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Home My WebLink About23 - Restrictive Covenants - DK Martinen, LLC - Westlakes Fourth Subdivision, Block 1 Lot 1 & 2 2812893 Original to: Page 1 of 5 10/10/2023 04:27:00 PM Fee: $40.00 City of Bozeman Eric Semerad - Gallatin County, MT MISC Attn:City Clerk 1111�11� �t[ 11111111111111111111111111111111111111111111111111111111111111111111111111 PO Box 1230 Bozeman,MT 59771-1230 DECLARATION OF RESTRICTIVE COVENANTS This Declaration is made this_;JjL day of b �" , 20,3y Kay H. Martinen on behalf of DK Martinen, LLC, 401 Sunnyslope Road, Yakima, Washington 98908. ("Declarant"). RECITALS A. Declarant owns certain real property located at 683 North 3`d Avenue,Bozeman,Montana 59715, and more particularly described as follows(the"Property"): A TRACT OF LAND BEING LOT 1,OF BLOCK 1, OF WESTLAKE'S FOURTH SUBDIVISION TO THE CITY OF BOZEMAN,ACCORDING TO THE OFFICIAL PLAT THEREOF ON FILE AND OF RECORD IN THE OFFICE OF THE COUNTY CLERK AND RECORDER OF GALLATIN COUNTY,MONTANA, EXCEPTING THEREFROM THE PARCEL DESCRIBED IN QUITCLAIM DEED RECORDED AT INSTRUMENT NUMBER 2537347 OF SAID RECORDS,AND LOT 2,OF BLOCK 1 OF SAID WESTLAKE'S FOURTH SUBDIVISION,LOCATED IN THE SOUTHEAST QUARTER OF SECTION 1,TOWNSHIP 2 SOUTH,RANGE 5 EAST OF THE PRINCIPAL MERIDIAN MONTANA,CITY OF BOZEMAN, COUNTY OF GALLATIN, STATE OF MONTANA,BEING ADDITIONALLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 2, THENCE ALONG THE PERIMETER SAID LOT 2, THE FOLLOWING THREE(3) COURSES: 1.N88°53'16"W,A DISTANCE OF 505.73 FEET; 2.N00°59'08"E,A DISTANCE OF 228.40 FEET; 3.THENCE S88°51'58"E,A DISTANCE OF 211.95 FEET TO A POINT ON THE WEST LINE OF SAID LOT 1; THENCE ALONG SAID WEST LINE,NO 1°15'3 6"E,A DISTANCE OF 454.50 FEET TO A POINT ON THE SOUTH LINE OF THE HOMESTEAD TOWNHOUSES,PHASE 1 PLAT THEREOF ON FILE AND OF RECORD IN SAID OFFICE OF THE COUNTY CLERK AND RECORDER; THENCE ALONG SAID SOUTH LINE,THE FOLLOW THREE(3)COURSES: 1. S88°44'45"E,A DISTANCE OF 99.95 FEET;2.NO1°21'l4"E,A DISTANCE OF 31.90 FEET; 3. S88°47'00"E,A DISTANCE OF 193.98 FEET TO A POINT ON THE EAST LINE OF SAID LOT 1; THENCE ALONG THE EAST LINE OF SAID LOT 1 AND LOT 2, SO 1°I F 17"W,A DISTANCE OF 714.12 FEET TO THE POINT OF BEGINNING; CONTAINING AN AREA OF 255,429 SQ. FT. OR 5.864 ACRES,MORE OR LESS. Declaration of Restrictive Covenants - 1 - 2812893 Page 2 of 5 10/10/2023 04.27.00 PM B. It is the intent of the Declarant to meet the conditions of the Development Agreement(the"Agreement"), dated as of&,�,�, by and among North 3rd Apartments, LLC ("North 3rd Apartments"),the City of Bozeman, Montana(the "City"), and Declarant, in relation to the development of the North 3rd Apartments project(the"Project") on the Property; and C. As a condition of approval for the Site Plan of the North 3rd Apartments development, City of Bozeman application number 22375,the City of Bozeman required the Declarant to record a covenant running with the land pursuant to the terms of the North 3rd Apartments Affordable Housing Plan; and D. To satisfy the requirement of the North 3rd Affordable Housing Plan, the Declarant desires to place beneficial covenants and restrictions upon the North 3rd Apartments development for the use and benefit of Declarant and for the use, benefit, and protection of the future owners thereof and the City of Bozeman. NOW,THEREFORE, Declarant hereby declares: 1. Recitals Incorporated. The above recitals are hereby incorporated into this agreement. 2. Provision of Income Restricted Housing. a. Declarant agrees that a minimum of 50% of the residential units developed on the Property as part of the Project(the "Affordable Units")will be restricted for a period not less than 30 years. The Project will be utilizing an average income approach offering units at 50%, 60%, and 70% of the area median income ("AMI"), as reported annually for single persons and households of various sizes by the United States Department of Housing and Urban Development, or by any successor United States Government department, agency, or instrumentality, for the Primary Metropolitan Statistical Area which includes the City. b. The sale and management of the Affordable Units shall be administered by a third-party nonprofit or government entity with experience in managing affordable housing units, or other entity acceptable to the City. c. Declarant must construct and make available on the market all Affordable Units no later than the time all other market rate residential units are available. d. The Affordable Units may be operated as rental units or owner-occupied units with restrictions on resale prices. Throughout the term of this Declaration,the Affordable Units must be affordable to households with income no greater than 80%of the AML All sales prices and rental prices for the Affordable Units must be based on the most recent affordability data available through the Housing and Urban Development's Affordability Data System for the City or similar affordability data available at the time of rental or sale/resale. e. The Affordable Units must have equal access to enjoyment of all common facilities of the Property as the market rate units. Declaration of Restrictive Covenants -2 - 2812893 Page 3 of 5 10/10/2023 04.27.00 PM 3. Prohibition on Use as Short Term Rentals. The Affordable Housing Units are prohibited from being used, rented, or made available as short-term rentals, as the term is defined in the Bozeman Municipal Code. 4. Term. This Declaration shall remain in place and be enforceable for a term of 30 years from the date hereof and shall inure to the benefit of Declarant, each owner of property,the City, and their respective legal representatives,heirs, successors, or assigns, subject to the right of amendment provided in this Article. 5. Amendment. This Declaration may not be amended without the prior written consent of the Bozeman City Commission. Any amendment shall become effective only upon the filing of such amendment in the records of the Clerk and Recorder of Gallatin County, Montana. 6. Enforcement. The Declarant, the City, or any owner of real property within the Property may take action to enforce the provisions of this Declaration. Enforcement may be by injunction, declaratory judgment, action for damages, or any other legal claims, all of which shall be cumulative and non-exclusive. The prevailing party in any action shall be entitled to recover, in addition to other damages, its reasonable litigation expenses, including attorney's fees, as may be awarded in the judgment of the court. 7. Covenants to Run with the Land. The Declarant intends that the terms of this Declaration shall run with the land and shall continue in effect with respect to the entire Property notwithstanding any partition or division of the Property. 8. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect. 9. Choice of Law and Venue. This Declaration of Covenants, Conditions, and Restrictions shall be governed by the laws of Montana and venue shall be in Gallatin County, Montana. IN WITNESS WHEREOF the DECLARANT has signed this instrument and arranged for its recordation in the real property records of Gallatin County, Montana. By: DK MaAin6n, LLC. Kay H Martinen, Authorized Agent STATE OF Yak►and ) ss. County of G ) On this day of 2023,before me the undersigned, a Notary Public for the State of Montana, personally appeared, Kay H Martinen, known to me to be the Declaration of Restrictive Covenants - 3 - 2812893 Page 4 of 5 10/10/2023 04.27.00 PM Authorized Agent of DK Martinen, LLC., and the person whose name is subscribed to the within instrument and acknowledged to me that she executed the within instrument for and on behalf of DK Martinen, LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day f st above written. aGt!Sno�a J..(SEANtary Puhf;,; State of Wasningtan Commission#2200930 i My Comm, Expires Feb 5, 202f7 Notary Public for the State o (Printed Name) Residing in �A) f My Commission Expires�F /--QAJZja/2023. Declaration of Restrictive Covenants - 4- 2812893 Page 5 of 5 10/10/2023 04:27:00 PM Acknowledged by: CITY OF BOZEMAN -M- 9 o L By: J " helich, i anager ATTEST: ®�. � 1�a4CW2 Mike Maas, City Clerk � '•:yS ``` ,4,•c�•�� l. gigot``' STATE OF MONTANA ) :ss COUNTY OF GALLATIN ) This instrument was signed or acknowledged before me on U66 40 20y Jeff Mihelich and Mike Maas, acting in the capacities of City Manager and City Clerk, respectively, of the City of Bozeman, Montana. (NOTARIAL SEAL) ZoW d Name: tary Public 4r the State of >kkDn'6wO— Residing at ZPdd � JULIE HUNTER My commission expires�l&,u,Q 1 t. 2-()2-S .c�9 Notary Public :-NONAR1,1 for the State of Montana *= Residing at: ;C�-SEAL.=Q Bozeman, Montana My Commission Expires: of M June 11, 2025 Declaration of Restrictive Covenants - 5 -