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HomeMy WebLinkAbout009 Covenants Nexus Point Subdivision After recording return to: Madison Engineering LLC 895 Technology Blvd Suite 203 Bozeman, Montana 59718 Declaration of Covenant This Declaration is made this ___ day of _________, 20____ by Nexus Point LLC (“Declarant”), as owner of the following real property: A TRACT OF LAND BEING LOT 1 OF MINOR SUBDIVISION 235B, SITUATED IN THE NORTHEAST ONE-QUARTER AND THE SOUTHEAST ONE-QUARTER OF SECTION 24, TOWNSHIP 2 SOUTH, RANGE 5 EAST, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA WHEREAS, Declarant intends to develop, sell and convey the above-described real property, hereinafter referred to as the “Nexus Point Subdivision” (the “Property”); and, WHEREAS, Declarant desires to subject all of said real property, together with the lots contained therein, to the covenants, conditions, restrictions and reservations herein set forth and referred to as the “Covenants”; NOW, THEREFORE, Declarant does hereby establish, dedicate, declare, publish and impose upon the property the following Protective and Restrictive Covenants, which shall run with the land, and shall be binding upon and be for the benefit of all persons claiming such real property, their grantors, legal representatives, heirs, successors and assigns, and shall be for the purpose of maintaining a uniform and stable value, character and use of the property. Such Covenants shall apply to the entire property, and all improvements placed or erected thereon, unless otherwise specifically excepted herein. The Covenants shall inure to and pass with each and every parcel, tract, lot or division. Said Covenants follow: DEFINITIONS Section 1. The term "Association" shall mean the Nexus Point Subdivision Owners' Association, its successors and assigns. The Association may be incorporated as a Montana non- profit corporation, with its members as the lot owners. Section 2. The terms “Lot” and “Lots” shall mean all of the real property herein described and subsequently surveyed and platted into lots. 2 Section 3. The term “Developable Lot” shall mean any Lot on which a building improvement is built, or upon which a building improvement may potentially be built. Developable Lots do not include Lots exclusively used as retention or detention basins, designated wetlands and their associated non-buildable setback zones, parkland or roadways. Section 4. The term "Owner" or "Lot Owner" shall mean any person or entity owning a fee simple interest in a lot, but excluding those having a mortgage or an interest merely as security for the performance of an obligation; provided, however, that prior to the first conveyance of a lot for value, the term "Owner" shall mean "Declarant" or its successors or assigns. The term "Person" hereinafter shall include any person, persons or entities. Section 5. The term "Member" shall mean any Owner or Lot Owner. Each member agrees to abide and be bound by these Covenants, the Articles of Incorporation, the Bylaws and the Resolutions of the Association, if any. Section 6. The term "Directors" shall mean the Board of Directors of the Association, and shall consist of three lot owners who shall be elected at the annual meeting by a simple majority of the members of the Association. The Board of Directors shall be elected for a term set by a simple majority of the membership, but not less than one year. Any vacancy in the Board of Directors occurring before the next annual meeting of the members shall be filled by the remaining Directors. The Directors shall have the authority to act on behalf of the Association and its members as shall be reasonably necessary to carry out the purposes of the Association and enforce these Covenants. The Directors shall act by majority vote. The officers of the Association shall follow the directions of the majority vote of the Directors. Section 7. Other definitions may be found throughout these covenants and those definitions are binding upon all owners. Any term not specifically defined shall be deemed to have a common and ordinary meaning. ARTICLE II OWNERS' ASSOCIATION Section 1. An association is hereby established and known as “Nexus Point Subdivision Owners' Association” hereinafter referred to as the “Association.” Said Association may be incorporated under a different name as may be approved by the Montana Secretary of State. Section 2. Every Owner of a Lot shall be a Member of the Nexus Point Subdivision Owners' Association. Membership shall be appurtenant to and may not be separate from the ownership of any Lot. Each Owner shall be responsible for advising the Association of their acquisition of ownership, of their mailing address, and of any changes of ownership or mailing address. The initial address of the Association shall be 2068 21st Ave, Bozeman, MT 59718. The address of the Association may be changed by the Board of Directors upon notice to the owners. 3 Section 3. For the purpose of determining membership, at any meeting a person or entity shall be deemed to be a member upon the recording of a duly executed deed to that Owner. Section 4. The annual meeting of the Association shall occur on the date set forth in the Bylaws. Any special meetings may be called by the President, or in the absence of the President, by the Vice-President. In addition, a special meeting shall be held upon call of fifty percent (50%) of the owners. Special meetings shall require seven (7) days' notice, in writing. Notice of annual and special meetings shall be mailed to owners at the address for each owner as provided pursuant to Section 2 of this Article. The presence of members representing 50% of the total votes of the membership shall constitute a quorum. Proxy votes are allowed so long as the proxy is provided to the Association not less than twenty-four (24) hours prior to the meeting, is signed by the lot owner(s), is dated and clearly identified the party or person entitled to exercise the vote. At the annual meeting, the members shall review and approve a budget for the next year, shall elect Directors to fill any expired term or vacant position, and shall conduct such other business as shall be reasonable or necessary to carry out the purpose of the Association. The members shall have the authority to set the number of Directors, which number shall not be less than three nor more than seven. The presence of members representing 30% of the total votes of the membership shall constitute a quorum. Passage of any motions shall require a majority of the members present. Section 5. The annual meeting of the Board of Directors shall be held immediately after the annual meeting of the Members. At the annual meeting, the Directors shall elect a President, Vice- President and Secretary-Treasurer for the Association from among the Directors, except that the Secretary-Treasurer may be a Member who is not a Director. Section 6. The Board of Directors shall serve for a term to be set by a simple majority of the membership, which shall not be for less than one year. Each director shall serve until replaced by his or her successor. Any vacancy on the Board of Directors occurring before the next annual meeting of the members shall be filled by the remaining directors. Section 7. The Board of Directors shall have the power and responsibility of acting on behalf of the Association and its Members as shall be reasonably necessary to carry out the purposes of the Association, including but not limited to take such actions as shall be necessary or reasonable to care for, protect and maintain storm water facilities, parking lots, landscaping, common open space and boundary fences, to enforce these Covenants; to collect assessments; to set annual and/or special meetings; and to act in any other matters set forth herein or which may serve the development, including the formation of special improvement districts, either public or private, for such improvements as the Association shall approve. The Directors shall act by majority vote. 4 Section 8. The duties of each of the offices shall be as follows: (a) President. The President shall preside over all meetings of the Association. He or she shall call the membership together whenever necessary. The President shall be the general administrative and executive officer of the Association, and shall perform such duties as may be specified, and exercise such powers as may be delegated to the office of President by the Board of Directors. (b) Vice-President. The Vice-President shall exercise the powers of the President in the absence of the President. (c) Secretary-Treasurer. The Secretary shall give notice of all meetings of the Association, and shall keep a record of the proceedings of the meetings of the Association. The Secretary shall be authorized to sign on behalf of the Association, all records, documents and instruments when such are authorized to be signed by the Association. The Treasurer shall keep and maintain adequate and correct accounts of the accounts, properties, and business of the Association, including accounts of its assets, liabilities, receipts, disbursements, gains and losses of the Association. The Treasurer shall prepare and report such periodic accountings as shall be required by the Association. Section 9. A vacancy in any office of the Association shall be filled by appointment by the Board of Directors until the next annual meeting or the successor is duly appointed or elected. ARTICLE III ANNUAL AND SPECIAL ASSESSMENTS Section 1- Assessments. Each Owner, whether or not it shall be so expressed in any deed or contract, is deemed to have agreed to these Covenants, and to pay to the Association: (a) Annual assessments or charges; and (b) Special assessments for capital improvements and reserve assessments, such assessments to be established and collected as hereinafter provided. The annual, special and reserve assessments, together with interest, costs and reasonable attorney's fees, shall be a charge on the land, and shall be a continuing lien upon the Nexus Point Subdivision 5 against which each such assessment is made. Each assessment, together with the interest, costs and reasonable attorney's fees, shall be the personal obligation of the Owner of a Lot at the time when the assessments are due. Section 2 - Purpose of Assessments. The assessments levied by the Association shall be used to promote the recreation, health, safety, convenience and welfare of the Owners. Assessments shall be used for the operation, maintenance, repair and replacement for the landscaping, parking lots, boundary fences, storm water detention basin, drainage/infiltration facilities, open spaces, designated wetlands, taxes assessed against common areas, and for any other purposes, expressed or implied, in these Covenants. Section 3 - Amount and Approval of Assessments. The maximum annual assessment per Lot which may be made by the Association in every calendar year shall not substantially exceed the projected and budgeted actual and reasonable costs to be incurred by the Association during the coming year in carrying out the purposes herein set forth, and may include a reasonable reserve for contingencies. The amount of the annual assessments shall be fixed by the Board of Directors of the Association in the following manner: At each annual meeting of the members of the Association, the Directors shall present a proposed budget of the estimated expenses for the Association for the coming year to the members for review, discussion, amendment, comment and approval. The members shall approve or amend the proposed budget by a majority vote of the members present or voting by proxy. After the annual meeting, the Board of Directors shall set the amount of the assessments and the date(s) due for the coming year to cover the budget approved in the manner herein set forth. Section 4 - Special Assessments for Capital Improvements and Reserve Assessments. In addition to the annual assessments authorized above, the Association may levy special assessments for the purpose of defraying, in whole or in part, the cost of any capital improvements in the common open space and other common areas, provided that any such assessment shall have the approval of thirty percent (30%) or more of all of the votes of the members who are present at a meeting duly called for that purpose. Special assessments may be levied to be paid over one or more years. The Association may levy reserve assessments for the replacement and upkeep of the improvements enjoyed by the Association members. Reserve assessments need not be levied against all lots during any budget cycle provided that any such assessment shall have the approval of thirty percent (30%) or more of all of the votes of the members being assessed, who are present at a meeting duly called for that purpose. Section 5 - Rate of Assessment. 6 Annual assessments per Lot shall be calculated based upon the land area of each Developable Lot, as a percentage of the total land area of all Developable Lots. Assessments may be collected on a monthly, quarterly or annual basis, or any other regular basis as shall be determined by the Board of Directors of the Association. Special assessments shall be based upon the same Rate of Assessment. Section 6 - Date of Commencement of Annual Assessments and Due Dates. Except as herein provided, the annual and special assessments provided for herein shall be due on the date determined by the Board of Directors. The Board of Directors shall fix the amount of the annual assessments against each lot at least thirty (30) days in advance of the due date of each annual assessment, and at least ninety (90) days in advance of a special assessment and reserve assessments. Written notice of the annual and special assessments shall be mailed or personally delivered to every Member subject thereto, at their last known mailing address. Section 7 - Effect of Nonpayment of Assessments and Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of ten percent (10%) per annum. The Association may bring an action at law against the owners obligated to pay the same or foreclose the lien against the property. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the open space or by abandonment of their Lot. Upon delivery of the notice of assessment to the Owner, the assessment shall be a lien upon the Owner's Lot until paid. The Association may record a notice of the lien with the Clerk and Recorder of Gallatin County, Montana. In the event of non-payment within thirty (30) days after the recording of the notice of lien, the Association may foreclose the lien in the manner set forth under Montana law for the foreclosure of liens against real property. The Association is entitled to collect during an action for delinquent assessments any and all reasonable attorney’s fees and costs accrued prior to and in association with the collection of delinquent assessments. Section 8 - Sale or Transfer of a Lot. The sale, transfer or encumbrance of any Lot shall not affect the assessment lien if recorded in the records of Gallatin County, Montana, or the personal liability of the owner responsible for the assessment. No sale or transfer to a third party with actual or constructive knowledge of an assessment shall relieve such new owner from the liability for any outstanding assessments, or from any assessments thereafter becoming due, or from the recorded lien thereof. A person or entity purchasing a Lot shall be responsible for checking with the Association for any outstanding assessments against said Lot before the closing upon the purchase. Section 9 - Assessment as lien. A portion of the assessments levied by the Board of Directors of the Association shall become a lien on any Lot within the Property in the event the taxes on such Lot become delinquent. 7 ARTICLE IV ASSOCIATION OBLIGATIONS Section 1. The Association shall be responsible for the operation, maintenance and repair of parking lots, landscaping and open spaces including but not limited to: (a) storm water detention basin and drainage/infiltration facilities. (see Exhibit A) (b) snow removal, (c) parking lot sweeping, repair and maintenance, (d) landscape repair and maintenance, (e) noxious weed mitigation (see Exhibit B), (f) taxes assessed against areas for open space, and (g) for any other purposes, expressed or implied, in these Covenants. Section 2 - Insurance of the Board of Directors. The Association shall be responsible for liability insurance in an amount to be determined by the Board of Directors of the Association. Section 3 - Noxious Weeds. The control of noxious weeds by the Property Owner’s Association on those areas for which the Association is responsible (right(s)-of-way, easement(s), parks, and any other common areas) and the control of noxious weeds by individual Owners on their respective Lots shall be as set forth and specified under the Montana Noxious Weed Control Act (MCA 7-22-2101 through 7-22-2153) and the rules and regulations of the Gallatin County Weed Control District. The control of Noxious Weeds is the responsibility of the Property Owner whether the Lot is improved or unimproved, and shall be as set forth and specified under the Montana Noxious Weed Control Act (MCA 7-22-2101 through 7-22-2153 as amended) and the rules, regulations and management Plans of the Gallatin County Weed Control District. The Property Owner shall be responsible for control of state and county-declared noxious weeds on his or her Lot, and the Subdivision road right-of-way and/or road easement(s) adjoining their property. In the event a Property Owner does not control the noxious weeds, after 10 days notice from the Property Owners Association, the 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. Nothing herein shall require or obligate the Gallatin County Weed District to undertake any management or enforcement on behalf of the Property Owners Association or Property Owners that is not otherwise required by law, or the rules, regulations, and management Plans of the Gallatin County Weed District. 8 ARTICLE V PROPERTY USE Section 1 - Storage of Equipment. No portion of the Property or adjacent street shall be used for the storage of any inoperable vehicle, any machinery or any equipment, except for required construction vehicles, machinery or equipment during the course of building construction. Section 2 - Commercial Vehicles. No Lot shall be used for the outside parking or storage of any commercial trucks, large commercial vehicles or other heavy equipment, except as may be necessary during reasonable periods of time. Section 3 - Recreational Equipment. No campers, trailers, motor homes, boats, or other recreational equipment and the like shall be parked on the Property for more than 72 hours in any 30-day period. Section 4 - Offensive Activity. (a) No noxious odors or offensive activity shall take place upon any portion of the Property, nor shall anything be done thereon which may be, or may become, an annoyance to the neighborhood. (b) No fireworks of any kind may be bought, brought into, discharged or stored on any portion of the Property. (c) No firearms shall be discharged on the Property. ARTICLE VI TERM AND ENFORCEMENT Section 1. The term of the provisions of these Covenants shall be binding for a term of fifteen (15) years from the date of these Covenants and may be modified, altered or amended during that period by the Declarant or Declarant’s successor at Declarant or Declarant’s successor’s option or upon vote of the Owners of eighty percent (80%) of the Lots. After the initial fifteen (15) year period, the Covenants shall continue amended, revoked or terminated, in writing by the owners of eighty percent (80%) of the Owners of Lots. Section 2. Enforcement of these Covenants shall be by proceedings either at law or in equity against any person or persons violating, or attempting to violate, any Covenant; and the legal proceedings may either be to restrain violation of these Covenants, to recover damages, or both. 9 Should any lawsuit or other legal proceeding be instituted by the Association or an owner against an owner alleged to have violated one or more of the provisions of these Covenants and should the Association or owner enforcing the provisions of the covenants be wholly or partially successful in such proceedings, the offending owner shall be obligated to pay the costs of such proceeding, including reasonable attorney’s fees for all time associated with the action. Section 3. The failure of Declarant, the Association or an Owner, to enforce any Covenant or restriction contained herein shall not be deemed a waiver or in any way prejudice the rights to later enforce that Covenant, or any other Covenant thereafter, or to collect damages for any subsequent breach of Covenants. The waiver or approval of a variance of a Covenant provision by the Board of Directors, or non- action of the Association or Declarant in the event of a violation of a Covenant by a particular Owner or Lot, shall not be deemed to delete or waive the Covenant or enforcement thereof as it pertains to other Owners or Lots. Section 4. Invalidation of any one of these Covenants by judgment or by Court order shall in no way affect any of the other Covenants or provisions, all of which shall remain in full force and effect. Section 5. In any conveyance of the Property or of any lot thereon, it shall be sufficient to insert a provision in any deed or conveyance to the effect that the Property is subject to protective or restrictive Covenants without setting forth such restrictions and Covenants verbatim or in substance in said deed nor referring to the recording data. The entirety of the Property and Lots thereon shall be subject to the restrictions and Covenants set forth herein, whether or not there is a specific reference to the same in a deed or conveyance. Section 6. A breach of any of the foregoing restrictions or Covenants shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon any Lot or portion of the Property or any improvements thereon. However, the Covenants shall be binding upon and shall inure to the benefit of any subsequent owner whose title thereto was acquired by foreclosure, trustee sale or otherwise. Section 7. After the initial fifteen (15) year term for these Covenants, the provisions of these Covenants may be changed or amended or additional Covenants added, in whole or in part, by the Association upon approval of eighty percent (80%) of the Members of the Association at a meeting duly noticed and called for this purpose; provided that, the easements for roads, utilities and common areas shall not be changed without the unanimous consent of all of the owners affected by the change. The President or Vice-President shall execute and record the amendment, change or addition with the Clerk and Recorder of Gallatin County, Montana. Any change of these Covenants shall be effective upon the filing and recording of such an instrument in the office of the Gallatin County Clerk and Recorder. Any change in these Covenants shall not affect existing structures and uses of the Lots. 10 IN WITNESS WHEREOF, Declarant has hereunto set its hand as of this ______ day of ____________ , 20___. DECLARANT: Nexus Point LLC, By: ____________________________ Stephen F. Moore Its: Manager STATE OF MONTANA ) : ss. County of Gallatin ) On this ______day of ___________, 20___, before me, the undersigned, a Notary Public of the State of Montana, personally appeared _____________________________________ being the ____________________ of ___________________________, known to me to be the person that executed the within instrument on behalf of the limited liability company and acknowledged to me he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written. ________________________________________ NOTARY PUBLIC for the State of Montana Printed Name: __________________________ Residing at _____________________________ 11 My Commission expires __________________ EXHIBIT A STORMWATER MAINTENANCE PLAN Association’s responsibility for routine inspection and maintenance. 1. Association to maintain and fund Operation and Maintenance of stormwater detention facilities located within Nexus Point Subdivision. 2. Keep the outlet and inlets of the storm water facilities free of leaves, rocks, and other debris. 2. The storm water detention facility is to be mowed regularly. During the summer, approximately once every two weeks, the grass is to be mowed and the cuttings are to be promptly removed and disposed of. Unless visibly tainted, dispose of lawn clippings in the same manner as yard waste. Otherwise, bag and take to a sanitary landfill. 3. Remove sediment by hand with a flat bottom shovel during the summer months whenever sediment covers vegetation. Have the grass cut short in that particular location so that the bed can be made as level as possible. 5. Re-sod damaged or maintained areas immediately, or use grass plugs from the adjacent up- slope area. 6. Inspect the facilities periodically, especially after heavy rains (preferably monthly and after each storm that delivers .5 inches of rainfall). 7. Inspect flow control outlet semi-annually. Clean outlet when soil and vegetation buildup interfere with flow introduction. 9. See that litter and other debris are removed in order to reduce the tendency to channel when trash accumulates.