2e. Declaration of Restrictions................................:-;......................................... ....... ................................ ..............
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Hugh M. Boss, Esq.
American Capital Group, LLC
115 S. LaCumbre Lane, Suite 302
Santa Barbara, CA 93105
REDLINE
Accuracy Not
Guaranteed!
DECLARATION OF RESTRICTIONS AND
ESTABLISHMENT OF EASEMENTS AFFECTING LAND
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. 002
DECLARATION OF RESTRICTIONS AND
ESTABLISHMENT OF EASEMENTS AFFECTING LAND
THIS DECLARATION OF RESTRICTIONS AND ESTABLISHMENT OF
EASEMENTS AFFECTING LAND (the "Declaration") is made as of the day of March,
2000, by ACG - Kalispell Investors, LLC, a Montana limited liability company ("ACG") and
ACG
and the City, collectively, the "Declarants")
RECITALS:
A. Parcel Ownership. Declarants are the sole owners of that certain real property
located in the City of Kalispell, County of Flathead, State of Montana commonly known as the
Gateway West Mall (the "Shopping Center"), the legal description of which is attached hereto as
Exhibit "A' and which is shown on the site plan attached hereto as Exhibit "B" hereof (the "Site
Plan"), which Site Plan reflects the Parcels owned by ACG (the "ACG Parcel") and the City (the
"City Parcel").
B. By recording this Declaration against the Shopping Center, Declarants desire
to (i) provide for non-exclusive easements over the Shopping Center for the purpose of parking,
access by foot and automobile and for public utilities and site utilities as more particularly described
herein and (ii) fix protective provisions, covenants, and restrictions upon and subject to which the
Shopping Center shall be improved, held, used, occupied, leased, sold or conveyed.
C. Declarants desire that the Shopping Center and all improvements erected
thereon shall be hereinafter held, conveyed, mortgaged, encumbered, leased, sub -leased, used,
occupied, sold, assigned and improved, subject to the following declarations, limitations, covenants,
conditions, restrictions and easements, all of which are for the purpose of enhancing and protecting
the value and attractiveness of the Shopping Center and all improvements thereon, and every part
thereof. All of the limitations, covenants, conditions, restrictions and easements shall constitute
covenants which shall run with the land and shall be perpetually binding upon Declarants, all
"Owners" (hereinafter defined), all future tenants ofthe Shopping Center, and each ofthe foregoing's
respective successors -in -interest and assigns, and all parties having or acquiring any right, title or
interest in or to any part of the Shopping Center.
In consideration that the following encumbrances shall be binding upon Declarants
and all Owners and shall attach to and ran with the Parcels, and shall be for the benefit of and shall
be limitations upon all future Owners of each of the Parcels and that all easements herein set forth
shall be appurtenant to the dominant estates, and in consideration of the promises, covenants,
conditions, restrictions, easements and encumbrances contained herein, Declarants do declare as
follows:
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ARTICLE 1
Unless otherwise defined herein, the following words when used in this Declaration
shall have the following meanings:
1.1 Assessment. "Assessment" as used herein shall mean any Owner's monetary
obligation to reimburse the Maintenance Director for such Owner's pro rata share of Common Area
Expenses and management fees in accordance with this Declaration or satisfy such Owner's duties
under Articles 5 and 6 of this Declaration. An Assessment shall include the principal amount due,
plus any late charges, interest at the Interest Rate and costs (including reoaY attorneys' fees)
expended to collect the same.
1.2 Assessment Lien. "Assessment Lien" as used herein shall mean the lien
created by reason of the delinquency described in and upon recordation of the Notice of Assessment
Lien. See also Section 5.7.
1.3 Building Area. "Building Area" as used herein shall mean and refer to that
portion of the Shopping Center upon which structuressigndorpalt�oprbix au (ru
are built, as the same may change from time to time as
1.4 Common Area. "Common Area" as used herein shall mean and refer to all
of the land areas of the Shopping Center other than areas upon which buildings exist which are
landscaped; erpaved ofor the common use ofthe Owners, their
lessees and invitees.
1.5 Common Area Expenses. "Common Area Expenses" as used herein are
defined in Section 5.3.
1.6 Common Utilities. "Common Utilities" as used herein shall mean the Utilities
that serve the Common Area.
1.7 Coun . "County" as used herein shall mean the Flathead County, Montana.
1.8 Declarants. "Declarants" as used herein shall mean and refer to ACG and the
City.
1.9 Floor Area. "Floor Area" as used herein shall mean the aggregate number of
square feet of floor space, from time to time, of all floors in a building (including mezzanines,
basements, and similar areas) exeltisively appropriated for, or intended to be appropriated for, aaa
s;fflj Occupant's use, measured from the exterior faces or the exterior lines of the exterior walls
(including basement walls) or, in those instances where a common wall exists, measured from the
mid -point of any such common wall(s) which an occupant shares with another occupant. "Floor
Area" does not include Common Areas. Within thirty (30) days of a request, an Owner shall certify
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to the requesting Owner the amount of Floor Area existing in any building on its Parcel. If any
Owner causes an as -built survey to be prepared with respect to any portion of the Shopping Center,
such Owner shall, upon written request, furnish a copy of the survey to the other Owners for
informational purposes only. During any period of rebuilding, repairing, replacement or
reconstruction of a building, the Floor Area of that building shall be deemed to be the same as
existed immediately prior to that period. Upon completion of such rebuilding, repairing,
replacement or reconstruction the Owner upon whose parcel such building is located, shall cause a
new determination of Floor Area for such building to be made in the manner described above, and
such determination shall be sent to any Owner requesting the same. As of the date hereof,
Declarants agree that the Floor Area of the ACG Parcel is square feet and the City
Parcel is square feet.
Section 12.1.
1.10 Hazardous Material. "Hazardous Material" as used herein is defined in
1.11 Interest Rate. "Interest Rate" is defined in Section 5.7.
L 12 Maintenance Director. "Maintenance Director" is ACG, or such other Owner
as may be designated by owners of sixty percent (60%) of the Floor Area.
1.13 Manage. "Manage" as used herein shall mean to supervise, control, maintain,
insure, clean, repair, operate, replace and restore the applicable portion of the Common Area and,
with respect to the Maintenance Director, to collect the Common Area Expenses and management
fees of the Common Area as Assessments, all in accordance with this Declaration. "Manage" shall
also mean "cause to be Managed."
1.14 Mortgage and Mortgagee. "Mortgage and Mortgagee" as used herein are
defined as follows: "Mortgage" is any mortgage, indenture of mortgage, deed of trust, "sale and
leaseback" or "assignment and subleaseback" instrument encumbering or affecting the interest,
whether fee or leasehold, of an Owner in a Parcel, by which the Owner retains possession of its
Parcel, subject to the security interest therein ofthe Mortgagee. "Mortgagee" is a mortgagee, trustee,
beneficiary, lessor or sublessor under a Mortgage.
1.15 Occupant. "Occupant" as used herein shall mean any Owner or other Person
from time to time entitled to use and occupy exclusively any Floor Area in a building under an
ownership right or any lease, sublease, license, concession or other similar agreement with the
Owner thereof
1.16 Outside Sales Area. "Outside Sales Area" as used herein shall mean any area
immediately adjacent to a building that is used exclusively by the Occupant of such building for
sales, display and/or storage purposes and that is enclosed by a fence or other security barrier,
including, without limitation, any outdoor garden or nursery.
1.17 Owner. "Owner" as used herein shall mean and refer to each Person,
including Declarants, who now or hereafter owns fee title to a Parcel. Owner shall not mean or refer
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to any such Person who holds an interest in such Parcel merely as security for the repayment of any
obligation including, but not limited to, a beneficiary under the terms of a trust deed or mortgage.
1.18 Parcel. "Parcel" as used herein shall mean and refer to any one of the Parcels
on the Site Plan and any legal parcel of land into which the same may hereafter be subdivided,
together with all improvements existing from time to time thereon, as said parcels within the
Shopping Center are shown on the Site Plan or on any subsequent subdivision map covering the
Shopping Center or any portion thereof recorded in the Official Records of the County.
1.19 Permittees. "Permittees" as used herein shall mean and refer to the Owners,
their tenants and theirrespective heirs, successors, assigns, grantees, mortgagees, tenants, subtenants,
licensees and concessionaires of any and all portions of the Building Area within the Shopping
Center, as well as the officers, directors, agents, employees, customers, visitors, patrons, licensees
and invitees of any such parties.
1.20 Person. "Person" as used herein shall include corporations, limited liability
companies, partnerships, associates, other legal entities, individuals, trustees, heirs, executors,
administrators, and other personal representatives.
1.21 Rules and Regulations. "Rules and Regulations" as used herein shall mean
those reasonable rules and regulations the Maintenance Director may adopt from time to time to
govern use and management of the Common Area.
1.22 Separate Utilities. "Separate Utilities" as used herein shall mean Utilities that
serve only a building and other improvements located in a Building Area.
1.23 Shopping Center. "Shopping Center" is defined in the Recitals.
1.24 Site Plan. "Site Plan" as used herein shall mean and refer to the Site Plan
attached hereto as Exhibit "B" showing the Shopping Center, the Parcels, the location of the
Building Areas, the Common Area and other matters described herein
1.25 State. "State" as used herein shall mean the State of Montana.
1.26 Utilities. "Utilities" as used herein shall mean any lines, conduits and
facilities for the supply, service or transmission of water (fire protection and domestic), electricity,
natural gas, storm water, sanitary sewer discharge, telephone, cable TV and communication data.
ARTICLE 2
USE IN GENERAL.
2.1 Lawful_ Commercial Purpose. The Shopping Center may be used for any
lawful commercial purpose not specifically prohibited herein,
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2.2 Two Categories of ShoppingCenter. enter. For the purpose of this Declaration, the
Shopping Center is divided into two (2) categories which relate to use, "Building Area" and
"Common Area."
ARTICLE 3
COMMON AREA
3.1 Common Use. Subject to the terms of this Declaration, the Common Area
shall be used in common for the benefit of the Owners of the Shopping Center, their employees,
guests, tenants, invitees and customers. The Common Area shall be used for roadways, walkways,
ingress and egress, parking of motor vehicles, loading and unloading of commercial and other
vehicles, for driveway purposes, for the comfort and convenience of tenants, customers, invitees and
employees of all businesses and occupants of the buildings within the Shopping Center. Use of the
Common Area shall be subject to such
a4zrules and regulations and such reasdnabl
requirements as may be imposed from time to time by the Maintenance Director.
3.2 Common Area Configuration. Changes in the layout circulation pattern or
configuration of the Common Area from that shown on the Site Plan may be made by the Owner of
the Parcel upon which such Common Area is located with the consent of Owners owning sixty
percent (60%) of the Floor Area in the Shopping Center, which consent shall not be unreasonably
3.3 Parking Standards, No Exclusive Rights. No Owner or Occupant shall have
any exclusive right to use any portion of the parking areas within the Common Area.
3.4 Rights of Maintenance Director With Respect to Common Area Regulations.
The Maintenance Director may adopt a system for the imposition of parking fees and charges if
required by any statutes, rules or regulations promulgated or enacted by any appropriate
governmental authority, including validations, and erect such gates, booths and structures as may
be necessary to construct, implement and operate such systems. The Maintenance Director shall
have the right to hire security guards for the benefit of the entire Common Area in the Shopping
Center (i) for security purposes, (ii) to ensure that the parking areas are utilized only by Permittees,
and (iii) for any other purpose deemed reasonably appropriate by the Maintenance Director.
3.5 Employee Parking Areas. Except as provided herein, the employees of
Occupants of the Shopping Center shall be required to park in the parking areas as may be
reasonably designated from time to time by the Maintenance Director. Without limiting the scope
of the foregoing, the City shall cause employees of the tenant of City Parcel to park in a portion of
the Common Area delineated as "City Parcel Parking" on the Site Plan. The Maintenance Director
may,p'on x}ie nt5tice to11wxe}sr implement such reasonable rules and regulations as may
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be required to enforce the foregoing requirements, including, but not limited to, requiring employee
parking stickers, exacting fines and towing of employee vehicles parked outside the designated areas.
3.6 Prohibited Uses in Common Areas.
(a) Except for those portions of the Common Area designated by
Maintenance Director as being available for loading or unloading, the Common Area shall not at any
time be used for the parking of delivery trucks, or the loading or unloading thereof.
(b) 44reSu1%1' '% #cs the royls c� s' I` 4a on�7 �kbdlq # Common Area
shall not at any time be used as a construction staging area for the construction of improvements
without the prior written consent of Maintenance Director.
ARTICLE 4
CONSTRUCTION OBLIGATIONS
4.1 Painting Building Exteriors. Not more frequently than once every five (5)
years, the Maintenance Director, in its reasonable discretion, may elect to require some or all of the
Owners to repaint, or cause to be repainted, the exterior of their buildings located in the Shopping
Center. The Maintenance Director's decision to require only some ofthe Owners to repaint must be
reasonable and justifiable under industry standards. The Maintenance Director shall establish a
schedule and coordinate such painting to assure that it occurs without unreasonable inconvenience
to the operation of the Shopping Center and its Pzis, and further that all
buildings in the Shopping Center are painted with the same general quality ofpaint as used with their
initial construction and of such colors as are harmonious. The Maintenance Director may cause such
painting to be contracted directly (obe;ixet;il:sand cause each Owner to be billed directly
for its share of such cost.
4.2 Construction Indemnities. Each Owner covenants and agrees to indemnify,
defend, and hold harmless the other Owners from and against all claims and all costs, losses,
damages, expenses and liabilities (including reasonable attorneys' fees) incurred in connection with
all claims, including any action or proceedings brought thereon, arising from or as a result of any
rn ��ns, c' liens, stop notices, or other claims regarding materials supplied or work
performed, or the death of, or any accident, injury, loss or damage whatsoever caused to any natural
person, or to the property of any person, as shall occurat the request of the
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except for claims caused by the negligence, recklessness or willful misconduct of the indemnitee,
its licensees, concessionaires, agents, servants or employees, or concessionaires where the __me may
eeetxr. The indemnitee shall give the indemnitor notice of any suit or proceeding entitling the
indemnitee to indemnification pursuant to this Section and the indemnitor shall defend the
indemnitee in such suit or proceeding with counsel approved by the indemnitee.
4.3 Cost of Construction. Except as otherwise set forth in this Declaration, each
Owner shall be responsible for the cost and expense of all improvements constructed or to be
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constructed on its Parcel, subject to rights to reimbursement to the extent such costs and expenses
constitute Common Area charges hereunder.
ARTICLE 5
COMMON AREA OPERATION AND MAINTENANCE
5.1 Maintenance by Maintenance Director. The owners hereby delegate their
duties to Manage the Common Area to the Maintenance Director, who shall perform such
management duties on behalf of the Owners in accordance with this Declaration and make decisions
in the granting or withholding of consent as set forth herein. In addition to all other rights, duties
and powers set forth herein , the Maintenance Director
shall have the power and duty to do the following:
(a) Manage the Common Area; and
(b) Levy, collect and enforce all Assessments.
5.2 Approval, Authority and Resignation ofMaintenanceDirector. Each Owner,
by its acceptance of a deed-er,_occupaiit� by its execution of a lease, recognizes and
approves the Maintenance Director ofthe Common Area. The Maintenance Director shall have (and
is hereby given) the full right and authority to Manage; such authority to also include the right to
delegate any or all of the Maintenance Director's responsibilities hereunder to a property
management company and the right to enact rules for the use and operation of the Common Area,
including designating certain areas for employee parking. Notwithstanding the foregoing, the
Maintenance Director shall have the right, in its sole and absolute discretion, to permit a tenant or
Owner to take over some or all aspects of maintenance of the Common Area within its Parcel or to
maintain, at such tenant's or Owner's sole cost and expense, any loading docks, drive -through lanes,
trash enclosures or other areas exclusively used by such tenant or Owner, and the cost of such
maintenance shall not be included in Common Area Expenses.
5.3 Authorization of Expenditures/Management Fee/Audit Rig�h,_ts. The
Maintenance Director is hereby authorized to contract for and pay for, on behalf of the Owners, all
of the costs and expenses associated with Maintenance Director's rights and duties hereunder,
including, without limitation, the following (collectively, "Common Area Expenses"):
(a) premiums on insurance for the Common Area and improvements
located thereon, as more fully described in Section 8.4 below, in the amounts and types determined
by the Maintenance Director, and payment of any deductible amount in the event of a claim;
(b) repairs of any damage to the Common Area to the extent such repair
costs are not covered by insurance proceeds;
(c) all general maintenance and repairs of the Common Area, whether
required by the enactment or operation of law, or otherwise, including, without limitation, painting,
restriping, resurfacing, cleaning, sweepingsri ;wxe..- ..'' and janitorial services;
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(d) maintenance, repair, lighting, landscaping and reasonable replacement
of the Common Area and improvements thereon;
(e) expenses for personnel to implement services pertaining to the
Common Area, such expenses to be within industry norms for this work, including the cost of
security guards, but excluding management or supervisorial personnel;
(f) payroll, payroll taxes, health and workers' compensation insurance
applicable to provide the aforementioned services rendered in connection with the Common Area;
(g) any public utility or governmental charges, surcharges, and any other
costs levied, assessed, or imposed pursuant to laws, statutes, regulations, codes and ordinances
promulgated by any governmental or quasi -governmental authority in connection with the use of the
Common Area;
(h) Real property taxes and assessments on the Common Area.
Notwithstanding anything to the contrary in this Declaration (including,
without limitation, any other agreements an Owner may make with its tenants regarding the amount
of the management fee payable by the tenant to such Owner), the Maintenance Director shall receive
a martagentent r?a ji"#JWAdW fee from each of the Owners equal to ten percent (10%)"of such
Owner's pro rata share of the total of Common Area Expenses. If a lease or other agreement
pursuant to which a tenant occupies a portion of the Shopping Center provides for a management
fee of less than ten percent (10%), then as between such tenant and the Owner of that portion of the
Shopping Center to which such tenant's premises relate, the provisions of such lease or agreement
shall control (as to such tenant's portion of the Shopping Center only), so long as such lease or other
agreement is in effect, but as among the Owners inter se and the Maintenance Director, this
Declaration shall prevail. The Maintenance Director shall provide any Owner, upon reasonable prior
request, reasonable back-up for any item included in Common Area Expenses. In addition, the
Owner or its designated representative, including its tenant (if so authorized by its Owner -landlord),
may audit the Maintenance Director's records relating to Common Area Expenses and such Owner's
share thereof, such audit to be performed at the Maintenance Director's principal place of business
and at the Owner's cost (except as provided below). Such audit must be commenced within two (2)
years following receipt from the Maintenance Director of the annual reconciliation of Common Area
Expenses, and if not commenced within such period of time and thereafter diligently prosecuted to
completion, such right to audit shall be forfeited as to that particular year. The audit must be
performed by an accountant reasonably experienced in such matt warl6ng on m hottr4y bm4,-fttt4
not a eentingeney fee basis. If any such audit correctly reveals an overcharge of an Owner with
respect to its share of Common Area Expenses, such overcharge her
reps3esab1 be immediately offset against any amounts owing the Maintenance Director
under this Declaration. In no event may an Owner withhold paying its share of Common Area
Expenses pending an audit or any other dispute concerning Common Area Expenses. If the audit
correctly reveals an overcharge of more than five percent (5%), the Maintenance Director shall pay
the reasonable cost of such audit,
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the error, -and such payment shall not be included in Common Area Expenses.
5.4 Assessment ofCommonArea Expenses: Budget. Each Owner shall reimburse
the Maintenance Director as an Assessment for such Owner's pro rata share of Common Area
Expenses and maintenance fee (as such pro rata share is determined in accordance with Section 5.5
below). Procedures for such Assessment are as follows: The Maintenance Director, prior to June
30, 2000, and annually thereafter, at least sixty (60) days prior to each anniversary of such date or
prior to the end of the applicable calendar or fiscal year, as the Maintenance Director may designate,
shall prepare and submit to the Owners a budget of the anticipated Common Area Expenses for the
upcoming year. The Maintenance Director shall thereafter operate, maintain and repair the Common
Area in accordance with the budget, subject to unforeseen increases and expenses. Thereafter, on
the first day of each month each Owner shall pay or cause to be paid to the Maintenance Director
one -twelfth (1/12th) of its pro rata share of the Common Area Expenses for its Parcel in accordance
with the budget for such year. Pending the preparation of a new budget for the current year, the
monthly amount which the Owners are required to pay pursuant to the previous budget shall apply.
From time to time, but no less frequently than annually, the Maintenance Director shall send to each
Owner a written statement itemizing the Common Area Expenses, including the management fee
paid or payable to the Maintenance Director for the period designated in such statement. In the event
an Owner shall have paid more than its pro rata share during such period, the Maintenance Director
shall promptly refund the amount of such excess payment. Should an Owner have paid less than its
pro rata share during such period, such Owner shall pay to the Maintenance Director the amount of
such deficiency within thirty (30) days after receiving an invoice.
5.5 PgMent of Pro Rata Share. The pro rata share of Managing the Common
Area is to be borne and paid monthly in accordance with Section 5.4 above, by the Owner of any part
of the Building Area, in the proportion which the Floor Area on such Owner's Parcel bears to the
total Floor Area of all Building Area within the Shopping Center.
5.6 No Further Obligation Upon Sale. If any Owner sells all or part of the
Shopping Center owned by it, then such Owner shall have no further obligation under this
Declaration with respect to the part of such real property thus sold after the date of the conveyance,
other than obligations arising prior to the date of the conveyance for which such Owner shall remain
obligated. However, the provisions of this Declaration shall be binding upon, and shall inure to the
benefit of, all present and future Owners of all or any part of the Shopping Center.
5.7 Remedies for Non-Pa_yrnents/Assessment Liens. In the event that any Owner
fails or refuses at any time to pay its pro rata share of the Common Area Expenses or management
fee when due, then, after written demand and failure to pay within ten (10) days after receipt of such
demand, legal action may be instituted against the defaulting Owner for reimbursement, plus interest
at five percentage points over the then current discount rate of interest as announced from time to
time by the Federal Reserve Bank, San Francisco, California (the "Interest Rate") and in addition
to any other remedies available to the Maintenance Director, the Maintenance Director may collect
directly from such Owner's tenants, to the extent they are obligated to pay Common Area Expenses
pursuant to the terms of their lease or otherwise, the Common Area Expenses (including, without
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limitation, the management fees) due from the Owner. During the period of any delinquency
hereunder, the "Interest Rate" defined as aforesaid shall be adjusted quarterly, In no event shall the
rate of interest hereunder be greater than the highest rate then allowable by law. Any and all
delinquent amounts together with said interest may be imposed as a lien and charge upon all of the
Parcel or Parcels of such defaulting Owner ("Assessment Lien"). Such Assessment Lien may be
imposed by serving written notice on such defaulting Owner which shall contain a representation
of compliance of the provisions of this Article, an explanation as to the nature of the particular
obligation, the work or service involved and the cost thereof, together with the description of the
defaulting Owner's Parcel, and by duly recording a copy of said Notice of Assessment Lien in the
Official Records of the County. No such liens shall exist until such notice is duly served and
recorded as provided herein. Priority of such lien shall be determined as the date of filing same of
record; provided, however, any such lien shall nevertheless be subject and subordinate to the lien
of any first mortgage or deed of trust now or hereafter covering any portion of the Shopping Center.
Such Assessment Lien shall continue until fully discharged, and may be foreclosed in accordance
with applicable law. Such Assessment Lien shall secure not only the amount stated in the aforesaid
notice, but also the reasonable costs and expenses in enforcing the same.
5.8 Different Payment Times in Lease. Notwithstanding anything contained
herein to the contrary, in the event that the provisions of a particular lease between an Owner and
its tenant with respect to the calculation, time and method of billing and payment of Common Area
Expenses are different from the provisions of this Article, then (i) as between such Owner and its
tenant, the lease provisions shall prevail, and (ii) as among the Owners inter se and the Maintenance
Director, this Declaration shall prevail.
5.9 Default of Maintenance Director. The following shall constitute a default of
the Maintenance Director:
(a) The failure of the Maintenance Director to perform any of its material
obligations hereunder for thirty (30) days after receipt of written notice from any Owner,
where such performance could reasonably be completed within such thirty (30) day period
of time; or
(b) If such performance would reasonably require more than thirty (30)
days to complete, then either or both the Maintenance Director's failure to commence
performance of such material obligation within such thirty (30) day period of time after
receipt ofwritten notice from any Owner, or its failure to diligently pursue the performance
of such obligation to completion within such time as is reasonably necessary for completion
of such obligation.
If the Maintenance Director is in default as above provided, then any Owner may take such steps as
such Owner reasonably deems necessary to cure such default, and the amount expended therefor,
plus interest at the interest Rate, shall be billed by the performing Owner to the other Owners on a
pro rata basis and reimbursed by the billed Owners to such Owner within thirty (30) days after
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ARTICLE 6
REALTY TAXES AND ASSESSMENTS
6.1 Payment by Owner. As to any portion of the Shopping Center, it is intended
and agreed that all real estate taxes and assessments which may be levied, assessed, or charged by
any public authority against a Parcel or any part thereof, shall be paid prior to delinquency by the
respective Owner of said Parcel except for real estate taxes and assessments on or reasonably
attributable to the Common Area, which shall constitute Common Area Expenses as provided herein.
6.2 Rijzht to Contest. Should the Maintenance Director deem any tax or
assessment, or any part thereof (including the rate thereof, the assessed valuation of the Shopping
Center in question, or any appropriate aspect thereof), to be paid with respect to the Common Area
to be excessive or illegal, the Maintenance Director shall have the right to contest the same in the
name of the Owners after first requesting the Owner(s) to contest the tax or assessment and such
Owner(s) having declined such request. Such contest may be prosecuted so long as the validity or
amount is contested in good faith and the payment would affect or extinguish the right to prosecute
such contest; provided, that if at anytime, the payment of the whole or a part of such contested
amount shall become necessary to prevent foreclosure of the lien for such unpaid tax or assessment
because of non-payment, then each Owner shall pay or cause to be paid, with respect to its Parcel,
such tax or assessment to prevent such foreclosure. In any tax or assessment contest hereunder, all
Owners shall cooperate to the extent reasonably necessary.
6.3 Copy of Tax Sill to Maintenance Director. Within thirty (30)days after
receipt of written request from the Maintenance Director, each Owner shall submit to the
Maintenance Director true and correct copies of the most recent tax bill issued by the taxing
authorities for each Owner's Parcel(s). In the event an Owner fails to comply with such written
request from the Maintenance Director within such thirty (30) day period, and after an additional ten
(10) day written notice with which such Owner fails to comply, such Owner shall pay to the
Maintenance Director a sum equal to five percent (5%) of the applicable tax bill for each month or
portion thereof that such Owner fails to submit the tax bills to Maintenance Director. At the request
of any Owner, the Maintenance Director shall submit copies of any tax bills issued by the taxing
authorities for any Parcels within the Shopping Center,
6.4 Remedies for Non-Payment/Liens. In the event that any Owner fails or
refuses at any time to pay its share of any real estate taxes or assessments when due, then, after
written demand and failure to pay within ten (10) days after receipt of such demand, legal action may
be instituted against the defaulting Owner for reimbursement, plus interest at the Interest Rate.
During the period of any delinquency hereunder, the "Interest Rate" defined as aforesaid shall be
adjusted quarterly. In no event shall the rate of interest hereunder be greater than the highest rate
allowable by law. Any and all delinquent amounts together with said interest may be imposed as
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a lien and charge upon all of the Parcel or Parcels of such Owner. Such lien may be imposed by
serving written notice on such defaulting Owner which shall contain a representation of compliance
with the provisions of this Article, an explanation as to the nature of the particular default, together
with a description of the defaulting Owner's Parcel, and by duly recording a copy of said notice in
the Official Records of the County. No such liens shall exist until such notice is duly served and
recorded as provided herein. Priority of such lien shall be determined as the date of filing same of
record; provided, however, any such lien shall nevertheless be subject and subordinate to the lien
of any first mortgage or deed of trust now or hereafter covering any portion of the Shopping Center.
Such lien shall continue until fully discharged, and may be foreclosed in accordance with applicable
law. Such lien shall secure not only the amount stated in the aforesaid notice, but also the reasonable
costs and expenses in enforcing the same.
ARTICLE 7
EASEMENTS
7.1 Ingress and Egress. Declarants hereby establish for the benefit ofeach Owner
for its use and for the use of its Permittees, in common with others entitled to use the same, a
non-exclusive perpetual easement for the passage and parking of vehicles over and across the
parking and driveway areas of the Shopping Center, as the same may from time to time be
constructed and maintained for such use, and for the passage and accommodation ofpedestrians over
and across the parking, driveways, and sidewalk areas ofthe Shopping Center, as the same may from
time to time be constructed and maintained for such use. Except in the event of emergency repairs,
there shall be unimpeded access between the parking and driveway areas of the Shopping Center
and the buildings in the Shopping Center.
7.2 Non -Exclusive Nature. All of the foregoing easements shall be non-exclusive.
The Owner of a Parcel shall be entitled to grant, modify, and terminate similar non-exclusive
easements to others, whether or not they are Owners, Permittees, or otherwise have an interest in the
Shopping Center.
7.3 Utilities.
(a) r44:i:4 .a _:i:4:_ _,
L7tiltl ibs. Declarants: hereby establish for the benefit
of each Owneres;itit}x eopes�de�gnated layJau Q,r);non-exclusive perpetual
.,
easements in, to, over, under, along, and across those portions of the Common Area (exclusive of
any portion located within a Building Area' „ gti tiresiarrt;Sr$uf1l�ngArea,a�
111E d hereof,rgtrlrties°�Sha1µ gavrCtd fiby�,}�,-L,e`av s� pf thrs ec[t} located
... ....... ,. • .. h'Y'f. %'-.. {. uu::.o.._:_,;, ry -_, ....:..'.. ,l_ � .. - _.: t F r .4.,.._. ssiUl .}. iHJ a:. � .r i ...ui � „ ... ,....
on the Shopping Center reasonably necessary for the installation, operation, flow, passage, use,
maintenance, connection, repair, replacement, relocation and removal of Utilities serving the
Shopping Center, including but not limited to, sanitary sewers, storm drains, water (fire and
domestic), gas, electrical, telephone, and communication lines, vaults, meters, transformers,
pipelines, hydrants, sprinkler controls and conduits. Whenever feasible, Utility -�'ar ea '
shall be located below the surface of the Common Area, or below the surface of any other
above -ground improvements located thereon; provided, however, that in any event, (i) all U64ity
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Faeilitiest Twhich are located above the surface of the Common Area shall be placed so as not
to interfere with, restrict, or impede other uses of Common Area provided for herein; and (ii) no
Utility "--�;es-which must be located above the surface of the Common Area shall be installed
upon any Parcel without prior written consent of the Owner of that Parcel. A grantee Owner shall
be entitled to request from a grantor Owner the right to install a Utility Faeilityzacross the Common
Area of the grantor Owner's parcel. Prior to exercising the right granted herein, the grantee Owner
shall first provide the grantor Owner with a written statement describing the need for such easement,
shall identify the proposed location of the ll'Ttis� and shall furnish a certificate of
insurance showing that its contractor has obtained the minimum insurance coverage as required by
this Declaration. Any Owner installing Separate Utility pursuant to the
provisions of this subparagraph shall pay all costs and expenses with respect thereto (including all
maintenance and repair costs and expenses in connection therewith) and shall cause all work in
connection therewith (including general clean-up and proper surface and/or subsurface restoration)
to be completed as quickly as possible (and in any event within a commercially reasonable time) and
in a manner so as to minimize interference with the use of the Common Area, all of which activities
shall be subject to the prior written approval of the grantor Owner and the Maintenance Director.
If the Owners elect to install ;cja1e, all repair, maintenance,
replacement, and other work thereon shall be performed by the Maintenance Director as part of
Common Area maintenance.
7.4 Easements for Construction, Maintenance. and Reconstruction.
(a) Foundations and Footings. In order to accommodate any footings,
foundations, columns, or walls which may be constructed or reconstructed immediately adjacent to
a common boundary line and which may overlap that common boundary line, Declarants, for
themselves and each Owner, hereby establish non-exclusive easements in, to, over, under, and across
that portion of each Parcel adjacent to its common boundary line in space not theretofore occupied
by any then existing structure for the construction, maintenance and replacement of underground
footings to a maximum lateral distance of two (2) feet and for the construction, replacement and
maintenance of foundations, columns, or walls to a maximum lateral distance of six (6) inches. This
easement shall: (i) continue in effect for the term of this Declaration and thereafter for so long as
the building utilizing the easement area exists (including a reasonable period to permit reconstruction
or replacement of such building ifthe same shall be destroyed, damaged, or demolished); (ii) include
the reasonable right of access necessary to exercise and enjoy such grant upon terms and with the
limitations described in this Declaration; and (iii) shall not unreasonably interfere with or impair
grantor's use or development of its Parcel.
(b) Subterranean Construction. Prior to utilizing any easement set forth
in (a) above, the grantee Owner shall advise the grantor Owner and the Maintenance Director of its
intention to use the same, and shall provide plans and specifications and proposed construction
techniques for the improvements to be located within the easement area, and shall give the grantor
Owner an opportunity to commence any construction activities which it contemplates undertaking
to the end that each Owner involved shall be able to utilize subterranean construction techniques
which will permit the placement above ground of a building on each Parcel immediately adjacent
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015
to the common boundary line. If a common subterranean construction element is used, it is
specifically understood that the grantor and the grantee shall each assume and pay its reasonable
share of the cost and expense of the initial construction and, so long as both Owners are benefitting
therefrom, subsequent maintenance thereof. In the event any building utilizing a common
subterranean construction elementrtbtd' alte,,an cqurta $ubecan coitQr
ee$tiz['ft 'shall be left in place for the benefit of any building utilizing the same located
on the adjoining Parcel.
ARTICLE 8
INSURANCE
8.1 Types of Insurance. At all times during the term of this Declaration, each
Owner shall, at its sole expense, continuously maintain or cause to be continuously maintained the
following insurance:
(a) Standard fire and standard extended coverage insurance on all
buildings and other improvements located on its Parcel, other than Common Area improvements.
Said insurance shall be in amounts at least sufficient to avoid the effects of co-insurance provisions
of the policies.
(b) Commercial general liability insurance with coverage limits ofnot less
than Two Million Dollars ($2,000,000.00) combined single limit bodily injury, personal injury, death
and property damage liability per occurrence, insuring against any and all liability of the insured
with respect to the Building within the Owner's Parcel or arising out of the maintenance, use or
occupancy ofthe Building within such Parcel, subject to increases in the amount as the Maintenance
Director may reasonably require from time to time. All such liability insurance shall specifically
insure the performance by each Owner of the indemnity agreement as to liability for injury to or
death of persons and injury or damage to property in Section 8.3 below. Further, all liability
insurance shall include, but not be limited to, bodily injury, blanket contractual, cross liability and
severability of interest clauses, products/completed operations, broad form property damage,
independent contractors, owned, non -owned and hired vehicles and, if alcoholic beverages are
served, sold, consumed or obtained within any Building Area on such Parcel, liquor liability.
(c) All policies of insurance provided for herein shall be issued by
insurance companies with general policy holder's rating of not less than A and a financial rating of
not less than Class X rated in the most current available "Best's Key Rating Guide" and which are
qualified to do business in the State, and shall otherwise be in such form and contain such terms as
the Maintenance Director shall deem r a�tab appropriate, taklns�rr:ttt5 racourit'hex�turerz
clustry',ssdard. Executed copies of the policies of insurance or certificates thereof shall be
delivered to the Maintenance Directof a,i. ; eri<<_ L i ; i e j t Est. Thereafter, executed
copies of renewal policies or certificates thereof shall be delivered to the Maintenance Director
within thirty (30) days prior to the expiration of the term of each policy. All policies of insurance
delivered to the Maintenance Director must contain a provision that the company writing the policy
will give to the Maintenance Director thirty (30) days notice in writing in advance of any
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cancellation or lapse of the effective date of any reduction in the amounts of insurance.
(d) Notwithstanding the foregoing, the Maintenance Director may, but
shall not be obligated to, itself obtain some or all of such coverages on behalf of one or more
Owners, at such Owners' cost and expense.
8.2 Waiver of Subro ag tion. Each Owner hereby waives any and every claim
which arises, or may arise, in its favor and against any other Owner during the term of this
Declaration for any and all loss of, or damage to, any of its property located within or upon, or
constituting a part of, the Shopping Center, which loss or damage is covered by valid and collectible
fire and extended coverage insurance policies, to the extent that such loss or damage is recoverable
under said insurance policies. Said mutual waivers shall be in addition to, and not in limitation or
derogation of, any other waiver or release regarding any loss of, or damage to, the said property of
any Owner. Inasmuch as the said mutual waivers will preclude the assignment of any such claim
by way of subrogation (or otherwise) to an insurance company (or any other person, firm or
corporation), each Owner shall give to each insurance company which has issued to it policies of fire
and extended coverage insurance, written notice of the terms of said mutual waivers, and shall have
said insurance policies properly endorsed, if necessary to prevent invalidation of said insurance
coverages by reason of said waivers.
8.3 Indemnity. To the fullest extent permitted by law, each Owner ("Indemnitor")
covenants with the other Owners ("Indemnitees") that the Indemnitees shall not be liable for any
damage or liability of any kind or for any injury to or death of persons, or damage to property of
Indemnitor or any other person, from any cause whatsoever, related to the use, occupancy or
enjoyment of the Parcel by the Indemnitor or any person thereon or holding under the Indemnitor,
including, but not limited to, damages resulting from any labor dispute, and the Indemnitor shall
defend, indemnify and save the Indemnitees harmless from all liability whatsoever on account ofany
real or alleged damage or injury and from liens, claims and demands related to the use of the
Indemnitor's Parcel and its facilities, or repairs, alterations or improvements (including original
improvements and fixtures) which the Indemnitor may make or cause to be made upon the Parcel;
but the Indemnitor shall not be liable for damage or injury ultimately determined to be occasioned
by the negligence of an Indemnitee or its designated agents, servants or employees. This obligation
to indemnify shall include reasonable attorneys' fees and investigation costs and all other reasonable
costs, expenses and liabilities incurred by an Indemnitee or its counsel from the first notice that any
claim is to be made or may be made.
8.4 Insurance Maintained by Maintenance Director.
(a) At all times during the term hereof, the Maintenance Director shall
continuously maintain or cause to be maintained standard fire and standard extended coverage
insurance on the Common Area and improvements thereon in an amount as may be determined from
time to time by the Maintenance Director in the exercise of its reasonable business judgment and
commercial general liability insurance, including contractual liability coverage, endorsed to cover
bodily injury covering the Common Area.
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(b) The premiums for said policies shall be apportioned among the
Owners on a pro rata basis in accordance with Section 5.5. If the Maintenance Director hereafter
determines that it would be more feasible to insure each Owner's Parcel(s) separately, then, it is
agreed that the insurance coverage herein required by this Article will be placed in separate policies,
each for the amounts indicated, from the same insurance company, to avoid a conflict of claims, and
each Owner shall be named as an additional insured on the other Owner's policies.
ARTICLE 9
DESTRUCTION AND REBUILDING
9.1 Restoration of Common Area. In the event of any damage or destruction to
the Common Area, whether insured or uninsured, the Maintenance Director shall restore the
Common Area with all due diligence to the extent feasible to a condition at least as good as that of
the Common Area that existed immediately prior to such damage or destruction. Any uninsured
portion of the cost to restore the Common Area shall be deemed a Common Area Expense and
apportioned among the Owners as set forth in Section 5.5.
9.2 Restoration of Buildings. If an Owner's building is damaged or destroyed,
such Owner may, but shall not be obligated to, restore its building. If an Owner elects to so restore
its building, such building shall be restored to a condition at least as good as that of the building that
existed immediately prior to such damage or destruction and all such restoration and reconstruction
shall be performed in accordance with the following requirements, as the same are applicable
thereto:
(a) Plans and specifications therefor not previously approved for the
original construction of the building shall be subject to the approval of the Maintenance Director,
which approval shall not be unreasonably withheld.
(b) The building being restored shall be at least of equal value per square
foot, and at least as usable for its intended purpose, as such building was just prior to the happening
of such casualty.
9.3 Obligations if Owner Elects Not to Rebuild. In the event any Owner does not
rebuild and restore its damaged building(s), or other improvements under the provisions of this
Article, such Owner shall promptly clear its Parcel of debris and hazardous conditions, pave or
landscape same in a first-class condition such that it is harmoniously incorporated into the Shopping
Center and thereafter shall maintain its Parcel in a clean, safe and sightly condition free of weeds,
dust or other debris; provided, however, that in no event shall any Owner have the right to withdraw
its Parcel or portion thereof from the Common Area, or from any easements created and provided
for hereunder, at any time during the term of this Declaration.
ARTICLE 10
NOTICES
10.1 Requirements. All notices, consents, requests, demands, approvals, waivers
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and other communications desired or required to be given hereunder (referred to collectively as
"Notices") shall be in writing and signed by the party so giving the notice, and shall be effective
when personally delivered or when deposited in the United States mail, as certified or registered
mail, return receipt requested, first class postage and fees prepaid, or if given by same -day or
overnight private courier, shall be effective as confirmed by the private courier service making
delivery. All Notices shall be addressed as follows:
If to ACG: ACG - Kalispell Investors, LLC
c/o American Capital Group LLC
115 S. LaCumbre Lane, Suite 302
Santa Barbara, Montana 93105
Attention: Hugh Boss
If to the City:
If to an Owner: At such address as an Owner provides
to Develeperthe other Qwners in writing.
_t � _...........,_, .
10.2 Change of Address. Anyone entitled to receive Notices hereunder may, from
time to time, change his or its address for receiving Notices by giving written notice thereof in the
manner outlined above.
ARTICLE 11
EFFECT TERM AND TERMINATION
11.1 Run With the Land/Term/Renewals. The covenants, conditions and
restrictions contained in this Declaration shall be recorded and run with the land and be binding upon
each and all of the Owners (and upon all Persons claiming under them) for a period of sixty (60)
years from the recording date hereof (unless terminated as provided in Section 11.2 below) and shall
be deemed automatically extended in ten (10)-year increments thereafter unless the Owners holding
sixty percent (60%) of the Floor Area of the Shopping Center agree in writing to terminate the
Declaration on or before the expiration of such sixty (60)-year term or the
expiration of any ten (10)-year extension period; provided, however, that the easements contained
in Section 7.1 shall be perpetual.
11.2 Amendment and Termination. This Declaration may only be amended or
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terminated by the written agreement of Owners holding sight percent (fu4) of the Floor
Area of the Shopping Center, duly acknowledged by each and recorded in the Office of the County
Recorder of the County.
ARTICLE 12
HAZARDOUS MATERIALS
12.1 Compliance with Laws. Each Owner (and to the extent that any tenant has
caused Hazardous Materials (as defined below) to be stored, used or disposed of on any part of the
Shopping Center, each such tenant), at its sole cost and expense, shall comply with all federal, state
and local laws relating to the storage, use and disposal of hazardous, toxic or radioactive matter
including, without limitation, asbestos, polychlorinated biphenyls, petroleum (or petroleum
products), hydrocarbonic substances and constituents of any of the foregoing, any substance which,
because of toxicity, corrosivity, reactivity, ignitability, carcinogenicity, magnification or
concentration within biologic chains, presents a demonstrated threat to biologic processes when
discharged into the environment, (collectively, "Hazardous Materials"). In the event any Owner or
tenant does store, use or dispose of any Hazardous Materials",(ptir 1hnhase;cStsedX,'cx
disposed afiin r�o l #ltz ►t}ties �n ina ner eoi sisterit tyvitlt apphca1 law and cttsto raatidd
w.,. .
dxinectxbiiti oerties 511Ti1�iLT tt} the'Shoppzxig`Ceiter), such Owner (or in the case of a tenant
who has caused Hazardous Materials to be stored, used or disposed of on any part of the Shopping
Center, such tenant) shall notify the Maintenance Director in writing at least ten (10) days prior to
their first appearance on the Shopping Center. Each such Owner or tenant shall be solely responsible
for and shall defend, indemnify and hold the Maintenance Director, the Maintenance Director's
agents and employees, the other Owners and their agents and employees and the Shopping Center
free and harmless from and against all claims, costs and liabilities, including attorneys' fees and
costs, arising out of or connected with a violation of local, state or federal law with respect to such
Hazardous Materials and the removal, clean-up and/or restoration work and materials necessary to
return the Shopping Center, and any other property of whatever nature, to their condition existing
prior to the appearance of the Hazardous Materials on the Shopping Center. A tenant's obligations
under this Article shall survive the termination of its lease. An Owner's obligations under this
Article shall survive the termination of this Declaration.
12.2 Notices and Reports. Each Owner shall notify the Maintenance Director and
th .ptlter (3wners and'provide the Maintenance Director atepy e , a€ ether { wr>ers }_V copies
.:.,..: r....a.,.
of the following environmental entitlements or inquiries related to any part of the Shopping Center:
Notices of violation, notices to comply, citations, inquiries, reports filed pursuant to self -reporting
requirements, and reports filed pursuant to any governmental law or regulation relating to
underground tanks. In the event of a release of any Hazardous Materials into the environment, each
Owner shall furnish the Maintenance Director a-eapyanc}!the, pier Owners watll got $ of any and
all reports in its possession relating to the release. Each Owner or tenant shall furnish to the
Maintenance Director a-eepy-erz�o#t e( irk copies of any and all other environmental
entitlements or inquiries relating to the Shopping Center including, but not limited to, all permit
applications, permits and reports including, but not limited to, those reports and other matters which
may be characterized as confidential, provided that the Maintenance Director aridthy.�ath=Qners
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may only use any such confidential reports and other matters to enforce its rights and responsibilities
under this Declaration.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 Binding Effect. The foregoing covenants, conditions and restrictions:
(a) Shall apply to and bind each and all of the Owners and each and all
of their respective heirs, successors, assigns, grantees, mortgages, tenants and subtenants to the
extent specifically provided herein;
(b) Are hereby imposed pursuant to a general plan for the improvement
and use of the Shopping Center and are designed for the mutual benefit of the Owners and the
tenants, subtenants and occupants of any and all portions thereof; and
(c) Shall obligate, inure to and pass with each and every portion of the
Shopping Center and shall remain in full force and effect as provided herein.
13.2 Liens. Breach of any of the covenants or restrictions contained in this
Declaration shall not defeat or render invalid the lien of any mortgage or deed of trust made in good
faith, but all of the foregoing provisions, restrictions and covenants shall be binding and effective
against any Owner of any portion of the Shopping Center, or any part thereof, whose title is acquired
by foreclosure or trustee's sale or by deed in lieu of foreclosure or trustee's sale; provided, however,
any such Owner whose title is acquired by foreclosure or trustee's sale shall take title free of any
liens created or provided for hereunder, but any such Owner shall otherwise be subject to the
provisions hereof, and shall be liable for any liens arising after the date such Owner acquires title.
13.3 Mortgagees. The term "mortgagee," wherever used herein, shall be construed
to include beneficiaries and trustees under deeds of trust. Notwithstanding any other provisions in
this Declaration for notices of default, the mortgagee of any party in default hereunder shall be
entitled to notice of said default, in the same manner that other notices are required to be given under
this Declaration, provided, however, that said mortgagee shall have, prior to the time of the default,
notified the Nlairftnwtee `= -e`o'a-1.Ovvzxrs: of the mortgagee's mailing address.
13.4 Remedies. It shall be lawful for any Owners to prosecute any proceedings at
law or in equity against any Owners violating, or attempting to violate, any of the covenants,
conditions and restrictions herein, and either to prevent it, him or them from so doing or to recover
damages from or on account of such violation. Such proceedings may include, but shall not be
limited to, actions against the defaulting Owner for specific performance.
13.5 Partial Invalidily. Invalidation of any one of the covenants, conditions,
restrictions or other provisions herein contained by judgment or court order shall in no way affect
any of the other covenants, conditions, restrictions or provisions hereof, and the same shall remain
in full force and effect.
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13.6 Privity. This Declaration shall create privity of contract and estate with and
among all grantees of all or any part of the Shopping Center and their respective heirs, executors,
administrators, successors and assigns.
13.7 Attorneys' Fees. In the event that any action or proceeding is brought for the
enforcement of this Declaration or as the result of any alleged breach, the prevailing party or parties
shall be entitled to be paid court costs, including reasonable attorneys' fees, by the losing party or
parties as well as all fees, costs and expenses incurred in connection with such action or proceeding,
including, without limitation, any post judgment fees, costs or expenses incurred on any appeal or
in collection of any judgment and any judgment or decree rendered shall include the same in the
award.
13.8 Condemnation. In the event of any condemnation (by any duly constituted
authority for a public or quasi -public use) of all or any part of the Shopping Center, the portion of
the award attributable to the value of any land within the Common Area shall be payable only to the
Owner(s) thereof, and no claim therefor shall be made by other Owners of any other portion of the
Shopping Center; provided, however, that the "....eeiatio or any or all other Owners of the
Shopping Center may file collateral claims with the condemning authority over and above the value
of the land taken, and provided further, however, that the Owner of any portion of the area so
condemned shall promptly repair and restore the remaining portion of the area owned by such Owner
as nearly as practical (to the extent of the condemnation award proceeds) to its condition
immediately prior to the condemnation without contribution from any other Owner. If such Owner
fails to do so, the Maintenance Director shall have the right to do so and charge back the cost thereof
to the breaching Owner. The foregoing shall not alter or render ineffective the provisions of any
lease between an Owner and tenant providing for the allocation of a condemnation award between
them.
13.9 Additional Pr e . Subject to obtaining the consent Owners of sixty percent
(60%) of the Floor Area, the Owners may annex additional property to the Shopping Center by the
recordation of a supplemental declaration in the Official Records of the County. Upon such
recordation, all provisions in this Declaration shall apply to such additional property as if it were
originally covered by this Declaration.
13.10 Cations. The captions heading the various Articles of this Declaration are
for convenience and identification only, and shall not be deemed to limit or define the contents of
their respective sections.
13.11 First Class Condition. Each Owner shall keep, maintain, repair, manage and
operate the buildings located on its respective Parcel(s), whether occupied or unoccupied, (i) in a
first class manner, (ii) in a first class and clean order, operation, condition and repair in conformity
with the highest standards of cleanliness and attractiveness for first class shopping centers in the
County, and (iii) in such manner to establish, maintain and present, at all times, the appearance of
a clean, well -managed, attractive, well coordinated and unified operation.
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13.12 Third F= Beneficiaries. No rights, privileges or immunities conferred upon
Owners by this Declaration shall inure to the benefit of any tenant, customer, employee or invitee
of the Shopping Center or any portion thereof or any other third party; nor shall any tenant,
customer, employee or invitee of the Shopping Center or any other third party be deemed to be a
third party beneficiary of any of the provisions contained herein..:;1?1t?#1;t„adfg;,thfFzi#n
13.13 Governing Law. This Declaration, and the rights and obligations provided
for herein, shall be governed by and interpreted in accordance with the laws of the State.
13.14 Estoppel Certificates. Upon twenty (20) days' written notice, the Maintenance
Director ami" ;v 'Ip`11shall have the right to request an estoppel certificate from each Owner of a
Parcel comprising the Shopping Center that (d l t. ',;k i) the Declaration is in full force and
effect, without modification (or, if there have been modifications, that the same is in full force and
effect as modified, and stating the modifications); (ii) that the knowledge of the certifying party there
are no uncured defaults in a party's performance under the Declaration; (iii) that no more than one
(1) month's share of Common Area Expenses have been pre -paid by such Owner; and (iv) any other
matters reasonably requested by the Maintenance Director7o,",li.
IN WITNESS WHEREOF, this Declaration is executed as of the day and year first above
written.
"ACG"
ACG - Kalispell Investors, LLC, a
Montana limited liability company
By its manager:
American Capital Group, LLC, a
California limited liability company
MC
"City"
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CAHMB\225\ccrs2.wpd
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C:\HMB\225\ccrs2.wpd
01/31/00 16:24 C3805 682 8393 AMERICAN CAPITAL 1�j024
STATE OF
) ss.
COUNTY OF
On , before me, , a Notary Public in and for said
state, personally appeared , personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF }
ss.
COUNTY OF 1
On , before me, , a Notary Public in and for said
state, personally appeared , personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
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C:\HMB\225\ccrs2.wpd
ovvdo 16 :-25 ....C1805 682 8393.... ... .. Ankh 1N CAPITAL au�
LEGAL DESCRIPTION OF SHOPPING CENTER
[To be provided.]
13XHIBIT"A"
C:\fIMB\225\ccrs2.Nvpd
0 1 3 1 /00 ...........
SITE PLAN OF SHOPPING CENTER
EXI-11111T "B"
C:\HMB\225\ccrs2.Nvpd