ in the year 20___ before me, ________________ ____________________, a Notary Public in and for said state, personally appeared __________ _______________________, ___________________ of ______________________, a _______________________, known to me to be the person who executed the within document in behalf of said ____________________ and acknowledged to me that he or she executed the same for the purposes therein stated. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, on the day and year first above written. Notary Public Print Name: My Commission Expires: