Restrictive CovenantI
RESTRICTIVE COVENANT
THIS AGREEMENT and Restrictive Covenant made and entered into this 2-0 day
of December, 1997, by and between the CITY OF KALISPELL, a municipal corporation,
hereinafter "Covenantor, " and RSI, L. L. C., a Washington limited liability company being
qualified in Montana, the sole initial member of which is ROSAUERS SUPERMARKETS,
INC., a Washington corporation, hereinafter "Covenantee. "
WITNESSETH
WHEREAS, the Covenantor and Covenantee have entered into a Purchase Agreement
whereby the Covenantor has agreed to sell to Covenantee, and Covenantee has agreed to
purchase, Lot 2, Daley Field Subdivision, located in NW 1/4, Section 20, T28N, R21W,
P.M.M. , Kalispell, Flathead County, Montana; and
WHEREAS, the Purchase Agreement contemplates the Covenantee's construction of a
grocery store/pharmacy on said property, as well as the installation of certain infrastructure
improvements deemed necessary for the operation of a grocery store/pharmacy, pursuant to a
Development Agreement; and
WHEREAS, the Purchase Agreement and Development Agreement are executed in
furtherance of an Urban Renewal Plan, pursuant to Title 7, Chapter 15, Parts 42 and 43
Montana Code Annotated; and
I WHEREAS, the parties hereto, in an effort to meet the policies set forth in Urban
Renewal Law, consider it necessary to place a restrictive covenant on the use of Lots 1 and
3, Daley Field Subdivision which are being retained by the Covenantor for future
development projects and to place a restrictive covenant regarding billboards and off -
premises signage on Lots 1, 2, and 3, Daley Field Subdivision.
Jri
NOW THEREFORE, in consideration of the sum of one dollar and other valuable
consideration ($1.00 and OVC) the receipt and sufficiency whereof is hereby acknowledged:
11
1.1 Covenantor, for itself and its successors and assigns, herein covenants with the
Covenantee, its successors and assigns, that Covenantor will not sell, lease or
otherwise transfer, all or any part of either or both Lot 1 or Lot 3, Daley Field
Subdivision, located in NW 1/4, Section 20, T28N, R21W, P.M.M., Kalispell,
RESTRICTIVE COVENANT - 1
Flathead County, Montana, to any grantee or grantees for the purpose of
development, ownership, lease, and/or operation of a grocery store or pharmacy, as
defined herein, nor shall any portion of Lots 1 or 3 be used for the operation of a
grocery store or pharmacy as defined herein. This covenant shall arise upon its filing
and, subject to Section 1.4, below, shall continue so long as Covenantee, its
successors and assigns operate a grocery store and pharmacy on Lot 2, Daley Field
Subdivision.
1.2 For purposes of this Restrictive Covenant, "grocery store" shall be defined as: a retail
sales operation, containing at least 5,000 square feet which sells food and beverages.
1.3 For purposes of this Restrictive Covenant, "pharmacy" shall be defined as: a retail
sales operation which sells prescription pharmaceuticals.
1.4 This Restrictive Covenant shall terminate and shall be null and void if Covenantee is
not operating a grocery store or pharmacy on Lot 2, Daley Field Subdivision on or
before the later of (1) January 1, 2001; or (2) one (1) year after the date on which the
Covenantor completes installation of a traffic light at the private drive between Lots 1
and 2, Daley Field Subdivision and U. S. Highway #93.
1.5 This Restrictive Covenant shall run with Lots 1 and 3, Daley Field Subdivision, and
shall be binding upon and inure to the benefit of the respective parties, their heirs,
successors and assigns, and, subject to Sections 1.1 and 1.4, shall continue until the
owner of Lot 2, Daley Field Subdivision, together with owner(s) of that portion of
Lots 1 and 3 of Daley Field Subdivision representing at least two-thirds (2/3) of the
total square footage of Lots 1 and 3, covenant to alter, modify, or eliminate all or
part of such covenant.
1.6 The provisions herein contained shall bind and be to the benefit of and be enforceable
at law and in equity by Covenantee, its successors and assigns. Failure by
Covenantee, its successors and assigns, to enforce any of the restrictions, conditions
and covenants herein contained shall in no event be deemed a waiver of the right to
do so thereafter, and shall not subject Covenantee, its successors and assigns, to any
liability for failure to enforce.
2.1 Covenantor and Covenantee, for themselves, their successors and assigns, hereby
covenant with one another that neither Covenantor nor Covenantee will erect, nor
lease, sell, license, or otherwise allow others to erect billboards or other off -premises
RESTRICTIVE COVENANT - 2
signage advertising products or businesses other than the commercial occupant(s) of
Daley Field Subdivision. The covenant herein described shall apply to, shall bind,
and shall constrain billboards and signage on Lots 1, 2, and 3, Daley Field
Subdivision, located in the NW 1/4, Section 20, T. 28N, R. 21W, P.M.M.,
Kalispell, Flathead County, Montana.
2.2 This Restrictive Covenant shall run with Lots 1, 2, 3, Daley Field Subdivision, and
shall be binding upon and shall inure to the benefit of the respective parties, their
heirs, successors, and assigns. It shall continue until owners of those portions of Lots
1, 2, and 3 of Daley Field Subdivision representing at least eighty percent (80%) of
the aggregate square footage of Lots 1, 2, and 3, with the consent of the City of
Kalispell, covenant to alter, modify, or eliminate all or part of such covenants.
2.3 The provisions herein contained shall bind and be to the benefit of and be enforceable
at law or in equity by Covenantor, Covenantee, and their successors and assigns.
Failure by either of such parties, or such party's successors and assigns, to enforce
any of the restrictions, covenants, and conditions herein contained shall in no event be
deemed a waiver of the right to do so thereafter, and shall not subject such party to
any liability for failure to enforce.
DATED this 224 day of December, 1997.
CITY OF KALISPELL
a municipal corporation
By
Title
STATE OF MONTANA )
:ss.
County of Flathead )
RSI, L.L.C.
a Washington limited
liability company
By ROSAUERS SUPERMARKETS, INC.
Member
President
On this .7 -C --day of Oeeem�e®-- , 1997, before me personally appeared
tell r et, r r to me known to be the _ of the CITY OF
KALISPELL, the municipal corporation that executed the within and foregoing instrument
and acknowledged said instrument to be the free and voluntary act and deed of said
RESTRICTIVE COVENANT - 3
/50L9
corporation, for the uses and purposes therein mentioned and on oath stated that he is
authorized to execute said instrument and that the seal affixed is the corporate seal of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
tib ay°ad,year first above written.
m'N'OTARY UBLIC in and for the State of
Montana, residing at I m_
Print Name: C I& r-
° My Commission Expires: „�, tCf , t 14
STATE OF WASHINGTON )
ss.
County of Spokane )
On this 24 day of , 1997, before me personally appeared
LARRY D. GELLER, to me known to be the President of ROSAUERS SUPERMARKETS,
INC. the initial member of the limited liability company that executed the within and
foregoing instrument and acknowledged said instrument to be the free and voluntary act and
deed of said limited liability company, for the uses and purposes therein mentioned and on
oath stated that he is authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
�(LA'Y PUBLIC in and for the State of
residing at
Print Name:
My Commission Expires: Lt- l - 204n t
F: \USERS\16399\CO V -2. ! DO: j 1c
12/24/97
10:00 am
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STATE OF MONTANA }
as
County of Flathead ) f
,4cnd at the request of ` A
It14�L a 13- a'ei / 1h
_..,.._ day of .-------__-�..�_
RESTRICTIVE COVENANT - 4 amd recorded 9n the records ofsthead County, Sate o Montana. +