PUD Ordinance 1380 (Repeals 1324)2001165
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ORDINANCE NO.
1380
AN ORDINANCE APPROVING A PLANNED UNIT DEVELOPMENT ON CERTAIN REAL
PROPERTY OWNED BY PACK AND CO., REPEALING ORDINANCE NO. 1324, AND
DECLARING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, AS
FOLLOWS:
SECTION I. That the Planned Unit Development proposed by
CROSSWELL DEVELOPMENT LLC upon the real property described in
Exhibit "A", attached hereto, incorporated herein, and thereby
made a part hereof, is hereby approved, subject to:
0
( A) Development Agreement, dated May 2 2001,
between CROSSWELL DEVELOPMENT LLC, PACK AND
Q COMPANY, and the CITY OF KALISPELL, Exhibit "B",
attached hereto, incorporated herein and thereby
made a part hereof.
q SECTION II. Ordinance No. 1324 ("Domesite") is hereby
m repealed.
SECTION III. This Ordinance shall take effect from and after
O 30 days of its passage by the City Council.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, MONTANA, THIS 2ND DAY OF APRIL, 2001.
Pit
N t�M.� .�dhnrsk�
Wm. E. Boharski
IY� Mayor
ATTEST:
Theresa White
City Clerk
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County, Montana, P'
by
Clerk
2031165 1 5 150
PLANNED UNIT DEVELOPMENT
AGREEMENT FOR
MOUNTAIN VIEW PLAZA
PARTIES: CROSSWELL DEVELOPMENT LLC
PACK AND COMPANY
CITY OF KALISPELL, MONTANA
EFFECTIVE:
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TABLE OF CONTENTS
PARTIES AND PURPOSE . . . . . . . . . . . . . . . . . . . . . . 1
I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 2
1.01
Agreement . . . . . . . . . . . . . . . . . . . . . . 2
1.02
Building Department . . . . . . . . . . . . . . . . . 2
1.03
City . . . . . . . . . . . . . . . . . . . . . . . . 2
1.04
City Council . . . . . . . . . . . . . . . . . . . . 2
1.05
Developer . . . . . . . . . . . . . . . . . . . . . . 2
1.06
Director of Public Works . . . . . . . . . . . . . . 2
1.07
Easement (s) . . . . . . . . . . . . . . . . . . . . . 2
1.08
Master Site Plan . . . . . . . . . . . . . . . . . . 2
1.09
Area "A. . . . . . . . . . . . . . 2
1.10
Area "B" . . . . . . . . . . . . . . . . . . . . . . 2
1.11
Phase . . . . . . . . . . . . . . . . . . . . . . . . 2
1.12
Proposed Buildings . . . . . . . . . . . . . . . . . 2
1.13
Subject Property or Subject Area . . . . . . . . . . 2
1.14
Substantial Completion . . . . . . . . . . . . . . . 3
1.15
Infrastructure . . . . . . . . . . . . . . . . . . . 3
II. GENERAL DEVELOPMENT AND USE OF THE SUBJECT
PROPERTY . . . . . . . . . . . . . . . . . . . .
. . . . 3
2.01
Development Overview . . . . . . . . . . . .
. . . . 3
2.02
Hazardous Substances . . . . . . . . . . . .
. . . . 6
2.03
Uses . . . . . . . . . . . . . . . . . . . .
. . . . 8
2.04
Ownership . . . . . . . . . . . . . . . . . .
. . . . 9
2.05
Relationship to Zoning Ordinance . . . . . .
. . . . 9
2.06
Effectiveness . . . . . . . . . . . . . . . .
. . . . 9
2.07
Certification Procedure . . . . . . . . . . .
. . . . 9
III. SITE
CONDITIONS . . . . . . . . . . . . . . . . .
. . . 10
3.01
Development . . . . . . . . . . . . . . . . .
. . . l0
3.02
Access . . . . . . . . . . . . . . . . . . .
. . . 10
3.03
Private Internal Roadways and Sidewalks . . .
. . . 11
3.04
Sewer and Water . . . . . . . . . . . . . . .
. . . 11
3.05
Storm Water . . . . . . . . . . . . . . . . .
. . . 13
3.06
Site Grading . . . . . . . . . . . . . . . .
. . . 13
3.07
Fire Suppression . . . . . . . . . . . . . .
. . . 14
3.08
Landscaping . . . . . . . . . . . . . . . . .
. . . 14
3.09
Off -site Paths . . . . . . . . . . . . . . .
. . . 15
3.10
Lighting . . . . . . . . . . . . . . . . . .
. . . 15
3.11
Signage . . . . . . . . . . . . . . . . . . .
. . . 15
IV. CITY
SEWER/WATER CONNECTION FEES . . . . . . . . .
. . . 16
4.01
Connection Fee Schedule . . . . . . . . . . .
. . . 16
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V. AMENDMENT OR MODIFICATIONS OF AGREEMENT .
5.01 Amendment or Modification Procedures
VI. MISCELLANEOUS . . .
6.01 Severability
6.02 Recordation .
6.03 Entire Agreement
6.04 Integration . .
6.05 Binding Effect
6.06 Substitution of
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Parties
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19
19
20
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21
2031165 IS 1 S D
PLANNED UNIT DEVELOPMENT AGREEMENT
PARTI RPOSE: This Agreement made and entered into this
aday of 2001 is by and between Crosswell Development
LLC, a IY&s ;7-�eA Lia6Ui , inAAea a with its office and
principal place of business located at�2�2lSo��3801�aey
hereinafter CROSSWELL DEVELOPMENT LLC; Pack and Company, with its
office and principal place of business at 2355 Highway 93 North,
Kalispell, Montana, hereinafter PACK; and the City of Kalispell, a
municipal corporation, with its office and principal place of
business located at 312 1st Avenue East, Kalispell, Montana 59901,
hereinafter CITY:
W I T N E S S E T H:
WHEREAS, Crosswell Development LLC is the contract purchaser and
developer of certain real property located in Flathead
County, Montana, which is further described in Exhibit
"A" attached hereto and hereby made a part hereof, and
which hereinafter is referred to as the "Subject
Property"; and,
WHEREAS, The Subject Property has previously been annexed into the
CITY by Resolution Nos. 4476 and 4477; and,
WHEREAS, (i) Crosswell Development LLC and PACK desire to have the
Subject Property rezoned from the prior DOMESITE PUD to
Mountain View Plaza, a Commercial (B-2) Planned Unit
Development (PUD), mapped with certain new streets,
building locations and accesses from U.S. Highway #93 and
West Reserve Drive; (ii) Crosswell Development LLC and
PACK, have filed a PUD application which contains (a)
Zone Change application, and (b) PUD Narrative with
Exhibits; and,
WHEREAS, In order to allow the PUD, assure the installation of
Infrastructure within the "Subject Property," permit
connections to the CITY utility systems, and prescribe
the permitted uses within the requested zoning areas, the
parties hereto determine it is to be in their best
interests to enter into this Planned Unit Development
Agreement.
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I. DEFINITIONS
1.01 Agreement shall mean this Planned Unit Development Agreement
between Crosswell Development LLC, PACK, and CITY.
1.02 Building Department shall mean the Building Department of the
City of Kalispell.
1.03 CITY shall mean the City of Kalispell, Montana.
1.04 City Council shall mean the City Council of the City of
Kalispell, Montana.
1.05 Developer shall mean Crosswell Development LLC.
1.06 Director of Public Works shall mean the Director of Public
Works of the City of Kalispell, Montana.
1.07 Easement(s) means the Easement(s) described in §3.04 of this
Agreement.
1.08 Master Site Plan means the drawing_constituting the_site plan
approved for the development of the Subject Property annexed
hereto as Exhibit "C". The actual building location and
building sizes may vary but the buildings will be located
within the general areas as shown on the Master Site Plan.
1.09 Area "A" means that portion of the Subject Property lying
North of the Southerly line of the Main Entrance Road on U.S.
Highway #93 North, as shown on the Master Site Plan.
1.10 Area "B" means that portion of the Subject Property lying
South of the Southerly line of the Main Entrance Road on U.S.
Highway #93 North, as shown on the Master Site Plan.
1.11 Phase means a stage of development within a portion of the
Subject Property designated in the Master Site Plan.
1.12 Proposed Buildings means the buildings proposed to be built
within the "pads" as shown on the Master Site Plan,
contemplated to be built in phases.
1.13 Subject Property or Subject Area means the real property
described in Exhibit "A" annexed hereto and made a part
hereof.
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1.14 Substantial Completion shall mean that substantially all of
the work to be performed in the development shall have been
performed and the Infrastructure constructed in each Phase are
usable for their intended purposes, as certified by the
Director of Public Works and the Building Department, which
certification shall not be unreasonably withheld or delayed.
1.15 Infrastructure means all water, sewer and storm drainage
systems that will be dedicated to the public and have been
installed in accordance with the Montana Public Works Standard
Specifications and the City of Kalispell Standards for Design
and Construction. In addition, Infrastructure shall include
roads that are designed and constructed in accordance with the
Montana Public works Standard Specifications and the City of
Kalispell Standards for Design and Construction. Said
Infrastructure shall consist of various public utilities and
dedicated streets. Costs for said infrastructure shall be
shown on Engineer's Estimate, Infrastructure, Crosswell
Development LLC PUD, Hwy 93 North, prepared by Thomas, Dean
and Hoskins Engineering, to be attached hereto as Exhibit "D"
after approval by the CITY. Notwithstanding any of the
foregoing, excluded from these terms are: building
construction; parking lot paving; final landscaping in and
around the buildings and parking lot (s); lighting; signage;
and the service lines to each building.
II. GENERAL DEVELOPMENT AND USE OF THE SUBJECT
PROPERTY
2.01 Development Overview
(A) Subject to the other provisions of this Agreement, any
development within or use of the Subject Property
occurring after the effective date of this Agreement
shall substantially conform to and comply with the
provisions of the PUD Application of Crosswell
Development LLC, as amended and approved by the FRDO
Staff Report #KPUD 00-1 and the City -County Planning
Board meeting on January 9, 2001 as amended by the
conditions of approval of the PUD as passed by the
Kalispell City Council on February 20, 2001, and this
Agreement with the documents and drawings annexed hereto.
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(B) Crosswell Development LLC
between the parties, that
Property will include the
represents, and it is agreed
the development of the Subject
following:
(1) Area A when completed, will include (i) ground
preparation and site leveling of Area "A" of the
Subject Property, (ii) construction, installation
and extension of sewer and water mains to the
Subject Property, (iii) construction, installation
and extension of sewer and water mains, and storm
sewer utilities within Area "A", (iv) final site
preparation, streets, installation of necessary
parking lots, landscaping, construction of the
building improvements and all other improvements
shown on the Master Site Plan in Area "A".
(2) Area B when completed, will include (i) ground
preparation and site leveling of Area "B" of the
Subject Property, (ii) construction, installation
and extension of sewer and water mains, and storm
sewer utilities within Area "B", (iii) final site
preparation, streets, installation of necessary
parking lots, landscaping, construction of the
building improvements and all other improvements
shown on the Master Site Plan in Area "B".
(3) Nothing is to be construed by the foregoing as to
require completion of one Area prior to engaging in
work in the other Area nor should be construed as
requiring the completion of an Area simply because
of the construction of one of the buildings within
that Area, except as provided in Subsection (F),
below.
(C) Notwithstanding paragraph 2.01(13) above, it is
anticipated that site preparation and ground leveling of
areas currently occupied by batch plant facilities will
be delayed during the construction phases described
above, for a term, but, it is agreed that removal of the
NUPAC asphalt and concrete batch plants, office,
associated equipment, maintenance sheds, warehouses and
all other related structures will be completed prior to
the issuance of a building permit for any structure in
any portion of Area "B", however, in any case, prior to
May 5, 2005. It is agreed all facilities on the Montana
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200iis5 I S I S O
Department of Transportation site will be removed prior
to the issuance of the first building permit. Should the
fee owner of the area or areas stated above be a
signatory hereto or their successor, and should they
refuse to vacate the premises as stated herein, CITY may
bring a legal action to remove them and the improvements
to be removed and CITY shall be entitled to attorney fees
and all expenses for such action as part of the
judgement.
(D) Crosswell Development LLC represents, and it is agreed
between the parties, that three large buildings proposed
for the eastern portion of the site shall not exceed 38
feet in height, with an additional seven foot allowance
for the screening of roof mounted equipment and as an
architectural facade.
(E) The east face of the large buildings shall not be used
for advertising, display of corporate logo or colors and
shall be treated with the approved list of building
materials and with the approved colors, Exhibit "E".
(F) Prior to issuance of any building or construction permit,
Crosswell Development LLC shall furnish security for the
Infrastructure described in § 1.15, supra. Such security
shall consist of, at the sole option of Crosswell
Development LLC, performance bond(s) issued by a surety
company licensed to do business in Montana, irrevocable
letter(s) of credit issued by a bank licensed to do
business in Montana, or such other security as shall be
reasonably acceptable to the CITY, however real property
shall not be accepted as security. Such security shall be
for the benefit of and enforceable and collectible by the
CITY, acting through the City Manager, and shall be in an
initial face amount equal to 125% of the direct estimated
cost of the work so secured, as certified by Crosswell
Development LLC's licensed professional engineer and the
CITY's Director of Public Works. The face amount of the
security shall be reduced by Crosswell Development LLC
from time to time so as to reduce the amount of security
to 125% of the remaining Infrastructure after deducting
125% of the cost of the work completed as determined for
the creation of the security and as certified by
Crosswell Development LLC's licensed professional
engineer and approved by the CITY's Director of Public
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20011651 S I SO
Works. Determination of the amount of the reduction shall
be made within 30 days of receipt by the Public Works
Director of said certification. Crosswell Development
LLC may request final release of the performance bond
upon filing with the Building Department of a Notice of
Completion, which will then be reviewed by CITY for final
approval.
1) The Infrastructure under § 1.15 shall be
substantially completed on or before May 5, 2005.
If said Infrastructure is not completed within the
time allowed, the Council shall redesignate the
undeveloped portion of the Subject Property in
accordance with the Kalispell Zoning Ordinance, and
shall be entitled to demand and receive within 10
days of the written demand on the party offering
the security, the remaining amount of security for
Infrastructure under this Agreement.
2) Said Security shall be in effect until at least
December 5, 2005.
(G) Covenants: Draft Covenants are attached as Exhibit "F".
Prior to any subdivision approval or construction of any
building, Final Covenants will be completed. These
Covenants must be approved by CITY, but CITY may only
seek revision of and review the Covenants so as to cause
compliance with the conditions of approval of the PUD and
not a general review of the Covenants.
2.02 Hazardous Substances
Crosswell Development LLC and PACK acknowledge the existence
of Phase I and Phase II Environmental Site Assessments, NUPAC
Gravel Pit Property, 2355 U.S. Highway 93 North, Kalispell,
Montana prepared by NTL Engineering and Geoscience, Inc.,
Great Falls, Montana, issued August 27, 1999. Said report
establishes the existence of diesel fuel contamination in the
soil near the underground storage tanks, partially buried
above ground storage tanks and other hydrocarbon contaminants.
CITY has received these Assessments.
(A) Prior to the commencement of construction of
Infrastructure within the area depicted as the
remediation area on Exhibit "G", attached, and prior to
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2001165 I S 1 S D
the issuance of a building permit for any building in
Area B, Crosswell Development LLC and PACK will submit
evidence from the Montana Department of Environmental
Quality demonstrating that the Subject Property is free
of contamination.
1) In furtherance of the foregoing, PACK and Crosswell
Development LLC disclose the following from their
Contract to Purchase and Sell: That the closing
date for the acquisition of the Subject Property is
to occur within 30 days of the execution of this
Agreement. With respect to the property which is
described as Parcel 1 and Parcel 2, on Exhibit "A",
PACK will provide to Crosswell Development LLC a
performance bond in the amount of one hundred
twenty-five percent (12596) of the estimated cost of
remediation to ensure that the remedial
environmental cleanup is completed within 60 days
of the vacating of the tract by PACK or NUPAC with
the understanding that should appropriate
environmental authorities require additional time
for inspecting and approving the remediation, an
additional 120 days may be allowed for completion
of the inspection, approvals and any additional
remediation. Crosswell Development LLC will, upon
request, assign its rights under this bond to CITY.
2) In furtherance of the foregoing, PACK and Crosswell
Development LLC disclose the following from their
Contract to Purchase and Sell: That with respect to
Parcel 3 on Exhibit "A", PACK and the Montana
Department of Transportation have determined that
should remediation be necessary, the Montana
Department of Transportation shall be responsible
for completing the same within time frames as set
forth in Subsection A, above.
B) Should PACK fail to provide the bond as stated above, and
should Crosswell Development LLC determine that the costs
for remedial action are such that it would make the
development of this project not economically feasible, it
shall notify CITY in writing and the zoning provided
herein and the terms of this agreement shall be
terminated.
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2.03 Uses
(A) The uses allowed within the PUD shall be those uses
generally allowed under the B-2 zoning pursuant to the
Kalispell City zoning Regulations except that casinos, as
defined by the Kalispell City Zoning Regulations as they
now exist or are later amended, and those other uses
which require areas for display of large merchandise such
as new and used automobile sales, manufactured home
sales, recreational vehicle sales and alike are
prohibited. It is understood, however, that this
prohibition does not preclude incidental activities in
events associated with other authorized uses occurring
upon the site.
(B) Crosswell Development LLC agrees that building design and
construction upon the Subject Property shall conform to
the relevant Building Department regulations governing
commercial construction.
(C) Crosswell Development LLC agrees that the development
shall be comprised of buildings with a consistent
architectural theme, lodge or chalet, as initially
determined by Crosswell Development LLC and similar to
that shown on the exhibit to the proposed covenants, said
covenants being Exhibit "F", attached hereto. A list of
materials and exterior building treatments is attached
hereto as Exhibit "E", which list shall be an exclusive
list of materials and exterior building treatments to be
used within the development. This list shall be included
in the Covenants to be filed upon the development.
(D) Crosswell Development LLC shall provide CITY with a fire
station pad. The pad shall be a minimum of two acres in
size with not more than one percent grade change
throughout the pad. The ratio of length to the width of
the proposed pad site shall not exceed 2:1 without prior
consultation with and agreement of CITY. Utilities shall
be extended to the pad so that it is ready for future
development by the CITY. Crosswell Development LLC shall,
at the time of granting the pad, provide easements for
access with such access, including, if Crosswell
Development LLC so decides, in Crosswell Development
LLC`s sole discretion, fee interest subject to easements
in favor of Crosswell Development LLC in all or a portion
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of the necessary access. Should such fee interest be
granted, it shall not be considered part of the pad but
shall be considered additional land granted to CITY. This
provision is not to be considered an extraction but was
rather negotiated and added to the conditions of approval
as part of Crosswell Development LLC's desire to
participate in and provide for the future needs of CITY.
2.04 Ownership
Crosswell Development LLC represents, and it is agreed between
the parties, that the Property and buildings constructed
thereon may be conveyed, with ownership transferred by
Crosswell Development LLC. It is anticipated that ownership of
a portion of the property may remain in Crosswell Development
LLC, which will enter into leases with the occupants of the
buildings constructed thereon. This provision is specifically
subject to Section 6.06, below.
2.05 Relationship to Zoning Ordinance
Except as specifically modified or superseded by this
Agreement and attached drawings, the PUD Application of
Crosswell Development LLC, as amended and approved in the FRDO
Staff Report #KPUD 00-1, and the City -County Planning Board
meeting on January 9, 2001 as amended by the conditions of
approval provided by the Kalispell City Council on February
20, 2001, the laws, rules, and regulations of the City of
Kalispell governing the use and development of land and
buildings, including the Kalispell Zoning Ordinance as it now
exists or as amended, shall apply to the Subject Property.
2.06 Effectiveness
The provisions of this Agreement shall become effective
simultaneously with the approval of the PUD Ordinance.
2.07 Certification Procedure
Whenever under this Development Agreement a certificate by the
Director of Public Works is required to be given, such
certificate shall be given after the receipt of a completed
application therefor and approved by the Director. Such an
application shall be deemed completed upon receipt of such
drawings and narrative information as are reasonably necessary
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for the issuance of such certificate, which certification
shall not be unreasonably withheld or delayed.
III. SITE CONDITIONS
3.01 Development
The Subject Property shall be developed with the
Infrastructure as described in this Agreement and Exhibit "D"
to the Agreement.
3.02 Access
(A) Primary access to the Subject Property shall be via one
Main Entry, designated on the Master Site Plan, on U.S.
Highway #93 North and one North Entry, designated on the
Site Plan, on West Reserve Drive. Secondary access shall
be as determined appropriate by the Montana Department of
Transportation and the City of Kalispell under § 3.02
(B) .
(B) Crosswell Development LLC agrees that it shall, at its
own expense, have a comprehensive traffic impact study
completed, which will identify all expected traffic
impacts and will provide proposals for mitigation.
(1) Following completion of the comprehensive study,
Crosswell Development LLC will obtain all necessary
access permits from the Montana Department of
Transportation and/or Flathead County Road
Department and CITY prior to use.
(2) Crosswell Development LLC agrees to pay for all
necessary traffic turn lanes, traffic signals, and
other regulatory signs and signals directly
pertaining to ingress and egress to and from U.S.
Highway #93 and West Reserve Drive, as required by
the comprehensive traffic study.
(C) All primary and secondary entrances shall be completed to
CITY standards prior to occupancy permits being issued
for any site utilizing said entrances for access.
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(D) Emergency fire, ambulance, police and public vehicle
access shall be at all times available through said
primary and secondary access without impediment.
(E) The proposed northernmost access along Highway 93 near
Ole's Country Store shall not be built unless the
aforesaid traffic study establishes it is necessary to
improve safety and traffic.
3.03 Private Internal Roadways and Sidewalks
(A) Crosswell Development LLC acknowledges that the
development of the Subject Property includes development,
at Crosswell Development LLC's expense, of internal
roadways providing access to the lots within the PUD.
(B) Crosswell Development LLC agrees that the interior
roadways within the PUD shall be constructed to CITY
standards with curb, gutter, and sidewalks on at least
one side of the roadways, except that sidewalks shall be
on both sides of the Main Entrance of US Highway 93, in
accordance with the proposed Site drawings and applicable
City Standards for Design and Construction for local and
collector streets.
(C) Crosswell Development LLC agrees that they will maintain
all internal streets, boulevards, and sidewalks as
private with unrestricted public access.
(1) Sidewalks shall be provided as shown on the Master
Site Plan.
3.04 Sewer and Water
(A) Sanitary sewer service to the Subject Area shall be
accomplished via extension from the existing main at its
current terminus near the Flathead Valley Community
College (FVCC). Said sanitary sewer service shall be
extended to the furthest boundary of the Subject
Property, in accordance with the CITY Extension of
Services policy.
(B) Water service to the Subject Property shall be provided
by means of an extension of an existing CITY -owned 12
inch diameter water main from its present terminus near
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FVCC on the East side of U.S. Highway 93. This extended
main shall be looped to provide dual direction of supply
to the Subject Property in the event that this extended
water main is temporarily out of service for repairs or
maintenance. Said looping is to be accomplished by
further extension of the aforesaid water main across U.S.
Highway 93 to the West side and from there South to a
point of connection with the nearest existing CITY owned
water main of the same size, or such other point of
connection as may be authorized by the CITY. Water mains
extended to serve facilities within the Subject Property
shall be looped in similar fashion to ensure the ability
to supply water service in the event a water main is
temporarily out of service for maintenance or repair.
(C) If a well is used on the premises it shall not in any way
be connected to the CITY water supply system.
(D) All sanitary sewer and water utilities shall be designed
and installed in dedicated easements as shown on Exhibit
"D" and in accordance with the City of Kalispell's
Standards for Design and Construction.
(E) All Utility Infrastructure located within the Subject
Property shall be dedicated to the public upon
completion.
(F) Crosswell Development LLC agrees to obtain all necessary
easements for the extension of water and sewer to the
Subject Property. In addition, Crosswell Development LLC
will grant to CITY any and all easements necessary for
CITY to perform maintenance of water and sewer lines
installed pursuant to this Agreement.
(G) In the event that CITY requires installation of water
and/or sewer lines larger than those required to service
the current needs of Crosswell Development LLC as
determined by hydraulic modeling tests, then CITY shall
pay only those costs associated with the increased
utility main sizing or extension.
(H) In no event shall this Agreement be construed as to
require CITY to complete installation of Infrastructure
and other improvements on the Subject Property, or on any
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2001.165 I S i S U
portion thereof, during any phase of development of the
Subject Property.
(I) Following completion of installation of the sewer and
water lines on the Subject Property by Crosswell
Development LLC, it is agreed that the said utility lines
shall be dedicated to CITY, and shall at that time be
maintained by CITY in accordance with CITY maintenance
policy and standards. However, service lines to
individual buildings on site shall remain under private
ownership and shall be privately maintained.
(J) Should CITY choose not to participate in the _additional
costs as provided in Subsection G, above, and still
requires an up -sizing as described therein, Crosswell
Development LLC, shall be entitled to a Developer's
Extension Agreement as provided in Section 4.01 (C),
below.
3.05 Storm Water
(A) Storm Water retention, drainage, and disposal shall be
handled in accordance with regulations of the CITY and
the Montana Department of Environmental Quality, and such
other City, State and Federal "storm water requirements"
as are in existence and made applicable to the property
at the time of the construction of any improvement.
(B) Storm Water will not be retained, treated or discharged
off -site.
3.06 Site Grading
(A) Site Grading of the Subject Property shall be subject to
the City's Emission Control Plan and Standards for Design
and Construction.
(B) Prior to commencement of site grading, Crosswell
Development LLC agree to obtain an Air Quality
Construction and Demolition Permit from the Director of
Public Works, and to comply with the terms and conditions
of said Permit during construction, including hauling of
material to and from the site.
FINAL Agr.wpd 13
20011s5 1 S l SO
(C) A site grading plan shall be submitted to the Director of
Public Works for review and approval prior to the
commencement of any grading work.
3.07 Fire Suppression
(A) Prior to the Building Department issuing any permit for
any foundation or building within the PUD, the Fire Chief
for CITY must certify that Crosswell Development LLC has
supplied a fire site access plan for the Subject Property
and an engineered internal fire suppression system for
the buildings to be constructed on the Subject Property,
which will be in accordance with the Uniform Fire Code
and will be acceptable to the Fire Chief.
(B) Crosswell Development LLC agrees to install hydrants and
water mains in accordance with City of Kalispell
Standards and to obtain approval thereof prior to
construction from the City of Kalispell Fire Chief.
3.08 Landscaping
(A) Prior to commencing construction on the Infrastructure,
the parties shall prepare a plan which shall be attached
as an addendum hereto which shall address grading,
revegetation, irrigation and maintenance of the
undeveloped areas so as to create a weed free, dust free
area until such time as the undeveloped area is
developed.
(B) Trees will be placed within the parking lots at a rate of
1 tree per every 14 parking spaces as stated in the
application. Street trees will be placed at 40 foot
intervals along both sides of the internal roadways
except where they immediately abut a parking lot island
or planter or abut building fronts. Street trees are to
be a minimum of 2 1/4 inch caliper at planting.
(C) Landscaping along Highway 93 and West Reserve Drive will
include street trees placed at 50 foot intervals which
are a minimum of 2 1/4 inch caliper at planting and will
include a hedge or shrub at a minimum height of three
feet between the parking lots and roadways. This shall
comply with site obstruction standards.
FINAL Agr.wpd 14
2031165 is ►s 0
(D) A landscape pod will be placed at the end of each parking
aisle and parking medians which will include a minimum of
one tree at a minimum caliper of 2 1/4 inch planting in
addition to other shrubs and greenery.
(E) The overall landscape plan shall be coordinated with the
Kalispell Parks and Recreation Director as to the exact
size and location of the plantings and the species lists.
This plan shall be attached as an addendum upon approval
of Crosswell Development LLC and the Parks Director.
(F) Landscaped areas within the site shall be as proposed in
the application which includes landscaping, walkways and
gazebos.
(G) All refuse areas shall be screened from public view.
(H) Retaining walls in excess of 4 feet in height will be
avoided as much as possible with the preference being the
implementation of landscape terracing to make transition
in areas with steepest grades.
3.09 Off -site Paths
Crosswell Development LLC agrees to install a pedestrian
walkway as indicated on Exhibit "C" to provide for a
continuous and connected system with the existing walkways
along Highway 93 and West Reserve Drive, including a sidewalk.
3.10 Lighting
(A) Crosswell Development LLC shall submit a lighting plan to
CITY which utilizes standard lighting fixtures with
downward projected lighting in compliance with the Zoning
Ordinance.
(B) The lighting plan shall be reviewed and approved by the
CITY.
3.11 Signage
The maximum signage to be used will be calculated as provided
in this section.
FINAL Agr.wpd 15
200iis5 15 I SC)
(A) Wall Signs: The amount of square footage for wall signs
allowed on buildings shall be calculated at 1.5 sq. ft.
for each frontage foot —of any single side of the
particular building as determined by Crosswell
Development LLC.
(B) Ground Signs: Two ground signs shall be permitted, one
foot from the property line fronting U.S. Highway 93.
Each sign will have a maximum height of five feet. One of
the signs shall not exceed 90 square feet per side and
the other shall not exceed 60 square feet per side.
(C) Entrance Signs: An entrance sign shall be allowed at a
minimum of 40 feet from the property line fronting U.S.
Highway 93 at a maximum height of 22 feet. This sign
shall not exceed 158 square feet per side. An entrance
sign will be allowed at a minimum of 30 feet from the
property line fronting West Reserve Drive. This sign will
have a maximum height of eighteen feet and will not
exceed 117 square feet per side.
(D) All other signage will conform to CITY Ordinances.
IV. CITY SEWER/WATER CONNECTION FEES
4.01 Connection Fee Schedule
(A) Connection fees for connection to the CITY Water and
Sewer Utility, based upon Resolution No. 4287 and
Resolution No. 4288, will be determined in accordance
with City Standards and fee schedules for connection
fees,,,_in effect at the time of the application for a
building permit.
(B) Crosswell Development LLC, or its successors and assigns
which own the property at the time of applying for a
Building Permit, shall pay the connection fees associated
with the utility connections at the time of obtaining the
Building Permit for each structure. This provision is to
assure that the fees are paid at the time of applying for
a Building Permit and is not to be construed as to
prohibit Crosswell Development LLC from requiring
reimbursement or advance payment of the cost from any
potential tenant or purchaser.
FINAL Agr.wpd 16
20011G5 1 S ) SO
(C) Crosswell Development LLC may be entitled to
reimbursement of a portion of the costs of installation
and extension of water and sewer utilities from future
users who connect to extended water and sewer facilities.
If Crosswell Development LLC anticipates the need for
reimbursement of cost, Crosswell Development LLC's
engineer shall prepare a preliminary design and report
that details the proposed facilities and the estimated
proposed reimbursable costs and will submit said design
and report to the CITY for review and concurrence. Costs
shall be recovered through a developer's extension
agreement and will be subject to the following
conditions.
1) No reimbursement will be allowed for any costs
associated with meeting the utility requirements
for development of the Subject Property. These
costs shall be determined by Crosswell Development
LLC's engineer and shall be submitted for review
and concurrence by the Director of Public Works.
Said costs shall be the actual costs of
construction, inclusive of engineering and
inspection costs, and shall be submitted as
specified within thirty (30) days of substantial
completion of the work.
2) No reimbursement will be allowed for any costs of
extension of water and sewer facilities, or
increases in size thereof, for which the CITY has
agreed to provide reimbursement as described
elsewhere in this agreement.
3) Costs associated with extensions of water and sewer
facilities to future users shall be determined by
Crosswell Development LLC's engineer and shall be
provided to the Director of Public Works for review
and concurrence that said costs are appropriate for
reimbursement. Said costs shall be the actual costs
of construction, inclusive of engineering and
inspection costs, and shall be submitted as
specified within thirty (30) days of substantial
completion of the work.
4) A developer's extension agreement shall be prepared
by Crosswell Development LLC's engineer and
FINAL Agr.wpd 17
2031165 I S ) SO
submitted to the Director of Public Works for
review and concurrence. The agreement shall
identify the costs to be reimbursed, the properties
benefitted by the extended utilities, and the
proportionate cost to be reimbursed by each
benefitted property upon connection to the extended
utilities. The agreement shall identify the
recommended method for apportioning reimbursable
costs between the benefitted properties. Said
method shall be the same for all properties. The
term of this agreement shall not exceed a period of
seven (7) years.
5) Upon concurrence, the Director of Public Works
shall submit the proposed developer's extension
agreement to the Kalispell City Council for
approval.
6) Future extensions by the CITY of utility facilities
covered by this PUD agreement shall not be subject
to the cost reimbursement outlined in this section.
V. AMENDMENT OR MODIFICATIONS OF AGREEMENT
5.01 Amendment or Modification Procedures
This Development Agreement may be amended or modified only by
application of Crosswell Development LLC, in accordance with
the procedures set forth herein. Applications for amendment or
modification may be made to the City of Kalispell Site Review
Committee.
(A) Modifications of this agreement and the attachments
hereto which are deemed by said Site Review Committee to
be minor modifications shall require only the consent of
the Site Review Committee and shall not require the
consent of the City Council or any other public agency.
Said minor modifications shall include, but are not
limited to, adjustments in size, location and orientation
of specific building pads or other facilities and
amenities, provided that said minor modifications do not
alter the total developed area or number of pads or
amenities as shown on the Master Site Plan.
FINAL Agr.wpd 18
2001165 I S J S 0
(B) All amendments and modifications of this Agreement, other
than minor modifications, shall require the approval of
the City Council.
(C) All applications for modifications or amendments of the
Agreement shall be filed with the Site Review Committee
and the Site Review Committee shall promptly, within 10
days, determine whether the modifications are major or
minor.
(D) The Site Review Committee shall make its determinations
with respect to any application for minor modifications
subject to this Section within 15 days after it
determines the application to be subject to said minor
modification.
(E) If the amendment or modification requested is of such a
nature as to require approval of the City Council, the
Site Review Committee shall refer the matter to the City
Council within fifteen (15) days after it determines the
matter to require Council review.
(F) Crosswell Development LLC may appeal the decision of the
Site Review Committee to the City Manager or City
Council, who may affirm, reverse or modify the Site
Review Committee decision.
VI. MISCELLANEOUS
6.01 Severability
In the event that any provisions of this Agreement shall be
deemed, decreed, adjudged or determined to be invalid or
unlawful by a court of competent jurisdiction, such provision
shall be severable and the remainder of this Agreement shall
continue to be of full force and effect.
6.02 Recordation
This Agreement shall be recorded in the Office of the Flathead
Countv Clerk and Recorder.
FINAL Agr.wpd
19
2001165 J S I S 0
6.03 Entire Agreement — Primacy
This Agreement and the attachments, exhibits, plans, and
reports referenced herein constitute the entire Agreement
between the parties and may only be amended as set forth
herein. In the event during the term of this Agreement, there
is a variance between the provisions of this Agreement and any
drawing or document submitted prior to execution of this
Agreement, this Agreement shall take precedence.
6.04 Integration
This Agreement, together with any attached exhibits and any
addenda or amendments signed by the parties, integrates all
negotiations and previous agreements between the parties and
supercedes any other written or oral agreements or
representations between the parties. This Agreement can be
modified only in writing, signed by all parties hereto. Not
withstanding the forgoing or anything else contained in this
Agreement, the Sale and Purchase Agreement between PACK and
Crosswell Development LLC, dated September 18, 2000 and as
amended on December 26, 2000, and the provisions thereof shall
remain in full force and effect.
6.05 Binding Effect
This Agreement shall be binding upon and inure to the benefit
of the respective parties, heirs, successors and assigns.
FINAL Agr.wpd 20
20011651S1S0
6.06 Substitution of Parties
Parties acknowledge that Crosswell Development LLC is in the
process of forming a Montana legal entity. Upon completion of
that action, the entity shall sign a document assuming all of
the obligations and rights of Crosswell Development LLC. Upon
delivery of that document to the CITY and the recording of an
executed copy thereof, that entity shall be substituted in
full for Crosswell Development LLC in this Agreement.
Dated this 17% day of a 2001.
CROSSWELL DEVELOPMENT LLC
By:
CITY OF KALISPELL
STATE OF MONTANA )
) ss.
County of Flathead )
Attest:
Its:
On this 2 day of 6)� 'L, 2001, before me the
undersigned, a Notary Public for e State of Montana, personally
appeared ". LA„ssul(/ known to me to be the authorized
representative for Crosswell Development LLC, the person whose name
is subscribed to the foregoing instrument and acknowledged to me
that he/she executed the same n beh v the said entity. R
p.d
tip�*A-Si
TkFINAL Agr.wpd
res
otaryblic frResidig at
My Commission Expi
21
State of
Z
STATE OF MONTANA )
) ss.
County of Flathead )
2001165 [ S I S D
On this
_Z& day of
1
2001, before me the
undersigned, a
Notary Public
for e State
of Montana, personally
appeared . G�dPs.A
L4 �c,�!
known to me
to be the authorized
ative for "PACK AND COMPANY, the person whose name is
su�6o to the foregoing instrument and acknowledged to me that
14kia ed the same on behalf of the said entity.
%1t if Notary Public for the State of Montana
"sF Residing a
......:.
1�!104� My Commission Exs�f �e
^IMi. a..a✓
STATE OF MONTANA )
ss.
County of Flathead )
On this /-X ' day of IL 2001, before me the undersigned,
a Notary //11 Public for the State of Montana, .person ally appeared
CffkIS H. KuKut Sti'/ known to me to be the G>y Gf2
for the CITY of Kalispell, and Ni7t the
C/fN Cu---Xfc for the CITY of Kalispell, the persons
whose names are subscribed to the foregoing instrument and
acknowledged to me that he/she executed the same on behalf of the
CITY of Kalispell.
Notary Public_tgr the State of Montana
Residing at �
My Commission Exp� 9 Oa—
q n',
FINAL Agr.wpd 22
2031165 ) S IS b
INDEX OF EXHIBITS
Exhibit A: Title commitment or title insurance report containing
the legal description of the premises.
Exhibit B: PUD Application of Crosswell Development; FRDO Staff
Report #KPUD 00-1; Report of the City -County Planning Board based
upon its meeting on January 9, 2001; and the Conditions of Approval
of the PUD as passed by the Kalispell City Council on February 20,
2001.
Exhibit C: Master Site Plan.
Exhibit D: Description of Infrastructure and the costs for bonding
purposes.
Exhibit E: List of materials and exterior building treatments.
Exhibit F: Draft Covenants.
Exhibit G: Remediation Area.
FINAL Agr.wpd 2 3
2001165 I S 1 S 0
EXHIBIT "A"
Fenn t1o. 1342 (1952)
ALTA Piain Lmewee Commitment
.4SS AM1,A,CIf
Fast American Title Insurance Company
INFORMATION
The Title Insurance Commitment is a legal contract between you and the company, It Is Issued to
show the basis an which we will issue a Title Insurance Policy to you. The Policy will Insure you uyainat
certain risks to the land title, subject to the limitations shown In the Policy.
The Company will give you a sample of the Policy form if YOU Pak
The Commitment Is based on the land title as of the Commitment Date, Any changes In thu land
title or the transaction may affect the Commitment and the Policy,
The Commitment is sublect to its Requirements, Exceptions and Conditions
THIS INFORMATION IS NOT PART OF THE TITLE INSURANCE COMMTTMENI,
TABLE OF CONTENTS
AGREEMENT TO ISSUE POLICY
SCHEDULE A
Page
1
2
t. Commitment Date
2. Policies to be Irsuad. Amounts and Proposed Insureds 2
3. Interest In the Land and Owner 2
4. Description of the Land. 2
9
SCHEDULE B-1 — Requirements
d
SCHEDULt_ WZ — EXOsptlons
other side of 1
CONDITIONS
YOU SHOULD READ THE COMMITMENT VERY CAREFULLY. .
If you have any questions about the Commitment, please contact the Issuing office.
2®a1.1.65 15 160
COMMITMENT FOR TITLE INSURANCE
ISSUED 6Y
First American I;tle Insuranee Compagy
AGREEMENT TO ISSUE POLICY
We agree 10 your nalssue Ek me as thu IP�Voaedto �tna u�d In r;cheduta A, this Cothis
mmitmentfbaoomesWhen
efleet ve arc of the Cothe m-
amount and
mitmsnt Date shown In Schedule A.
It the Requirements shown in this Commitment have not been met within six months aftor tho Commitment
Date, our obligation under this Commitment will and. Also, our obligation under this Commitment will end when the
Policy is rued and then out obligation to you will be under the Policy -
our obligation under this Commitment Is limited by the following:
The Provisions fit Sultedule A
The Requirements In Schedule &I.
The FXC2Pt1on5 in Sohoaule B•2,
The Conditions on the other side of this Page I.
This Commitment Is not valid without SCHEDULE A and Sections t and 2 of SCHEDULE B.
`\tl.f INS& %11
9,r tit
4
s _ r n
SEYTE�8E8 Pd. i
i fir' 1968
154a....�u•
FustAmericsn Vdelnsuro'14"r romPmW
y PRESIDFM
SECRETARY
ITERSIONEO
Page t
0
_ 2001165 1 rS b
5CHC1]ULL A
Direct Inquiries To:
TG
1. Commitment Date: September 22,
2000 at 8,00 A.M.
Commitment No:
CT-62504
2. policy or Policies to be issued:
(� (a) Owner's Policy Form No.1402.92 (10-17-92)
proposed Insured:
undisclosed
❑ (b) Loan Policy Form No.1-1056.92 (10-17-92)
Propeaadlnsurod:
❑ (c) , Purchaser's Policy Form No.1402.92 (10-17-92)
proposed Insured:
Policy Amount
$12, 000.00
Premium $140.00
Premium $
$
Premium $
3_ Fee simple interest in the land described in this Commitment is owned, at the
Commitment Date, by
Pack a Company, a Montana Corporation, as to Parcels l & 2 and
state of Montana Dopartmant of TranspoLLaLlun, astoYarCel 3
4. The land referred to in this Commitment is described as fulluws:
See altac:hed schedule C
209ULG5 l S 19 0
No. CT-62504
SCHEDULE B - SECTION 11
EXCEPTIONS
Any policy we Issue will have the following oxceptions unless they are taken care of to our satisfaction.
PART
1. Taxes or ascoccmentc which arc not --hewn no miating liana by the records of any taxing authority tinat
levies taxes or assessments on real property or by the public records-
2. Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained
by an inspection of said land or by making Inquiry of persons in possession thereof.
S. Easements, claims of easement or encumbrances which are not shown by the public reeords-
4. Discrepancies, eonlliets in boundary lines, shortage In area, encroachments or any other facts which a correct
survey would disclose; and which are not shown by the public retards.
5. Unpatented-mining claims: reservations--or=exceptions-ln-patents-or-inacts-authorizing-the Issuance thereof:
water rights, claims, or title to water.
E. Any lien, or right to alien, for services, labor or material theretofore or. hereaflnr hrm6herl, imposed by law and
not shown by the public records,
I. Any right, Otte or interest in any minerals, mineral rights or related matters induding but not limited to oil, gas,
coal and other hydrocarbons, whether or not shown by the public records.
8. General and special county and city taxes for the year 2000, a lien act yet
payable.
NOTE: General and special county and city taxes fox the year 1999
e.LAST INSTALLMENT $2s9.00 iVAID)
SECOND INSTALLMENT $258.98 (PAID)
TOTAL t $517.9e
TAX RECEIPT NO. 39-05057
ASSESSOR NO. 75 0670840
AFFECTS t Parcel 1
NOTE: General autl eUet:ial county and city taxes for the year 1999
FIRST INSTALLMENT$17,079.42 (PAID)
ARrCNn TNSTALLM6:NT e-$17,079.39 (PAID)
TOTAL 2 $34,158.81
TAX RECEIPT NO. 99-04320
ASSESSOR NO. 75 0392345
AFFECTS Parcel 2 -
9, we .find no assessment has been made for taxes. No liability is assumed for
the un-oaid taxes that may be asRAae,ati at a lator date. ULPPECTS: raxcel 3)
-Continued-
The following numbered exceptions 1-6 4will be eliminated in an ALTA Extended Coverage Policy,
2®oil.65 1 S) S lD
Rider attached fo and forming a part of commitment ni imber:. _
Continuation of SCHEDULE R • SECTION II
21. Mortgage dated Sop tomber 29. 1994 h.n secure an indebtedness in the principal
sum of I I AMOUNT 1,900,000.00, and any
other amounts and/or. obligations secured
$
thereby.
RECORDED Decemntann.
bar 1, 1994, as Doc. No. -13330,
records of FSattscaLl County' Vested as follows:
MORTGAGOR Pack and Company, with
Pack & Comnany, Inc., a Montana Corporation,
as to Parcel 1: and Pack and Company, a Montana
Corporation, as to Parcels 2, 3 e 4.
MORTGAGEE : U.S. Bank of Washington, N.A.
AFFECTS : Premises and other property -
Modifieatiu„ a,jr¢unent recorded January 19, 1999, as Doc. No.
2999-019.16200, records of Flathead County, Montana.
22. Construction lien,
DATE I July 16" 1999
CLAIMANT: Jackola Engineering & Architecture P.C.
AGAINST : Pack a Company, (Jim Lynch president)
AMOUNT : 463,650.90
FOR, : Engineering, Architectrual, Survey and other professional consultant
services
RECORDED, July 16, 1999, as Doc. No.. 1991605D,
records of Flathead County, Montana.
AFFECTS : Parcels 1 & 2
23• Tur:ns and eondt:ions of nenolution No- 4476, recorded July 21, 3.999, as nnr.- No-
1999-202-00020, records of Flathead County, Montana. (AFFECTS: Parcels 1 6
2)
uly 21,
2d Tans and
0Ceadtions of records Rolo>latbeadlution oCounty, Montana . 4477, recorded J(AFFBCTS,99ParcelD3) No.
Term* and condtions of ordinance No. 1324, recoT6eA )WOURt. 4, 1999, as DOC- No-
25-
1999-216-05450, records of Flathead County, Montana, (AFFECTS: All Parcels)
26. g-P.A Transmission Easement as disclosed by available county maps, (AFFECTS:
A portion of Parcel 1)
27. Easement for private roads and utilities on Certificate of Survey No, 13919-
NOTE, The company will not assume any resposibilitY or liability for any
actions or judgments brought against the State of Montana.
NOTE: Title is to vest in a person or persons not disclosed and whoa so
,linc2osed by a seeroh of the records against
vented will be subJe,:t to w6Ll8rb
his or their names.
-continued-
04 051
20MIG5 19 1 SO
No. cT-52504
SCHEDULE C
The land referred to in this policy Is situated in the State of Montana, County of Flathead and Is described as follows:
PARCETI 1:
A tract of la21 Wes tteP.MnNtheFlath}ead9CountyteMontana Section
andmuse Vh1Licularly
North, Range
described a$ follows:
el 1 of
commencing
12230, rsrnrer;NnftFlathead heast rCounty and ner Of cwhich pointisthe sTrue Point of Survey Of
Beginning; thence
Westerly, Northerly and Southerly, an and along said North boundary of
Parcel 1 and the South right-of-way
nounaary u£ WeaL reserve nrive, the
following five courses:
Nol-Lh 09'07'281 Want, a distance of 363.67 fP.P.t to a point:
North 00,50,400 East, a distance of 1995 feet to a point;
wnrh A9'37'22" West, a distance of 375.37 feet to a point;
t
North 02'15'52" East, a distance of 5.59 feet to a point;
North 89'57110" west, a distance of 107.43 feet to a point which point is the
Northea t_ corner of that tract indicates un Ceil.iricat& of survey No. 7860,
records of FlatheaCounty;. thence
on and along the East bonnAnry of said tract, a
guuLh 18'19'01" West,
dieltencn of 252.46 feet to a point? thence
NOTLh 89'54'08" West, on and along the South boundary of said tract, a
distance of 233.25 feet to a point which point lies on the Past
undary of U.S. Highway 93; thence
right -Of -way be
O'06'49° West, on and along said Eaat riyhL-or-way boundary, a diotancc
South 00640.64 064 feet to a point which point is the Northwest corner of Parcel 2
of amid Certificate of Survey No. 12230; thence
South 88'59'57" East, on. and along the North boundary of said Parcel 2, a
distance of 464.36 feet to a point which point is the Northeast corner of
said Parcel 2; thence
30,16,191, East. a distance of 490.29 feet to a point and which point is
South
the East corner ofeet to a point which point is the
£ said Yasuel 2; Lhenc
South 35'17'37" West, a distance of 267.05;
Northeast cornnr of Parcel 3 of said Certificate of Survey No. 12230;
thence
.08'3b" west, a distance of 558.48 feet to a point which point lies on
North 6
of U.S. Highway 93 and which point is the
said East right af•way boundary
Northwest corner of said Parcel 3r thence
gout,, 00'11'10" Weat, on and along caid East right-of-way boundary, a distance
of 375.01 feet to a point which point is the Southwest corner of said
parcel 3; thanca
South 89'57153" East, on and along the South boundary of said Parcel 3, a
ofssaidePof 559-98 feet toicatelot nt 6rveyiNo.ch p12230;oint stheucethel outhwest corner
South 89'56'28" Bast, on and along the South boundary of said Parcel 1, a
diatmace of 50.39 foot to a point; thence
Continued-
ti(Z31165 I S >' S U
Rider attached to and forming a part of commitment number:
rm-6750d
Continuation of SCHEDULE c
South 00'07'10" West 940-71 feet to the point of Beginning of the parcel
being described; thence leaving maid Right -of -Way,
South 89'04'58,, East 464.06 feat; thence
South 30'17'30 Last 490.59 feet; thence
South 35-16'49" West 267.08 feet; thence
Nurth 89'09'30" Went 558.6o feet to the Easterly line of U.B. Highway No. 93
Right -of -Way; thence along the Easterly line of said Right -of -Way,
North 00'07'10" East 640.91 feet to the Point of Beginning.
Parcel 2 of Certificate of Survey No. 12230.
TUB nm
44-051
20ai165 1,S 1 S 0
Exhibit "B"
ABSTRACT OF DOCUMENTS
The Mountain View Plaza PUD Application, dated December 11,
2000; the FRDO Staff Report #KPUD 00-1; Report of City/County
Planning Board based upon its meeting of January 9, 2001; and the
Conditions of Approval of the PUD as passed by the Kalispell City
Council on February 20, 2001 are on file with the Kalispell City
Clerk, 312 la` Avenue East, Kalispell, MT.
2001165 I S I S 0
EXHIBIT D (continued)
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 1: MOBILIZATION
Est.Qt
Item
Description
y Per
Unit
Unit
Total
Unit
Price
1.
Mobilization
Lump
$20,000
$20,000
Sum
SUBTOTAL MOBILIZATION
$20,000
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 2: ON SITE WATER
Est.Qty
Item
Description
Per
Unit
Unit
Total
Unit
Price
1.
Water Main In place
8-inch PVC DR 18
1500
LF
$25
$37,500
12-inch PVC DR 18
6000
LF
$28
$168,000
2.
Fittings
6000
LBS
$5
$30,000
3.
Gate Valves
8-inch
4
EA
$800
$3,200
12 - inch
8
EA
$1,500
$12,000
4.
Fire Hydrants
11
EA
$2,500
$27,500
5.
Fire Hydrant Service Line, 6"
260
LF
$22
$5,720
SUBTOTAL WATER
$283,920
EXHIBIT 'C•
MASTER SITE PLAN
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JOB NO. KOO-047
LEGEND
ju DESCRIPTION
LANDSCAPED AflEA
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PROPOSED BUILDING
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LOT SUMMARY
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17DTAL PN OONG `PAM 2741
PARWM SPACES / IWO Sr - RETAIL 5-U 7�
MWO MBUL.DMC AREA 512.886 SF_ /co
T AREA 1,216.156 SX.
LU
L VCSQkPED AREA 8H,279 SF. OD
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- - -----WATER LINE •-
----------- - - -
-" EXISTING "'--�'---'
WATER LINE HIGHWAY 93
SEWER LINE -_ _ WATER UNE-�- - IL
- - IL -- - --
} SEWER UNE- - _
1
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FLATHEAD VALLEY
COMMUNITY COLLEGE 1
1
NOT TO SCALE
- - - - 12" WATER LINE
- - - 8" WATER U N E
- 8" GRAVITY SEWER
-- ---- 4" FORCE MAIN
STORM DRAIN
t-m REETADMPOVMN
2031165) S IS 0
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 3: ON SITE SEWER
Item
Description
Est.Qty
Per
Unit
Unit
Unit
Price
Total
1.
Excavation
5500
CY
$8
$44,000
2.
Sewer Main
8" PVC DR 35
5300
LF
$10.50
$55,650
3.
Sewer Manholes, 5' Depth
15
EA
$1,500
$22,500
4.
Sewer Manhole Additional Depth
40
VF
$150
$6,000
5.
Connect to Existing Manholes
I
EA
$800
$800
6.
Sewer force main
4-inch PVC DR 18
1450
LF
$16
$23,200
7.
Lift Station with auxiliary power
Lump
Sum
$75,000
$75,000
SUBTOTAL ON SITE SEWER
$227,000
203JA6.5 I S ) S 0
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 4: ON SITE STORM DRAINAGE
Est.Qty
unit
Item
Description
Per
Unit
Total
Unit
Price
1.
Storm Drain Inlets
25
EA
$950
$23,750
2.
Storm Drain Pipe
24" SDR 35 PVC
350
LF
$45
$15,750
18" SDR 35 PVC
450
LF
$30
$13,500
15" SDR 35 PVC
750
LF
$25
$18,750
12" SDR 35 PVC
1000
LF
$22
$22,000
3.
Storm Drain Manhole, 5' depth
6
EA
$1,500
$9,000
4.
Storm Drain Manhole Additional Depth
10
EA
$150
$1,500
5.
Oil/ Sand Interceptor
8
EA
$2,000
$16,000
6.
Retention Pond (150'x 450'x 8.5')
Lump
$100,000
$100,000
Sum
SUBTOTAL SITE STORM DRAINAGE
$220,250
2031165 i SIS D
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 5: ONSITE ROADS
Est.Qty
Unit
Item
Description
Per
Unit
price
Total
Unit
1.
Asphalt
4" thickness
32,000
SY
$10
$320,000
2.
Base Course (3/4" crushed)
3,600
CY
$16
$57,600
3.
Sub Base(3" minus)
11,000
CY
$10
$110,000
4.
Concrete walk with gravel
4,100
SY
$27
$110,700
5.
Concrete
Curb & Gutter
4300
LF
$7
$30,100
Straight Curb
250
LF
$7
$1750
SUBTOTAL ON SITE ROADS
$630,000
26311165 j S 1 S o
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 6: ACCESS ROADS
Est.Qty
Unit
Item
Description
Per
Unit
Total
Unit
Price
1.
Asphalt
4" thickness
3,600
SY
$10
$36,000
2.
Base Course (3/4" crushed)
420
CY
$16
$6,720
3.
Sub Base (3" minus)
1,300
CY
$10
$13,000
4.
Concrete walk with gravel
600
SY
$27
$16,200
5.
Concrete
Straight Curb
900
LF
$7
$6,300
Traffic Signals
US 93 entrance
Lump
$200,000
$200,000
Sum
US 93/ West Reserve intersection
$25,000
$25,000
SUBTOTAL ACCESS ROADS
$303,220
2031-is5 I S) s o
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 7: ROADSIDE LANDSCAPING
Item
Description
Est.Qty
Per Unit
Unit
Unit
Price
Total
1.
Sod/Seed Areas
216,000
SF
$0.30
$65,000
2.
Landscaping
Lump
sum
$50,000
$50,000
3.
Dryland Seed
418,500
SF
$0.15
$65,000
4.
Irrigation
Lump
sum
$120,000
$120,000
SUBTOTAL LANDSCAPING
$300,000
OQCD1165 I S, 1 SO
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 8: OFF SITE WATER
Item
Description
Est. Qty
Per
Unit
Unit
Unit
Price
Total
1.
Water Main Inplace
12" PVC DR 18*
7300
LF
$28
$204,400
2.
Fitting
2100
LBS
$5.00
$10,500
3.
Gate Valves
12 - inch
10
EA
$1,500
$15,000
4.
Blow Off Assembly
4
EA
$1,500
$6,000
5.
Air Release Assembly
4
EA
$1,500
$6,000
6.
Connect to Existing System
2
EA
$1,500
$3,000
7.
Jack & Bore w/ 20" Encasement Pipe
Highway 93
Four Mile Drive
110
110
LF
LF
$350
$350
$38,500
$38,500
8.
Cleanup and Seeding
1
EA
$5,000
$5,000
9.
Pavement Removal and Replacement
300
LF
$25
$7,500
SUBTOTAL OFF SITE WATER
$334,500
2031165 1 S IS 0
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 9: OFF SITE SEWER
Est.Qty
Item
Description
Per
Unit
Price
Total
Unit
1.
Excavation
6600
CY
$10.00
$66,000
2.
Sewer Main
12" PVC DR 35
2600
LF
$12.50
$32,500
8" PVC DR 35
1500
LF
$10.50
$16,275
3.
Sewer Manholes, 5' Depth
15
EA
$1,500
$22,500
4.
Sewer Manhole Additional Depth
110
VF
$150
$16,500
5.
Connect to Existing Manholes
1
EA
$2,500
$2,500
6.
Jack and Bore w/ 18" Encasement Pipe
College Drive
60
L.F.
$325
$19,500
7.
Clean-up & Seeding
Lump
$5,000
$5,000
Sum
SUBTOTAL OFF SITE SEWER
$181,000
2031165 I'S 1 S O
MOUNTAIN VIEW PLAZA CONSTRUCTION ESTIMATE
SCHEDULE 10: DEMOLITION
Item
Description
Est. Qty
Per
Unit
Unit
unitTotal
Price
MDOT — FACILITY REMOVAL
1.
Move Trailers
8
EA
$2,000
$16,000
2.
Relocate Stock Piles
3000
CY
$5.00
$15,000
3.
Demolition and Disposal of Sheds
Lump
Sum
$1,500
$1,500
SUBTOTAL — FACILITY REMOVAL
$32,500
DEMOLITION PACK -SITE
1.
Office and Shops
Lump
Sum
$15,000
$15,000
2.
Asphalt Plant
Lump
Sum
$25,000
$25,000
3.
Batch Plant
Lump
Sum
$25,000
$25,000
4.
Storage Buildings
Lump
Sum
$10,000
$10,000
5.
Stock Piles, Topsoil and Aggregate
Lump
Sum
$15,000
$15,000
SUBTOTAL DEMOLITION
$90,000
TOTAL
$122,500
2031165 1 S 1S d
SUBTOTALS
Schedule 1:
Mobilization
$ 20,000
Schedule 2:
On Site Water
$283,920
Schedule 3:
On Site Sewer
$227,000
Schedule 4:
On Site Storm Drainage
$220 250
Schedule 5:
On Site Roads
$630,000
Schedule 6:
Access Roads
$303,220
Schedule 7:
Landscaping
$300,000
Schedule 8:
Off Site Water
$334,500
Schedule 9:
Off Site Sewer
$181,000
Schedule 10:
Demolition
$122 500
TOTAL ON SITE: $2,622,390
2001165 I S 1 SO
The Mountain View Plaza PUD generally anticipates two styles of
architecture. The lower land use area will be large box store
uses, while the upper area will be focused on smaller specialty
commercial. All structures will be subject to the architectural
controls of the covenants, elevations and general requirements
outlined in this document. Two conceptual building types are
presented with this application. The larger commercial buildings
are typical to a nationally recognized retailer and are for use
for the back lower area of the development ranging in size from
127,000 square feet to over 148,663 square feet. In many
instances the retailers off the shelf design will undergo
significant architectural modification to fit within the concepts
proposed. The upper area will be a commercial area with the
possibility of multiple tenants for a single structure. Some
architectural features of the front of the buildings will be
carried around the structure to soften the impact of the back and
sides of the building. The design of the buildings are intended
to compliment the unique features of the site and set a high
standard for appearance for the north entrance to Kalispell.
Suggested exterior materials for the retail, commercial
structures:
Walls:
Split face masonry,
Giant Brick,
Stone,
Architecturally Finished Concrete,
Synthetic stucco,
Textured concrete block,
Architectural concrete block;
Facias:
Pre -finished Architectural panels,
Synthetic stucco,
Texture pre -finished aluminum panels,
Other natural appearing materials (with approval of
architectural review);
Soffits:
Pre -finished Architectural Panels,
Synthetic Stucco,
Textured pre -finished aluminum panels,
Other natural appearing materials (with approval of
architectural review);
Roofs:
Pre -finished architectural roofing
Cedar shackles and Shingles, Fire resistance treatment,
Hypalon, single ply EPDM,
Built up roofing (Architectural treatment to mitigate large
203JAG5 ) S l S 0
expanses with color texture variations is encouraged);
Windows and Doors:
Commercial grade Thermal-T broken anodized aluminum frame
enamel finished pressed metal frames
Vinyl clad
Pre -finished wood
Double or triple glazed panel
Energy saving features are encouraged
Colors:
Applied finishes Predominately earth tone
Masonry and stone -Earth tone and natural colors
Accent colors -natural and earth tones
Natural wood tones (new - no weathered)
The suggested guidelines will be embodied in the Covenants and
Restrictions, a preliminary set of covenants is being submitted
with this PUD. This document will also create the architectural
review committee who will ensure the quality of design and
development. A special concern is the appearance from Highway
93.
2001165 I S l S 0
F xh,btt F
When recorded return to:
Keith M. Pockross, Esq.
u
63317 Street
Suite 2000
Denver, Colorado 80202
RESTRICTION AGREEMENT
AND GRANT OF EASEMENTS
THIS RESTRICTION AGREEMENT AND GRANT OF EASEMENTS (this
"Agreement") is made as of 2001, by and between Mountain View, LP, a
Montana limited partnership ("Developer"), and Home Depot U.S.A., Inc., a Delaware
corporation ("Home Depot").
1. PRELIMINARY
1.1 Parties: Home Depot is the Owner of the Home Depot Parcel identified on the
Site Plan and Developer is the Owner of the Outparcels and the balance of the Shopping Center
('Developer Parcel") all as identified on the Site Plan. The Parcels are located at the southeast
corner of the intersection of West Reserve Drive and U.S. Highway 93, in the City of Kalispell,
County of Flathead, State of Montana, each as shown on the Site Plan.
1.2 Purpose: The Parties plan to develop the Shopping Center as an integrated retail
sales complex for the mutual benefit of all real property in the Shopping Center and, therefore,
do hereby fix and establish the Restrictions, upon and subject to which all of the Shopping
Center, or any part thereof, shall be improved, held, leased, sold and/or conveyed. Such
Restrictions shall run with the land and inure and pass with such property and shall apply to and
bind the respective successors in interests thereof, and all and each thereof is imposed upon such
property as a mutual equitable servitude in favor of such property and any portion thereof.
1.3 Definitions: For the purposes of this Agreement, the terms defined in this
Agreement shall have the meanings set forth below whenever such terms are used in this
Agreement, unless the content clearly indicates a different meaning.
(a) "Agreement": This Restriction Agreement and Grant of Easements.
(b) 'Building": Any enclosed structure placed, constructed or located on a
Parcel, which for the purpose of this Agreement shall include any appurtenant canopies,
supports, loading docks, truck ramps and other outward extensions.
(c) 'Building Area": All those areas on each Parcel shown as Building Area
on the Site Plan attached hereto and incorporated herein by this reference, together with those
portions of the Expansion Area which are from time to time covered by a Building. The
ON 163450,10 03056 00482 618/2001 4:49:56 PM
203ILif's I S I S 0
aggregate Floor Area of Buildings within a Parcel's Building Area may not exceed the maximum
square footage allocated thereto on the Site Plan-
(d) "Common Area": All those areas on each Parcel which are not Building
Area, together with those portions of the Building Area on each Parcel which are not from time
to time actually covered by a Building or which cannot under the terms of this Agreement be
used for Buildings. Canopies which extend over the Common Area, together with any columns
or posts supporting same, shall be deemed to be a part of the Building to which they are attached
and not a part of the Common Area. The improvement or use of any portion of the Building Area
for parking areas or Service Facilities shall not be construed as a permanent inclusion of such
portion within the Common Area, and such portions may, at any time thereafter, be improved
with Buildings and appurtenances as contemplated by this Agreement. Perimeter Sidewalks or
exterior lighting attached to a Building are not part of the Common Area.
(e) "Consenting Owners": The Developer for so long as it is an Owner, the
Owner of the Home Depot Parcel and two additional Owners designated by Developer provided
that the Building Area contained on one such Owner's Parcel must be in excess of 100,000
square feet and the Building Area contained on such other Owner's Parcel must be in excess of
50,000 square feet; provided, however, that in the event any such Owner sells its Parcel and
becomes the Prime Lessee thereon, such Prime Lessee shall be deemed appointed as the entity to
cast the vote or give the consent for the Parcel on behalf of the Owner so long as it is the Prime
Lessee of said Parcel.
(f) "Constant Dollars" means the present value of the dollars to which such
phrase refers. An adjustment shall occur on January I of the sixth (6th) calendar year following
the date of this Agreement, and thereafter at five (5) year intervals. Constant Dollars shall be
determined by multiplying the dollar amount to be adjusted by a fraction, the numerator of which
is the Current Index Number and the denominator of which is the Base Index Number. The
"Base Index Number" shall be the level of the Index for the month during which this Agreement
is dated; the "Current Index Number" shall be the level of the Index for the month which this
Agreement is dated of the year preceding the adjustment year; the "Index" shall be the Consumer
Price Index for all urban consumers, U.S. City Average, published by the United States
Department of Labor, Bureau of Labor Statistics (Base Year 1982-84=100), or any successor
index thereto as hereinafter provided. If publication of the Index is discontinued, or if the basis of
calculating the Index is materially changed, then the Consenting Owners shall substitute for the
Index comparable statistics as computed by an agency of the United States Government or, if
none, by a substantial and responsible periodical or publication of recognized authority most
closely approximating the result which would have been achieved by the Index.
(g) "Default Rate": The greater of (i) ten percent (10%) per annum or (ii) five
percent (5%) per annum plus the discount rate prevailing on the twenty-fifth (25th) day of the
month preceding the date such payment was due, as established by the Federal Reserve Bank of
San Francisco on advances to member banks under Sections 13 and 13a of the Federal Reserve
Act, to be adjusted and reset semiannually on each June 30 and December 31.
DN 163450,10 03056 00482 6/8/2001 4:49:56 PM
2031Us) s I 190
(h) 'Developer": Crosswell Development, L.L.C., a Texas limited liability
company, its successors and assigns.
(i) 'Developer Parcel": All that real property consisting of the Shopping
Center but excluding the Home Depot Parcel and the Outparcels.
0) "Floor Area": The total number of square feet of floor space on each floor
in a Building, including basement, subterranean, balcony and mezzanine space, irrespective of
whether actually occupied, provided, however, incidental basement or mezzanine space used for
offices or storage ancillary to a retail business shall not be included in the calculation of Floor
Area. Floor Area shall be measured from the exterior line of the exterior walls and from the
center line of any party or common interior walls without deduction for columns, walls or other
structural or non-structural components; provided, however, in no event shall an Outside Sales
Area be included in such calculations. The Parties acknowledge that the garden center located on
the Home Depot Parcel constitutes Outside Sales Area and is depicted on the Site Plan.
(k) "Governmental Regulations": Any or all laws, statutes, ordinances, codes,
decrees, rulings, regulations, writs, injunctions, orders, rules, conditions of approval or
authorization of any governmental entity, agency or political subdivision whether now in force or
which may hereafter be in force, including, without limitation, the PUD.
(1) "Home Depot": Home Depot U.S.A., Inc., a Delaware corporation, its
successors and assigns, together with any corporation, partnership, limited liability company or
other legal entity succeeding thereto by consolidation, merger or acquisition of its assets
substantially as an entirety, and any wholly owned subsidiary thereof, and whose current address
is 3800 West Chapman Avenue, Orange, CA 92868, or any subsequent Owner or Occupant of
the Home Depot Parcel.
(m) "Home Depot Parcel": The area depicted on the Site plan as "Home Depot
Parcel."
(n) "Lienholder": Any mortgagee under a mortgage or a trustee or beneficiary
under a deed of trust constituting a lien on any Parcel.
(o) "Maintenance Director": The Person responsible for the maintenance of
the Common Areas under the provisions of Section 6.
(p) "No Build Zone": That area of the Shopping Center defined in Section
2.3(f) below.
(q) "Occupant": Any Person or Prime Lessee from time to time entitled to the
use and occupancy of any portion of a Building in the Shopping Center under an ownership right
or any lease, sublease, assignment, license, concession, or other similar agreement.
(r) "Outparcel" or "Outparcels": Individually or collectively, the areas
depicted on the Site Plan as "Outparcels".
DN 163450.10 03056 00482 6l82001 4:49:56 PM
2()31i65 / S / S 0
(s) "Outside Sales Area": An area generally unprotected from the elements
which may be used for sales and/or storage purposes and when used for such purposes shall be
enclosed by a fence or other security barrier; an Outside Sales Area shall only be located in the
area(s) designated on the Site Plan. The Parties hereby acknowledge and agree that Home
Depot's Seasonal Sales Area identified on the Site Plan constitutes an Outside Sales Area.
(t) "Owner": The record holder of fee simple title to a Parcel, its heirs,
personal representatives, successors and assigns.
(v) "Parcel" or 'Parcels": Individually or collectively, the Home Depot Parcel,
the Outparcels and the Developer Parcel as shown on the Site Plan and more particularly
described in Exhibit "A".
(v) 'Party" or 'Parties": The parties set forth in Section 1.1 above, their
successors and assigns.
(w) "Perimeter Sidewalk": The sidewalks and customer pickup areas directly
adjacent to a Building and depicted as Perimeter Sidewalks on the Site Plan. The Perimeter
Sidewalks are the exclusive property of the Owner of the Parcel and not part of Common Area.
(x) "Permittee": All Occupants and the officers, directors, employees, agents,
contractors, customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and
concessionaires of Occupants insofar as their activities relate to the intended use of the Shopping
Center. Among others, Persons engaging in the following activities on the Common Area will
not be considered to be Permittees: (i) exhibiting any placard, sign, or notice; (ii) distributing any
circular, handbill, placard, or booklet; (iii) soliciting memberships or contributions; (iv)
parading, picketing, or demonstrating; and (v) failing to follow regulations relating to the use of
the Shopping Center.
(y) "Person": Individuals, partnerships, firms, associations, corporations,
limited liability companies, trusts, governmental agencies, administrative tribunals or any other
form of business or legal entity.
(z) 'Phase I": The Home Depot Parcel as shown on the Site Plan.
(aa) 'Phase II": The Shopping Center save and except the Home Depot Parcel.
(bb) 'Prime Lessee": An Owner of a Parcel who sells its entire Parcel to an
unaffiliated third party and thereafter enters into a lease for the entire Parcel with such third party
or its lessee or sublessee and its successors and assigns.
(cc) 'PUD": The Plan Unit Development Agreement by and between
Developer, Pack and Company, and the City of Kalispell, Montana, a municipal corporation,
with its office and principal place of business located at 312 First Avenue East, Kalispell,
Montana 59901.
DN 163450.10 0305600482 6/8/2001 4:49:56 PM 4
2Q31165 I S ) S 0
(dd) "Restaurant": Any operation or business which requires a governmental
permit, license and/or authorization to prepare and/or serve food for either on or off -site
consumption; provided, however, notwithstanding anything herein to the contrary, a
supermarket, a grocery store or similar food operations shall not be deemed a Restaurant.
(ee) "Restrictions": The easements, covenants, restrictions, liens and
encumbrances fixed and established upon the Shopping Center pursuant to this Agreement.
(ff) "Service Facilities": Trash enclosures, bottle storage areas and other
similar service facilities.
(gg) "Shopping Center": Collectively, the Home Depot Parcel, the Outparcels
and the Developer Parcel all as more particularly described on Exhibit "A" attached hereto and
made a part hereof.
(hh) "Sign Package": The sign criteria and diagrams set forth on Exhibit "C"
hereto.
(ii) "Site Plan": The site plan of the Shopping Center shown on Exhibit "B"
attached hereto. Any requested changes to the Site Plan subsequent to the recordation of this
Agreement shall include a detailed comparison clearly showing all modifications and changes,
irrespective of materiality, to the Site Plan versus the proposed modified/amended site plan. Such
comparison shall be interlineated upon the Site Plan.
0j) "Utility Lines": Those facilities and systems for the transmission of utility
services, including, but not limited to, water drainage systems or structures, water mains, sewers,
water sprinkler system lines, telephones, electrical conduits or systems, gas mains, other public
or private utilities, and drainage and storage of surface water.
2. BUILDING AND COMMON AREA DEVELOPMENT
2.1 Building Location: All Buildings and other structures (except those permitted in
Section 2.2 below) shall be placed or constructed upon the Parcels only in the Building Areas;
provided, however, that canopies, eaves and roof overhangs (including columns or posts
supporting any such canopies, eaves and roof overhangs), normal foundations, utility cabinets
and meters, signs and doors for ingress and egress may project from the Building Area into the
Common Area. All of the foregoing shall be constructed and maintained in accordance with all
Governmental Regulations applicable thereto. All Building Areas on which Buildings are not yet
constructed or not under construction on the date an Owner first opens its Building for business
shall be covered by decomposed granite, sod, hydroseed or as otherwise permitted by
Governmental Regulations and kept weed free and clean at the subject Owner's sole cost and
expense until such time as Buildings are constructed thereon.
2.2 Common Area: The Common Area is hereby reserved for the sole and exclusive
use of all Owners and Occupants of the Shopping Center, their Permittees and the subtenants,
DN 163450.10 03056 00482 6/8/2001 4:49:56 PM
2031-165 J S I S 0
contractors, employees, agents, customers, licensees and invitees of such Permittees. The
Common Area may be used for vehicular driving, parking (except that there shall be no multi-
level parking), pedestrian traffic, directional signs, informational signs such as "Handicapped
Parking," sidewalks, walkways, landscaping, perimeter walls and fences, parking lot lighting,
utilities and Service Facilities and for no other purpose unless otherwise specifically provided in
this Agreement. Except for the Home Depot Parcel, no Buildings or structures not shown on the
Site Plan shall be placed or constructed in the Common Area except pylon, monument and
directional signs (as provided in Article IV), informational signs such as "Handicapped Parking,"
paving, bumper guards or curbs, landscape planters, lighting standards, perimeter walls and
fences, utility pads and equipment, sidewalks, and Service Facilities (but only to the extent that
such Service Facilities are located in the Common Area and do not impede access to or parking
on (i) the Home Depot Parcel, or (ii) the rear or sides of Buildings). The Common Area shall be
constructed in accordance with the Site Plan and shall be kept and maintained as provided for in
Article VI below. All portions of a Building Area which cannot be used for Buildings shall be
developed by the Owner thereof, at said Owner's sole cost and expense, in accordance with the
Site Plan approved by the Consenting Owners and maintained as improved Common Area. The
sizes and arrangements of the Common Area improvements, including, without limitation,
service drives and parking areas, striping, traffic directional arrows and signs, informational
signs such as "Handicapped Parking," concrete bumpers, parking lot lighting, perimeter walls
and fences, and landscaped areas, together with necessary planting, may not be changed without
the prior written consent of the Consenting Owners; provided, however, that nothing contained
in this Section 2.2 shall be in any way interpreted or construed to require the written consent of
the Consenting Owners to the expansion of any Building into the Expansion Area shown on the
Site Plan. The Owners acknowledge and agree that incidental encroachments upon the Common
Area may occur as a result of the use of ladders, scaffolds, store front barricades and similar
facilities in connection with the construction, maintenance, repair, replacement, alteration or
expansion of Buildings, signs and Common Area improvements located in the Shopping Center,
all of which are permitted under this Agreement so long as all activities requiring the use of such
facilities are expeditiously pursued to completion and are performed in such a manner as to
minimize any interference with use of the improved Common Area or with the normal operation
of any business in the Shopping Center.
2.3 Type and Design of Building:
(a) Each Building in the Shopping Center, now and in the future, shall be of
first-class quality construction and architecturally designed so that its exterior elevations
(including, without limitation, signs and color) will be architecturally and aesthetically
compatible and harmonious with all other Buildings in the Shopping Center. No Building may be
constructed nor the exterior of any existing Building changed in any way (including, without
limitation, signs and color) without the prior written approval of the Consenting Owners as to the
exterior elevations (including, without limitation, signs and color) of the Building to be
constructed or modified. The foregoing to the contrary notwithstanding, Buildings may be
constructed, and the exterior of any existing Building changed, provided that such construction
or alteration is consistent with (i) the Building Areas shown on the Site Plan, (ii) such occupant's
prototypical design, (iii) harmonious with the then existing overall theme of the Shopping
Center, and (iv) is otherwise consistent with the provisions of this Agreement and with all
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Governmental Regulations. The standard Building design, exterior elevations, signs, color and
logos of the Consenting Owners as they may exist from time to time and the opening, closing or
relocation of any door, however, shall not require approval. Before the construction of any
Building or any modification of an existing Building which requires approval is commenced,
sufficient information shall be sent to the Consenting Owners to enable the Consenting Owners
to make a reasonable determination as to the architectural and aesthetic compatibility of the
proposed Building or modification with all other Buildings in the Shopping Center. Each
Consenting Owner must approve or disapprove the proposal within twenty (20) days after receipt
of the proposal, and, if such Consenting Owner disapproves the proposal, it shall provide a
written explanation of its general reasons for disapproval. If a Consenting Owner rejects or
disapproves the proposal and fails to provide such explanation within the twenty (20) day period,
such Consenting Owner shall be deemed to have approved same provided that, when the
approval was sought, the one seeking the approval stated in writing to the one whose approval
was sought that, if a disapproval with explanation was not made within the twenty (20) day
period, approval would then be deemed to have been given. If the proposal is disapproved as
provided herein, then an alternate proposal may be submitted, which alternate proposal shall be
handled in the same manner as the initial proposal.
(b) Subject to Section 2.3(f) below, every Building shall be either equipped
with automatic sprinkler systems which meet all the standards of the Insurance Services Office
(or other similar local organization having jurisdiction) or shall be constructed in such a manner
as not to adversely affect the fire rating as determined by local governing agencies of any
Building built upon any other Parcel.
(c) No Building shall be built in such a manner as to adversely affect the
structural integrity of any other Building in the Shopping Center.
(d) All Buildings on the Developer Parcel and the Home Depot Parcel shall
not exceed forty-five (45) feet in height. No Building on the Outparcels shall exceed twenty
eight (28) feet in height (including mechanical fixtures, signage, and equipment and screening
for same).
(e) Each Owner shall maintain or cause to be maintained the exterior of any
Building located on such Owner's Parcel(s) in a quality and condition comparable to that of
shopping centers of comparable size and nature located in the same geographic area as the
Shopping Center.
(f) The Building to be constructed on the Home Depot Parcel may be built as
Category V-NR (non -rated), as that category is defined pursuant to the Uniform Building Code
1997 Edition (UBC). Any Building on any other Parcel within the Shopping Center shall be
constructed in such a manner to guarantee that the Building on the Home Depot Parcel may be
constructed or otherwise remain as Type V-NFL To insure compliance with the provisions of
this subsection, no Building shall be constructed on the Developer Parcel and the Home Depot
Parcel as depicted on the Site Plan (the "No Build Zone").
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(g) There shall not be constructed in the Shopping Center any parking
structure, whether over or under ground level.
(h) No Consenting Owner shall be liable in damages or otherwise for any
reason, including any mistake in judgment, negligence or nonfeasance, arising out of or in
connection with the approval or disapproval or failure to approve or disapprove any proposal
submitted pursuant to this Agreement. Each Owner agrees that, by acquiring title to its Parcel
and submission of such plans, drawings and/or specifications, it will not bring any action or suit
against any Consenting Owner to recover any such damages. In addition, each Owner shall
indemnify, defend, protect and hold the Consenting Owners and their respective officers,
directors, shareholders, employees and agents harmless for, from and against any and all causes
of action, claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys'
fees and court costs and reasonable attorneys' fees and court costs on any appeal) arising out of
or related to the approval or disapproval of any plans, drawings and/or specifications submitted
to a Consenting Owner by or on behalf of such Owner or its Occupants. No approval shall be
considered an approval of the plans, drawings and/or specifications from an engineering
perspective or a determination that they meet Building, environmental or engineering design
standards, or that any such Buildings or improvements have been built in accordance with such
plans, drawings and/or specifications.
2.4 Construction Requirements:
(a) All work performed in the construction, maintenance, repair, replacement,
alteration or expansion of any Building, sign or Common Area improvements located in the
Shopping Center (collectively, "Improvements") shall be effected as expeditiously as possible
and in such a manner as not to unreasonably interfere, obstruct or delay (i) access to or from the
Shopping Center, or any part thereof, to or from any public right-of-way, (ii) customer vehicular
parking in that portion of the improved Common Area located in front of any Building
constructed in the Shopping Center, or (iii) the receiving of merchandise by any business in the
Shopping Center including, without limitation, access to Service Facilities. In addition, all
Improvements performed on the Outparcels shall not unreasonably interfere, obstruct or delay (i)
construction work being performed on any other Parcels, or (ii) the use, enjoyment or occupancy
of any other Parcels. Staging for the construction, replacement, alteration or expansion of any
Building, sign or Common Area improvements located in the Shopping Center including,
without limitation, the location of any temporary Buildings or construction sheds, the storage of
Building materials, and the parking of construction vehicles and equipment shall be limited to
that portion of the Shopping Center approved in writing by the Consenting Owners. In no event
shall any Owner other than Home Depot establish a staging area within the "Home Depot Zone
of Control". Unless otherwise specifically stated herein, the person contracting for the
performance of such work ("Contracting Party") shall, at its sole cost and expense, promptly
repair and restore or cause to be promptly repaired and restored to its prior condition all
Buildings, signs and Common Area improvements damaged or destroyed in the performance of
such work.
(b) The Contracting Party shall not permit any mechanics', materialmen's or
other professional services liens (as contrasted against consensual monetary liens such as
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construction and/or permanent financing) to stand against any Parcel for any work done or
materials furnished in connection with the performance of the work described in subparagraph
(a) above; provided, however, that the Contracting Party may contest the validity of any such
lien, but upon a final determination of the validity thereof, the Contracting Party shall cause the
lien to be satisfied and released of record. The Contracting Party shall, within thirty (30) days
after receipt of written notice from the Owner or Prime Lessee of any Parcel encumbered by any
such lien or claim of lien, (i) cause any such outstanding lien or claim of lien to be released of
record or transferred to bond in accordance with applicable law, or (ii) give such assurance as
would enable a title insurance company to insure over such lien or claim of lien, failing which
the Owner or Prime Lessee of said Parcel shall have the right, at the Contracting Party's expense,
to transfer said lien to bond. The Contracting Party shall indemnify, defend and hold harmless
the Owners and Occupants for, from and against any and all liability, claims, damages, expenses
(including reasonable attorneys' fees and costs and reasonable attorneys' fees and costs on any
appeal), liens, claims of lien, judgments, proceedings and causes of action, arising out of or in
any way connected with the performance of such work.
(c) Staging for any construction, maintenance, repair, replacement, alteration
or expansion performed on any Outparcel, including the location of any temporary Buildings or
construction sheds, the storage of Building materials and the parking of construction vehicles and
equipment, shall be limited to that Outparcel, unless such Outparcel Owner requests and obtains
the consent of an Owner on whose Parcel the staging will occur. At the request of any
Consenting Owner, an Outparcel Owner shall fence off such staging and storage areas.
(d) Unless specifically approved in writing by the Consenting Owners, the
grading of any Parcel shall not be modified, altered or otherwise changed from its originally
approved, graded condition. There shall be no interference with the established drainage pattern
and system over any portion of the Parcels unless adequate provision is made for proper drainage
and such interference is approved by all Owners. All drains, gutters, downspouts, berms, swells,
and other drainage facilities and systems shall be maintained by the Owner of such items in a
neat, orderly, safe and sanitary condition, and in such a manner as to facilitate the orderly
discharge of water by means thereof.
(e) Each Owner, as grantor, hereby grants to the other Owners, for the benefit
of each Parcel belonging to the other Owners, as grantees, an easement for any portion of any
Building or structure located on any such Parcel which may encroach into or over the grantor's
adjoining Parcel(s); provided the easement for footings, piers, piles, grade beams and Building
encroachments does not exceed two (2) feet and provided further that such encroachment does
not interfere with the footings, piers, piles or grade beams of any adjacent property owner, and
the easement for canopies, eaves and roof overhangs does not exceed one (1) foot. The
easements granted in this Section 2.4(e) shall survive this Agreement and shall last so long as the
encroaching Building is standing following its initial construction or following its reconstruction
where such Building is substantially restored to its prior condition following a casualty or
condemnation.
2.5 Temporary License. Each Owner hereby grants to the other Owners a temporary
license for access and passage over and across the Common Area located on the granting
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Owner's Parcel, to the extent reasonably necessary for such Owner to construct and/or maintain
improvements upon its Parcel; provided, however, that such license shall be in effect only during
periods when actual construction and/or maintenance is being performed, and provided further
that the use of such license shall not unreasonably interfere with the use and operation of the
Common Area on the granting Owner's Parcel. Prior to exercising the rights granted herein, an
Owner shall provide each granting Owner with a written statement describing the need for such
license, and shall furnish a certificate of insurance showing that its contractor has obtained the
minimum insurance coverage required by this Agreement. The Owner shall promptly pay all
costs and expenses associated with such work, shall complete such work as quickly as possible,
and shall promptly clean and restore the affected portion of the Common Area on the granting
Owner's Parcel to a condition which is equal to or better than the condition which existed prior to
the commencement of such work. Notwithstanding the foregoing, if a dispute exists between the
contractors, laborers, suppliers and/or others connected with such construction activities, the
granting Owner shall have the right to prohibit the contractors, laborers, suppliers and/or others
working for an Owner from using the Common Area on the granting Owner's Parcel.
2.6 Indemnity. In addition to the indemnification provided in Section 17.4 below,
each Owner shall indemnify, defend, protect and hold every other Owner and their respective
officers, directors, shareholders, employees and agents harmless for, from and against any and all
causes of action, claims, liabilities, losses, damages, costs and expenses (including reasonable
attorneys' fees and court costs and reasonable attorneys' fees and court costs on appeal) arising
out of or related to injury to or death of any person or damage to or destruction of any property
occurring on any Parcel and arising out of or resulting from any construction activities performed
by or at the request of an Owner or its occupants, unless caused by the solely negligent, grossly
negligent or willful act or omission of the indemnified Owner.
3. EASEMENTS
3.1 Ingress, Egress and Parking: Each Owner, as grantor, hereby grants to the other
Owners and their respective Permittees for the benefit of each Parcel belonging to the other
Owners, as grantees, a nonexclusive easement for ingress and egress by vehicular and pedestrian
traffic and vehicular parking upon, over and across that portion of the Common Area located on
the grantor's Parcel(s), except for those areas devoted to Service Facilities or driveup or drive
through customer service facilities. The reciprocal rights of ingress and egress set forth in this
Section 3.1 shall apply to the Common Area for each Parcel as such area shall be increased
pursuant to Section 2.2 above.
3.2 Utility Lines and Facilities:
(a) Each Owner, as grantor, hereby grants to the other Owners and their
respective Permittees, for the benefit of each Parcel belonging to the other Owners and their
respective Permittees, as grantees, a nonexclusive easement under, through and across the
Common Area of the grantor's Parcel(s) for the installation, operation, maintenance, repair and
replacement of Utility Lines. All such Utility Lines shall be installed and maintained below the
ground level or surface of such easements except for ground mounted electrical transformers and
such other facilities as are required to be above ground by the utility providing such service
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(including temporary service required during the construction, maintenance, repair, replacement,
alteration or expansion of any Buildings or improvements located in the Shopping Center). The
easement area shall be no wider than necessary to reasonably satisfy the requirements of a
private or public utility, or five (5) feet on each side of the centerline if the easement is granted to
a private party. The installation, operation, maintenance, repair and replacement of such.
easement facilities shall not unreasonably interfere with the use of the improved Common Area
or with the normal operation of any business in the Shopping Center. The grantee shall bear all
costs related to the installation, operation, maintenance, repair and replacement of such easement
facilities, shall repair to the original specifications any damage to the Common Area resulting
from such use and shall provide as -built plans for all such facilities to the Owners of all Parcels
upon which such utility lines and facilities are located within thirty (30) days after the date of
completion of construction of the easement facilities.
(b) At any time and from time to time the Owner of a Parcel shall have the
right to relocate on its Parcel any Utility Line installed pursuant to the foregoing grant of
easement which is then located on the Parcel of such Owner, provided that any such relocation
(i) shall be performed only after sixty (60) days notice in writing of the Owner's intention to
undertake the relocation shall have been given to the Owner of each Parcel served by the Utility
Line, (ii) shall not unreasonably interfere with or diminish utility service to the Parcels served by
the Utility Line, (iii) shall not reduce or unreasonably impair the usefulness or function of the
Utility Line, (iv) shall be performed without cost or expense to the Owner or Occupant of any
other Parcel, (v) shall provide for the original and relocated area to be restored using materials
and design standards which equal or exceed those originally used, and (vi) shall not interfere
with the business operation of the Owners or Occupants served by the Utility Line. The Owner
performing such relocation shall provide as -built plans for all such relocated Utility Lines to the
Owners of all Parcels served by such Utility Lines within thirty (30) days after the date of
completion of such relocation.
(c) Subject to obtaining the prior written consent of the Owner of the grantor
Parcel as to location and form, which consent shall not be unreasonably withheld, each Owner
agrees to grant such additional easements as are reasonably required by any public or private
utility for the purpose of providing the Utility Lines described herein provided such easements
are not otherwise inconsistent with the provisions of this Agreement.
(d) The terms and provisions of this Section 3.2 shall survive the expiration or
earlier termination of this Agreement.
3.3 Signs: Each Owner, as grantor, hereby grants to the other Owners and their
respective Permittees, for the benefit of each Parcel belonging to the other Owners and their
respective Permittees, as grantees, a non-exclusive easement under, through and across the
Common Area of the grantor's Parcel(s) for the installation, operation, maintenance, repair and
replacement of the free-standing signs referred to in Section 4.3 of this Agreement and all utility
lines and facilities appurtenant thereto. Except where otherwise specifically stated herein to the
contrary, the grantee(s) shall bear all costs related to the installation, maintenance, repair and
replacement of its free-standing sign and appurtenant facilities, shall repair to the original
specifications any damage to the Common Area resulting from such use and shall provide as-
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built plans for all such facilities to the Owners of all Parcels upon which such facilities are
located within thirty (30) days after the date of completion of construction of same.
3.4 Dedication to Public Entities: Without the prior written consent of the Consenting
Owners, which consent may be granted or withheld in the sole and absolute discretion of each
Consenting Owner, no Owner shall grant any easement for the benefit of any Property not within
the Shopping Center; provided, however, that the foregoing shall not prohibit the granting or
dedicating of easements by an Owner on its Parcel to governmental or quasi -governmental
authorities or to public utilities. Nothing contained in this Agreement shall be deemed to be a gift
or dedication of any portion of the Shopping Center or of any Parcel or portion thereof to the
general public, or for any public use or purpose whatsoever, it being the intention of the parties
that this Agreement shall be strictly limited to and for the purposes herein expressed. Except as
specifically set forth in this Agreement, no right, privileges or immunities of any party shall
inure to the benefit of any third party Person, nor shall any third -party Person be deemed to be a
beneficiary of any of the provisions contained in this Agreement. An Owner shall have the right
to close, if necessary, all or any portion of the Common Areas on its Parcel from time to time as
may be necessary, in the opinion of such Owner's counsel, to prevent a dedication thereof or the
accrual of any rights of the public therein
3.5 No Merger: Notwithstanding Home Depot's or an Outparcel Owner's ownership
of more than one Parcel, the easements granted hereunder shall burden and benefit each Parcel
individually, without merger as a result of such common ownership, and upon conveyance of a
Parcel so that such Parcel ceases to be under common ownership, neither the Owner conveying
said Parcel nor the Owner acquiring said Parcel shall need to execute additional documentation
to evidence the existence of said easements, and said easements shall relate back to and shall be
deemed to have been created as of the date this Agreement is recorded in the office of the
recorder of the county in which the Shopping Center is located.
3.6 Permanent Service Drive: Each Owner, as grantor, hereby grants to the other
Owners, and their respective Permittees, for the benefit of each Parcel belonging to the other
Owners and their respective Permittees, as grantees, a perpetual non-exclusive easement for
ingress and egress by vehicular and pedestrian traffic upon, over and across that portion of the
Common Area located on the grantor's Parcel(s) shown on the Exhibit 'B-l" as "Permanent
Service Drive."
4. OPERATION OF COMMON AREA
4.1 Parking: Except for the payment of "CAM Costs" (as such term is defined in
Section 6.2 below), there shall be no charge for parking in the Common Area without the prior
written consent of the Consenting Owners or unless otherwise required by law. Parking spaces
on each Parcel shall be have a minimum size of 9 feet by 19 feet, with a minimum 24 foot wide
aisles in the parking field. The parking area on each Parcel shall contain sufficient ground level
parking spaces in order to comply with the following minimum requirements, without reliance
on parking spaces located on any other Parcel:
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(i) five (5.0) parking spaces for each one thousand (1,000) square feet of
Floor Area; provided, however, that compact car parking spaces shall be located in the areas, if
any, designated on the Site Plan;
(ii) if a business use contains a drive -up unit (such as remote banking teller or
food ordering/dispensing facility), then there shall also be created space for stacking not less than
ten (10) automobiles (exclusive of any drive -aisle) for each drive -up unit;
(iii) for each single Restaurant which has less than five thousand (5,000)
square feet of Floor Area, then five (5) additional parking spaces for each one thousand (1,000)
square feet of Floor Area devoted to such use;
(iv) for each single Restaurant which has at least five thousand (5,000) square
feet of Floor Area, but less than seven thousand (7,000) square feet of Floor Area, then ten (10)
additional parking spaces for each one thousand (1,000) square feet of Floor Area devoted to
such use; and
(v) for each single Restaurant which has seven thousand (7,000) square feet of
Floor Area or more, then fifteen (15) additional parking spaces for each one thousand (1,000)
square feet of Floor Area devoted to such use.
Ninety percent (90%) of Developer's Parcel (excluding the Outparcels) required parking
spaces shall be located in front of the Building(s) built or to be built on such Parcels provided
that the maximum Building Area for all such Buildings shall not exceed more than 300,000
square feet.
In the event the minimum number of parking spaces, parking space size or drive aisles
required by Governmental Regulations is greater than the minimum requirements set forth
above, then the minimum number of parking spaces as required by Governmental Regulations
shall control.
In the event of a condemnation of part of a Parcel or sale or transfer in lieu thereof that
reduces the number of usable parking spaces below that which is required in this Section 4.1, the
Owner whose Parcel is so affected shall use its best efforts (including using proceeds from the
condemnation award or settlement) to restore and/or substitute parking spaces in order to comply
with the parking requirements set forth in this Section 4.1. If such compliance is not possible, the
Owner whose Parcel is so affected shall not be deemed in default hereunder, but such Owner
shall not be permitted to expand the amount of Floor Area located upon its Parcel. If such Floor
Area is thereafter reduced other than by casualty, then the Floor Area on such Parcel may not
subsequently be increased unless the parking requirement is satisfied.
4.2 Employee Parking: Anything in this Agreement to the contrary notwithstanding,
areas to be used for motor vehicle parking by employees of occupants of the Shopping Center
shall be in the areas designated on the Site Plan as "Employee Parking Area." In the event
employee parking areas are designated as provided herein, then employees of any Owner or
Occupant of any part of the Shopping Center shall use only those portions of the Common Area
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designated for such motor vehicle parking purposes. In no event shall any employees of any
business other than Home Depot park on the Home Depot Parcel.
4.3 Signs:
(a) Subject to Governmental Regulations, two (2) free-standing signs shall be
erected by Developer at the locations designated "Center Pylon Signs" on the Site Plan. Such
signs shall display the designation of Home Depot and, provided the amount of signage
otherwise permitted by Governmental Regulations to Home Depot is not materially adversely
affected thereby, designations for not more than five (5) other businesses in the Shopping Center
all as depicted on the Sign Package, provided any national tenant may use its prototypical panel
design. The cost of constructing, installing, maintaining, repairing and replacing the Center
Pylon Sign structures (excluding electrical hookup to the Common Area meter) shall be paid by
the Owners displaying designations thereon in the proportion that the total square footage of each
Owner's panel bears to the total square footage of all panels thereon. Each person displaying a
designation on the Center Pylon Sign shall supply and maintain its own sign fascia and can. The
design of the Center Pylon Sign structures shall be in substantial conformance with the Sign
Package. Home Depot shall have the top designation on each of the Center Pylon Signs.
(b) Provided the signage otherwise permitted by Governmental Regulations to
Home Depot is not adversely affected thereby, each Outparcel may have, subject to
governmental approval, one freestanding monument sign on said Outparcel, provided same does
not interfere with the visibility of the Center Pylon Sign. Such monument signs shall be in
accordance with the Sign Package, provided any national tenant may use its prototypical panel
design so long as such design does not involve neon or flashing lights of any kind. Any change
to the initial design of any monument sign structure shall be subject to the prior written approval
of the Consenting Owners. The cost of constructing, installing, maintaining, operating, repairing
and replacing such monument sign structure and sign fascia shall be paid by the applicable
Outparcel Owner.
(c) Except as set forth in subsections (a) and (b) above, there shall be no other
signs, except directional signs, menu boards, informational signs such as "Handicapped
Parking," and signs on Buildings, in the Shopping Center.
(d) Except as set forth in subsections (a) and (b) above, all signs shall conform
with the following standards:
(i) All exterior Building signs on the Outparcels and the Developer
Parcel shall be restricted to identification of the business, its logo or service located or provided
therein.
(ii) No exterior Building or free-standing sign shall utilize flashing,
moving or audible lights or appurtenances.
4.4 Protection of Common Areas: Each Owner and Occupant shall have the right to
take such steps as it deems necessary to prevent those Persons not authorized by this Agreement
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to use the Common Area from using the Common Area for ingress, egress, parking or any other
purpose. Subject to Governmental Regulations, such steps shall include, without limitation, the
construction of fences, walls or barricades along the boundary lines of any portion of the
Shopping Center except along the common boundary line of any Parcel with any other Parcel.
4.5 Common Area - Zone of Control: The layout and design of the Shopping Center
shall be as substantially set forth on the Site Plan. Within the area marked on the Site Plan as
"Home Depot Zone of Control", an Owner may not, without Home Depot's prior written consent,
which may be withheld in Home Depot's sole and absolute discretion, (i) change the entrances or
exits to or from the Shopping Center (ii) alter the location or size of any Building or
improvement, (iii) change the number, location or layout of parking spaces (it being
acknowledged by the parties that such parking spaces shall be "full size" spaces, i.e., 9 feet by 20
feet in dimension or such larger size as may be required by Governmental Regulations), (iii)
construct additional structures or Buildings on the Common Area; or (iv) alter the configuration
of drives, driveways or curb cuts. Outside of the Home Depot Zone of Control and except as
otherwise provided herein, Home Depot shall not unreasonably withhold its consent to changes
in the parking areas provided that (i) the parking ratios set forth in Section 4.1 are satisfied, and
(ii) all such spaces shall be of a size at least 9 feet by 19 feet in dimension (or such larger size as
may be required by Governmental Regulations).
5. RESTRICTIONS ON USE
5.1 Home Depot Exclusive: No portion of the Shopping Center other than the Home
Depot Parcel shall be used for a home improvement center or for any business which sells,
displays, leases or distributes such items or materials, singly or in any combination: lumber,
hardware, tools, plumbing supplies, pool supplies, electrical supplies, paint, wallpaper and other
wallcoverings, window treatments (including draperies, curtains and blinds), kitchen or
bathrooms or components thereof (including tubs, sinks, faucets, mirrors, cabinets, showers,
vanities, countertops and related hardware), hard and soft flooring (including tile [including
ceramic tile], wood flooring, rugs and carpeting), siding, ceiling fans, barbecues and accessories,
patio furniture and accessories, gardening and garden nursery supplies, artificial and natural
plants, indoor and outdoor lighting systems and light fixtures, cabinets and unfinished and
finished furniture and kitchen, closet organizing systems, pictures or picture framing, interior
design services, or other products generally sold in a retail home improvement center, except for
the incidental sale of such items. An "incidental sale of such items" is one in which there is no
more than the lesser of (i) ten percent (10%) of the total Floor Area of such business, or (ii)
1,000 square feet of sales and/or display area, relating to such items individually or in the
aggregate. Furthermore, the operation of an Ethan Allen or similar furniture store shall be
permitted in the Shopping Center and shall not be considered a violation of this Section 5.1.
5.2 Shopping Center Restrictions:
(a) No portion of the Shopping Center other than the Home Depot Parcel shall
be used for any non -retail use or for any of the following purposes: a flea market or a business
selling so-called "second hand" goods (the term "second hand" shall mean stores which sell
goods primarily as a service to the public rather than to a retail customer for a profit, such as, by
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way of example, "Goodwill Stores"); cemetery; mortuary; bookstore or establishment engaged in
the business of selling, exhibiting or delivering pornographic or obscene materials (except that
any store selling pornographic materials as an incidental part of its business, e.g. a bookstore
such as Barnes & Noble, Borders, Crown, Bretano's or Super -Stand, shall be permitted in the
Shopping Center so long as its operations are substantially similar to the operations of
substantially all of its other stores); a so-called "head shop"; gun range; the sale of guns as a
primary use; junk yard; recycling facility or stockyard; motor vehicle or boat dealership, repair
shop (including lubrication and/or service center), body and fender shop, car or motor vehicle or
boat storage facility (the foregoing restriction shall not apply to Home Depot's sale and/or rental
of delivery vehicles to its customers as part of its home improvement business); a warehouse; a
self -storage facility; auditorium, sports or other entertainment viewing facility (whether live,
film, audio/visual or video); discotheque, comedy club or adult entertainment facility; skating
rink; billiard or pool hall; massage parlor, game parlor, video or other type of gameroom or
arcade (which shall be defined as any store containing more than three (3) electronic games); a
beauty school, barber college, reading room, place of instruction or any other operation catering
primarily to students or trainees and not to customers (but shall specifically not prohibit a school
which is incidental to a primary retail purpose); residential or manufacturing uses, school or
house of worship. The foregoing to the contrary notwithstanding, nothing set forth herein shall
prohibit merchants such as a Target store, Super Target store, Walmart store, Super Walmart
store, supermarket, Bon Marche or similar type store occupying at least 50,000 square feet of
Building Area in the Shopping Center and selling goods typically sold by such store.
(b) Restaurants shall be permitted only on the Outparcels subject to the
following restrictions:
(i) no restaurant shall be permitted on the Outparcel located in front of
the Home Depot parking field and identified on the Site Plan as
"Outparcel C";
(ii) no fast food restaurant shall be permitted on the Outparcel
designated on the Site Plan as "Outparcel D";
(iii) in the event a fast food restaurant is located on the Outparcel
identified as "Outparcel E" on the Site Plan, such fast food
restaurant shall be the only restaurant permitted north of the main
shopping center entrance;
(iv) all restaurants permitted in the Shopping Center pursuant to this
Section 5.2(b) shall be subject to the parking ratio requirements set
forth in Section 4.1 above.
(c) A gas station shall be permitted on "Outparcel F" identified on the Site
Plan provided that such gas station shall not be permitted to have a car wash facility. In the
event Outparcel F is not used for gas station purposes, said Outparcel may used for restaurant
purposes so long as Outparcel E is not also used for restaurant purposes.
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(d) Without the prior written consent of fifty (50%) of the Consenting
Owners, the following shall not be allowed to operate in the Shopping Center or Common Areas:
traveling carnivals, fairs, auctions, shows, kiosks, booths for the sale of fire works, sales by
transient merchants utilizing vehicles or booths and other promotions of any nature. In the event
that unauthorized Persons, including without limitation tenants or invitees or tenants occupying
Buildings now or at any future time located in the Shopping Center, utilize the parking area for
other than temporary parking by customers while shopping in the Shopping Center, Developer
shall at its sole expense, upon written request by Home Depot, take whatever action as shall be
reasonably necessary to prevent said unauthorized utilization.
(e) No portion of the Shopping Center shall be used for a business or use
which creates strong, unusual or offensive odors, fumes, dust or vapors; emits noise or sounds
which are objectionable due to intermittence, beat, frequency, shrillness or loudness; creates
unusual fire, explosive or other hazards; or materially increases the rate of insurance for any
other Parcel, Owner or Occupant; provided however, the operation of a typical Home Depot
home improvement store shall not be deemed to be in violation of this Section 5.2(c).
(f) No oil development operations, oil refining, quarrying or mining
operations of any kind shall be permitted upon or in any portion of the Parcels, nor shall oil
wells, tanks, tunnels, or mineral excavation or shafts be permitted upon the surface of any
portion of the Parcels, or within five hundred (500) feet below the surface of any of the Parcels.
No derrick or other structure designed for use in boring for water, oil, natural gas or other
minerals shall be erected, maintained or permitted on any portion of the Shopping Center. The
foregoing to the contrary, prior to the development of Phase II, the existing concrete operations
will be permitted to continue on the Shopping Center (save and except Phase I) and adjacent
properties.
(g) Notwithstanding anything to the contrary contained herein, no other
Owner or Occupant other than Home Depot and one Owner or Occupant of the Developer
Parcel shall be permitted to conduct the sale of Christmas trees within the Shopping Center.
(h) For purposes of this Agreement, all Perimeter Sidewalks shall be the sole
exclusive property of the Owners of the Buildings associated with such sidewalks and each
Owner shall, subject to Governmental Regulations, have the exclusive right to use such
sidewalks for whatever purpose such Owner deems appropriate, including, without limitation,
the sale and display of merchandise. Each Owner shall have the obligation to maintain the
Perimeter Sidewalk on its Parcel in good repair and condition in accordance with the standards
set forth herein for the maintenance of the Common Areas.
(i) Except on those areas identified on the Site Plan as "Outdoor Storage
Area", no portion of the Common Area shall be used for the sale, storage or display of
merchandise or for the storage of shopping carts; provided, however, that the seasonal sale of
merchandise by an Owner shall be permitted in those areas identified on the Site Plan as
"Outside Sales Area: subject to the following restrictions: (i) (A) all booths, stands, displays and
other structures erected in connection with seasonal sales shall be promptly removed by the
Owner upon termination of the seasonal sale activity; and (B) the Common Area shall be
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promptly repaired to its condition immediately prior to the seasonal sale activity at the sole cost
and expense of the Owner, and (ii) the display of Home Depot's sale and/or rental of delivery
vehicles to its customers as part of its home improvement business shall be permitted.
5.3 Mall Restrictions: There shall be no enclosed malls in the Shopping Center unless
the Consenting Owners have first given their written consent, which consent can be withheld in
the sole and absolute discretion of the Consenting Owners to the location of the entrance to such
mall.
6. MAINTENANCE STANDARDS
6.1 Maintenance Obligations: On or before ninety (90) days prior to the date the first
Owner or Occupant is scheduled to open its Building for business, and at least ninety (90) days
prior to the beginning of each calendar year thereafter, the Maintenance Director shall submit to
each of the Consenting Owners an estimated budget ("Budget") for the projected CAM Costs and
administrative fee for repairing and maintaining the Common Area of the Shopping Center for
the remaining (i.e., commencing on the earlier of (i) the date an Owner first opens its Building on
its Parcel for business, or (ii) Home Depot first opens its Building on the Home Depot Parcel for
business)/ensuing calendar year (the "Maintenance Fee"). The Budget shall be in a form
reasonably acceptable to the Consenting Owners and shall identify separate cost estimates for at
least the categories specified under this Section 6.1, plus:
(i) premium for commercial general liability insurance
covering the Common Area as required by Section 17.2 below;
(ii) rental or purchase of equipment and supplies;
(iii) depreciation or trade-in allowance applicable to items
purchased for Common Area purposes; and
(iv) the Maintenance Fee.
If an item of maintenance or replacement is to be accomplished in phases over a period of
calendar years, such as resurfacing of the drive and/or parking areas, then the Budget shall
separately identify the cost attributable to such year (including the area of the Common Area
affected), and shall note the anticipated cost and timing (indicating the area of the Common Area
affected) of such phased work during succeeding calendar years, provided in no event shall more
than twenty-five percent (25%) of the cost of resurfacing of the drive and/or parking areas be
included in the Budget in any single calendar year. A Consenting Owner shall approve or
disapprove the proposed Budget within thirty (30) days after receipt. If a Consenting Owner
disapproves the proposed Budget or fails to approve the proposed Budget within such thirty (30)
day period, it shall consult with the other Consenting Owners and the Maintenance Director to
establish a final approved Budget. If disapproval involves the estimate of costs for any category
of expense and a Consenting Owner obtains a bid from a reasonably competent and experienced
person that is at least ten percent (10%) less than the budgeted amount, then Maintenance
Director shall either accept the bid obtained by such Consenting Owner and award the work or
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service covered thereby to such bidder, or in calculating such Consenting Owner's share of the
CAM Costs, only the amount set forth in the bid for the work or service covered thereby shall be
included. In addition, if a Budget is not approved by December 1, Maintenance Director shall
have the right to terminate its maintenance duties with respect to the Parcel of the disapproving
Consenting Owner by written notice to the Consenting Owners prior to December 10. If the
notice is given, then such disapproving Consenting Owner shall maintain and operate the
Common Area on its Parcel commencing on the following January 1 in the manner required by
Section 15.1 below. If the notice is not given, the Maintenance Director shall continue to
maintain and operate the Common Area for the next calendar year. Maintenance Director shall
use commercially reasonable efforts to operate and maintain the Common Area of the Shopping
Center in accordance with the Budget. Notwithstanding the foregoing, Maintenance Director
shall have the right to make emergency repairs to the Common Area to prevent injury or damage
to person or property, it being understood that Maintenance Director shall use reasonable efforts
to notify each Owner in advance of such repairs and nevertheless shall advise each Owner of
such emergency condition as soon as reasonably possible, including the corrective measures
taken and the cost thereof. If the cost of the emergency action exceeds Twenty -Five Thousand
Constant Dollars ($25,000.00), then Maintenance Director may submit a supplemental billing to
each Owner, together with evidence supporting such payment, and each Owner (subject to its
right to contest the validity of the expenditure), shall pay its share thereof within thirty (30) days.
If the cost limitation set forth above is not exceeded then such costs shall be included as part of
the CAM Costs at the year end.
Except as hereinafter provided, the Maintenance Director shall maintain the Common
Area at all times in good and clean condition and repair, the maintenance to include, without
limitation, the following:
(a) Maintaining, repairing and resurfacing, when necessary, all paved surfaces
in a level, smooth and evenly covered condition with the type of surfacing material originally
installed or such substitute as shall in all respects be equal or superior in quality, use and
durability; and restriping, when necessary;
(b) Removing all snow, papers, debris, filth and refuse and thoroughly
sweeping and periodic vacuuming of the area to the extent reasonably necessary to keep the area
in a clean and orderly condition;
(c) Maintaining, repairing and replacing, when necessary, all traffic
directional signs, markers and lines, and all informational signs such as "Handicapped Parking";
(d) Operating, maintaining, repairing and replacing, when necessary, such
artificial lighting facilities as shall be reasonably required (except for the "After Hours Lighting"
described in Article 7 below);
(e) Maintaining all landscaped areas (including, without limitation, those on
the perimeter of the Shopping Center); maintaining, repairing and replacing, when necessary,
automatic sprinkler systems and water lines; and replacing shrubs and other landscaping as is
necessary. If any Owner or Occupant requires "special" landscaping (i.e. beyond the standard
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landscaping requirements for the remainder of the Shopping Center), or if landscaping
additions/modifications are required as a result of a Building addition, expansion or remodel, the
cost of installation, replacement and maintenance of such special or required landscaping shall be
borne solely by such Owner or Occupant and shall not be included in CAM Costs. For so long as
required by governing authorities, the landscaping in the rights of way immediately adjoining the
Shopping Center (as such areas are identified on the Site Plan, the "Perimeter Landscaping
Areas") shall be maintained by the Maintenance Director;
(f) Maintaining, repairing and replacing, when necessary, all Common Area
walls (including, without limitation, all fences, walls or barricades constructed pursuant to
Section 4.4 above);
(g) Maintaining, repairing and replacing, when necessary, all Common Area
storm drains, sewers and other utility lines and facilities not dedicated to the public or conveyed
to any public or private utility which are necessary for the operation of the Buildings and
improvements located in the Shopping Center (with the cost of all such items being allocated
between the Owners of all Buildings and improvements serviced or to be serviced by said
facilities on the basis of their respective Building Areas);
(h) Keeping the Center Pylon Signs lighted from dusk to dawn or during such
other times mutually agreed in writing by the businesses designated thereon. Notwithstanding the
other provisions of this Agreement, the cost of lighting the Center Pylon Sign and the Home
Depot Pylon Sign shall be paid as set forth in Sections 4.3(a) and 4.3(b) above;
(i) Maintaining, repairing and replacing, when necessary, the Center Pylon
Signs (except for the sign fascia and cans which shall be supplied and maintained by the
businesses designated thereon). Notwithstanding the other provisions of this Agreement, the cost
of maintaining, repairing and replacing the Center Pylon Sign and the Home Depot Pylon Sign
shall be paid as set forth in Sections 4.3(a) and 43(b) above;
0) Providing reasonable and customary security services with respect to the
Common Areas as agreed by all Consenting Owners;
(k) Performing itself or contracting with a third party or parties to perform any
of the services described herein; provided, however, that the Maintenance Director shall remain
responsible and liable for the performance of all of said services in accordance with the terms of
this Agreement and for the performance of any such third party or parties under any such
contract or contracts;
(1) Maintaining commercial general liability insurance as set forth in Article
XVII hereof,
(m) Supervision of traffic at entrances and exits to the Shopping Center and
within the Shopping Center if necessary as conditions reasonably require in order to maintain an
orderly and proper traffic flow; and
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(n) Keeping the Common Areas and all common Utility Lines free from any
obstructions including those caused by the sale or display of merchandise, unless such
obstruction is permitted under the provisions of this Agreement.
6.2 Exclusions from Common Area Maintenance Obligations: The Maintenance
Director shall expend only such funds as are reasonably necessary for the operation, maintenance
and insurance of the Common Area and shall promptly pay such costs ("CAM Costs") when
incurred. For the purpose of this Agreement, CAM Costs shall not include:
(a) any late charges or fees, unless caused by an Owner or Occupant's
delinquent payment of its monthly fee, in which case the late charges or fees shall be paid by the
delinquent Owner or Occupant,
(b) any costs to clean or repair the Common Area resulting from promotional
activities or from construction, maintenance or replacement of Buildings;
(c) real property taxes and assessments;
(d) Maintenance Director's profit, administrative and overhead costs (such as
rent, legal, accounting or administrative services, supplies, utilities and wages or salaries paid to
management or supervisory personnel), it being further agreed that if a person is involved with
other than Common Area operational and maintenance matters at the Shopping Center, then the
Maintenance Director shall allocate such person's time to properly reflect his/her varied duties;
(e) entertainment, transportation, meals and lodging of anyone.
(f) depreciation and amortization, except as provided herein and except on
materials, tools, supplies and vendor -type equipment purchased by Maintenance Director to
enable the Maintenance Director to supply services the Maintenance Director might otherwise
contract for with a third party and where such depreciation and amortization would otherwise
have been included in the charge for such third party's services and when depreciation or
amortization is permitted or required, the item shall be amortized over its reasonably anticipated
useful life;
(g) costs incurred by Maintenance Director for alterations which are
considered capital improvements and replacements (other than landscaping replacement
expenses) unless the prior written approval of the Consenting Owners has first been obtained;
(h) expenses in connection with services or other benefits which are offered to
one or more Owners and/or Occupants of the Shopping Center and who are charged directly for
such services or other benefits.
(i) interest, points and fees on debt or amortization on any mortgage or
mortgages encumbering the Shopping Center;
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0) all items and services for which. an Owner and/or Occupant in the
Shopping Center reimburses the Maintenance Director or which the Maintenance Director
provides selectively to one or more Owners and/or Occupants without reimbursement;
(k) electrical power costs for which any Owner and/or Occupant directly
contracts with the local public service company;
(1) any penalties incurred as a result of Maintenance Director's negligence,
inability or unwillingness to make any payments when due to the extent not caused by an
Owner's and/or Occupant's failure to make timely payments; and
(m) the cost of acquisition of new land or construction of new Buildings;
(n) the cost to correct any part of the Common Areas that was inadequately
designed or defectively constructed;
(o) costs exceeding those obtainable through competitive bidding;
(p) any expense representing an amount paid to a related corporation, entity,
or person which is in excess of the amount which would be paid in the absence of such
relationship; and
(q) earthquake and/or flood insurance, unless such coverage is available at
commercially reasonable rates.
(r) costs for services provided to one Owner's Parcel that does not provide
equal benefits to the Owners as a whole.
In addition, to the extent any Owner is excluded from a service, the cost of such item
shall also be excluded from such Owner's share of CAM Costs.
6.3 Obligation to Keep Parcels Lien Free: Maintenance Director shall keep the
parcels free from any and all liens arising out of any work performed, materials furnished to or
obligations incurred by the Maintenance Director in connection with the operation and
maintenance of the Common Area hereunder. Maintenance Director shall, within thirty (30) days
after the date of imposition of any such lien, pay the lien claim in full, unless Maintenance
Director contests such lien claim in good faith, in which case Maintenance Director shall, within
such thirty (30) day period and as a condition precedent to Maintenance Director's right to so
contest, record a bond of a responsible corporate surety in such amount and in such manner as
may be required by applicable law to release the lien from the affected Parcel or Parcels.
Maintenance Director shall indemnify, defend, protect and hold all Owners and Occupants
harmless for, from and against any and all claims, liability, losses, damages, injuries, costs or
expenses (including reasonable attorneys' fees) in connection with any such lien claim or in
connection with the injury or death of any Person or damage to property caused by the negligent
or willful misconduct of Maintenance Director and its employees, agents and contractors.
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7. LIGHTING
7..1. General Requirement: After completion of the Common Area lighting system on
its Parcel, each Owner hereby covenants and agrees to keep its Parcel fully illuminated each day
from dusk to at least 11:00 p.m. (the "Closing Time") unless the Consenting Owners agree upon
a different time. Each Owner further agrees to keep any exterior building security lights, plus
each of the lights located on the light standards located adjacent to any main access drive or
entry into the Shopping Center on from dusk until dawn. During the term of this Agreement,
each Owner grants an irrevocable license to each other Owner for the purpose of permitting the
lighting from one Parcel to incidentally shine on the adjoining Parcels.
7.2. Additional Lighting: It is recognized that one or more Occupants (each, a "Late
Night User") may wish to be open for business at different hours from other businesses in the
Shopping Center, and may wish to have the Common Areas illuminated beyond the hours
described in Section 7.1. Each Late Night User shall have the right, at any time and from time to
time, to require the Owners to keep the lights in all or part of the Common Areas illuminated
until such later hours as the Late Night User shall designate by notice to the Owners. If only one
Occupant in the Shopping Center makes such a request for a particular date, such Occupant shall
pay 100% of the cost (the "Late Night Lighting Cost") of electric power for the extra hours of
illumination. If other Occupants are also open for business during all or part of such extended
hours, then the Late Night Lighting Costs shall be equitably allocated among such Late Night
Users, as reasonably determined by the Consenting Owners, based on the relative Floor Area of
each Late Night User, and their respective hours of operation beyond the Closing Time. From
time to time upon the Late Night User's request, each Owner shall furnish such Late Night User
with such reasonable supporting information as such Late Night User may reasonably require in
order to verify the Owners' manner of calculating the Late Night Lighting Costs, and the
allocation of the Late Night Lighting Costs among the Late Night Users. Any request by a Late
Night User for additional lighting may be withdrawn or terminated at any time, and a new
request or a request for different hours of illumination may be made, by notice to the Owners.
7.3. Secondary Wiring System: As an alternative to the process of lighting in another
Owner's Parcel as described in Section 7.2, an Owner (the "Constructing Owner") may install,
with the consent of such other Owner(s) (the "Non -Constructing Owner") a secondary wiring
system connecting the Constructing Owner's Parcel to the light standards on the Non -
Constructing Owner's Parcel, which would permit a portion or all of the lighting on the Non -
Constructing Owner's Parcel to be operated contemporaneously with the lighting on the
Constructing Owner's Parcel. All costs and expenses associated with the installation,
maintenance, replacement and operation of such secondary wiring system, including the cost of
energy to light any portion of the Non -Constructing Owner's Parcel, shall be assumed and
promptly paid by the Constructing Owner. The Constructing Owner shall submit to the Non -
Constructing Owner appropriate plans and specifications for the installation of such secondary
wiring systems. The Non -Constructing Owner shall have thirty (30) days to approve or
disapprove such submission, such approval not to be unreasonably withheld. If the Non -
Constructing Owner does not disapprove this submission within the thirty (30) day period,
approval shall be deemed given; if disapproval is given, the Constructing Owner shall revise the
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submission to accommodate the reasonable objections of the Non -Constructing Owner and then
may resubmit such plans and specifications to the Non -Constructing Owner for its approval.
8. PAYMENT OF TAXES
8.1 Taxes and Assessments: Each Owner shall pay direct to the tax collector, prior to
delinquency, the real property taxes and other special taxes and assessments levied and assessed
against the Owner's Parcel, including the portion of the Common Area on such Owner's Parcel;
subject, however, to the right of any such Owner to contest the amount or validity of all or any
part of said taxes and assessments. Notwithstanding the foregoing, until such time as separate tax
bills are obtained for each of the Parcels, each Owner shall pay or cause to be paid its pro rata
share of Taxes levied against the Shopping Center in accordance with Section 11.2 below.
8.2 Failure to Pay Taxes and Assessments: If prior to such Parcel being assessed as
a separate tax parcel, an Owner fails to pay prior to delinquency, all taxes and assessments
described in Section 8.1 above (such Owner being herein called a "Defaulting Owner"), which
failure continues for a period of ten (10) days after receipt of written notice thereof, such
failure shall constitute a default and any other Owner or Prime Lessee ("Curing Owner") may
thereafter pay such taxes if such taxes are delinquent and the Defaulting Owner has not
commenced and is not duly prosecuting any contest of such taxes. The Curing Owner shall
then bill the Defaulting Owner for the expenses incurred. The Defaulting Owner shall have
fifteen (15) days within which to pay the bill. If the Defaulting Owner does not so pay, the
Curing Owner shall have a lien on the Parcel of the Defaulting Owner for the amount of the
bill, which amount shall bear interest at the Default Rate from the date of expiration of said
fifteen (15) day period until paid; provided, however, that if there be a bona fide dispute as to
the existence of such default or of the amount due and all undisputed amounts are paid, there
shall be no right to place a lien on the Defaulting Owner's Parcel until such dispute is settled
by final court decree or mutual agreement.
9. MAINTENANCE DIRECTOR
9.1 Appointment: The Owners hereby initially appoint the Developer as Maintenance
Director of the Shopping Center Common Area from and after the earlier of ninety (90) days
prior to the date an Owner first opens its Building on its Parcel for business. Developer hereby
accepts the appointment as Maintenance Director and assumes the obligations associated with
such appointment.
9.2 Removal of Maintenance Director: The Maintenance Director may be removed if
in Owners' reasonable opinion the Maintenance Director has failed to operate and maintain the
Common Areas, or any portion thereof as required by this Agreement, then such Consenting
Owners shall have the right to notify the Maintenance Director by writing with copies thereof
being delivered to each of the remaining Consenting Owners pursuant to the notice provisions of
this Agreement. The notice to the Maintenance Director shall specify the particulars of such
alleged default. If the Maintenance Director shall not have rectified such situation within thirty
(30) days from receipt of the notice, then such Consenting Owner shall have the right to issue a
second notice regarding such alleged default with copies thereof again being delivered to each of
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the remaining Consenting Owners. If the Maintenance Director shall not have rectified such
situation within fifteen (15) days from the receipt of this second notice, then the Maintenance
Director shall be removed from its position; provided however, that the Maintenance Director
shall not be deemed to be in default if such failure to perform (excluding the payment of money)
can not be rectified within said time period referenced above and the Maintenance Director is
diligently proceeding to rectify the particulars of such alleged default. If the Maintenance
Director is removed as herein set forth, the Consenting Owners shall appoint another Person to
be Maintenance Director.
9.3 Resignation of Maintenance Director: The Maintenance Director shall have the
right, upon giving ninety (90) days prior written notice to the Owners of the Shopping Center, to
resign as Maintenance Director, in which event a majority of the Consenting Owners (or in the
event such a majority cannot be reached, the Owners of a majority of the Floor Area within the
Parcels) shall appoint another Person to be the Maintenance Director.
9.4 Transfer of Records and Equipment: Upon assumption by a new Maintenance
Director of the Common Area Maintenance duties, the previous Maintenance Director shall
transfer to the new Maintenance Director all applicable books and records relating to such duties
and shall provide any and all other information and documentation to effectuate the transfer of
responsibility hereunder, including notification to insurers and transfer of insurance policies. The
previous Maintenance Director shall also transfer to the new Maintenance Director any and all
equipment and machinery used by the previous Maintenance Director in connection with the
operation and maintenance of the Common Area hereunder, except for such equipment and
machinery owned by the Maintenance Director.
10. BIDS FOR COMMON AREA MAINTENANCE WORK: SERVICE CHARGE
10.1 Flexibility in Terminating Maintenance Contracts: In no event shall the
Maintenance Director enter into any contract that cannot be terminated upon thirty (30) days
prior written notice, without the prior written approval of the Consenting Owners, unless any
such contract pertains exclusively to one or more Outparcels.
10.2 Service Charge: The Maintenance Fee provided for in Section 6.1 above shall not
exceed five percent (5%) of CAM Costs (exclusive of real estate taxes, insurance premiums and
utilities) to cover management and administration costs; provided, however, in determining the
Maintenance Fee, any individual, non -recurring item of CAM Costs which exceeds $3,500 in
Constant Dollars shall be deemed to be $3,500 in Constant Dollars for purposes of establishing
the Maintenance Fee, unless the Consenting Owners each approve in writing a higher amount.
The CAM Costs shall not include any costs incurred by the Maintenance Director for the
services of a manager or management company or for office overhead or compensation of its
employees except to the extent included in the Maintenance Fee. For all purposes herein other
than determining the Maintenance Fee, CAM Costs include the Maintenance Fee.
10.3 Nonprofit: The Maintenance Director agrees to perform its duties under this
Agreement on a nonprofit basis with an end to keeping such expenses at a reasonable minimum.
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11. REIMBURSEMENT OF MAINTENANCE DIRECTOR: BILLING FOR EXPENSES
11.1 Reimbursement: The Maintenance Director shall contract for and pay for all of
the items enumerated as CAM Costs provided, however, that the Maintenance Director shall not
be entitled to reimbursement for all or any portion of an Owner's pro rata share of any individual
item of CAM Costs, the pro rata share of which for said Owner's Parcel exceeds Ten Thousand
and No/100 Constant Dollars ($10,000.00), without the prior written approval of the Owner of
said Parcel, which consent shall not be unreasonably withheld, conditioned or delayed.
11.2 Pro Rata Share: The Owner of each Parcel (or its respective Occupants, as it may
direct) shall be billed monthly in arrears for its pro rata share of all CAM Costs incurred by the
Maintenance Director in maintaining and insuring the Common Area as provided in Article VI,
with the first billing date being the last day of the first full calendar month following the date
Home Depot first opens its Building on the Home Depot Parcel for business. Each bill shall be
due and payable within thirty (30) days after receipt, and, if requested in writing, copies of all
invoices, statements or other documents supporting same. An Owner's pro rata share shall be
determined by multiplying all of the CAM Costs by a fraction, the numerator of which shall be
the Floor Area built or to be built on such Owner's Parcel, and the denominator of which shall be
equal to the aggregate of the Floor Area built or to be built in the Shopping Center. Within ninety
(90) days after the end of each calendar year, Maintenance Director shall provide each Owner
with a statement certified by an authorized Person, together with supporting invoices and other
materials setting forth the actual CAM Costs paid by Maintenance Director for the operation and
maintenance of such Common Area, the Maintenance Fee, and such Owner's share of the
aggregate thereof. If the amount paid by an Owner for such calendar year shall have exceeded its
pro rata share, Maintenance Director shall refund the excess to such Owner at the time such
certified statement is delivered, or if the amount paid by an Owner for such calendar year shall
be less than its share, such Owner shall pay the balance of its pro rata share to Maintenance
Director within thirty (30) days after receipt of such certified statement. The Maintenance
Director shall not be entitled to reimbursement from any Owner (or its Occupants) for any item
of CAM Costs for which a bill is not submitted to the Owner (or its Occupants, as it may direct)
within ninety (90) days after the end of the calendar year in which said expense is incurred. The
Maintenance Director shall not be entitled to reimbursement for any item of CAM Costs which
exceeds ten percent (10%) over the Budget amount provided for that item without the prior
written consent of the Consenting Owners.
11.3 Audit Rights: Any Owner may, upon not less than ten (10) days prior written
notice to the Maintenance Director, inspect the Maintenance Director's records for all Common
Area maintenance and insurance expenses incurred during the preceding calendar year at the
Maintenance Director's general offices or at such other location reasonably designated by the
Maintenance Director at any time during reasonable business hours within three (3) years after
the end of said calendar year. If said inspection reveals an overpayment of CAM Costs, the
Maintenance Director shall reimburse the Owner of each Parcel (or its respective tenants or
agents, as it may direct) its proportionate share of any such overpayment together with accrued
interest at the Default Rate within thirty (30) days after receipt of a notice of determination, and
of the amount, of such overpayment. If the inspection reveals an underpayment of CAM Costs
(including the Maintenance Fee but excluding all expenses for which a statement was not timely
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submitted pursuant to Section 11.2 above), the Owner of each Parcel shall reimburse the
Maintenance Director its proportionate share of any such underpayment within thirty (30) days
after receipt of proper billing in accordance with Section 11.2. If the inspection reveals that the
Maintenance Director overstated CAM Costs by more than three percent (3%), the Maintenance
Director shall also reimburse the Person making such inspection for all costs reasonably incurred
in making such inspection within thirty (30) days after receipt of notice of determination, and of
the amount, of any such overstatement.
12. EFFECT OF SALE BY OWNER
In the event an Owner sells all or any portion of its interest in its Parcel, such Owner shall
thereupon be released and discharged from any and all obligations as Owner in connection with
such Parcel (or portion thereof) arising under this Agreement after the sale and conveyance of
title but shall remain liable for all obligations arising under this Agreement prior to the sale and
conveyance of title, provided both the Owner and the new Owner give written notice of the sale
to all other Owners and the Maintenance Director, which notice shall contain addresses and
billing contacts for the new Owner. The subsequent Owner of any such Parcel or any portion
thereof (including, without limitation, any Owner who acquires its interest by foreclosure,
trustee's sale or otherwise) shall be liable for all obligations arising under this Agreement with
respect to such Parcel or portion thereof after the date of sale and conveyance of title.
13. DEFAULT
13.1 CAM Costs: In the event any Owner fails or refuses to pay when due its share of
any bill for the CAM Costs described above, which failure continues for a period of ten (10) days
after receipt of written notice thereof from the Maintenance Director, such failure shall constitute
a default and legal action may thereafter be instituted against the Defaulting Owner by the
Maintenance Director or other person paying the Maintenance Costs (including the Maintenance
Fee) of the Defaulting Owner ("Curing Party") for reimbursement plus interest from and after the
date the bill was due and payable to and including the date the bill is paid at a the Default Rate.
Notwithstanding the foregoing, if there is a bona fide dispute as to the existence of such default
or of the amount due and all undisputed amounts are paid, there shall be no right to place a lien
on such Owner's Parcel until such dispute is settled by final court decree or mutual agreement.
13.2 Non -Monetary Default: In the event any Owner or Occupant fails to perform any
other provision of this Agreement, which failure continues for a period of thirty (30) days after
receipt of written notice specifying the particulars of such failure, such failure shall constitute a
default and any other Owner or Prime Lessee may thereafter institute legal action against the
defaulting Owner or Occupant for specific performance, declaratory or injunctive relief,
monetary damages or any other remedy provided by law; provided, however, that the defaulting
Owner or Occupant shall not be deemed to be in default if such failure to perform cannot be
rectified within said thirty (30) day period and such Owner or Occupant is diligently proceeding
to rectify the particulars of such failure, not to exceed sixty (60) days; provided further, however,
that in the event of an emergency, such failure shall be deemed a default if such failure is not
rectified in a period reasonable for the nature and circumstances of such emergency (by way of
example, but not as a limitation, the failure to promptly remove snow or otherwise maintain the
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Common Areas such that Owners, Occupants and Permittees can utilize the reciprocal easements
granted in Section 3.1 above shall constitute an emergency). Notwithstanding the preceding
sentence, Home Depot shall not be deemed to be in default under this Agreement if its failure to
perform cannot be rectified within the thirty (30) day period and Home Depot is diligently
proceeding to rectify the particulars of such failure.
13.3 Default By Maintenance Director: In the event that, in an Owner's reasonable
opinion, Maintenance Director has failed to operate and maintain the Common Area, or any
portion thereof as required by this Agreement, then such Owner shall have the right to notify
Maintenance Director of such fact. If Maintenance Director shall not have rectified such situation
within thirty (30) days from receipt of the notice, then such Owner shall have the right to issue a
second notice regarding such failure. If Maintenance Director shall not have rectified such
situation within fifteen (15) days from receipt of the second notice, then such Owner shall have
the right to cure such failure and deduct the cost of such action from its share of the CAM Costs.
13.4 Self -Help: If an Owner or Occupant of the Developer Parcel and/or any Outparcel
fails to perform any provision of this Agreement, then, upon the expiration of the cure period
provided in Section 13.2, and upon an additional ten (10) days' prior written notice (except that
no additional notice shall be required in an emergency), any Consenting Owner shall have the
right, but not the obligation, to enter upon the defaulting Owner's or Occupant's Parcel to cure
such default for the account of and at the expense of the Owner or Occupant of such Parcel,
unless in a non -emergency situation, the Owner and/or Occupant of such Parcel commences to
cure such default within such ten (10) day period and thereafter diligently pursues such cure to
completion. If a Consenting Owner exercises its self-help right, then, within ten (10) days after
receipt of an invoice from such Consenting Owner, the defaulting Owner and/or Occupant shall
reimburse to such Consenting Owner all costs reasonably incurred by the Consenting Owner in
curing such default, plus an administrative fee equal to fifteen percent (15%) of such costs.
13.5 Remedies Cumulative: In addition to the remedies set forth in this Agreement,
each Person entitled to enforce this Agreement shall have all other remedies provided by law to
the same extent as if fully set forth herein word for word. No remedy herein conferred upon, or
reserved to any Person shall exclude any other remedy herein or by law provided, but each shall
be cumulative.
14. LIEN FOR TAXES
14.1 Effectiveness of Lien: The liens provided for in Section 8.2 above shall only be
effective when filed for record by the Curing Owner as a claim of lien against the defaulting
Owner or Occupant in the office of the recorder of the county in which the Shopping Center is
located, signed and acknowledged, which shall contain at least:
(a) An itemized statement of all amounts due and payable pursuant hereto;
(b) A description sufficient for identification of that portion of the real
property of the defaulting Owner which is the subject of the lien;
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(c) The name of the Owner or reputed Owner of the property which is the
subject of the lien; and
(d) The name and address of the Curing Party.
The lien shall attach from the date a claim of a lien is recorded and may be
enforced in any manner allowed by law, including, but not limited to, by suit in the nature of an
action to foreclose a mortgage or mechanic's lien under the applicable provisions of the laws of
the State in which the Shopping Center is located. The Curing Owner shall release the claim of
lien once the costs and expenses secured by the lien have been paid in full.
14.2 Priority of Lien: The claim of lien, when so established against the real property
described in the claim of lien, shall be prior and superior to any right, title, interest, lien or claim
which may be or has been acquired or attached to such real property after the time of filing the
claim of lien, and shall be subordinate to any others. The claim of lien shall be for the use and
benefit of the Curing Owner curing the default of the Defaulting Owner.
15. RIGHT TO MAINTAIN PARCEL SEPARATELY
Withdrawal from Common Area Maintenance by Consenting Owner: In addition to its
other rights herein, a Consenting Owner shall have the right to remove the Maintenance Director
with respect to its Parcel upon thirty (30) days written notice to Maintenance Director. In the
event of such removal, the Consenting Owner shall manage, maintain, repair, replace and insure
such Consenting Owner's portion of the Common Area on its Parcel, and such Consenting
Owner shall not be liable for any share of the costs of managing or maintaining the balance of
the Shopping Center outside of its Parcel, except for its pro rata share as determined in Section
11.2 above (or, with respect to signage, pursuant to Section 4.3 above) of non-segregable
operations costs which directly benefit such Consenting Owner (ie. the permanent service drives
identified on the site plan attached hereto as Exhibit B-1 and any associated landscaping or
lighting thereof and shared detention ponds which are required to hold drainage or run off from
such Consenting Owner's Parcel, if any). By way of illustration, but not limitation, an access
drive which is located solely on a Parcel and provides access only to that Parcel shall not be
considered a non-segregable cost for purposes of this Section 15.1. Any Consenting Owner may
also elect to terminate its option to maintain, repair, replace and insure its portion of the
Common Area by providing thirty (30) days prior written notice to the Maintenance Director, in
which event the Maintenance Director shall resume its duties with respect to said parcel and the
Consenting Owner will thereafter resume paying for its pro rata share of all CAM Costs
thereafter incurred by the Maintenance Director in accordance with this Agreement. The Parties
hereby acknowledge and agree that Home Depot hereby elects self -maintain the Home Depot
Parcel commencing as of the date Home Depot first opens its Building on the Home Depot
Parcel for business. Home Depot acknowledges and agrees that it shall not have the right to
terminate its election to self -maintain for a period of one (1) year following the date upon which
Home Depot opens its Building for business.
16. RESPONSIBILITY IF NO MAINTENANCE DIRECTOR
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In the event there should at any time cease to be a Maintenance Director, each Owner
shall be responsible for the maintenance, insurance and lighting of its own Parcel as if each such
Owner had the responsibilities of the Maintenance Director enumerated in Section 6.1 above. All
such maintenance of the Common Areas shall be consistent with other first-class shopping
centers in the Kalispell metropolitan area. In the event any Owner defaults in the performance of
such obligations, any other Owner may cause the performance of the obligations of the
defaulting Owner and bill the defaulting Owner for the expenses incurred. In such event, the
provisions and remedies of Sections 13.2, 13.4, 14.1 and 14.2 shall apply.
17. LIABILITY INSURANCE: INDEMNIFICATION
17.1 Liability Insurance:
(a) Each Owner shall maintain or cause to be maintained commercial general
liability insurance with broad form coverage endorsement (including broad form property
damage endorsement) insuring against claims on account of loss of life, personal injury or
property damage that may arise from, or be occasioned by the condition, use or occupancy of
each Owner's Building, including the Service Facilities on such Owner's Parcel, by each Owner
and its Occupants (the "Owners Liability Insurance"). The insurance required pursuant to this
Section 17.1(a) shall be at least as broad as the most commonly available ISO Commercial
General Liability policy form CG 00 01 and shall include the following provisions: (i) shall
provide that the policy may not be canceled or reduced in amount or coverage below the
requirements of this Agreement, without at least thirty (30) days prior written notice by the
insurer to each insured and to each additional insured; (ii) shall provide for severability of
interests; (iii) shall provide that an act or omission of one of the insureds or additional insureds
which would void or otherwise reduce coverage, shall not reduce or void the coverage as to the
other insureds; and (iv) name all other Owners as additional insureds, endorsed to cover said
Owner's agreement to indemnify as set out in this Agreement. Each Owner agrees to furnish to
any other Owner requesting same a certificate evidencing that: (i) such insurance is in full force
and effect; (ii) the premiums have been paid in full; and (iii) the appropriate parties are
designated as additional insureds on ISO Form CG 2026.
(b) The Owner's Liability Insurance shall be carried by an insurance company
or companies qualified to do business in the State in which the Shopping Center is located with a
Best's Key Rating Guide Property -Casualty United States rating of at least an A- and a financial
rating of VIII, and having limits for bodily injury to or personal injury to or death of any person,
or more than one (1) person, or for damage to property, in an amount of not less than Five
Million and No/100 Constant Dollars ($5,000,000.00) combined single limit per
occurrence/aggregate, such coverage to be in a commercial general liability form at least as
broad as CG 00 01 and, if not part of such policy, with at least the following endorsements: (i)
deleting any employee exclusion on personal injury coverage; (ii) including coverage for injuries
to or caused by employees; (iii) providing for blanket contractual liability coverage (including an
Owner's indemnity obligations contained in this Agreement), broad form property damage
coverage and products completed operations, owner's protective and personal injury coverage;
(iv) providing for coverage of employers automobile non -ownership liability; and (v) if the use
of a Parcel includes the sale of alcoholic beverages, including coverage for employer's liability,
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host liquor liability, liquor liability and so-called "dram shop" liability coverage with a combined
single limit of not less than Three Million and No/100 Constant Dollars ($3,000,000.00) per
occurrence. The Owner's Liability Insurance shall be made on an "occurrence" basis and not on a
"claims made" basis. The insurance referenced in this Section 17.1, may be provided under (i) an
individual policy covering this location, (ii) a blanket policy or policies which includes other
liabilities, properties and locations of such Owner; so long as the amount and coverage of
insurance required to be carried hereunder is not diminished, (iii) a plan of self-insurance
satisfying the criteria set forth in Section 17.1(c) below, or (iv) a combination of any of the
foregoing insurance programs. To the extent any deductible is permitted or allowed as a part of
any insurance policy carried by an Owner in compliance with Article 17, such Owner shall be
deemed to be covering the amount thereof under an informal plan of self-insurance; provided,
however, that in no event shall any deductible exceed Fifty Thousand and No/100 Constant
Dollars ($50,000.00) unless such Owner complies with the requirements regarding self-insurance
pursuant to Section 17.1(c) below. Notwithstanding the preceding sentence, there shall be no
limitations on the deductible maintained by Home Depot so long as such limits are consistent
with its risk management policy affecting its stores generally.
(c) Any insurance required to be maintained by a Consenting Owner
hereunder may be maintained in whole or in part either under a plan of self-insurance, or from a
carrier which specializes in providing coverage to or for such Consenting Owner or its affiliates,
or firms in the same or related businesses, if such Consenting Owner's net worth exceeds
$100,000,000 Constant Dollars as shown in its most recent audited financial statement, or if such
Consenting Owner's financial statements are reported on a consolidated basis with a parent
corporation, then as certified by an officer of such Consenting Owner.
17.2 Common Area Liability Insurance: In addition to the foregoing insurance to be
maintained by the Owners, the Maintenance Director (or, for purposes of this Section 17.2, if
there is no Maintenance Director, then the individual Owners) shall provide and maintain
commercial general liability insurance with broad form coverage endorsement (including broad
form property damage endorsement) insuring the Maintenance Director against claims for loss of
life, personal injury, or property damage, occurring in, on or about the Common Area ("Common
Area Liability Insurance") and for Maintenance Director's indemnification obligations
hereunder. All Owners shall be named on the policy as additional insureds without limitation as
to the scope of coverage or terms of the policy applicable to such party. The form of additional
insured endorsement shall be ISO Form CG 2026; coverage for any additional insured to be
primary and noncontributory with any insurance carried by the additional insured. Any Owner
shall have the right to require that such insurance name any other Person as an additional
insured, but only if any increase in premiums caused by such other Person is home entirely by
the requesting Owner, and not included in CAM Costs. The Common Area Liability Insurance
shall be carried by an insurance company or companies qualified to do business in the State in
which the Shopping Center is located with a Best Key Rating Guide Property -Casualty United
States rating of at least an A- and a financial rating of VIII, and having limits for bodily injury to
or personal injury to or death of any person, or more than one (1) person, or for damage to
property, in an amount of not less than Five Million and No/100 Constant Dollars
($5,000,000.00) combined single limit per occurrence/aggregate, such coverage to be in a
commercial general liability form least as broad as the most commonly available ISO
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Commercial General Liability policy form CG 00 01 and, if not part of such policy, shall have at
least the following endorsements: (i) deleting any employee exclusion on personal injury
coverage; (ii) including coverage for injuries to or caused by employees; and (iii) providing for
blanket contractual liability coverage (including the Maintenance Director's indemnity
obligations contained in this Agreement), broad form property damage coverage and products
completed operations, owner's protective and personal injury coverage; and (iv) shall be primary
and non-contributory. The Common Area Liability Insurance shall be made on an "occurrence
basis" and not on a "claims made basis". Maintenance Director shall furnish to all Owners, on or
before each effective date of the policy of insurance required to be carried under this Section, a
certificate stating that: (i) such insurance is in full force and effect; (ii) the premiums have been
paid in full; (iii) all Owners (and any other Person requested in accordance with this Section) are
designated as additional insureds; and (iv) such insurance may not be cancelled or coverage
reduced below the levels required to be maintained hereunder without at least thirty (30) days
prior written notice to all insureds and additional insureds.
17.3 Insurance Coverage During Construction:
(a) Prior to commencing any construction activities within the Shopping
Center, each Owner, Occupant and/or Maintenance Director shall obtain or require its contractor
to obtain and thereafter maintain so long as such construction activity is occurring, at least the
minimum insurance coverages set forth below:
(i) Workers' compensation and employer's liability insurance:
(A) Worker's compensation insurance as required by any
applicable law or regulation.
(B) Employer's liability insurance in the amount of Five
Million and No/100 Constant Dollars ($5,000,000) each accident for bodily injury, Five Million
and No/100 Constant Dollars ($5,000,000) policy limit for bodily injury by disease and Five
Million and No/100 Constant Dollars ($5,000,000) each employee for bodily injury by disease.
(ii) General liability insurance: Commercial General Liability
insurance covering all operations by or on behalf of the general contractor, which shall include
the following minimum limits of liability and coverages:
(A) Required coverages:
(1) Premises and operations;
(2) Products and Completed Operations;
(3) Contractual Liability, insuring the indemnity
obligations assumed by Contractor under the Contract Documents;
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(4) Broad Form Property Damage (including
Completed Operations);
(5) Explosion, Collapse and Underground Hazards; and
(6) Personal Injury Liability.
(B) Minimum limits of liability:
(1) Five Million and No/100 Constant Dollars
($5,000,000) each occurrence (for bodily injury and property damage)
(2) Five Million and No/100 Constant Dollars
($5,000,000) for Personal Injury Liability,
(3) Five Million and No/100 Constant Dollars
($5,000,000) aggregate for Products and Completed Operations (which shall be maintained for a
three (3) year period following final completion of the work),
(4) Five Million and No/100 Constant Dollars
($5,000,000) general aggregate applying separately to this Shopping Center.
(iii) Automobile Liability Insurance: Any automobile liability
insurance (bodily injury and property damage liability) including coverage for owned, hired, and
non -owned automobiles, shall have limits of liability of not less than One Million and No/100
Constant Dollars ($1,000,000) combined single limit each accident for bodily injury and property
damage combined. The general contractor shall require each of its subcontractors to include in
their liability insurance policies coverage for Automobile Contractual Liability.
(iv) Umbrella/Excess Liability Insurance: The general contractor shall
also carry umbrella/excess liability insurance in the amount of Five Million and No/100 Constant
Dollars ($5,000,000). If there is not per project aggregate under the Commercial General
Liability policy, the limit shall be Ten Million and No/100 Constant Dollars ($10,000,000).
(b) If the construction activity involves the use of another Owner's Parcel,
then the Owner of such Parcel shall be an additional insured and such insurance shall provide
that the insurance shall not be canceled, or reduced in amount or coverage below the
requirements of this Agreement, without at least thirty (30) days prior written notice to the
additional insureds and each additional insured. The form of additional insured endorsement
shall be ISO Form CG 2026. If such insurance is canceled or expires then the construction
Owner shall immediately stop all work on or use of the other Owner's Parcel until either the
required insurance is reinstated or replacement insurance obtained. The general contractor shall
supply each Owner and the Maintenance Director with certificates furnished on ACORD Form
27 with respect to all insurance required by this Section 17.3.
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17.4 Indemnification by Owners: To the extent not covered by any insurance required
to be maintained by the Maintenance Director pursuant to this Agreement, each Owner shall
defend, indemnify and hold every other Owner and its Permittees harmless for, from and against
any and all damages, liabilities, losses, actions, claims, costs and expenses (including reasonable
attorneys' fees and court costs and reasonable attorneys' fees and court costs on appeal) (i) in
connection with the loss of life, personal injury and/or damage to property arising from or out of
any occurrence in or upon the indemnifying Owner's Parcel, or occasioned wholly or in part by
any solely negligent, grossly negligent or willful act or omission of the indemnifying Owner or
its Occupants; (ii) occurring in the interior of any Building constructed on the indemnifying
Owner's Parcel, unless caused by the solely negligent, grossly negligent or willful act or
omission of the indemnified Owner or its Permittees; (iii) in connection with the failure to
comply with the provisions of this Agreement; (iv) in connection with any act or omission of
such Owner or its Permittees. If Home Depot shall, without fault, be made a party to any
litigation commenced by or against another Owner or its Permittees, or if Home Depot shall, in
its reasonable discretion, determine that it must intervene in such litigation to protect its interest
hereunder, then the indemnifying Owner shall defend Home Depot using attorneys reasonably
satisfactory to Home Depot and shall pay all costs, expenses and reasonable attorneys' fees and
costs in connection with such litigation. Home Depot shall have the right to engage its own
attorneys in connection with any of the provisions of this Section 17.4 or any of the provisions of
this Agreement, including, but not limited to, any defense of or intervention by Home Depot,
notwithstanding any contrary provisions of the laws or court decisions of the state in which the
Shopping Center is located.
17.5 Indemnification by Maintenance Director: The Maintenance Director agrees to
indemnify, defend and hold harmless the Owners and Permittees of all Parcels for, from and
against any and all damages, liabilities, losses, actions, claims, costs and expenses (including
reasonable attorneys' fees and court costs and reasonable attorneys' fees and court costs on
appeal), judgments, proceedings and causes of action, for injury to or death of any person or
damage to or destruction of any property occurring in, on or about the Common Area (exclusive
of any Service Facilities or driveup or drive through customer service facilities) and arising out
of the performance or nonperformance of any of the obligations of the Maintenance Director set
forth in this Agreement, unless caused by the solely negligent, grossly negligent or willful act or
omission of the indemnified Owner or its Permittees. If a Consenting Owner shall, without fault,
be made a party to any litigation commenced by or against another Owner or its Permittees, or if
a Consenting Owner shall, in its reasonable discretion, determine that it must intervene in such
litigation to protect its interest hereunder, then the indemnifying Owner shall defend such
Consenting Owner using attorneys reasonably satisfactory to such Consenting Owner and shall
pay all costs, expenses and reasonable attorneys' fees and costs in connection with such
litigation. The Consenting Owners shall have the right to engage its own attorneys in connection
with any of the provisions of this Section 17.5 or any of the provisions of this Agreement,
including, but not limited to, any defense of or intervention by such Consenting Owner,
notwithstanding any contrary provisions of the laws or court decisions of the state in which the
Shopping Center is located.
18. PROPERTY DAMAGE AND EMINENT DOMAIN
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18.1 Damage to Buildings: If any of the Buildings located on any Parcel are damaged
or destroyed by fire or other cause, the Owner of such Parcel shall promptly cause either: (i) the
repair, restorations, or rebuilding of the Building so damaged or destroyed to a condition and an
architectural style existing immediately prior to the damage or destruction, or (ii) the razing of
any damaged Building, the filling of any excavation, and performance of any other work
necessary to put such portion of the Shopping Center in a clean, sightly and safe condition. All
Building Areas on which Buildings are not reconstructed following a casualty or "Taking" (as
defined in Section 18.4 below) shall be (i) graded or caused to be graded by the Owner thereof to
the level of the adjoining property and in such a manner as not to adversely affect the drainage of
the Shopping Center or any portion thereof, (ii) shall be covered by decomposed granite, sod,
hydroseed or as otherwise permitted by Governmental Regulations, and (iii) shall be kept weed
free and clean at the subject Owner's sole cost and expense until such time as Buildings are
reconstructed thereon.
18.2 Casualty Damage to Common Areas: In the event any of the Common Area is
damaged or destroyed by any cause whatsoever, whether insured or uninsured, during the term of
this Agreement, other than damage caused by ordinary use or wear and tear, the Owner upon
whose Parcel such Common Area is located shall repair or restore such Common Area at its sole
cost and expense with all due diligence. Except to the extent limited by Section 17.6 above, in
the event such damage or destruction of Common Area is caused in whole or in part by the solely
negligent, grossly negligent or willful act of another Owner, Occupant or third Person, the
Owner obligated to make such repair or restoration reserves and retains the right to proceed
against such other Owner or third Person for indemnity, contribution or damages.
18.3 Property Insurance: To assure performance of their respective obligations under
Sections 18.1 and 18.2 above, the Owners of the respective Parcels shall cause to be carried
causes of loss - special form property insurance at least as broad as ISO Special Form Causes of
Loss, CP 0030, in an amount not less than one hundred percent (100%) of the full insurable
replacement cost (excluding footings, foundations or excavations) of all Buildings and
improvements (including Common Area improvements) on their respective Parcels, except if the
Owner of said Parcel, or party responsible for any required restorations, is permitted to "self
insure" pursuant to Section 17.1(c). The insurance referenced in this Section 18.3, may be
provided under (i) an individual policy covering this location, (ii) a blanket policy or policies
which includes other liabilities, properties and locations of such Owner; so long as the amount
and coverage of insurance required to be carried hereunder is not diminished, (iii) a plan of self-
insurance satisfying the criteria set forth in Section 17.1(c) above, or (iv) a combination of any of
the foregoing insurance programs. To the extent any deductible is permitted or allowed as a part
of any insurance policy carried by an Owner in compliance with Article 18, such Owner shall be
deemed to be covering the amount thereof under an informal plan of self-insurance; provided,
however, that in no event shall any deductible exceed Fifty Thousand and No/100 Constant
Dollars ($50,000.00) unless such Owner complies with the requirements regarding self-insurance
pursuant to Section 17.1(c) above. Notwithstanding the preceding sentence, there shall be no
limitations on the deductible maintained by Home Depot so long as such limits are consistent
with its risk management policy affecting its stores generally. The Owner's causes of loss -
special form property insurance shall be carried by an insurance company or companies qualified
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to do business in the State in which the Shopping Center is located with a Best's Key Rating
Guide Property -Casualty United States rating of at least an A- and a financial rating of VIII.
18.4 Waiver of Subrogation: The Owners and Occupants each hereby waive any rights
one may have against the other on account of any loss or damage occasioned to an individual
Owner or Occupant, or its respective property, either real or personal, arising from any risk
generally covered by causes of loss - special form insurance and from any risk covered by
property insurance then in effect. In addition, the Owners and Occupants, for themselves and on
behalf of their respective insurance companies, waive any right of subrogation that any insurance
company may have against the Owners and Occupants. It is the intent of the parties that with
respect to any loss from a named peril required to be covered under a policy of property
insurance, the parties shall look solely to their respective insurance company for recovery. The
foregoing waivers of subrogation shall be operative only so long as available in the State where
the Shopping Center is situated and provided further that no policy of insurance is invalidated
thereby.
18.5 Eminent Domain: In the event the whole or any part of the Shopping Center shall
be taken by right of eminent domain or any similar authority of law (a "Taking"), the entire
award for the value of the land and improvements so taken shall belong to the Owner of the
Parcel so taken or to such Owner's Lienholders or Occupants, as they may have agreed between
or among themselves, and in the absence of any such agreement, as provided by law, and no
other Owner shall have a right to claim any portion of such award by virtue of any interest
created by this Agreement. Any Ownerofa Parcel which is not the subject of a Taking may,
however, file a collateral claim with the condemning authority over and above the value of the
Parcel (or portion thereof) being so taken to the extent of any damage suffered by such Owner
resulting from the severance of the land or improvements so taken if such claim shall not operate
to reduce the award allocable to the Parcel taken. In the event of a partial Taking, the Owner of
the portion of the Shopping Center so taken shall restore the improvements located on the
Common Areas of the Owner's Parcel as nearly as possible to the condition existing prior to the
Taking to insure the continued ingress/egress to, from and between all areas of the Shopping
Center to the extent reasonably feasible, without contribution from any other Owner.
19. GENERAL PROVISIONS
19.1 Covenants Run With the Land: Each Restriction on each Parcel shall be a burden
on that Parcel, shall be appurtenant to and for the benefit of the other Parcels and each part
thereof and shall run with the land.
19.2 Successors and Assigns: This Agreement and the Restrictions created hereby shall
inure to the benefit of and be binding upon the Owners, their heirs, personal representatives,
successors and assigns, and upon any person acquiring a Parcel, or any portion thereof, or any
interest therein, whether by operation of law or otherwise; provided, however, that if any Owner
sells all or any portion of its interest in any Parcel, and such Owner complies with the provisions
of the final sentence of this Section 19.2, such Owner shall thereupon be released and discharged
from any and all obligations as Owner in connection with the property sold by it arising under
this Agreement after the sale and conveyance of title but shall remain liable for all obligations
DN163450.100305600"26/8/20014:49:56 PM 36
2031165 1515 a
arising under this Agreement prior to the sale and conveyance of title. The new Owner of any
such Parcel or any portion thereof (including, without limitation, any Owner who acquires its
interest by foreclosure, trustee's sale or otherwise) shall be liable for all obligations arising under
this Agreement with respect to such Parcel or portion thereof after the date of sale and
conveyance of title. Concurrently with the transfer of all right, title and interest in any Parcel, the
Owner transferring such interest shall execute and deliver to the Consenting Owners and the
Maintenance Director a written statement in which the name and address of the new Owner shall
be set forth, the effective date of the conveyance, and the Parcel conveyed. Failure to deliver any
such written statement shall not affect the running of any covenants herein with the land, nor
shall such failure negate, modify or otherwise affect the liability of the new Owner pursuant to
the provisions of this Agreement, but such failure shall constitute a default by conveying Owner
resulting in continued liability hereunder.
19.3 Duration: Except as otherwise provided herein, the term of this Agreement shall
be for sixty-five (65) years from the date hereof. Upon termination of this Agreement, all rights
and privileges derived from and all duties and obligations created and imposed by the provisions
of the Agreement shall terminate and have no further force or effect; provided, however, that the
termination of this Agreement shall not limit or affect any remedy at law or in equity that an
Owner may have against any other Owner with respect to any liability or obligation arising or to
be performed under this Agreement prior to the date of such termination, and, provided further,
that the access easements and the rights and duties related thereto as provided in Section 3.1, the
sign easements and the rights and duties related thereto as provided in Sections 3.3 and 4.3, and
the utility easements and the rights and duties related thereto as provided in Section 3.2 shall
continue in effect in perpetuity as to those utility lines actually in use at the time of the
termination of this Agreement until such time as such utility lines are abandoned or ceased to be
used to serve a Building in the Shopping Center.
19.4 Injunctive Relief: In the event of any violation or threatened violation by any
person of any of the Restrictions contained in this Agreement, any or all of the Owners and
Prime Lessees of the property included within the Shopping Center shall have the right to enjoin
such violation or threatened violation in a court of competent jurisdiction. The right of injunction
shall be in addition to all other remedies set forth in this Agreement or provided by law.
19.5 Modification and Termination: Notwithstanding the provisions of Section 19.6
below, this Agreement may not be modified in any respect whatsoever or terminated, in whole or
in part, except with the consent of all of the Consenting Owners at the time of such modification
or termination, and then only by written instrument duly executed and acknowledged by all of
the Consenting Owners and recorded in the office of the recorder of the county in which the
Shopping Center is located.
19.6 Method of Approval: Unless otherwise provided in this Agreement, and except
for requests for a change in use (responses to which may be made by an Owner in its sole and
absolute discretion), whenever approval, consent or satisfaction (collectively, an "approval") is
required of an Owner pursuant to this Agreement (or any Exhibit hereto), it shall not be
unreasonably withheld, conditioned or delayed. Unless provision is made for a specific time
period, approval or disapproval shall be given within thirty (30) days after receipt of written
DN 163450.10 03056 00482 6/8/2001 4:49:56 PM 37
263jJ6515 l5'U
request for approval. If an Owner neither approves nor disapproves within the required time
period, then the Owner requesting approval shall have the right to send a second written request
for approval. If such second request states on its face in all capital letters that failure to respond
thereto within thirty (30) days shall be deemed approval, then the failure to respond within such
thirty (30) day period shall constitute the approval of the Owner from whom approval was
requested. Except with respect to approvals which are deemed approved pursuant to the
preceding sentence, all approvals (including conditional approvals) and disapprovals shall be
given or made in writing. If an Owner disapproves, the reasons therefor shall be stated in
reasonable detail in writing. An Owner's approval of any act or request by another Owner shall
not be deemed to waive or render unnecessary approval of any similar or subsequent acts or
requests.
19.7 Multiple Owners: In the event an Owner sells its Parcel and becomes the Prime
Lessee thereon, said Prime Lessee is hereby appointed the entity to cast the vote or consent or
give the consent for said Parcel on behalf of the Owner thereof and is hereby granted all of the
rights and remedies granted to the Owner of said Parcel so long as it is the Prime Lessee of said
Parcel, anything in this Agreement to the contrary notwithstanding.
19.8 Estoppel Certificates. Any Owner may, at any time and from time to time, in
connection with the sale or lease of the Owner's Parcel, or in connection with the financing or
refinancing of the Owner's Parcel by bona fide mortgage, deed of trust or sale -leaseback made in
good faith and for value, deliver written notice to the other Owners and the Maintenance Director
requesting such Owners and the Maintenance Director to execute certificates certifying that to
the best knowledge of the other Owners, (i) neither the requesting Owner nor any other Owner is
in default in the performance of its obligations under this Agreement, or, if a default is alleged,
specifically describing the nature and amount thereof, and (ii) confirming that this Agreement
has not been amended (or, if so, identifying the amendments), and is in full force and effect.
Each Owner shall execute and return such a certificate within thirty (30) days after receipt of a
request therefore. The Owners acknowledge that such certificates may be relied upon by
transferees, mortgagees, deed of trust beneficiaries and leaseback lessors. Such statement shall
act as a waiver of any claim by the Person furnishing it to the extent such claim is based upon
facts contrary to those asserted in the statement and to the extent the claim is asserted against a
bona fide encumbrancer or purchaser for value without knowledge of facts to the contrary of
those contained in the statement and who has acted in reasonable reliance upon the statement.
The issuance of an estoppel certificate shall in no event subject the Person furnishing it to any
liability for the negligent or inadvertent failure of such person to disclose correct and/or relevant
information (but it shall estop such person from making assertions contrary to those set forth in
this certificate for the period covered by this certificate), nor shall such issuance be construed to
waive any rights of the issuer to either request an audit of CAM Costs for any year it is entitled
to do so, or challenge acts committed by other Owners for which approval by the Consenting
Owners was required but not sought or obtained.
19.9 Breach Shall Not Permit Termination: It is expressly agreed that no breach of this
Agreement shall entitle any Owner to terminate this Agreement, but such limitation shall not
affect in any manner any other rights or remedies which such Owner may have hereunder by
reason of any breach of this Agreement. Any breach of this Agreement shall not defeat or render
DN 163450.10 03056 00482 6?8/2001 4:49:56 PM 38
2031165 l S /56
invalid the lien of any mortgage or deed of trust made in good faith for value, but this Agreement
shall be binding upon and be effective against any Owner whose title is acquired by foreclosure,
trustee's sale or otherwise.
19.10 Notices:
(a) All notices given pursuant to this Agreement shall be in writing and shall
be given by personal delivery, by United States mail or by United States express mail or other
established express delivery service (such as Federal Express), postage or delivery charge
prepaid, return receipt requested, addressed to the person and address designated below or, in the
absence of such designation, to the person and address shown on the then current real property
tax rolls of the county in which the Shopping Center is located. The Parties expressly agree that
notices given by attorneys on behalf of their client(s) in the manner provided in this subsection
are effective and recognized notice pursuant to this Agreement. All notices to Developer, Home
Depot and Maintenance Director shall be sent to the person and address set forth below:
Developer: Mountain View, LP
c/o Crosswell Development, L.L.C.
2121 Sage, Suite 380
Houston, Texas 77056
Attention: Allen Crosswell
Home Depot: Home Depot U.S.A., Inc.
3800 West Chapman Avenue
Orange, CA 92868
Attention: Real Estate and Legal Departments
With a copy to: Home Depot U.S.A., Inc.
2455 Paces Ferry Road
Atlanta, Georgia 30339-9998
Attention: Property Management
Maintenance Director: Crosswell Development, L.L.C.
2121 Sage, Suite 380
Houston, Texas 77056
Attention: Allen Crosswell
Other Owners: To the address for mailing tax bills set forth in the latest
real property tax rolls available at the time the notice is
given.
The person and address to which notices are to be given may be changed at any time by any
party upon written notice to the other parties. All notices given pursuant to this Agreement shall
be deemed given upon receipt.
DN 163450.10 03056 00482 6/8/2001 4:49:56 PM 39
203ilLG515) 5 6
(b) For the purpose of this Agreement, the term "receipt" shall mean the
earlier of any of the following: (i) the date of delivery of the notice or other document to the
address specified pursuant to subparagraph (a) above as shown on the return receipt, (ii) the date
of actual receipt of the notice or other document by the person or entity specified pursuant to this
Section, or (iii) in the case of refusal to accept delivery or inability to deliver the notice or other
document, the earlier of (A) the date of the attempted delivery or refusal to accept delivery, (B)
the date of the postmark on the return receipt, or (C) the date of receipt of notice of refusal or
notice of non -delivery by the sending party.
19.11 Waiver: The failure of a Person to insist upon strict performance of any of the
Restrictions contained herein shall not be deemed a waiver of any rights or remedies that said
Person may have, and shall not be deemed a waiver of any subsequent breach or default in the
performance of any of the Restrictions contained herein by the same or any other Person.
19.12 Attorneys' Fees: In the event any Person initiates or defends any legal action or
proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party in any
such action or proceeding shall be entitled to recover from the losing party in any such action or
proceeding its reasonable costs and attorneys' fees (including its reasonable costs and attorney's
fees on any appeal).
19.13 Severability: If any term or provision of this Agreement or the application of it to
any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to persons or circumstances, other than
those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and shall be enforced to the extent permitted by law.
19.14 Not a Partnership: The provisions of this Agreement are not intended to create, nor
shall they be in any way interpreted or construed to create, a joint venture, partnership, or any
other similar relationship between the parties. Each party shall be considered a separate parry and
no party shall have the right to act as agent for another, unless expressly authorized to do so
herein or by separate written instrument signed by the party to be charged.
19.15 Third Party Beneficiary Rights: This Agreement is not intended to create, nor shall
it be in any way interpreted or construed to create, any third parry beneficiary rights in any
person not a party hereto unless otherwise expressly provided herein.
19.16 Captions and Headings: The captions and headings in this Agreement are for
reference only and shall not be deemed to define or limit the scope or intent of any of the terms,
covenants, conditions or agreements contained herein.
19.17 Interpretation: Whenever the context requires in construing the provisions of this
Agreement, the use of a gender shall include both genders, use of the singular shall include the
plural, and the use of the plural shall include the singular. The word "including" shall be
construed inclusively, and not in limitation, whether or not the words "without limitation" or "but
not limited to" (or words of similar importance) are used with respect thereto. The provisions of
this Agreement shall be construed as a whole and not strictly for or against any parry. Unless
DN 163450.1003056004826/8/20014:49:56 PM 40
2031IG5 > 515 6
otherwise provided, references to Articles and Sections refer to the Articles and Sections of this
Agreement.
19.18 Entire Agreement: This Agreement contains the entire agreement between the
parties hereto and supersedes all prior agreements, oral or written, with respect to the subject
restrictions and easements affecting the Parcels. Reference is hereby made to that certain
Planned Unit Development (the "PUD") by and between Crosswell Development, L.L.C. or its
assigns, Pack & Company and the City of Kalispell, Montana dated on or about 12001.
Anything herein to the contrary notwithstanding, in the event that any of the terms of this
Agreement conflict with the terms set forth in the PUD, the terms of the PUD shall control.
19.19 Joint and Several Obligations: In the event any party hereto is composed of more
than one person, the obligations of said party shall be joint and several.
19.20 Recordation: This Agreement shall be recorded in the office of the recorder of the
County in which the Shopping Center is located.
19.21 Limitation on Liability: Except as specifically provided below, there shall be
absolutely no corporate or personal liability of persons or corporations who constitute Home
Depot hereunder, including, but not limited to, officers, directors, employees or agents thereof,
with respect to any of the terms, covenants, conditions and provisions of this Agreement. In the
event of a default of Home Depot hereunder, the Owner who seeks recovery from Home Depot
shall look solely to the interest of Home Depot in the Home Depot Parcel for the satisfaction of
each and every remedy of the non -defaulting Owner; provided, however, the foregoing shall not
in any way impair, limit or prejudice the right of any Owner (i) to pursue equitable relief in
connection with any Restriction of this Agreement, including a proceeding for a temporary
restraining order, preliminary injunction, permanent injunction or specific performance; and (ii)
to recover from Home Depot all losses suffered, liabilities incurred or costs imposed arising out
of or in connection with, or on account of, Home Depot's breach of its obligation to cant' Owner
Liability Insurance, or to fund its self-insurance obligation, if applicable.
19.22 Lienholder Protection: This Agreement, and except for the lien rights set forth in
Section 14.1,, above, the rights, privileges, covenants, agreements and easements hereunder with
respect to each Owner and Parcel, shall be superior and senior to any lien placed upon any
Parcel, including the lien of any mortgage or deed of trust. Notwithstanding the foregoing, no
breach hereof shall defeat, render invalid, diminish or impair the lien of any mortgage or deed of
trust made in good faith and for value, but all the covenants and restrictions, easements and
conditions and other provisions, terms and conditions contained in this Agreement shall be
binding upon and effective against any person (including, but not limited to, any mortgagee or
beneficiary under a deed of trust) who acquires title to any Parcel or any portion thereof by
foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.
19.23 Construction by Home Depot: Nothing in this Agreement shall limit the right of
Home Depot to alter or reconfigure any of the Parcels owned by Home Depot, or to construct
such additional improvements as Home Depot deems necessary or advisable within an area
which is contiguous to the existing Home Depot Building and is no greater than 120% of the
ON 163450,1003056004826/8120014:4956 PM 41
2C3iIG5) 5 J 5 d
Building Area for Home Depot as identified on the Site Plan provided that there is no violation
of the No Build Zone described in Section 2.3(f) above. Such right shall include, but shall not be
limited to, erecting, constructing and maintaining on the Parcels such structures and displays as
may be reasonably necessary for the conduct of the business of disposing of the Parcels by sale,
lease or otherwise. This Agreement shall not limit the right of Home Depot at any time to
establish on the Parcels additional licenses, reservations and rights -of -way to itself, to utility
companies, or to others as may from time to time be reasonably necessary for the proper
development and disposal of the Parcels. Home Depot reserves the right to alter its construction
plans and designs as it deems appropriate in its discretion.
19.24 Variances: Where appropriate, the Consenting Owners may, in their sole and
subjective discretion, grant written variances to the provisions hereof, signed by all of the
Consenting owners, where strict adherence to the requirements of this Agreement or any
architectural standards established by the Consenting Owners would, in the judgment of the
Consenting Owners, cause undue hardship.
DN 163450.1003056004826l8[220014:49:56PM 42
2031165 15150
19.25 Time of Essence; Force Majeure: Time is of the essence with respect to the
performance of each obligation of this Agreement. Whenever performance is required by any
person or entity hereunder, such person or entity shall use all due diligence to perform and take
all necessary measures in good faith to perform; provided, however, that if completion of
performance shall be delayed at any time by reason of acts of God, war, civil commotion, riots,
strikes, picketing or other labor disputes, unavailability of labor or materials, damage to work in
progress by reason of fire or other casualty, or any other cause beyond the reasonable control of
such person or entity, then the time for performance as herein specified shall be extended by the
amount of the delay actually so caused. Notwithstanding the foregoing, the provisions of this
section shall not operate to excuse any person or entity from the prompt payment of any monies
required by this Agreement.
EXECUTED as of the day and year first above written.
HOME DEPOT U. S.A., INC.,
a Delaware corporation
By:
Name: Karen B. Polyakov
Its: Corporate Counsel -Western Division
MOUNTAIN VIEW, LP,
a Montana limited partnership
By: MOUNTAIN VIEW
DEVELOPMENT, INC., a Montana
corporation, its sole general partner
Allen H. Crosswell, President
DN 163450.10 03056 00482 &8/2001 4:49:56 PM 43
STATE OF TEXAS )
ss.
COUNTY OF HARRIS )
This instrument was acknowledged before me on this the day of
2001, by Allen H. Crosswell, President of Mountain View Development, Inc., a Montana
corporation, the sole general partner of Mountain View, LP, a Montana limited partnership, on
behalf of said partnership.
Notary Public, State of Texas
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On 2001, before me, a notary public in and for said
state, personally appeared Daniel R. Hatch, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) (is) (are) subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(This area for official notarial seal)
DN 163450.1003056004826/8/20014:49,56 PM 44
203i165 15 150
LIST OF EXH03ITS
A = Legal Description of Shopping Center
B = Site Plan
B-1 = Permanent Service Drive Site Plan
C = Sign Exhibit
DN 16345010 0305600482 6/8/2001 4:49:56 PM 45
2031-1.65 /!" J 56
EXHIBIT "A"
Parcel 1:
A tract of land located in the Northwest Quarter of Section 31, Township 29 North,
Range 21 West, P.M.M., more particularly described as follows:
Commencing at the Northeast comer of Parcel 1 of Certificate of Survey No. 12230,
records of Flathead County; thence
South 14°56'45" East, on and along the East boundary of said Parcel 1, a distance of
807.99 feet to a point and which point is the True Point of Beginning; thence.
continuing South 14°56'45" East, on and along said East boundary of said
Parcel 1, a distance of 1124.65 feet to a point and which point is the
Southeast corner of said Parcel 1; thence
North 89°56'28" West, on and along the South boundary of said Parcel 1, a distance
of 1050.00 feet to a point; thence 3E
North 00°03'32" East, and leavins said South boundary, a distance of 422.09 feet to a
point; thence
North 35°17'37" East, a distance of 199.06 feet to a point; thence
North 3001619" West, a distance of 227.42 feet to a point; thence
North 00003'32" East, a distance of 317.81 feet to a point; thence
South 88°59'57" East, a distance of 758.94 feet to the True Point of Besinnittg.
Tract 2 of Certificate of Survey No. 13919.
Parcel 2:
A tract of land located in the Northwest Quarter of Section 31, Township 29 North,
Range 21 West, P.14.1vl., more particularly described as follows:
Commencing at the Northeast comer of Parcel 1 of Certificate of Survey No. 12230,
records of Flathead County and which point is the True Point of Ber nninT,
thence
A—f
200116515/5C)
Westerly,Northerly
South high of-ofof West Reserve Drirly, on and along said North ve, the folo*wing five
courses:
North 89137'28" West, a distance of 363.67 feet to a point;
North 00050'40" East, a distance of 19.95 feet to a point;
North 89 017'22" West, a distance of 375.37 feet to a point;
North 02015'52" East, a distance of 5.59 feet to a point;
North 89057'10" West, a distance of 107.43 feet to a point which point is the
Northeast comer of that tract indicated on Certificate of Survey No. 7860,
records of Flathead County; thence
South 18°14'01" West, on and along the East boundary of said tract, a distance of
252.46 feet to a point; thence
North 89054'08" West, on and along the South boundary of said Tract, a distance of
233.25 feet to a point which point lies on the East right-of-way boundary of
U.S. Highway 93, thence a distance of
Northwest
y
South 00°06'49" West, on and along said East rightboundary,
640.64 feet to a point which point is the Nohwest comer of Parcel 2 of said
Certificate of Survey No. 12230; thence
South 88059' 57" East, on and along the North boundary of said Parcel 2. a distance of
464.36 feet to a point which point is the Northeast corner of said Parcel 2;
thence
South 30°16' 19" East, a distance of 490.29 feet to a point and which point is the East
comer of said Parcel 2, thence
South 35017'37" West, a distance of 267.05 feet to a point and which point is the
Northeast comer of Parcel of said Certificate of Survey No. 12230; thence
North 89008'36" West, a distance of 558.48 feet to a point which point
lies on issaid
East right-of-way boundary of U.S. Highway
the
Northwest comer of said Parcel 3; thence
South 00°l1,10" West, on and along said East right -of way boundary, a distance of
375.07 feet to a point which point is the Southwest comer of said Parcel 3;
thence
one the South boundary of said Parcel 3, a distance of
South 89°57'53" East, on and al
559.98 feet to a point and which point is the Southwest comer of said Parcel
1 of certificate of Survey No. 12230; thence
South 89056'28" East, on d along the south boundary of said Parcel I..a distance of
50.39 feet to a point; thence
North 00003'32" East, an3 leaving said South boundary. a distance of 422.09 feet to a �D
point; thence
North 35°17.37" East, a distance of 199.06 feet to a point thence
Notch 30° 16' 19" West, a distance of 227.42 feet to a point; thence
North 00003'32" East, a distance of 317.81 feet to a point; thence Dint lies on the
South 88°59'57" East, a distance 758.94 feet to a point and which p
East boundary of said parcel 1; thence a distance of 807.99 feet to
North l4°56'45" West on and along said East boundary.
the True Point of Beginning-
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203g155 /5/5b
Tract 1 of Certificate of Survey No. 13919
Parcel 3:
That portion of Government Lots 1 and 2 of Section 31, Township 29 North, Range
21 West, P.M.M., Flathead County, Montana, more particularly described as follows:
Commencing at the Northwest comer of Section 31, Township 29 North, Range 21
We;; thence along the North line of said section,
South 89049'30" East 70.00 feet to the Easterly line of U.S. Highway No. 93 Right -
Of -Way; thence alone the Easterly line of said Right -Of -Way;
South 00°0710" West 940.71 feet to the Point of Beginning of the parcel being
described; thence leaving said Right -Of -Way,
South 89004'58" East 464.06 feet; thence
South 30°17'34" East 490.59 feet; thence
South 35016'49" West 267.08 feet; thence
North 89109'50" West 558.60 feet to the Easterly line of U.S. Highway No. 93 Right -
of -Way; thence along the Easterly line of said Right -of -Way,
North 00*0710" East 640.91 feet to the Point of beginning.
Parcel 2 of Certificate of Survey No. 12230
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'NO BUILD ZONE
MountainView Plaza
Permissible Building Areas
Area A
Home Depot
Area B
Not to exceed 300,000 square feet
Area C
Not to exceed 18,000 square feet
Area D
Not to exceed 4,800 square feet
Area E
Not to exceed 9,000 square feet
Area F
Not to exceed 5,000 square feet
Area G
Not to exceed 25,000 square feet
Area H
Not to exceed 20,000 square feet
2031165 /51,!tf6
Notes
1. Restaurants allowed on the outparcels G and H south of the "main entrance" subject to parking ratios in
Section 4.1
2. Restaurants to the north of the "main entrance" road are allowed if:
a. They are parked according to Section 4.1
b. No restaurant is located in building area C
c. Fast food, drive -through restaurant is allowed if:
I. It is not placed north of the "HD extended boundary line", and
it. It is the only restaurant north of the "main entrance".
3. A limited service gas station may be allowed in Area F
4. The 60 Foot "No Build" Area, 30 feet from HD and 30 feet from Developer, shall prevent any building
from being placed less than 60 feet from HD's southern exterior wall as depicted on the Site Plan.
The No Build Area shall also prevent HD or Developer from expanding into the Area.
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Site Plan
Kalispell, Montana
PERMANENT SERVICE DRIVE
2031165 /5 i56
V-10" 7-0° 1'-100
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amp��
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117 SQUARE FEET TOTAL
of L&A
TITLE:
DRAWN BY.
SALES REP:
SCALE:
DATE:
MOUNTAIN VIEW PLAZA
MRJ
KLP
N.T.S.
4-23-01
W.RESERVE
C = 1 ISOR NG IS THE PRCPSR CF PhRKERSM� 4 RGNTS TO USE FOR REPROGUCMsAEFES8W0SYBAWER SIGN CUNP
EXHIBIT
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203ilLG5 /d/5d
V-10" 8'-0" V-10"
- 158 SQUARE FEET TOTAL
t�
1%J SignCompany
9 GREENHOUSE RO. HOLSTCK TEXAS �
TfTLE:
DRAWN BY
SALES REP:
SCALE:
DATE:
MOUNTAIN VIEW PLAZA
MRJ
KLP
N.T.S.
423-01
HWY. 93
C NOB T GDR NG 6 THE FRORERTY OF BRAYER 904 CO~ ALL ROM TO USE FOR WRODUMN ARE RESERVED 81 BRAYER SIGN COME
203liSS 15 /5 a
NOROLD NAVY
4'-U' x 8'-0" D/F INTERNALLY ILLUMINATED SIGN
32 SQUARE FEET TOTAL
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29M GREENHOUSE RG. NOUSTON. M S' OU
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TITLE:
DRAWN BY:
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SCALE:
DATE.REVISED
MOUNTAIN MEW PLAZA
MRJ
KUP
N.T.S.
4-23-01
CMW MG DRFNING G THE PROP6NIY OF MVMER SIGN CC~N RWS TO USE FOR REPR000Cn0N ME RESERVED W MAKER SIGN CO~
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2J08 GREENHOUSE RD. HOUSTON, TENTS 7M84
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SCALE:
DATE:REVISED
MOUNTAIN VIEW PLAZA
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N.T.S.
4-23-01
C NOB THG ORAMNG S THE PROFEMOF BAKER SGN C0~. ALL RIGHTETO USE FOR AEFROOUCRON ARE RESEFNW SY BARKER SIGN CO~
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