Loading...
HomeMy WebLinkAbout033 Subdivision Covenants 1 Return Recorded Document to: [County Attorney’s Office] DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (this “Declaration”) is made this ____ day of ____________, 2026, by Gallatin County, Montana, a political subdivision of the State of Montana, whose address is c/o Gallatin County Attorney’s Office 1709 West College, Bozeman, Montana 59718 (“Declarant”). RECITALS A. Declarant owns a parcel of real property in Gallatin County, Montana, located upon a Tract of Land know as Tract B of Certificate of Survey Number 2439 Located withing a portion of the Southwest One Quarter of Section 1, Township 2 South, Range 5 East, Principal Merdian Montana City of Bozeman, Gallatin County, Montana, more particularly described as follows (“County Lot 1”): Lot 1 of Hidden Creek Minor Subdivision No. _________________, on file in the office of the Clerk and Recorder of Gallatin County, Montana. B. Declarant owns a parcel of real property in Gallatin County, Montana, located upon a Tract of Land know as Tract B of Certificate of Survey Number 2439 Located withing a portion of the Southwest One Quarter of Section 1, Township 2 South, Range 5 East, Principal Merdian Montana City of Bozeman, Gallatin County, Montana, more particularly described as follows (“County Lot 2”): Lot 2 of Hidden Creek Minor Subdivision No. _________________, on file in the office of the Clerk and Recorder of Gallatin County, Montana. C. Declarant owns a parcel of real property in Gallatin County, Montana, located upon a Tract of Land know as Tract B of Certificate of Survey Number 2439 Located withing a portion of the Southwest One Quarter of Section 1, Township 2 South, Range 5 East, Principal Merdian Montana City of Bozeman, Gallatin County, Montana, more particularly described as follows (“County Lot 3”): Lot 3 of Hidden Creek Minor Subdivision No. _________________, on file in the office of the Clerk and Recorder of Gallatin County, Montana. D. Declarant owns a parcel of real property in Gallatin County, Montana, located upon a Tract of Land know as Tract B of Certificate of Survey Number 2439 Located withing a 2 portion of the Southwest One Quarter of Section 1, Township 2 South, Range 5 East, Principal Merdian Montana City of Bozeman, Gallatin County, Montana, more particularly described as follows (“County Lot 4”): Lot 4 of Hidden Creek Minor Subdivision No. _________________, on file in the office of the Clerk and Recorder of Gallatin County, Montana. E. County Lot 1, County Lot 2, County Lot 3 and County Lot 4 are collectively referred to in this Declaration as the “Property”. Any owner of a fee simple interest in either County Lot 1, County Lot 2, County Lot 3 and County Lot 4, or a portion of either County Lot 1, County Lot 2, County Lot 3 and County Lot 4, including such an owner who is selling the owner’s interest in the Property, or any portion of the Property, under a contract for deed, shall be referred to in this Declaration as a “Property Owner”, or collectively as “Property Owners”. Provided, however, any person or entity who holds an interest in all, or in any portion of the Property merely as security for the performance of any obligation shall not be deemed a Property Owner. F. The Declarant desire to impose protective and beneficial covenants, conditions and restrictions upon the Property for the use, benefit and protection of the Declarant and of all future Property Owners. The Declarant intend to convey and transfer County Lot 1 and County Lot 4 or any portions thereof, to future Property Owners, and such conveyances and transfers shall be made expressly subject to this Declaration. G. The purpose of this Declaration is to establish a uniform plan for development, operation, and maintenance of the Property, and to protect the value and desirability of the Property, to further a plan for the improvement, sale, and ownership of the Property for the mutual benefit of the Declarant and future Property Owners, to establish the Property as harmonious and attractive land conducive to the intended uses of property, and to promote and safeguard the health, comfort, safety, convenience, and welfare of the Declarant and future Property Owners. NOW, THEREFORE, the Declarant hereby declare that all of the real property within the Property shall be used, held, transferred, sold, conveyed and occupied subject to all of the provisions of this Declaration which are imposed for the purpose of enhancing and protecting the value, desirability, and attractiveness of the Property by providing a reasonably uniform plan for its desirable development. 1. Land Use. All of the land that constitutes the Property shall be used in conformance with any development plans, as well as any amendments thereto, entered into between the Declarant and the future Property Owners and all applicable zoning and land use regulations imposed upon the Property by any applicable state and/or local governing body. Activities creating noise, litter, offensive odors, extra traffic, exterior signage, or pollution beyond levels expected by permitted uses are prohibited. 2. Building Standards. All dwellings and structures constructed on the Property after the date of this Declaration shall each be: (i) completely constructed on site; (ii) 3 constructed of wood, stone, brick, steel, concrete, or any combination of the same; (iii) of good quality construction; and (iv) constructed by permanent construction affixed to the land on permanent foundations. All new buildings and new structures constructed after the date of this Declaration shall be completely in accordance with any and all applicable building codes within the City of Bozeman, Gallatin County, Montana. 3. Nuisances, Trash and Abandoned/Inoperable Vehicles. No noxious or offensive activity shall be carried-on upon, or permitted on the Property, and the Property will not be used in any way that may endanger the health or safety of individuals, or unreasonably disturb the neighborhood. No rubbish, trash, machinery, machinery parts, antiques, junk or other waste shall be stored on, or allowed to accumulate on any portion of the Property, except in sanitary closed containers which shall be emptied and removed from the Property on at least a weekly basis, or unless such items are kept within an enclosed structure or garage. All garbage shall be stored in secure and sturdy closed containers made of metal, plastic or other suitable material that has sufficiently tight fitting covers to prevent the escape of noxious odors and to prevent entrance or destruction by wild animals. No unlicensed, inoperable, abandoned, wrecked or junk vehicles, vehicle parts or trailers are allowed on any portion of the Property unless such items are kept within an enclosed structure or garage. 4. Shared Infrastructure Improvements and Easements. In furtherance of the development of Lot 1, Lot 3 and Lot 4 (the “Share Infrastructure Lots”) there will be certain shared infrastructure improvements, namely roadway, driveway and side walk improvements (the “Shared Infrastructure Improvements”). Through this Declaration, the Property Owners are establishing the necessary easements to facilitate the development, construction, use, maintenance and upkeep of the Shared Infrastructure Improvements. Notwithstanding the provisions of this Section 4, the Property Owners agree that the Property Owner for each respective Lot will pay for the initial construction of the Shared Infrastructure Improvements located within their respective lots. a. Driveway and Roadway Access. The Property Owners of the Shared Infrastructure Lots hereby establish and grant to each other, for the benefit of each such Property Owner and its respective users, non-exclusive easements, appurtenant to each Property Owner’s lot, for ingress, egress, access through the roadways and driveways located within the Shared Infrastructure. b. Lot 1 and Lot 3 Shared Parking. The Property Owner of Lot 1 hereby establishes and grants to the Property Owner of Lot 3, for the benefit of such Property Owner and its users, easements, appurtenant to such Property Owner’s Lot 3, in on, over and through the driveways, roadways and parking lots located on Lot 1 as follows: (1) an exclusive easement, but not exclusive of the Property Owner of Lot 3 and its users, to use [____________] (___) of the striped parking spaces located within the parking lots located on Lot 1, and (2) non-exclusive easements for ingress, egress and access to and from such parking spaces. 4 c. Sidewalks. The Property Owners of the Shared Infrastructure Lots hereby establish and grant to each other, for the benefit of each such Property Owner and its respective users, non-exclusive easements, appurtenant to each Property Owner’s lot, for ingress, egress, access and use of the sidewalks, pathways, ramps located withing the Shared Infrastructure Lots. d. Maintenance and Cost Sharing. i. Required Maintenance. The Property Owners of the Shared Infrastructure Lots shall directly pay the Required Maintenance (defined below) costs for the Shared Infrastructure Lots as required hereunder. The Property Owners of the Shared Infrastructure Lots shall pay a proportionate share of all Required Maintenance for the Shared Infrastructure Improvements which such proportionate share based on the ratio of the square footage of each Lot within the Shared Infrastructure Lots to the total square footage of all of the Shared Infrastructure Lots. Required Maintenance means any and all maintenance and repairs reasonably necessary to keep the Shared Infrastructure Improvements in good repair, in a condition substantially similar to its condition upon original installation, and keeping the Infrastructure Improvements free of debris. ii. Payment and Reconciliation. At any time there is more than one Shared Infrastructure Lot Property Owner, than within one hundred fifty (150) days after the last day of each calendar year, the Property Owners shall deliver to the other Property Owners a statement (an “Annual Reconciliation Statement”) containing the following information: (i) the maintenance performed; (ii) the maintenance Costs; (iii) reasonable supporting data to evidence the maintenance costs incurred; (iv) the allocation of maintenance costs as provided for Section 4 herein; and (v) each Property Owner’s share of the maintenance costs. Each Property Owner shall pay any amount owing within thirty (30) days after receipt of the Annual Reconciliation Statement. The Property Owners shall maintain, on an open-book basis, accurate records regarding maintenance costs for the Shared Infrastructure Improvements to be shared and, upon request, shall provide the requesting Property Owner with a reasonable opportunity to review such records on reasonable prior notice. If any Property Owner wishes to challenge the computations of actual, maintenance costs, the challenging Property Owner shall give the opposing Property Owner written notice of the Property Owner’s intent to audit the opposing Property Owner’s books and records pertaining to its operation and maintenance of the Shared Infrastructure Improvements during the period in question. Any objections shall be made within one hundred eighty (180) days following the date of receipt of the Annual Reconciliation Statement or such objections shall be deemed 5 waived. In the event that the audit discloses any error in the calculation of the amounts payable by the challenging Property Owner, an appropriate adjustment shall be made forthwith. The costs of any such audit shall be paid by the challenging Property Owner unless it is finally determined as a result of such audit that the challenging Property Owner is entitled to a refund of more than five percent (5%) of the final maintenance costs for such period, in which event the reasonable costs of the audit shall instead be paid by the opposing Property Owner. iii. Remedies for Non-Payment of Allocated Share. If a Property Owner fails to pay its share of maintenance costs, within thirty (30) days of the date due, then in addition to such rights and remedies provided for under Montana law, the defaulting Property Owner shall be liable for: (i) interest at a rate equal to the lower of the highest rate permitted by law from the date the payment was due until the date the payment is received; (ii) a late payment charge in the amount of Two Hundred Fifty Dollars adjusted for inflation, not as a penalty, but as a way of defraying the costs that would be incurred in dealing with late payments; and (iii) reasonable attorneys’ fees and costs of collection, including without limitation court costs, if it becomes necessary to bring an action to recover the amount due. 5. Noxious Weeds. Each Property Owner shall control, limit and reduce the growth of noxious weeds on his, her or its respective land within the Property. Specifically, each Property Owner shall maintain his, her or its respective land in compliance with the Montana Noxious Weed Control Act and any applicable Gallatin County noxious weed management plan. 6. Sanitary Restrictions. Each Property Owner shall comply with all laws and regulations relating to water supply, sanitation, sewage disposal and air pollution. No individual sewage disposal system shall be permitted on any land within the Property unless such system is designed, located, and constructed in accordance with the applicable standards and recommendations of the applicable state and/or local governing body. 7. Utility Lines and Property Maintenance. All new utility lines shall be installed underground whenever and wherever feasible. Each Property Owner shall provide proper exterior maintenance of all structures, fences (painting and repair), all vegetation and landscaping, including lawn mowing and irrigation, and of any other matter of esthetics so that the premises and improvements thereon will be in a safe, clean, neat and orderly condition. 8. Firearms. No firearms may be discharged on any portion of the Property except in emergencies. The primary purpose of this restriction is to protect against personal injury, property damage and fire. 6 9. Fire and Casualty Damage. Any building damaged by fire or other casualty must be completely repaired as to external appearances within twenty four (24) months after the occurrence of such damage and, if not so repaired, it shall be demolished and removed. 10. Address Signage. All parcels of land within the Property shall have clearly marked addresses. The address numbering and lettering shall be at least six (6) inches in height and the color of the numbering and lettering shall be in contrast with the color of their background. 11. No Dedication for Public Use. The provisions of this Declaration are not intended as, and do not constitute a dedication of the Property for any public use, and the rights created in this Declaration are private and for the benefit only of the Declarants and their successors, transferees and assigns. 12. Binding Effect and Duration. The provisions of this Declaration shall run with, be binding upon, and shall be appurtenant to the Property, and this Declaration shall be binding upon all present and future owners of the Property, or any portion of the Property, and shall inure to the benefit of, and be binding upon the Declarant, the Property Owners, and their respective legal representatives, heirs, successors, or assigns for a term of twenty (20) years from the date this Declaration is recorded with the Gallatin County Clerk and Recorder’s office. After the expiration of said twenty (20) years, this Declaration shall automatically renew for successive periods of ten (10) years each, unless this provision is amended as provided in Section 13. 13. Amendment. Subject to any applicable and required approval that must be obtained from a state and/or local governing body, the Declarant reserve the sole right to amend, modify, make additions to or deletions from any provision of this Declaration as they alone deem appropriate, so long as, and at any time that the Declarant are the sole owners of all of the land within the Property. Such amendment made by the Declarant shall be made through a written instrument executed by the Declarant and recorded with the Gallatin County Clerk and Recorder’s office. At any time when the Declarant are not the sole owners of all of the land within the Property, then the provisions of this Declaration may be modified or amended in any way upon a written instrument executed by Property Owners holding more than sixty percent (60%) [THIS % SHOULD BE DISCUSSED AND AGREED UPON] of the acres making up the Property, which instrument shall be recorded with the Gallatin County Clerk and Recorder’s office, subject to any approval required by the applicable governing body of Gallatin County or the State of Montana, if any. 14. Governing Law and Venue. This Declaration shall be governed by and construed in accordance with the laws of the State of Montana. Gallatin County, Montana, shall be the venue of any proceeding in law or equity to determine or interpret the rights or liabilities of the parties hereto or to recover damages hereunder. 15. Enforcement, Attorneys’ Fees and Non-Waiver. The Declarant, or any Property Owner may take action to enforce the provisions of this Declaration. Enforcement may be by injunction, declaratory judgment, action for damages, or any other legal action at law or in equity seeking any available remedy, all of which shall be cumulative and non-exclusive. The 7 prevailing party in any action shall be entitled to recover, in addition to other damages, its reasonable litigation expenses incurred by the prevailing party, including attorneys’ fees and expert witness fees, as may be awarded in the judgment of the court. A failure by any Property Owner or the Declarant to enforce any provision of this Declaration shall not be deemed either as a waiver of, or as an abandonment of the right to enforce any provision of this Declaration at a later time. 16. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions of this Declaration, which shall remain in full force and effect. Further, if a court finds that any provision of this Declaration is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 17. Non-Liability of Declarant. The Declarant shall have no liability to any Property Owner, guest or any other persons merely by virtue of his or her status as a Declarant, or for any of his or her, or for any Property Owner’s, actions or failure to act relative to this Declaration, except as otherwise required by law such as where the Declarant’s conduct is the sole cause of damage. IN WITNESS WHEREOF the Declarant have signed this Declaration and arranged for its recordation in the Gallatin County Clerk and Recorder’s office. [Signatures on following page] 8 DECLARANT GALLATIN COUNTY, MONTANA ____________________________ Name: Title: STATE OF ___________________ ) : ss. County of ____________________ ) On this __ day of _________________, 20__, this instrument was acknowledged before me by ____________________________ as the Chair of the Board of Gallatin County Commissioners on behalf of whom this instrument was executed. (Seal) Notary Signature Line Notary Printed Name Notary Public for the State of Residing at: My Commission Expires: / / 20 41147627v1