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HomeMy WebLinkAboutRevised Corrective Warranty Deed and Restrictive Covenant 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: MBHT Bozeman, LLC 6770 South 900 East, Suite 300 Midvale, UT 84047 CORRECTIVE WARRANTY DEED RECITALS: a. On February 23, 2022, the Amended Plat of Lot 2, Minor Subdivision No. 352 and Lot 3- A of Minor Subdivision No. 352A, located in the NW1/4 of Section 12, Township 2, South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana, a copy of which is attached to this Corrective Warranty Deed as Exhibit A, was recorded in the office of the County Clerk and Recorder of Gallatin County, Montana. b. The legal description of Lot 2-A and Lot 3-A-1 as depicted on the Amended Plat are attached to this Corrective Warranty Deed as Exhibit B. In that legal description, Lot 2- A is identified as Parcel I, and Lot 3-A-1 is identified as Parcel II. c. At the time the Amended Plat was recorded, MBHT, LLC was the owner of Lot 2-A (identified as Parcel I on the legal description attached as Exhibit B). d. On February 28, 2022, MBHT, LLC conveyed Lot 2-A in the Amended Plat by means of a Special Warranty Deed to MBHT Bozeman, LLC. e. The property shown on the Amended Plat as Lot 3-A-1 (identified on the legal description attached as Exhibit B as Parcel II) is owned by Bozeman Main and 15th Avenue Shopping Center, LLC. f. Parcel III as identified in the legal description attached as Exhibit B is an easement over Parcel I/Lot 2-A, allowing passage and parking of vehicles and the accommodation of pedestrians over and across the parking, driveways, and sidewalk areas as enumerated more fully in Exhibit B. Parcel III burdens Parcel I/Lot 2-A, owned by MBHT Bozeman, LLC. g. Parcel IV as identified in the legal description attached as Exhibit B is an easement over Parcel II/Lot 3-A-1, allowing passage and parking of vehicles and the accommodation of pedestrians over and across the parking, driveways, and sidewalk areas as enumerated more fully in Exhibit B. Parcel IV burdens Parcel II/Lot 3-A-1, owned by Bozeman Main and 15th Avenue Shopping Center, LLC. h. Parcel V as identified in the legal description attached as Exhibit B is an easement over Lot 4 of Minor Subdivision No. 352, as more fully described in Exhibit B allowing 2 passage and parking of vehicles and the accommodation of pedestrians over and across the parking, driveways, and sidewalk areas, as enumerated more fully in Exhibit B. i. It is the intention of MBHT Bozeman, LLC to confirm that a portion of its property is subject to the Restrictive Covenant attached to this Corrective Warranty Deed as Exhibit C. j. It is also the intention of MBHT Bozeman, LLC to specifically identify those portions of its property which are subject to the Restrictive Covenant attached to this Corrective Warranty Deed as Exhibit C. To that end, both Bozeman Main and 15th Avenue Shopping Center, LLC and MBHT Bozeman, LLC have provided notice to the Montana Department of Environmental Quality (“DEQ”), as required in Section 8 of the Restrictive Covenant attached as Exhibit C, of the conveyance of property reflected by both the Amended Plat (Exhibit A) and this Corrective Warranty Deed, and have consulted with DEQ and requested that DEQ specifically identify those portions of property which would be governed by the Restrictive Covenant. In response to that notice and following that consultation, DEQ has reviewed and approved both the legal description and the visual representation of the property subject to the Restrictive Covenant, identified as Exhibits 1 and 2 to the Restrictive Covenant, respectively. BASED ON THESE RECITALS AND FOR VALUE RECEIVED, GRANTOR: BOZEMAN MAIN AND 15TH AVENUE SHOPPING CENTER, LLC, a Delaware limited liability company does hereby grant, bargain, sell and convey unto GRANTEE: MBHT BOZEMAN, LLC, a Utah limited liability company, the real property in Gallatin County, Bozeman, Montana described as Lot 2-A/Parcel I on Exhibit “A” attached hereto, TOGETHER WITH all improvements thereon and appurtenances thereunto belonging, and SUBJECT TO easements, rights of way, restrictions and reservations of record, in particular the Restrictions in the Declaration of Restrictive Covenants on the real property as recorded under Instrument # 2464297, recorded October 1, 2013. This real property is within the Bozeman Solvent Site Comprehensive Environmental Cleanup and Responsibility Act Facility (“Facility”) and Lot 2-A/Parcel I is being remediated pursuant to a Record of Decision issued by DEQ in accordance with the Montana Comprehensive Environmental Cleanup and Responsibility Act, §§ 75-10-701 et seq., MCA, to abate the imminent and substantial endangerment posed by hazardous or deleterious substances. The Record of Decision is being implemented by the City of Bozeman and CVS Pharmacy, Inc. (“Liable Parties”). Lot 2- A/Parcel I is subject to the Restrictive Covenant attached to this Corrective Warranty Deed as Exhibit “C” to mitigate the risk to the public health, safety or welfare or the environment, which must be recorded as provided for in § 75-10-727, MCA. DEQ has determined that releases or threatened releases of hazardous or deleterious substances that may pose an imminent or substantial endangerment to public health, safety or welfare or the environment exist and that these hazardous or deleterious substances have come to be located upon Lot 2-A/Parcel I. IN WITNESS WHEREOF, Grantor has executed this Warranty Deed as of 3 __________________________, 2022. GRANTOR: BOZEMAN MAIN AND 15TH AVENUE SHOPPING CENTER, LLC, a Delaware limited liability company By: _______________________________ Printed Name:_____________________ Its: _________________________________ EXHIBIT A TO CORRECTIVE WARRANTY DEED Copy of Amended Plat of Lot No. 2 EXHIBIT B TO CORRECTIVE WARRANTY DEED LEGAL DESCRIPTION OF PARCELS REFLECTED BY AMENDED PLAT OF LOT NO. 2 Parcel I: Lot 2-A of Amended Plat of Lot 2 of Minor Subdivision No. 3521 located in the NW 1/4 of Section 12 Township 2 South, Range 5 East, P.M.M., City of Bozeman, 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. Parcel II: Lot 3-A-1 of Lot 3-A of Minor Subdivision No. 352A, located in the Northwest Quarter of Section 12, Township 2 South, Range 5 East, P.M.M., City of Bozeman, 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. Parcel III: Easement for the passage and parking of vehicles over and across the parking and driveway areas of the Shopping Center and for the passage and accommodation of pedestrians over and across the parking, driveways, and sidewalk areas of the Shopping Center, as described in Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements, recorded September 29, 2004 as Instrument No. 2165090 and located on the following described property: Lot 2 of Minor Subdivision No. 352, located In the NW 1/4: of Section 12, Township 2 South, Range 5 East, P.M.M., City of Bozeman, 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. Parcel IV: Easement for the passage and parking of vehicles over and across the parking and driveway areas of the Shopping Center and for the passage and accommodation of pedestrians over and across the parking, driveways, and sidewalk areas of the Shopping Center, as described In Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements, recorded September 29, 2004 as Instrument No. 2165090 and located on the following described property: Lot 3-A of Minor Subdivision No. 352A, located In the NW 1/4 of Section 12, Township 2 South, Range 5 East, P.M.M., City of Bozeman, 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. Parcel V: Easement for the passage and parking of vehicles over and across the parking and driveway areas of the Shopping Center and for the passage and accommodation of pedestrians over and across the parking, driveways, and sidewalk areas of the Shopping Center, as described In Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements, recorded September 29, 2004 as Instrument No. 2165090 and located on the following described property: Lot 4 of Minor Subdivision No. 352, located In the NW 1/4 of Section 12 Township 2 South, Range 5 East, P.M.M., City of Bozeman, 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. EXHIBIT C TO CORRECTIVE WARRANTY DEED RESTRICTIVE COVENANT The following restrictive covenants shall apply to any portion of the property identified by the legal description attached to this Restrictive Covenant as Exhibit 1 and reflected by the hatched area on the Site Plan attached to this Restrictive Covenant as Exhibit 2 (“Restricted Property”). The legal description and visual depiction of the Restricted Property have been reviewed and approved by Montana DEQ following notice to DEQ provided by Bozeman Main and 15th Avenue Shopping Center, LLC and MBHT Bozeman, LLC of the conveyance of property reflected by the Corrective Warranty Deed to which this Restrictive Covenant is attached, consistent with the requirements of Paragraph 8 below: 1. No residential development or use, including but not limited to permanent residential use; temporary residential use; limited residential use; short-term residential use; children’s day care; mobile homes with or without footings; mobile home with or without a pad; or camping shall occur upon the Restricted Property. It is the intent of MBHT Bozeman, LLC that this limitation be construed as broadly as possible to prohibit any type of residential use whatsoever within the Restricted Property. 2. No action shall be taken, allowed, suffered, or omitted within or on the Restricted Property if such action or omission is reasonably likely to create a risk of migration of hazardous or deleterious substances or a potential hazard to public health, safety, or welfare, or the environment, or result in a disturbance of the structural integrity of any engineering controls designed or utilized at the Facility to contain hazardous or deleterious substances or limit human or environmental exposure to any hazardous or deleterious substances. 3. No construction or development of any kind may occur within or on the Restricted Property during the time that the residual source area is undergoing active treatment (enhanced bioremediation) provided for in the Bozeman Solvent Site Record of Decision (DEQ 2011), with the sole exception of the construction of landscaping and hard surface improvements such as curb, gutter, sidewalk, and asphalt, which must be approved by DEQ in writing in advance of any such exception construction or improvements being performed. This prohibition on construction and development is limited to the time active treatment is ongoing, and this restriction can be removed as provided for in Paragraph 11 below. 4. MBHT Bozeman, LLC agree to provide DEQ and its representatives and contractors and all representatives and contractors of any person, including the Liable Parties, conducting DEQ-approved remedial actions within or on the Restricted Property, access at all reasonable times to the Restricted Property. 5. At all times after MBHT Bozeman, LLC convey their interest in the Restricted Property and no matter what person or entity is in title to or in possession of the Restricted Property, MBHT Bozeman, LLC agree that DEQ, the Liable Parties, and their representatives shall retain the right to enter the Restricted Property at reasonable intervals and at a reasonable time of day in order to inspect for violations of the Restrictive Covenants contained herein. 6. DEQ shall be entitled to enforce these Restrictive Covenants as an intended beneficiary thereof. MBHT Bozeman, LLC specifically agree that the remedy of “specific performance” of these Restrictive Covenants shall be available to DEQ in such proceedings. Venue for enforcement of these Restrictive Covenants by DEQ shall be in the state First Judicial District Court, Montana. 7. The Liable Parties are also entitled to enforce these Restrictive Covenants as intended beneficiaries thereof. MBHT Bozeman, LLC specifically agree that the remedy of “specific performance” of these Restrictive Covenants shall be available to the Liable Parties in such proceedings. Venue for enforcement of these Restrictive Covenants by the Liable Parties shall be in the state Eighteenth Judicial District Court, Montana. 8. The provisions of these Restrictive Covenants on the Restricted Property shall run with the land and bind all holders, owners, lessees, occupiers, and purchasers of the Restricted Property. These Restrictive Covenants apply in perpetuity and every subsequent instrument conveying an interest in all or any portion of the Restricted Property shall include these Restrictive Covenants. MBHT Bozeman, LLC will notify DEQ of any proposed conveyance of all or a portion of the Restricted Property at least 30 days prior to any such conveyance. MBHT Bozeman, LLC and all future owners will provide notice to all potential purchasers by providing a copy of these Restrictive Covenants prior to the conveyance of all or a portion of the Restricted Property and shall provide a copy of such notice to DEQ. 9. MBHT Bozeman, LLC and all future owners shall cause the requirements of these Restrictive Covenants to be placed in all instruments that convey an interest in the Restricted Property and shall file this document with the County Clerk and Recorder in Gallatin County, Montana. 10. The rights provided to DEQ in this Restrictive Covenant shall flow to and may be exercised by any successor agencies of DEQ. 11. As provided for in § 75-10-727, MCA, these Restrictive Covenants, or a portion thereof, may only be removed with the advance written approval of DEQ. IN WITNESS WHEREOF, MBHT BOZEMAN, LLC, has executed this Declaration of Restrictive Covenants on Real Property as of the first date written above. MBHT BOZEMAN, LLC, a Utah limited liability company By: ________________________________ Printed Name: ________________________ Its: _________________________________ State of Utah ) :ss County of Salt Lake) On this __ day of _______, 20__, personally appeared ____________________, before me, a Notary Public for the State of Utah, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same. IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the day and year hereinabove first written. _____________________________________________ NOTARY PUBLIC FOR THE STATE OF UTAH (SEAL) Residing at ____________________________________ My Commission Expires: ________________________ EXHIBIT 1 TO THE RESTRICTIVE COVENANT LEGAL DESCRIPTION OF THE “RESTRICTED PROPERTY” All that certain amended restrictive covenant area located on Lot 2-A of Minor Subdivision No. 352C located in the NW1/4 of Section 12, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana being more fully bounded and described as follows: Beginning at the westernmost corner of Lot 2-A of Minor Subdivision No. 352C, thence along the south line of Block 3 of the Amended Plat of Kirks 2nd Subdivision N 68°08'29" E a distance of 75.00 feet; thence through said Lot 2-A the two (2) following courses; 1) S 25°29'59" E a distance of 143.23 feet; 2) S 60°22'19" W a distance of 64.00 feet to a point on the east line of Lot 1 of Minor Subdivision No. 352; thence along said Lot 1 N 29°37'41" W a distance of 153.00 feet to the point of beginning. Said area containing 10,256 square feet. EXHIBIT 2 TO THE RESTRICTIVE COVENANT VISUAL REPRESENTATION OF THE “RESTRICTED PROPERTY”