Loading...
HomeMy WebLinkAbout018 Declaration of Covenants Conditions and Restrictions 2131 Graf {D1019605.DOC / 4 TN728-111} 1 This instrument was prepared by: Reno & Cavanaugh, PLLC 424 Church Street, Suite 2910 Nashville, Tennessee 37219 (615) 866-2320 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND EASEMENTS FOR 2131 GRAF STREET MINOR SUBDIVISION This Declaration of Covenants, Conditions, Easements and Restrictions for 2131 Graf Street Minor Subdivision (the “Declaration”) is executed and effective this ______ day of ___________, 2022, by Graf Apartments LLC, a Montana limited liability company (the “Phase I Owner”), Graf Apartments Phase II LLC, a Montana limited liability company (the “Phase II Owner”), and 2131 Graf Apartments POA, Inc. (the “POA”); W I T N E S S E T H: WHEREAS, Phase I Owner is the owner of certain real estate in Bozeman, Gallatin County, Montana, as more particularly described as Lot 2, Block 1 and Lot 2, Block 2 (the “Phase I Property”) on the Final Plat for 2131 Graf Street Minor Subdivision, recorded with the Clerk and Recorder’s Office for Gallatin County, Montana as Instrument No. _________________ (the “Plat”), attached hereto as Exhibit “A”; WHEREAS, Phase II Owner is the owner of certain real estate in Bozeman, Gallatin County, Montana, as more particularly described as Lot 1, Block 2 and Lot 3, Block 1 (the “Phase II Property”) on the Final Plat for the 2131 Graf Street Minor Subdivision (the Phase I Property and the Phase II Property shall be referred to herein as the “Lots”); WHEREAS, the Phase I Property and the Phase II Property are referred to herein as the “Development”; WHEREAS, the POA desires to establish certain covenants, and restrictions for the mutual benefit of the Phase I Owner and Phase II Owner (the “Owners”) in the Development, and a system of administration, operation and maintenance of the storm water facilities, pedestrian open space lots, and street frontage landscaping; WHEREAS, the covenants and restrictions set forth in this Declaration are intended to be covenants running with the Development, and which shall be binding on all parties having or {D1019605.DOC / 4 TN728-111} 2 acquiring in the future any right, title or interest in and to all or any portion of the Development, and which shall inure to the benefit of each present and future owner thereof. NOW, THEREFORE, the parties hereto declare as follows: 1. Maintenance of Development. a. Owner Responsibilities. Each respective owner of the Phase I Property and Phase II Property shall be responsible for maintaining, repairing, and improving the open spaces designated as open spaces on each respective property (together, the “Open Spaces”), including the landscaping and any structures located within the Open Spaces. Each Owner shall also be responsible for maintaining the vegetative ground cover, trees, and irrigation systems on its respective property, in a first class condition consistent with other multifamily apartment complexes located within Gallatin County, Montana. b. POA Responsibilities. The POA shall be responsible for the management and maintenance the storm water facilities, the pedestrian open space lots, and the tree frontage landscaping for the perimeter streets (collectively, the “Development Common Areas”). The storm water facilities shall be maintained in accordance with the standards of the City of Bozeman (the “City”), attached hereto as “Exhibit B” (the “Storm Water Management Plan”). 2. Storm Water Easement. POA hereby establishes, grants, and conveys, for the benefit of the Phase I Owner and the Phase II Owner, a perpetual, non-exclusive easement (the “Easement”) for the use of storm water facilities for storm water drainage from the Phase I Property and the Phase II Property. 3. Costs/Assessments for Storm Water Lots. Phase I Owner and Phase II Owner shall be responsible for the costs associated with the maintenance, repair, and improvements of the stormwater facilities. POA may either (i) perform any required maintenance, repair and improvements as required pursuant to the Storm Water Management Plan, and charge an assessment to Phase I Owner and Phase II Owner, which assessment shall be on a pro rata basis as set forth below, or (ii) designate such responsibility for maintenance, repair and improvements to Phase II Owner, in which case Phase I Owner shall reimburse Phase II Owner for its pro rata share of the costs and expenses. The pro rata share of any assessment or reimbursement shall be determined by the number of dwelling units on the Phase I Property and the Phase II Property. As of the effective date of this Declaration, the Phase I Property contains 195 dwelling units, or Forty Three percent (43%) of the total dwelling units within the Development. Upon completion of construction, Phase II will contain 260 dwelling units, or Fifty Seven percent (57%) of the total dwelling units within the Development. Phase I Owner, therefore, shall reimburse Phase II Owner for Forty Three percent (43%) of the costs for maintaining the stormwater facilities. The sharing percentages shall be adjusted from time to time to reflect the actual number of dwelling units then existing on the Phase I Property and the Phase II Property. In the event that the POA performs the required maintenance, repair, and improvements on the Storm Water Lots, the POA shall assess Phase I Owner and Phase II Owner for their pro {D1019605.DOC / 4 TN728-111} 3 rata share of such estimated expenses, and each Owner shall pay such assessment within thirty (30) days of receipt of request for such assessment. Any assessment must be accompanied by an estimate of such work to be performed. Any excess assessment paid by the Owners shall be refunded to each Owner on a pro rata basis. In the event that Phase II Owner assumes the responsibility for the maintenance of the Storm Water Lots, Phase II Owner shall furnish Phase I Owner with an annual statement documenting the expenses paid for maintenance, repair, and/or improvement of the Storm Water Lots (the “Expense Statement”) within ninety (90) days of the end of each calendar year. Phase I Owner shall pay Phase II Owner its pro rata share of the expenses associated with the Drainage Areas within thirty (30) days of receipt of the Expense Statement. 4. Phase I Owner’s Contingent Right to Maintain Stormwater Facilities. In the event that POA or Phase II Owner does not maintain and or repair the Storm Water Lots in accordance with the requirements Storm Water Management Plan, POA and Phase II Owner hereby designate Phase I Owner to undertake to maintain, repair and replace the storm water facilities. In such event, Phase I Owner shall provide written notice to POA and Phase II Owner that the Storm Water facilities thereon require maintenance and/or repair, and POA or Phase II Owner shall have thirty (30) days to perform such required maintenance or repair, or such longer period, as may be necessary to complete such maintenance or repair, so long as Phase II Owner has commenced to diligently perform such repair and/or maintenance. In the event that Phase II Owner does not perform such maintenance or repair, or diligently commence to perform such maintenance or repair, within thirty (30) days of POA or Phase II Owner’s receipt of such notice, then Phase I Owner may perform such maintenance or repair. All such work shall be performed at between the hours of 8:00 a.m. and 5:00 p.m. After the completion of any maintenance and/or repair pursuant to this Section, Phase I Owner shall provide Phase II Owner with a statement of the expenses for such work, and Phase II Owner shall have thirty (30) days to reimburse Phase I Owner for its pro rata share of the cost of such maintenance and/or repair. 5. Other POA Maintenance Obligations. POA shall have responsibility for the maintenance and repair of all pedestrian open space lots and street frontage landscaping for the perimeter streets, including all vegetative ground cover, boulevard trees and irrigation systems in the public right-of-way boulevard strips along all external perimeter Development streets as required by the City and shown on the Plat. The cost of such maintenance shall be assessed to each Owner in accordance with the pro rata percentages set forth in Section 3 above. Each Owner shall pay such assessment within fifteen (15) days of a request therefor. 6. City Right to Complete Maintenance and Repair. In the event that neither Owner performs and completes maintenance and repair work as required by the Storm Water Maintenance Plan, POA shall allow and permit the City to enter upon said Storm Water Lots to perform any necessary work. POA shall bear direct responsibility for the costs incurred by the City in completing such work and the Owners shall be responsible for payment to POA of their pro rata share of such costs. 7. Duration. All provisions of this Section, including the benefits and burdens, shall run with the land included within the Development and are binding upon and shall inure to the benefit of the respective owners from time to time and to their successors and assigns. Any {D1019605.DOC / 4 TN728-111} 4 transfer of ownership of any property hereby encumbered shall automatically transfer the obligations set forth in this Agreement to any successor in interest of either Owner. The rights and obligations established by this Section shall continue perpetually and shall not be canceled or terminated except by a written and recorded agreement executed by all persons and entities (including mortgagees) then having an interest in the Development, and the City. 8. Amendment. This Agreement, and all provisions, covenants, obligations and restrictions contained herein shall continue perpetually and shall not be canceled or terminated except by a written and duly recorded agreement executed by all persons and entities then having an interest in the Development. Any amendment or modification of this Agreement must be in writing and signed by the POA and all persons and entities then having an interest in the Phase I Property and the Phase II Property. 9. Not a Public Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of the easement areas to the general public or for any public purpose whatsoever, it being the intention of the parties that this Agreement be strictly limited to the purposes expressed herein. 10. Severability. This Agreement shall be construed and interpreted in accordance with the laws of the State of Montana. If any clause, sentence or other portion of the terms, covenants and restrictions of this Agreement become illegal, null or void for any reason, the remaining portions will remain in full force and effect. 11. Partial Invalidity. Invalidation of any one or more of the provisions of this Declaration by judgment or court order shall neither affect any of the other provisions not expressly held to be void nor the provisions so void in circumstances or applications other than those expressly invalidated, and all such remaining provisions shall remain in full force and effect together with the provisions ruled upon as they apply to circumstances other than those expressly invalidated. 12. Notice. All notices required or permitted hereunder shall be in writing and effective when deposited in the U.S. mail, postage prepaid, addressed to Phase I Owner, Phase II Owner, or the POA at the address placed on file by such person at the principal office of the POA. {D1019605.DOC / 4 TN728-111} 5 IN WITNESS WHEREOF, the parties have has caused this Declaration to be duly executed this ____ day of ________________, 2020. PHASE I OWNER GRAF APARTMENTS LLC a Montana limited liability company By: Andrew Braxton, Manager STATE OF MONTANA ) ) COUNTY OF GALLATIN ) Before me, _________________________________, a Notary Public in and for the County and State aforesaid, personally appeared Andrew Braxton, with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who, upon oath, acknowledged himself/herself to be Manager of Graf Apartments LLC, a Montana limited liability company, the within named bargainor, and that he as such Manager, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the company by himself as Manager. Witness my hand and seal at office in Bozeman, Montana, this ________ day of _________, 2020. Notary Public My Commission Expires: {D1019605.DOC / 4 TN728-111} 6 PHASE II OWNER GRAF APARTMENTS PHASE II LLC a Montana limited liability company By: Andrew Braxton, Manager STATE OF MONTANA ) ) COUNTY OF GALLATIN ) Before me, _________________________________, a Notary Public in and for the County and State aforesaid, personally appeared Andrew Braxton, with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who, upon oath, acknowledged himself/herself to be Manager of Graf Apartments Phase II LLC, a Montana limited liability company, the within named bargainor, and that he as such Manager, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the company by himself as Manager. Witness my hand and seal at office in Bozeman, Montana, this ________ day of _________, 2020. Notary Public My Commission Expires: {D1019605.DOC / 4 TN728-111} 7 POA 2131 Graf Apartments POA, Inc. a Montana not for profit corporation By: Will Ralph, President STATE OF MONTANA ) ) COUNTY OF GALLATIN ) Before me, _________________________________, a Notary Public in and for the County and State aforesaid, personally appeared Will Ralph, with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who, upon oath, acknowledged himself/herself to be President of 2131 Graf Apartments POA, Inc., a Montana not for profit corporation, the within named bargainor, and that he as such President, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the company by himself as Manager. Witness my hand and seal at office in Bozeman, Montana, this ________ day of _________, 2020. Notary Public My Commission Expires: {D1019605.DOC / 4 TN728-111} 8 Exhibit A Plat (See Attached) {D1019605.DOC / 4 TN728-111} 9 Exhibit B Storm Water Management Plan (See Attached) {D1019605.DOC / 4 TN728-111} 10