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5. Final Plat - Hutton Ranch PlazaREPORTob FROM SUBJECT City of Kalispell Planning Department " - 2d Street East, Suite 211, Kalispell, Montana 59901 Telephone* o 751-1850 �Fax-. (406) 751-1858 Websit : kalispe 11planning.com Kalispell Mayor and City Council Sean Conrad, Senior Planner James H. Patrick, City Manager Final Plat for Hutton Ranch Plaza Phase l MEETING : May 1, 200 BACKGROUND: This is a request from from Morrfson Ma er e, Inc. for final plat approval of Hutton Ranch. Plaza Phase I that plats 17 commercial lots on approximately 46 acres. The property is located on the east side of US Hwy 93 between Flathead Valley Community College and the Mountain View Plaza. The properties can be described as Assessors Tract 3 and a portion of Assessor's Tract 4G located in section 31, Township 29 North Range 21 West, P.M.M., Flathead County, Montana. The Kalispell City Council approved this subdivision subject to 20 conditions on duly 5, 2005. All of the conditions have been adequately met or otherwise adequately addressed. A Subdivision Improvements ents Agreement SIA) along with a letter of credit in the amount o $2,303,875.00 has been submitted with this plat to address 1 2 5 of the cost to install infrastructure including but not limited to the access street, hydrants, store sewer and drainage facilities and landscaping. The improvements are anticipated to be completed by September 1, 2006. The Kalispell Public Works Department and Parks and Recreation Department have reviewed and approved the estimated costs to complete the items listed in the S.A. RWOMME ' AT N: A motion to approve the final plat for Hutto. Ranch Plaza Phase I and to accept the Subdivision Improvements Agreement would be in order. FISCAL EFFECTS: positive impacts once developed. ALERNA `rVES. As suggested by the city council. Respectfully ub -ted, { { Scan Conrad Senior Planner Report compiled; .p it 25, 2006 James H t Patrick City Manager Attachments: Letter of transmittal Final plat application and supporting ument Rem r to: Theresa Writ Kalispell City Clerk P., Box 1997 Kalispell, MT 59903 APPENDIX E SUBDIVISION IMPROVEMENT AGRE.EMENT THIS AGREEMENT made and entered into this day o ��2006, by andbetween the CITY COUNCIL, CITY OF KALISPELL, moNrAN, A., Party of the First Part and hereinafter re -(erred t ��cI�a�1_�� as t CITY, and �-----� located at 4 Sunset Plaza., Suite 20 alispell, 1thead., Monta, 901 , Pzirty of the Second Part trect AcldrJP. 0. Box) (City, County, State, Zip and here-Inafter referred to as DEVELOPER. THAT WHEI A � the Developer is the ownerand developer o a new subdivision kno v a as Hutton Rancid Plaza. Phase I t d t : 13 Hutton Ranch d, Kalispell, T 01 �. � afl n of ub ivi im � � ai ne, or S u bdi v i ion hereinafter known as The Project, and W11EI E, � the City has conditioned it's approval. of t -final plat of flutt.on Ranch Plaza Phase i, upon satisfaction of conditions as set forth in the Development Agreement between the City and Developer as well as improvements in the Project. The Public Improvements have not been completed at this time, and the Developer wishes to bond for the completion of those improvements set forth in the Development Agreement between the City and the Developer. WHEREAS, the it 's Subdivision I g .iatio s require that a subdivider shall provide a financial e rity � i 2 � o the estimated total cost ofconstruction o said iraprov ment evidenced b �. estimateprepared by ii licensed public engineer included herewith a "Exhibit 1" ; and WHEREAS the estimated total cost o f con struction of'said r maj ning public improvements is the sum MA-1100M. NOW THEREFORE, 'ORE, In considefationof the approval of the final plat of said S ivi i n'bar the City, the Develover hereby agrees as follows; 1. The Developer shall deposit as collateral with the City a Letter of Credit, or other acceptable collateral as determined by the City Council, in the amount of $2,303,875.00. Said Letter of Credit or other collateral shall have an expiratio.n date of at least sixty days following; the date set ."or completion o of the improvements, certifying the follo fi : . That the creditor guarantees funds in the sup of $2,303,875.00 the estimated cost of completing the required improvements 1n Hutton. Ranch Plaza Phase 1. (Name of Subdi i x xi) . That if the Developer falls to complete the specified improvements ithin the required period-, the creditor will pay to the City immed atel , and without further action, such funds as are neeessary to finance the completion of those improvements up to the limited of credit stated in the letter; 2. That said required improvements shall be fully eo p .eted by May 31, 200, 3. That upon. completion of the required improvements, the developer shall cause to be filed with the City a statement certifying that: a. All required improvements are complete; . That the improvements are in compliance with the minimum standards specified by the City for their construction and that the Developer warrants said improvements against any and all defects for a period of one 1 year froin the date of acceptance of the completion of those improvements by the City; e. That the :developer knows of no defects in those improvements; d. That these improvements are free and clear of any encumbrances or liens: e. That a schedule of actual construction costs has been filed with the City; an d., All applicable Fees and surcharges have been paid. . 'rhe Developer shall cause to be filed with the City copies of final plans, profiles, grades and specifications of said improvements, with the certification of the registered professional engineer responsible for their preparation that all required improvements have been installed in conformance with said specifications. T IS ALSO AGREED BY AND BETWEEN r THE PARTIES HERETO AS FOLLOWS, To -WIT: That the Developer shall provide for inspection of all required improvements by a registered professional engineer before the Developer shall he released from the Subdivision Improvement Agreement. That if the City determines that any improvements are not constructed in compliance with the specifications, it shall furnish the Developer with a list of specific deficiencies and may withhold collateral sufficient to insure such compliance. If the City deter -mines that the developer will not construct any or all of the improvements in accordance with the specifications, or within the refired time . a its} it may withdraw the collateral and employ such funds as may he necessary to construct the improvement or improvements nts in accordance with the specifications. The unused portions of the collateral shall he retumed to the Developer or the crediting institution, as is appropriate. E%; WI"I'NESS WHE .- LO y the Parties have hercunto set thoir hands and. seals lie day and year herelila before, written. .. ...... --A� 11-11----- .... I ------ - — - ---------------- {N b ivl i /Developer/firm by �.M7' 'ritle . � joclayo �� .,.. v, , l elbe me, a No axy Pubtic for the State of Montana, a, rso a fly appeared � �° � � �. �. �known to me to be the __. of :: _ wNwNNN.Nww N whose name is subscribed to theforegoing instrument and acknowledged to me thathe/she executed the same, IN WITNESS WHER ., h e hereunto set my hand rand affixed my Notarial Seal this day and year first above W ¢' Not public for the State of Montana 'kesid-ing at My Commission Expires. t _5 T NOTARY tt BLI A O F AN MAYOR, .�C Off., CITY OF KALISPELL ATTEST: TESTt Residing al Ka{;Qpen, moniana Y2007 MAYOR. 17IN LU�,' EXHIBIT `his agreement specifically includes the following jm ro er, e .ts, their projected construe tiocompletion date and estimated construction costs. CHECK CONSTRUCTION ESTIMATED PERCENTAGE APPROPRIATE COMPLETION CONSTRUCTION COMPLETE IMPORVEMENITS DATE COSTS Street Grading/Paving' X Street Base! X I -S' -2 0 277 0% Sidewalks' X Curbs and Gutters' X Sanitary Servers Mains X 1-Sep-2 06 $23 ,100. 0 24% Other On -Site Sewage Facilities Water Systems Mains Fire hydrants On-Site'Water Supply Water Storage Tanks Storm Sewer or Drainage Facilities Street Signs Street Lighting Street Monuments Survey Monument Boxes Landscaping/ Boulevard trees' Other X I -Sep-200S22, o0.00 0% X X 1-Sep-2 06 $8491500.00 X I -Sep-2 0 1.0,000.00 0 X I -Sep-2006 $971000.00 % X 30- t-2oo , 00.0 % SUBTOTAL 1, ,1 o. o FEES $26300. 0 TOTAL COSTS , 3,1,J . 00 TOTAL COLLATERAL (TO ALS COSTS X 12 % $2,30, 7 . o x Hy Includes Hutton Ranch Road and Highway 93 Access Improvements GLACIER }r u IM?EVOCABLE LETTER OF CREDIT Letter of Credit No. 1-06-284 Dated: April 25,, Zoo Expiration Date: July 31, Zoo Amount: $2,1303.,875.00 Kalispell City Council City of Kalispell o Box 1997 Kalispell, MT 59901 We fiery establish In your favor are Irrevocable Letter of Credit up to the aggregate . amount o $2,303,875.00 at the request of Hutton Raney Plaza Associates, LLC. If Hutton Ranch Plaza Associates, LLC fails to complete the specified improvements i the Hutton Ranch Plaza Phase L Within the time period set forth in the attached Improvements Agreement, we will pay on demand your draft or drafts for such funds, t the limit of credit set forth herein, as are required to complete said improvements. All drafts rust indicate the number and date of this Letter of Credit and be accompanied by a signed statement of an authorized official, that the amount is drawn to install improvements not installed in conformance with the Improvement Agreement and s eeif ' the default or defect in question., All drafts must be presented prior to the expiration date stated above, and this Letter o. Credit must accompany the final craft .r payment. This letter may not be withdrawn n r reduced in any amount prior to its expiration date except by your draft or written release. Unless otherwise expressly states, this Letter of Credit is subject to the Montana Unifonn Commercial Code and the Uniform Customs. and Practice for the I oeur e ,tarry Credits (1993 Revision) Intematx nai Chamber of Commerce Document No. goo. SSi Sincerely, ax Dennis S. Beams Executive Vice President Glacier Bank n�rcrvzo-sva�ssa;Y:e.^';v_,nv�.^:::,�;!vrff�:.o.�rkw}r�o.✓n. r}.fr_..trra>;.r_vo-sssr::},r�:}�:,e.'r,�;excx}�,<.�,uc>:<s;xz:r:'.csre'.a'ro,.'�w,max>rio.::e•}}.;o-'su}.:,�:a:}}}Svc:xtxt�r.};:y.:'�>:r�:'e::^.�:ooKodox��xc;.rf..:vtsx},cs�},e:e'rr.}o'srrw�xxr.:Syr:sr}.�tr,�}r}r.:.rr..::'xr;�xxKxr,�rw �}}.r},r.,r}.'-a:r},rr}.:,e':cY.'xYoow�s�r}}.o,e:�r}},r.}r},rcv},r}}}: %%c{}rx �,�,r},rr�-,rx:r.'.:s::^xrrxwox:r�',r�//,r.;aarr},e�xv,�;v'}err,Erarew'}w'xa:�'::�,«z^o'>r: w s t ! www. l cl' r kwc m email■■j! glacier@ l c r nk.com �xY,C,:.n:r,C..::'..'.:..�'^.:'a:�5a',r},:C,C,Ch,F1.`..'Sx�'.'x._r�ao'},C,C,C}},C,:✓},F1;,C,C.=^u:.:; sxxxY.-}},C.:',C.+Fi#,fb,+wxx-xS{.:,C,CST'rN'4?'F:'Ja::::TYx�:'4ti:`��'.,ti,'C,fl.!};,f.'N'},C.:'}}Jti;C,C�4r,C,CY:.A:N'O'Tl'.'�'J�:a'R'>�;xx%xC^��}}},F^.},Cx:F!,u,:Y,C,C'.'A'rrA',h::.'�x�:Y },Y';N',C,Cr,C}+++��.YA'A:NTH::�'?�'N}F.=+�.',.X,r,CC,C!',CY.,r,C'A'� TY',W,d.',RK'%:9°:{Coh! :',r:,K,C,CYr,NT:w},?'f0..�CN'A',CbYY.YA'>R'9:� . F��.�fnLCr:.',F'W.,FT',FT'k!'A'A',NA'ARTQ::T�N�;`Jri:..:.,C,C,C,CC.+F',C,r},C �?:,C',rY.,C'1'A'A=THY-,oLC,oxl! MEMBER FDIC AN EQUAL OPPORTUNITY LENDER City of Kalispell Planning Department 17-2ndStreet East, Suite 21.1, Kalispell, Montane. 5 9 9 01 Telephone: 406) 751-1850 Fax: 406 751-185 We ite: kalls ell la nin .com James I . Patrick, City Manager City of Kalispell P.O. rawer 1997 Kalispell, MT 59903 Re: Final Plat for Hutton Ranch sh la a Phase I Dear dim: Our office has received an application from Morrison Malerle, Inc. for final plat approval of Hutton Ranch Plaza Phase I that plats 17 commercial lots on approximately 46 acres. The property is located on the east side of US Hwy 93 between Flathead Valley Community college and the Mountain View Plaza. The properties can be described as Assessors Tract 3 and a portion of Assessor's Tract 4G located In section. 31, Township 29 North Range 21 West, P.M.M., Flathead County, Montana. The Kalispell City Council approved this subdivision subject to 20 conditions on duly 15, 2005. All of the conditions have been adequately met or otherwise adequately addressed. A Subdivision Improvements Agreement S along with a letter of credit in the amount of $2,303,875.00 has been submitted with this plat to address 125% of the cost to install 'infrastructure including but not limited to the access street, hydrants, storm sewer and drainage facilities and landscaping. The improvements are anticipated to be completed by September 11 200. The Kalispell Public Works Department and 'arks and Recreation Department have reviewed and approved the estimated costs to complete the items listed In the SIA. The following is a list of the conditions of preliminary plat approval for this subdivision and a discussion of how they have been met or otherwise addressed, COMPLIANCE NTH CONDITIONS OF APPROVAL Condition No. 1. That the development of the site shall be in substantial cor plia . e with the application submitted, the site plan, materials and other specifications as well as any additional conditions associated with the planned unit development as approved by the city council. Kalispell Subdivision Regulations, Appendix C - Final Plat) • This condition is met. The final plait for Phase l is in compliance with the approved preliminary plait and future construction will be required to comply with conditions listed in the preliminary plat requirements as well as the approved planned unit development. Condition No. 2. That the plans and specifications for all public infrastructure e designed and In accordance with Kalispell's Standards for Design and Construction standards and a letter shall be obtained stating that they have been reviewed and approved by the Kalispell Public Forks Department. (Kalispell Subdivision Regulations, Chapter 3, Design Standards, section 3.o. • The Kalispell Public Works Department has reviewed and approved the plains for the waiter and sanitary y sewer system. The developer has submitted an SIA to cover the costs of additional infrastructure. These plans have not been reviewed and approved by the Public Works Department to date. Condition No. 3. A letter shall be submitted with the final plat from . are engineer licensed In the state of Montana certifying the improvements have been constructed in accordance with the approved plains and specifications. s built drawings shall be submitted to the Kalispell Public forks Department prior to final plat submittal for the completed infrastructure. letter- from the public works department shall accompany the engineer's eer-ti oa.tion stat*n that this Cor dition a.s been r t or o�e�se adequately addressed (Kalispell subdivision Regulations, Chapter 3, Design Standards, Section 3,.01) The developer is bonding for the required improvements. Therefore, a letter from the pro'ect engineer and the Public Works Department will be forthcoming once all of the improvements are in place. Condition No. 4. The proposed development ent area within the site shall be substantially the same as indicated on the preliminary site plan submitted with the application or as modified by these conditions. • This condition is met. Future constr-uction on the site will be reviewed to insure it is in substantial compliance with the approved preliminary site plain. Any changes outside the scope of the preliminary plat may require additional review. Condition No. S. That the internal access roa.d at the southwest portion of the site providing access to the property to the south be constructed as a frontage road and that the parking along the frontage road be eliminated. The roach design shall l be coordinated through the Kalispell Public Works Department. (site Development Review Commute 10 The internal access road located in the southwest portion of the site was abandoned due to conflicts with Flathead Valley Community Colle e's build. out. The Public Works Department ent and. Fire Department were contacted to determine if this road was necessary for traffic circulation or emergency response. A letter from. the Public Works Department dated April 26, 2006 states that the internal road could be r .et provided a number of parking spaces were relocated however the letter did not require the connection to be constructed in order to mitigate any internal traffic concerns. A facsimile from. the Fire Department dated April 20, 2006 states that the Fire Department does not have a requirement that the access road connect to Flathead Valley Community College. The letter did state that fire access to future buildings will be required and that an internal road traversing the south side of stores and shops will be required for fire department access as Phase II develops, Condition No. 6. The following, requirements shall be net per the Kalispell Fire Department.- ent.- (Kalispell Subdivision Regulations, Section 3.20). * Water mains designed to provide minimum fire flows shall be installed per city specifications at approved locations. Minimum fire flows shall be in accordance with Intemational Fire Code 2003 Appendix F . • The application notes that water mains were designed to provide minimum fire flows and installed per city specifications at the approved locations, . Fire hydrants shall be provide. per City specifications at locations approved by this department,, prior to combustible construction. Fire hydrants have been installed at the site. A letter from. Brent Christopherson, Kalispell Fire Marshal, dated February 21, 2006 requested one additional hydrant be placed on the south end of building pack C or an existing hydrant be moved in order to achieve a. Soo foot distance between hydrants. This will need to be completed prior to combustible construction. . Fire Department access shall be provided in accordance ce with International Fire Code 2003 Chapter 5. The e road designs will be in compliance ce it. the International Fire Code, Chapter 5, in order to provide adequate Fire Department access. . It should be noted that hazardous weed abatement shall be provided in accordance with City of Kalispell Ordinance .0-8. Hazardous weed abatement for the subdivision is addressed in the maintenance plan within the covenants. e. Street naming shall be approved the fire department. • Street names will be coordinated with the Kalispell Public Works Department artmen.t and the Kalispell Fire Department. Condition No. 7. A plan shall be developed and in place that addresses the grading, reve eta.tio ., irrigation and maintenance ce of the undeveloped areas that creates a weed free, dust -free area until such time as that phase is fully developed prior to construction. The landscape plan will address the reve etation, irrigation and include maintenance plan for the undeveloped areas in order to create a. geed free, dust -free area. Condition No. 8. That a comprehensive traffic impact study be completed which identifies all expected traffic impacts and proposals for mitigation, and that appropriate approach permits be obtained from the Montana Department ent of Transportation and the City of Kalispell. • The Montana Department of Transportation 1 DOT has provided a. letter indicating the two approach permits Hutton Ranch Plaza has requested and has listed five items which the approach ermits are contingent .ors. once the fire items listed in the letter are addressed, the aroa.ch permits will be issued. Condition No. 9. That pedestrian walkways be provided as indicated on the site plan that provide a continuous and connected system with the existing walkways along Highway 93 including a. sidewalk on both sides of the amain entrance road separated by a minimum five foot landscape buffer. • Sidewalks have been included on both sides of the main entrance road with a five foot landscape buffer. An exhibit map included with the final plat application also shows the sidewalks connecting to existing walkways along Highway 93. Condition No. 10, That landscaping be completed in substantial compliance with the plan that was submitted and would be subject to review and approval by the Parks and Recreation e a tment. This would include landscaping along the highway, internal public street, internal access road, parking lots and common areas. •A letter from Michael Baker, Director of the Kalispell Parks and Recreation Department, a.rtr ent, dated April 6, 2006 grants approval of the proposed landscaping plans for Hutton Ranch. The letter motes that final approval will be given upon cor letlor , inspection and approval of the landscaping and tree plantings, at which time the letter of credit would e released if It is in place. Condition No. 11. That the use of retaining walls in excess of four feet tall be avoided, but rather the implementation ta.tlon of landscaped terracing e used to make the transition in areas with the steepest grades. • The final plat application notes that the project will not include any retaining walls. Condition No. 12. The list of materials and exterior building treatments that was part of the application for the final development t of the buildings be included In the development agreement with the City. This condition is met. The development agreement, Section lil number 9, incorporates the list of materials and exterior building treatments by reference that was part of the approved PUD. Condition No. 13. That a. lighting plan be submitted which utilizes attractive lighting fit .re s and a. type and level of lighting not exceeding what is appropriate for its purpose. The light poles shall be limited to a. maximum of 30 feet with a full cut -of lens that does not shed light above a. 20 degrees below the horizontal plane. No more than .5 candles are permitted at the edge of the site. • . lighting plan was submitted with the final plat application with light poles and futures designed to meet this condition. Condition No. 14. That the uses allowed within the development shall not include those which require areas for the display of large merchandise such. as new and used automobile sales, manufactured home sales, recreational vehicle sales and lumberyards. This would not preclude incidental everts associated with the other businesses or the site. • The approved PUD prohibits businesses which require display of large merchandise such as new and used automobile sales, manufactured home sales, recreational vehicle sales and lumberyards. The covenants submitted with the final plat application also prohibit the uses listed In condition 14. Condition No. 15. That the theatre and hotel proposed for the eastern portion of the site shall not exceed 60 feet In height from the highest point of the gable or parapet gall. This is a condition of the PUD which will be enforced upon issuance of a building permit for the theater and. hotel. Condition No. 16. That the refuse areas be adequately screened from public vier. • This is a condition of the PLED which will be enforced upon issuance of a building pe=it. Condition No. 17. That a good faith effort be made by the developers to provide access to the property to the north to provide connectivity between the sites. • A letter from. Philip Harris, Hutton ranch Plaza Associates, dated August 22, 2005 requests in writing the owners of the property to the north to agree to provide a shared access between the two developments. subsequent letter from Scott Deskins, SCC Development Company, dated August 25, 2005 denied the request for cross access between the two developments. ts. Condition No. 18. That the covenants be recorded and made a part of the development agreement with the city to insure maintenance of common areas within the development and which grant cross easement access between the lots and throughout the development for parking, access and utilities. Covenants were included with the final plat application that insure maintenance of common areas within the development are.d grant cross easement access between the lots and throughout the development for parking, access and utilities. Condition No. 19. That the phasing and timing of the development shall occur as proposed. Bonding for the proposed infrastructure and improvements or other acceptable means of insuring that the improvements will be completed as proposed shall be provided by the developer. e phasing of the subdivision is consistent 'T' it . the proposal reviewed under the preliminary plat. The developer has submitted a Subdivision Improvement Agreement S A for improvements still needing to be constructed and installed. The Kalispell Public Works Department and Parks and Recreation Department have reviewed and approved the estimated costs to complete the items listed in the SIA. ConcUtion No. 2. The developer and City of Kalispell shall execute a developmentagreement based on terms and conditions included in the planned unit development. development agreement was executed between the City of Kalispell and the developer on January6, 200. COMPLIANCE TH APPROVED PRELIMINARY PLAT The final plat is in substantial compliance with the preliminary plat which was approved by the Kalispell City Council on July 5, 2005. COMPLIANCE WITH THE SUBDIPVISION REGULATIONS: This subdivision plat has been found to be in compliance with the State and City Subdivision Regulations. .s. COMPLIANCE WITH THE ZONING REGULATIONS This subdivision can be found to be in compliance with the Kalispell Zoning Ordinance and the -2 P D, General Commercial Planned Unit Development, zoning designation for the property which governs the dimensional requirements of the lots within the subdivision s well as the uses. It can be found that the conditions of preliminary plat approval have been met or are otherwise adequately addressed. The staff would recommend that the Kalispell City Council approve the final plat for Hutton Ranch Plaza. Subdivision. Please schedule this matter ter for the regular city council meeting of May 1, 2006. Sincerely, Sean Conrad Senior Planner Attachments: Vicinity map opaque My ar of final plat reproducible My ar of final plat copy of final plat x " Copy of plat Final plat application dated 3 / 21 / 06 Ltr from Kalispell Public Works dated 1 0 / 19 / 05 Ltr from Flathead County Environmental Health Services dated 10/25J05 Ltr from Kalispell Pubic Works dated 4 / 21 / 06 Ltr from Kalispell Fire Department dated 4 / 20 / 06 Ltr from Kalispell Parks and Recreation dated 4/6/06 Ltr from Philip Harris dated 8/22/05 Ltr from Scot Deskins dated 8/25/06 Subdivision Improvement Agreement Letter of Credit from Glacier Bank for the amount of $223032875-.00 Stewart title report # G-2222-22721 dated 3/9/06 Consent to plat from Glacier Bank dated 3 / 24 / 06 Treasurers Certification dated 4 % 25 / 06 Declaration of CCR's signed 3 / 27 / 06 Ltar from Montana Department of Transportation dated 4/27/06 Copy w/ . : Theresa White, Kalispell City Clerk Copy w/o . : Morrison Malerle, Inc 1228 Whitefish Sg Road Kalispell, MT 50 Philip and. Donna Harris 360 Tetrault Road Kalispell, MT 59901 Montana Department of Trorsp 1 "r a t Avenue PO O � ,�-fer T 0- 1 00 7 April. 2 , 2006 Keith ]Belden, P.E. M.-'sore Mir, Inc- 3011. Palmer Street Ml si , Montana 02 Subject: Hutton Bch Plaza Development Access t Am n, Orr f r _.....Brian .0r e� z rf Govemor The Hutton Ranch_ Plaza Developm are requeshing two approach. permits from the Montana artment of Transportation (.N4,Dfor access to US 93 along the high.y frontage, owed by Hutton Ranch Plaza Associates, LC. One approach is pled as p 1i . access w as Hutton Rand. Road approximately .� + development and the sQcond would be a right- ght-outsoutherly access. Approval. of t r permits MDT will. be ti p �. ll �� t . Hutton RanchRoad will be designedmmod-a.t trek expected for this development and, we also request right-of-way set backs necessary to providef oT additional lanes needed foT traffic volumes anticipated for a future K ti l- ^ Pass Loop Road. Once these projected traffic volumes bave been provided to w we W11. , be ableto determinc:ixhat these set backs will be. .1 m. ffi, signing and striping and electricaldesigns must rneet MDT requirements. The u t . Ranch Plaza devc1opers must agree not to contest efforts to prQvide for roadway itnnetiity bctween Hutton lh and the Target Home Depot Complex to the inorth. All n=xssaTy utillty pen -nits must be requested., reviewed and approved by the I�M" Missoula. District. ►If Hutton Ranch Road is to be a public -road then. MDT mill issuc a public approach permft o Ns access. We will then require that theTem.aining private approach be deeded back to the State of, Montana. If you have any questions please contau.me at 0 - 3 3. n�;olicy AmlyvJs ftrew An Eq Cull 0 p p o rtu nify Ern yer Rallp 7ranA and P19nn1ny Olvirdan Phone: (4016) 4 TTY: ( -9 Pay: (406) 444,7671 Web Page: www.mdf.stste.mLu& Keith Bolden April , 2006 Page 2 of Day. MPlanner Program & Policy Analysis Bureau .fl, Twit and Nanning DivhsioT). i Copies: 1 ■AY Y'RR}��1S JSJ .4�tr AIfa ww 1i 11- f %!-f.... .kdr l4 .d_ _�*...1..... �. , Saj,idra Straebl, Rail, Transit and Planning DIM'slondnu"itrat Ste Hmo , .E., Area Maintenance nin , er Kalispell Danielle Bolan, P.E., Traffic, Rov r Stan Braun, PX., Traffic and Safety Bureau Aaron Sandon, Trf.c and. Saf�ty Bureau Arlen Camm, Missoala District 'traffic E. City of Kali*spell Publi*c Works Department .host Office Box 7, Kalispell, Montana 9903 ' �Telephone'�' -208-81 October 19, 2005 Department of Environmental Quality Permitting and Compliance Division PWSCS 9 Cooperative Way,, suite 105 Kalispell, Montana 59901 Attention: Walter M. Lauder, P.E. Environmental Engineer Specialist RE: Hutton RanchPlaza Kalispell,, Montana Dear Marc, This letter is to confirm that the City of Kalispell has reviewed and approved the plans and specifications for the water and sanitary sewer systems prepared by M rris n- M i rl Inc., for the referenced project. The Kalispell water and sanitary sewer systems have adequate capacity to serve the project. Please feel free to call if you have any questions, Sincerely, Frank Castles., P.E. Assistant City Engineer Bill Buxton, P.E. Morrison - Mierl, Inc. Environmental Health Services 035 First Avenue West Kalispell, MT 59901 (406)7- 1 3o x: 75 1- 1 3 Tuesday, October 25, 200 Bill Buxton, P.E. Morrison & Malerle Engineering Inc. P.O. Box 8057 Kalispell MT 59904-1057 .e: Hutton Ranch Plaza,, Water & Sewer Main Extensions, Kalispell Prof. # FH-05-225 DEQ 0-1 Dear Bill, Administration -81 1 FAX 751-8102 Community Heafth Services 7 1-8 1 0 FAX 1- 11 1 Reproductive Health Services 751-8150 FAX 7 1-81 1 WIC Services 751-8170 FAX 7 1-817 mn""ECE I v =D OCT 2 7 2005 Morrison - maiede, in oft The plans, specifications and required documents for the above referenced project have been reviewed by this office and are satisfactory. Approval to proceed with the project is hereby given. One set of the approved plans and specifications is enclosed. This project includes installation of water & surer maim extensions as shown on plans prepared by Morrison Malerie Engineering Inc., and approved by this office on 10 0 . The plans were submitted under the seal and stamp of Patrick J. White, P.L # 14090 E. Approval is given with the understanding that any deviation from the approved plans and specifications will be submitted to the department for review and approval. Prior to commencing use of any portion of a new public system, the owner or his engineer, shall certify by letter to the Department that the portion of the system to he put into use was built in accordance with approved plans and specifications, As -built drawings for the portion of the system put into use must be provided to the Department within 90 days after the date of initial use. Within 90 days after the entire project has been completed, the project engineer shall cerfify to the Department that the project was inspected and found to be installed in accordance with the plans and specifications approved by the Department. This certification shall be accompanied by a set of record as built drawings of the entire project, signed by the profe t engin.eer. t is further understood that construction will be completed within three years following the date of approval. If more than three years elapse before completing construction, plans and specifications must he resubmitted acid approved before construction begins or resumes, This three year expiration period does not extend any compliance schedule requirements associated with a Department enforcement action against a public water or sewage system. 'lease contact this office if you have any questions. f Sincerely, Richard T. ontgomeryf-PT. Environmental Engineer }r ,ter copies to: Water Qua rty Division- Helena & Kalispell City of Kalispell, Dept. of Public Works It is the mission of the Flathead City -County Health Department to assure the conditions in which people can ,be healthy through collaboration, promoting stewardship of our resources, and providing preventive health services to our community. unity. City of Kali"spell Public Works Department .r:.. h Post � Box 99 # Kalispell, Monts � �- 9-� �? 8�- . April 21, 200 Hutton Ranch Plaza Associates,, LLC Sunset Plaza, Suite 20 Kalispell, Montana 59901 e: Hutton Ranch Plaza Phase Kalispell, Montana Gentlemen, The City of Kalispell Public Works Department herby agrees that the projected costs to complete the referenced project as stated in the Subdivision Improvement Agreement, Exhibit , for the referenced subdivision afar adequate* Approval by the City of Kalispell is granted bated on the following: Receipt of a Subdivision Improvement Agreement which contains the total estimated construction costs plus 25 percent Covering the estimated costs for the remaining improvements. The Subdivision Improvement Agreement, Exhibit A is certified by Tony Flzer, P.E., to being an accurate accounting of anticipated costs for the remaining improvements. Condition 5 of Subdivision Report #KPP-05-12 Could be met with the relocation of 25 parking spaces. It agars that Flathead valley Community College is resistant to the connexion of the frontage road to their property at this time. The construction plans depict a roadway to and along the south boundary of the Hutton Ranch Plaza Development. If you have any questions,, please do not hesitate to contact this office. Sincerely., Frank Castles, P.E. Assistant City Engineer Cc: Sean Conrad, Senior Planner Kalispell Planning Department Tony Fetzer, P.E. Morrison Maierle., Inc. 04/24/2006 13,048FAX 406 752 2391 Morrison- rl KAL PPR-20-2006 FT'431: TO:406 752 2391 Y�)WSf Ff U 4* MEt. jkRTNflHIff DEP 31First Avenue Rxndy Bmmkbl W Vim f A &M L C s ib � �CJill KdiwIL MOWAft FAX: 406) "1- 9 y� SMIR RASM%51 ►'oru �.{ Monson Maw, Im Ate* Tony Felbw 1228 Whftfth Sfte Road K", MT 5990 E; CLARCAN - Fmat Plat appkabon for Hen R Dear Mr. Feber. As fbow-uyour email today vh*% iiduded a gamic representafion of Phi ; and �w 2 of ft H� � prate I haw ft �l� ion. for ft d rtmnt aoDm Ibr Peft 10 J, and K, as pad of Ptese I of the pw)ect ho we � no ��ery erd #at f - CrCw over or aarwxxg to the FUN Velma dy Cole Add'b"Iy* ft appeam from the draw'uV Ihe F for PadK pwes mend ar ir�� vim# �� ..A- irtawing d ids Theirk road� rsi 0 a Major ; mW Maim Shops W11 be required for *e de "-- dU I K" I L as 2is de If you have any ues*m,, pWase donI hesitate to oorftme V F. Ray Ruftft Fire IrmpecW mnt hftophersml, Ass. ChiefAPmwnUOn lot of Ka \'fY Parks and Recreation April 6, 26 Sitesae Associates Bruce F. Lutz, A*S.L.. 35 Golf Course Drive Columbia Falls, Montana 59912 Phone: 6-92-392 Re: Hutton Ranch Dear Bruce: 35 Ave East 99 Kalispell MT 9 3- 99 Phone: 06) 758-7718 Fax 6) 758-771 Email:parknrec@kalispell.com D -E [DjA P R 0; 20, 0 6 KALISPELL PLANNING DEPARTMENT This letter is to serve as approval on the proposed landscaping plans for Hutton Ranch per our discussion Monday, April 3, 2006. t is agreed that if the project is extended the developer will be responsible for bonding for landscaping improvements as specified can the submitted plan for thebuilding(s) at Hutton Ranch Plaza. Tree plantings are required to meet the Street Tree Ordinance standards of 2 4" caliper and of an approved species from the Kalispell Parks department planting list. Boulevards are to be seeded or sodded to meet city standards. Final approval will be given upon completion, inspection and approval of the landscaping and tree plantings, at which time bonding and/or letter of credit would be released if it is in place. It should be noted that the trees and landscaping are under a warranty period and should they die within this time frame, the developer will be responsible for replacement. It has been eniova le working with you, if you have any concerns r questions please give me a call. Sincerely, qX N 41 i Michael Baker, Director Kalispell Parks and Recreation Cc: Tom Dent , Kalispell Planning g, H ttgr-4 RANCIR AzsCI TE, Lbe SuNsETPLAzA., Sum 201 K., MT 59901 August 22,2005 Mr. Scott A. Deskins 440Bee Caws Road Suite 112 Austin, 'texas 78746 Re: Cross Easement for Access Between Mountain View Plaza and Hutton Ranch Plaza Dear Scott: aolog= r Ong so long to to our telephone conversation last not. .s I indicated to you,, the City of Kalispell has reqWTM as a condition to the approvals of Hutton Ranch Plaza, that Iseek to obtain from tha Owners of Mountain mew Plaza, a cross cas=rntfor access between our two PrIDJects. As I indicated in our phone conversation, it would apcar that the only place to efe ely correct our projects would. e to the sD th of Targetwith a road which cuts into the aside between the two properfies., Ong parallel t �he proper des and rising to a point o the so thmst ur proper behind the lotion of the approved theatre. I have attached an aerial depicting this cot. realize that the eng eermg of such a road poses cep difficulties. However, I believe than the City sees ceded value to the -Meats and soppm both d.e]oments if cross shoppers can move freely between the properties Without hang to exit eilher centcr to the main roads. w ld very much appreciate it if You could indicate to me in Ming your willingness or � l i gnest consider sack a cross easement. hope this letter fords you well, and that you have had an e €Jo a le suimear. Vxy tnily yours, HUTTON N RANCH .PLAZA ASSOCIATES, LLC sce DEWELOPMENT CO"M?A�'Nyq Lix TRANSMITTED VIA RA-P, AAA 11 Thursday, August 2, 2005 Phillip Harris Rotten Ranch Plaza Associates, LLC Sunset Plaza, Suite 201 Kalispell, MT 59901 lAUG 30 2005 13 Y. 1 ".+�..r.rYr�ir�sw.�,rFwr+�Fwt�w�swr Cross -Access btween Mountain View Plaza and Mutton Ranch Plaza - Kalispellt A4T Dear Phil: Thank you for your letter dated August 22, 2005 concerningthe proposed cross-acdess easement between our shopping center devele ents at the abe e-re e e d i can. Unfortunately severa I factors cone Into play which went us from approving your request for cross -access. Firsts the layout of our shopping center- as it relates to your proposed layout �s not conducive to "Complimentary acca ,'t given the fact that traffic exiling our center would immediately be'ithe rear and delivery areas of your center. Secondly, this request would require amending the Recorded Reciprocal ass and Grant Easement, Agreement which would require net only our approval but that of Target and Herne Oepot Lastly, based -on th6 grade differentialion between the two properfies, a fir amount of grading would need to take PJaCe aS Well as retaining walls would need to be installed and this could be a cost { roh bltive Imo. 1 look forward to your uccet;tbl development and if I may be of further assistance, please do not hesitate to call. Very Truly Yours, Mountain View, LP, Montana limited parber i y.- Mountain View Develop t, Inc., fts general partner y: ef"askinst roll- Prresaidenf SAD/le Plat Room Flathead County, Montana soa S. Main sr. Kalispell, MT 59941 (406) 758-5510 This Form is for Subdivisions & Condominiums Only MORRISON-MAIERLIE INC : FOR: HUTTON RANCH PLAZA ASSC LLC DATE:4/12/2006 I hereby certify that there are no outstanding taxes on the property assigned the assessor numbers listed above, for the years indicated for each assessor number. py,-:ys'Tr:ea's1urer APa\ 2 5 Zoos ARCHITECTURAL DESCRIPTION HUTTON RANCH PLAZA KALISPELL, MON ANA GENERAL BUILDING MASSING .he goal of the general massing of the Hutton Ranch Plaza is to create a community of buildings that create a homogeneous and cohesive town center. The design guidelines promote commonality of forms and materials that simultaneously allow for creativity and uniqueness. Each design will be carefully planned and reviewed for adherence to design guidelines to maintain overall quality and character. The major buildings are of scale proportional to its area at a height 2 19- W,1, while maintaining pedestrian elements that create a pleasant human sealed environment. The roof lines shall be varied, with forms accentuating the main entrance and the comers of the buildings up to 2" - "' The building mass will be de-emphasized by articulating vertical planes, creating shadow lines and variation of materials. There are varied treatments at the cor .ice, wainscot, canopies, and storefront areas. Display and merchandising areas are encouraged. The smaller stores and retail shops have even more flexibifity and variation in their overall massing. wall heights up to 2 '-o" and entry ways ranging up to 33>- "', there will be one two story building with roof heights to '-0". Differing roof lines, undulating vertical planes, unique entrances, and large storefront areas will be encouraged. Rich in variety, the shops will have architectural detailing enhancing the pedestrian environment. The Theatre building will incorporate similar features of'the major building and shops. The theatre will have a grand entrance, with o; high vertical element alluding to the iconic tower form associated with movie theatres. The generous entry canopy will provide shelter and emphasize the building type. The ticket booth will be highlighted. Pedestrian scaled wainscot and varying exterior wall treatments will breakdown the building mass. Recessed self illuminated poster ewes will also punctuate the wall and enhance the pedestrian epenence, as well as accent LED lighting. The design guidelines for the Hutton Ranch Plaza will similarly control the Hotel building design, featuring a grand entry statement, vertical plane variation, co i e and wainscot treatments. EXTERIOR MATERIALS AND FINISHES DESCRIPTION Commonality of building exterior material, finishes and colors will also be critically important i creating a cohesive family of buildings. The buildings of Hutton Ranch Plaza will be allowed to achieve identity by selecting from a well controlled and complementary palette of appropriate materials, finishes and colors. This palette derives its inspiration from the norther. Rocky mountain region, using stone veneer, wood framing, split face masonry and colors indigenous to the area. Entry roof fors will be created by standing scam metal roofs, open wood trusses and framing. Articulated lated cornices may be created from cement plaster over foam shapes, wood trellises or bracketing. vertical panes will be enhanced by varying the textures, heights, scale of the material used, architectural detailing of accent material and will include store veneer, cement plaster, split Face masonry, and the accents. The display areas will use glass and aluminum storefronts and entrances, The concrete sidewalks will have defined areas of integral colored concrete and special textures, materials and patters. Inspired by the natural materials of the regional rocky mountains the colors of the cement plaster and paint are rich, muted, weathered and sophisticated. The colors will include deep terra cottas, olive and sage greens, golden browns, warm tars, rat orange, slate grey/blue, store greys. EXTERIOR LIGHTING Parking lot lighting will be designed to maintain --dL- Foot candles minimum utilizing �0"-0" hierh poles and 22,50 watt metal halide lamps. The fixture design will be compatible with the Plaza design concept. There will also be pedestrian oriented fixtures along walk ways with '-" higb poles providing general illumination at ground level and landscaping. Security wall fixtures will also be provided at rear drive aisles and loading areas. Fixtures will be down lights with no visible lamps. Occasional up lighting on walls may be used to highlight the buildings architectural character. City of Kalispell Planning Department 17-2 nd Street East, Suite 211, K.11 p 11, Montana 5 9901 `a: 6 1-1S FINAL PLAT APPLICATION Project, /Subdivision Name.; : Hutton Ranch Plaza Contact Person'. Owner & Mailing Address Name: William Buxton. Phili Harris III & Donna L Harris Address: 122 Whitefish Stage Road. Hutton Ranch Plaza Associates, � Ka .is elf Montana 59901 Sunset Plaza, Ste, 20 Phone No.: (40!�J 52-2216 Kalispell, MT 59901 Date of Preliminary PlatApproval: July 5,2005 Type of Subdivision: .esiden is Industrial Commercial U x Other Total Number of Lots in Subdivision. i Land in Project (acres) 46.05 Acres Parkland (acres) No. of Lots by fie: Single Family Duplex Comm rciaJ Condominium Cash -in -Lieu $ 'townhouse Apartment Industrial Multi -Family Exempt Mobile Home Park Recreational vehicle Park Planned Unit Development Other Legal Descn'ption of the .property NW 1/4 of the SW 114 Section 31 all in Township 29 North .far e 2 1. We.st PMM FILING FEE ATTACHED $ Minor Subdivision with approved. preliminary plat Major Subdivision with approved preliminary plat Subdivisions Mth Waiver of Preliminary flat Subdivision Improvements Agreement $400 + $100/lot $650 + $100/lot $600 + $100/lot $ 50 1 Attached Not Applicable (MUST CHECK PNE X Health Department Certification (Original) X Title Report (Original, not more than 90 days old) X Tam Certification (Property taxes must be paid) X Consent(s) to Plat (Originals and notarized) X Subdivision Improvements Agreement (Attach collateral) X Parkland Cash -ice -Lieu (Check attached X Maintenance Agreement X Plays: 1 opaque DR 12 m Tars 1 mylar copy ]. signed blueline 4 bluelines 4 blueTines, unsigned 11X17 Copy i 1X17 Copy **The plat must be signed by all owners of record., the surveyor and the examining i land surveyor. Attach a. letter, which lists each condition of preliminary plat approval, and individually state how each condition has l eciflcally been met. In cases where documentation is required., such as are engineer's certification, State Department artment of Health certification, etc., original letters shall be omitted. Blanket statements stating, for example, le, "all improvements are in lase" are not acceptable. complete final plat application must be submitted no less than 60 days prior to expiration date of the preliminary plat. When all application materials are submitted to the Kalispell Planning Department, and the staff finds the application is complete, the staff will submit a. report to the governing body. The ,governing body must act within 30 days of receipt of the revised preliminary plat application and staffreport. Incomplete submittals will not be accepted and will not be forwarded to the governing body for approval. Changes to the approved preliminary plat may necessitate reconsideration by the planning board. I certify that all information submitted is true, accurate and complete. I understand that incomplete information will not be accepted and that false information will delay the application and may invalidate any approval. The signing of this application i ifie approval for Kalispell Planning g staff to be present on the property for routine monitoring and inspection during the approval and development process. *NOTE: se be advised that the County Clerk & Recorder requests that all subdivision final pla)vipplications be accompanied with a digital copy. er(s) signature tpl*Y4 0 � / Date * ldi it copy of the final plat in a Drawing Interchange File (DX format or an AutoCAD file for.at onsisting of the following layers: 1. Exterior boundary of subdivision 2. Lot or park boundaries 3. Easements . Roads or rights -of -way S. A tie to either an emti..g subdivision corner or a cornier of the public land survey system Guarantee — (CLTA Form) Rev. - -9 GUARANTEE EJECT TO THE EXCLUSIONS FROM COVERAGE, THE LETS of LIABILITY AND OTHER PROVISIONS of THE CONDITIONS AND STIPLTATIONS HERETO ANNEXED AIN MA -DE A PART of THIS GUARANTEE, AND SUBJECT TO THE FURTHER EXCLUSION AND LMTATION THAT NO GUARANTEE IS GLEN Nod. LLkBLI Y ASSUAMD WITH RESPECT TO THE IDENTITY of ANY PARTY NAMED OR REFERRED TO IN SCHEDULE A OR WITH SPE TO THE VALIDITY, LEGAL EFFECT OR PRIORITY of ANY MATTER SHOWN THERELN. ISSUED BY stewart,, ---:title guaranty company a corporation, herein called the Company, GUARANTEES the Assured named in Schedule .A against actual monetary loss or damage not exceeding the liability amount stated in Schedule A which the Assured shall sustain by reason of any incolTectness in the assurances set fDrth in Schedule A. Dated: Chairman of the Hoard 3 Countersigned: ,f t n ec Co*ersignature Stewart Title of FlatheadCounty, LLC 1 Main Street Kalispell, MT 59901 stewart t' guararity company .-• . '' . i *p0tv k ■ * s * ; wwo. President 9 0 8 ;*,c %4IMMrt Serial No. G-2222-22721 Page I of 3 - GUARANTEE -6/6/92 GUARANTEE CONDITIONS AND STIPULATIONS 1. Definition of Terms m — The f'ollowino terms when used in this Guarantee mean: (a) "the Ass€rred": the party or parties named as the Assured in this Guarantee, or on a supplemental writing executed by the Company. (b) "land": the land described or referred to in Schedule A (C) or in pant 2,acid improvements affixed thereto which by law constitute real property. The terra "land" does not include any property beyond the lines of the area described or r f and to in Schedule (A)(G) or in part 2, nor any right, title, interest, estate or easement in abutting streets, roads, avenues. alleys, lames, ways or waterways. ( "mortgage": mortgage, deed of trust, trust deed, or other security instrument, (d) "public records": records established under state statutes at Date of Guarantee for the purpose of irnparti.n.g constructive notice of matters relating to real property to purchasers for value and without knowledge, e) "date": the effective date; . Exclusions from Coverage of this Guarantee — The Company assumes no liability for loss or damage by reason of the following: (a) "faxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. (b) l Unpatented miring claims; reservations or exceptions in patents or in Acts authorizing the issuance thereof; (3) water rights, claims or title to water: .whether or not the natters excluded by 1), )err are shown by the public records. c) Assurances to title to any property beyond the lines of the land expressly desoiibed in the description set forth in Schedule A)(C) or in Pan 2 of this Guarantee, or title to streets. roads, avenues, lanes. wags or waterways or whicb such land abuts, or the right to maintain therein vaults, tunnels, ramps or any other structure or improvement; or any rights or easements therein unless such property, rights or ea ernents are expressly and specifically set forth in said description. {d) (l Defects, liens, encumbrances, or adverse claims against the title, if assurances are provided as to such title, and as limited by such assurances. ) Defects, liens, encumbrances, adverse claims or other matters a) whether or not shown by the public records, and which are created, suffered, assumed or agreed to by one or mere of the Assur ds; h whi b result in no lass to the Assured; or c which do not result in the invalidity or potential invalidity of any judicial or non -judicial proceeding which is within the scope and purpose of assurances provided. . Notice of Claims to be Given by Assured Claimant - An Assured shall notify the Company promptly in writing in case knowledge shall come to an Assured hereunder of any claim of title or interest which is, adverse to the title to the estate or interest, as stated herein, and which might cause loss or damage for which the Company may be liable by virtue of this Guarantee. if prompt notice shall not be given to the Company, then all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required, provided, however, that failure to notify the Company shall in no case prejudice the rights of any Assured under this Guarantee unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 4. No Duty to Defend or Prosecute - The Company shall have no duty to defend or prosecute any action or proceeding to which the Assured is a party, notwithstanding the nature of any allegation in such action or proceeding. . Company's Option to Defend or Prosecute Actions; Duty of Assured Claimant to Cooperate - .liven though the Company has no duty to defend or prosecute as set forth in Paragraph 4 above: a The Company shall have the right, at its sole option and cast, to in.stitut.e and prosecute any action or proceeding, interpose a defense, as limited in b), or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest as stated herein, or to establish the lien rights of the Assured, or to prevent or reduce loss or damage to the Assured. The Company may take any appropriate action under the terms of this Guarantee, whether or not it shall be liable hereunder. and shall not thereby concede liability or waive any provision of this Guarantee. if the Company shall exercise its rights under this paragraph, it shall do so diligently. b) If the Company elects to exercise its option as stated in. Paragraph (a) the Company shall have the right to select counsel of its choice (subject to the right of such Assured to object for reasonable cause) to represent the Assured and shall not be liable for and will not pay the fees of any other counsel, nor will the Company pay any fees, costs or expenses incurred by an Assured in the defense of those causes of action which allege matters not covered by this Guarantee. Whenever the Company shall have brought an action or interposed a defense as permitted by the provisions of this Guarantee, the Company may pursue any litigation to final determination by a court of competent ;jurisdiction and expressly reserves the right, in its sole discretion, to appeal from an adverse judgment or order, d) In all cases where this Guarantee permits the Company to prosecute or provide for the defense of any action or proceeding, an. Assured shall secure. to the Company the right to so prosecute or provide for the defense of any action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of such. Assured for this purpose. Whenever requested by the Company, an Assured, at the Company's expense, shall give the Company all reasonable aid in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as stated herein, or to establish the lieu rights ofthe Assured. if the Company is prejudiced by the failure. of the Assured to famish the required cooperation, the Company's obligations to the Assured under the Guarantee shall terminate. . Proof of Loss or Damage - In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided to the Company, a proof of loss or damage signed and sworn to by the Assured shall be furnished to the Company within ninety 0 days after the Assured shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the matters covered by this Guarantee which constitute the basis of loss or damage and shall state, to the extent possible-, the basis ofcalcul.ating the arnount ofthe loss or damage. If the C ompany is prejudiced by the failure ofthe Assured to provide the required proof of loss or damage, the Company's obligation to such Assured under the Guarantee shall terminate. In addition, the ,Assured may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and ,places as may be designated by any authorized representative of the Company, all records, boob., ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Guarantee, which reasonably pertain to the loss or damage. Further, if requested b any authorized representative of the Company, the Assured shall grant permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All info nation designated as confidential by the Assured provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the Assured to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in the above paragraph, unless prohibited by law or govemmental regulation, shall terminate any liability of the Company under this Guarantee to the Assured for that claim. '. Options to Pay or Otherwise Settle Claims; Termination of Liability - in case of a claim under this Guarantee, the Company shall have the following additional options: a) To Pay or "fender Payment of the Amount of Liability or to Purchase the Indebtedness. Serial No.Cx-2222-22721 Page 2 of 3- GUARANTEE 61 1 . The Company shall have the option to pay or settle or compromise for or in the name of the Assured any clairn which could result in loss to the Assured within the coverage of this Guarantee, or to pay the full arnount of this Guarantee or, if this Guarantee is issued for the benefit of a hold r of a unortgage or a Iienhold r, the Company shall have the option to purchase the indebtedness secured by said mortgage or said lien for the amount owing thereon, together with any costs, reasonable attorneys' fees and expenses incurred by the Assured clahnant which were authorized by the Company up to the thue of purchase. Sueh Purchase, payment or tender of payment of the full amount of the Guarantee shall terminate all liability of the Company hereunder. In the event after notice of claim has been given to the Company by the Assured the Company offers to purchase said indebtedness, the owner of the indebtedness shall transfer and assign said indebtedness, together with any collateral security, to the Company upon payment of the purchase price. Upon the exercise by the Company of the option provided for in P ragrapb (a) the Company`s obligation to the Assured under this Guarantee for the claimed loss or damage, other than to make the payment required in that paragraph, shall terminate, including any obligation to continue the defense or prosecution of any litigation for which the Company has exercised its option under Paragraph 5, and the Guarantee shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties der T: hzw the Assured or With they Assured Claimant. To Pay or otherwise settle with other parties for or in the names of an Assured claimant any claim assured against under this Guarantee, together with any costs, attorneys' fees and expenses incurred by the Assured claimant which were authorized by the; Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of the option provided for in Paragraph (b) the Company's obligation to the Assured under this Guarantees for the claimed loss or damage, other than to make the payment required in that paragraph, shall terminate, including any obligation to continue the defense or prosecution of any litigation for which the Company has exercised its options under.Paragraph 5. . Determination and Extent of Liability — This Guarantee is a contract of Indemnity against actual monetary loss or damage sustained or incurred by the Assured claimant wbo has suffered loss or damage by reason of reliance upon the assurances set forth in this Guarantee and only to the extent herein described, and subject to the exclusions stated in Paragraph 2. The liability of the Company under this Guarantee to the Assured shall not exceed the least of: (a) the amount of liability stated Mi Schedule A. (b) the amount of the unpaid principal indebtedness secured by the mortgages of an Assured mortgage, as limited or provided under Section 7 of these Conditions and Stipulations or as reduced under Section 10 of these Conditions and Stipulations, at the time the loss or damage assured against by this Guarantee occurs, together with interest thereon; or (c) the difference between the value of the estate or interest covered hereby as sated herein and the value of the estate or interest subject to any defect, lien or encumbrance assured against by this Guarantee. . Limitation of Liability — (a) If the Company establishes the title or rernoves the alleged defect, lieu or encumbrance. or cures any other inatter assured against by this Guarantee in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligadon with respect to that matter and ,shall not be liable for any lass or darage caused thereby. (b) In the event of any litigation by the Company or with the Company's consent, the Company shall have no liability for lass or damage until there bas been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title as stated herein. (c)The Company shall not be liable for loss or damage to any Assured for liability voluntarily assumed by the Assured in settling any claim or suit without the prior written consent of the Company. 10. Deduction of Liability or Termination of Liability - All payments under this Guarantee, except payments made for costs, attorneys' fees and expenses pursuant to paragraph 5 shall reduce the amount of liability pro tanto. 11. payment of Loss - (a) No payment shall be made without producing this Guarantee for endorsement of the payment unless the Guarantee has been lost or destroyed, in which case proof of loss or delstr-uction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely f=d in accordance with these Conditions and Stipulations, the loss or damage shall be payable within thirty (0) days thereafter. Subrogation Upon Payment or Settlement - Whenever the Company shall have settled and paid a claim tinder this Guarantee, all right of subrogation shall vest in the Company unaffected by any act of the Assured claimant. i e Company shall be subr-ogated to and be entitled to all rights and remedies which the Assured would have had against any person or property in respect to the claim had this Guarantee not been issued. If requested by the Company, the .Assured shall transfer to the; Compaiiy all rights and remedies against any person or property necessary in order to perfect this right of subrogation 'the Assured shall permit the Company to sue- compromise or settle in the name of the Assured and to use the name of the assured in any transaction or litigation involving these rights or re medies. If a payment onaccount of a claim does not fully cover the loss of the Assured the Company shall be subr-ogated to all rights and remedies of the Assured after the Assured shall have recovered its principal, interest and costs of collection., 13. A.rbitratlo - Unless prohibited by applicable law, eitb.er the Company or the Assured may demand arbitration pursuant to the Title Insurance; Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Assured arising out of or relating to this Guarantee, any service of the Company in connection with its issuance or the breach of a Guarantee provisions or other obligation.' All arbitrable matters when the, Amount of Liability is S1,000,000 or less shall be arbitrated at the option of either the Company or the Assured. All arbitrable matters when the amount of liability is in excess of S1,000,000 shall be arbitrated only when agreed to by both the Company and the Assured. The Rules in effect at Date of Guarantee shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the laird is located permits a court to award attorneys' fees to a prevailing party. Judgement upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof The law of the sinus of the land shall apply to an aribitmtion under the Title .Insurance .Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 14. Liability Limited to This Guarantee; Guarantee Entire Contract - (a) This Guarantee together with all endorsements, if any. attached hereto by the Company is the entire Guarantee and contract between the Assured and the Company. In interpreting any provision of this Guarantee, this Guarantee shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, or any action asserting such claim, shall be restricted to this Guarantee, (c) No amermdment of or endorsement to this Guarantee can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, they Secretary, an Assistant Secretary, or -validating officer or authorized signatory of the Company. 15. Notices, Where Sent - All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this Guarantees aged shall be addressed to the Company at P. 0. Box 2 029, Houston, Texas 77 -202 9. Serial No. G-R1 Pa e of 3 - GUA AI YTEE 6/6f 9 S LTBDMSION GUARANTEE Order No. S TK- o3 552 Guarantee a No. G-2222-2272 Date of Guarantee.- Mare. 9. 2006 Liabilitr $1,000.00 A. ASSURED: Hutton Ranch Plaza Associates, LLC ASS ; C S: 1 Description of the land; A tract of land located the Northwest Quarter (NWI/4) and the Southwest Quarter SW o Section 31, Township 29 Now Range 21 West; P.M.M,, Flathead County, Montana, described as ow: C mme=9 at the West One -Quarter (WY4) comer of Section 31, Township 29 North, Range 1 West ,M,M,; thence along the now bounce of the South One -Half of said S ect .on 31 South. 8 6118" East a distance of 5 9.24 feet to the intersection of said North bounder with. tea, West boundary of 'rat 1A of C.O. S. 171 2, and the Point of B e 'I)Dlllg of the herein described tract; flience along said West boundary the following wee courses: Now 03 0 1' 17"' East a distance of 249.62 feet; Now 17051'2 " East a distance of 82.52 feet; and North 03 041 " 171 East a distance of 363 * 99 feet to the Northwest wmer of said Tract 1 A; thence South 8 2 ' 1"' East along the Norte boundary of said Tract IA a distance of 1303.43 feet to the 'Northeast comer of said Tract l A; thence along the East boom of said Tract IA the olio.g five courses: South 0 04' 44" West a distance of 695.33 feet; and South. ' 44" West a distance of 86.90 feet; thence South °o '44" West a distance of 6.50 feet; thence Now 86' 1 ' "' West a distance of 44.94 feet; and South 31o' " West a distance of 463.53 feet; thence North 8 ° 18' " West a distance of 241.13 t; thence Now 03 541 ' 5 " East a distance of 470.03 feet; thence Now 8 ° 1 "'west a distance of 405.21 feet; thence South 0 1' " Wet a distance of 1 _ 7 feet- thence S outh 8 01 ' ' hest a distmee of 45 6.8 8 feet-, thence South '0' 5 " West a distance of 5 7 . 49 feet to a point on the South boundary of said. Tract 1A; thence i opt .. 860191 " West along said South oundar-y a distance of 1 .12 feet to the Southwest comer of said Tract 1A; thence along the West bounder of said Tract 1A the lows two courses: NY Yth 1 °2o' 3 1 " West a distance of 67.95feet; and North ' ' "' East a distance f 790.19 feet to the Point of Beginning. 2 Name of Proposed Subdivision Flat: Hutton Ranch Plaza Phase I Subdivision 3 That only the hereafter named parties appear to have an interest showing in the public records affecting the land necessitating their execution of the named proposed plat or snap, as follows: : Hutton Ranch Plaza Assoc ate:s� ITC Gl aei er Bank C. EXCEPTIONS: 1 } General taxes and assessments for the year 2005 First half: $57.26 PAID Second half: $ 7.25 PAID .Assessor No.. 0009585 AFFECTS. Northerly portion 2 General taxes and assessments for the year Zoo First half: $ 140.20 PAID Second half: $140.19 PAID Assessor No.. 09009 AFFECTS: Southerly Portion 3) General county taxes for the year 2006 which are now a lien but not yet computed or payable. 4 Any possible additional tax assessments and any penalties and interest, because o construction and improvements. 5) Subsequent assessments or taxes and any Penalties and interest, due to any change i ownership of the land, change in the land usage or loss of exemption. 6) Easements, reservations,, dedications, and notes as show. on Certificate of Survey No. 14935, records of Flathead County, Montana. (AFFECTS: Southerly portion.) 7 Easements, reservations, rest6cho s notes and dedications, as shown on Certificate o Survey No. 16333, records of Flathead Comity, Montana. (AFFECTS: Northerly portion) 8) Easements reservations, .restrictions notes and dedications, as shown on Certificate o Survey No. 17132, records off'Flathead County, Montana. (AFFECTS: All) 9 Easements, reservations, restrictions notes and d.edieations� as shown on the A 'A ACSM Land Title Survey elated July 23, 2004, prepared by Mom'son Maierl , Inc. AFFECTS. Northerly Portion) 10 Easements, reservations, restrictions notes and dedications, as shown on the AL A ACSM Land Title Survey dated June 20, 2005, prepared by Morrison Maier e, Inc. (AFFECTS: Southerly portion Easements, conditions, restrictions and notes as disclosed or to be disclosed on proposed Survey/Plat to be recorded prior to or as a part of this transaction. 2 An easement affecting the portion of said premises and for the purposes stated herein For: utilities In Favor o: Montana power Company Recorded: May 3,1988 Instrument No: -12 - 23 0 13 State of Montana Department of Transportation Bargain and Sale Deed Recorded: March 10, 1992 Instrument No: 92-0 0- 8510 For: ingress and egress and pr'vate road approaches 1 An easement affecting the portion of said premises and for the poses stated herein. For: Utilities In Favor o: Flathead Electric Cooperative Recorded: December 6, 1995 Instrument No: 95-30-0 1 4o 15 Reservation of oil, gas, coals and mineral n'ghts, excluding sand and gravel, together with ingress and egress for the purpose of producing, mining and removing the same, as reserved by Jack Hutton Jr, and Evelyn P. Mutton in warranty Deed recorded July 31, 2 01, Instrument ment No. 2001-21-11320, records of Flathead County, Montana. The Company .y makes no representation as to the present ownership of this interest. 1 Resolution No. 502 (Annexation) Recorded: July 11, 2005 Instrument No: 2 0 5-192-11 5 0 AND Re -recorded: September 23, 2005 Instrument No: 2005-2 -1 220 17) Petition to Annex and Notice of Withdrawal from Rural Fire District Recorded: July 11, 25 Instrument No: 2 5-192- 1 6o 1 Petition to hex and Notice of Withdrawal from Rural Fire .District Recorded: November 9. 2005 Instrument No: 20 5-31 -1 o 19 Resolution No. 50 (Annexation) Recorded: November 9, 2005 Instrument No: 2 5-313-1 19 20 Drainage Swale Easement Agreement and Temporary Construction License .Recorded: January 20, 200 Instrument No: 200-020-50 21 Drainage Pipe Easement AgreeTnent and Temporary Construction License Recorded.- January 20, 200 Instrument No: 2 0 -020-1 5 o 22 Stormwater Retention Pond. Easement Agreement Recorded: January 20, 200 Instrument No; 200-020-10 2 Slope Easement .Agreement and Temporary Construction License Recorded: January 20, 200 Instrument No: Zoo -020-1 0 2Easement for Water and Sewer Main Recorded: February 1, 200 Instrument No: Zoo-032-1113o 25) Deed of Trust (with future advance clause) Grantor: Hutton Ranch Plaza Associates, LLC 'trustee; Stewart Title of Kalispell Beneficiary: Glacier Bank Amount; V, ONO. oo Recorded: January 27, 2006 Instrument No: Zoo -o2 -1 2 1 2 Any and all unrecorded leaseholds, leases, and tenancies, if any; rights of parties in possession other than vestees herein; r ghts of secured parties, vendors and vendees under conditional sales contracts of personal property installed on the premises herein; and rights of tenants to remove trade fixtures. 2 County and/or City road r g .ts-of-moray not recorded and indexed as a conveyance o record In the office of the Clerk and Recorder pursuant to Title 70, Chapter 21, I.C.A., including, but not limited to any right of the public to use and occupy those certain roads and trails as depicted on County Surveyor's maps on file in the office of the Flathead County Clerk & Recorder's Office. 2 No examination has been made herein for State U.C.C. "s and/or Federal Bankruptcy "s and coverage is excluded herein. 2 Exceptions and reservations contained in Patents of record.. 30Any off record wets, encumbrances, easements or possessory claims a survey or inspection would disclose 1 Rights of the United States of .America to recover any public funds advanced -under the provisions of the Hill -Burton Act or various Federal states relating to health. 32 Survey/Plat when recorded, must be in compliance with the provisions of the Montana subdivision and Platting .Act, 1973 (Sections ' .3- o1 M.C. . and the Regulations adopted pursuant thereto. 33) No search bas been made for water rights or un at rated mining claims and liability thereon is excepted from the Certificate. 34) The above de n'bed property is located within and subject to the r'sdiet on of the Kalispell Fire District. THE END &A -A LOT 4 4fi 4+ W, %m uOn 01", foll 12 zs Oar a WT I So- 0. m. 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PF,F,3 Y91 1i1 fmj�. rH RiK4 PAPEO DR LIENHO I ER' S CONSENT To PLAT The undersigned, Glacier Bank, as Beneficiary under that certain Deed of Trust executed by Hutton Ranch Plaza Associates, L C, as Grantor, recorded in the offlcia1 records of Flathead County, Montana as Instrument Number 2006-027-1625 1, does hereby consent to the recordation of the Final Plat of Hutton Ranch Plaza Phase 1, Subdivision in the form attached hereto as T` Exhibit " , and incorporated herein by this reference. Glacier Bank: By: Title: -JOb5cribed and sow before me ion t d 2 W�L . 8U for the a � � c-a-'_ f Fix -head silriKalispell , COMMISMoh VVIM�q Dated: .'✓/ooXt//4 (to CORDING REQUESTED BY AND WHEN RECORDED RETURN TO; Hutton Ranch Plaza Associates, LC Philip His Sunset Plaza, Suite 201 Kali -spell, Montana 59901 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANTS OF EASEMENTS By HN RANCH PLAZA ASSOCIATES, LLC 3/0 ABLE OF CAN 1 ET'S SECTION ION • GENERALPROVISIONS AND DEFINITIONS, S41bo'I URA! }vs #*TRRwIW�#FR*# SECTION 2., BUILDING AREA; PING REQUIREMENTS ...... SECTION 3, CONSTRUCTION AND EVEMENTS.#.#..«,vc4,. Mr0#M#*MW#*Ff#af#R*oAff*.#r..+ SECTION 4. C ii11NI N AREA CONSTRUCTION, USE, MAINTENANCE AND MANAGEMENT; AND SHOPPING CFN R SIGNAG .,....R*#M*#Rr#Ri*#M**#6*►*#1 b4**kbA R##**0**WV#y*► 15 SECTION 5, TAXES AND ASSESSMENTS........ NMI * W*qq#v 9#40 0 2 SECTION 6, SHOPPING CENTER !i#*.W...#,lxll,.t##***.#.##*.*� SECTION 7. EXPRESS GRANTS OF EASEMENTS04 a4kb4M# I SECTION 8, INSURANCE.....*F** #}#* lra#■i s##ikRf#►..* .„} .JFsm***44R4li###f■*Fr*#m**00 W**b�Y#r.YWN& mM*#Ili*#*tf*#M*► 4 SECTION . DAMAGE AND DESTRUCTION; NOIN-USE OF BUILDING FOR PRIMARY SE... fftlt#*.Il 37 SECTION 10. THE *wi;sgtkbwdris*if#!#*+t#s#r** • 46 SECTION 11, MORTGAGEE ��#r J� � ��!##�W*��faiswr#F�f*#*sw►*1rw*#l�r�FRA�rrf**M#s#sArF■#�rrrrr�l�*� SECTION . MISCELLANEOUS OUS ROVISIONS.&!!#tr......swaf*k###lfti#tRJrllwlrt'lR#ir-it#lf#ti*00*04*W.00 . SECTION 13, NOTICESRAl.w#.... t.***f##•RWA *WE fR#*«OF* # *}#t#► ##f *#7*tf*#fi *f 11#F **# ## itl#.WYI 052*0lmg##*4%***R*•RW4 56 SECTION 14. AMENDMENT; , T; TERM .AND TERMINATION: //i DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANTS OF EASEMENTS THIS DECLARATION OF CVNANUS, CANS Ni-RESTRICTIONS AND GRANTS of EASEMENTS ('Declaration"') is made as of the day of 2 � by Hutton Ranch Plaza Associates, LLC, a Delaware limited liability company `}Dl p e' , located at 4 Sunset Plaza, Suite 201, Kalispell, Montana 59901. REQALS A, The property subject to this Declaration (bereinafter referred to as the ""Entire r pert ` or the "Shoppi g C .t r") is situated in the City of Kalispell (""City"'), County of Flathead (`'Co t "), State of Morita "State"). The Entire Property is shown on the Sits Plan attached hereto as Exhibit A (the "Entire Property Site Plan"), and legally desedbed in Exhibit attached hereto. Each of the parcels existing under the Phase I Site Plan (Exhibit C-1) and the Phase If Site Plan (Exhibit Cw2 , as hereinafter . fl . , shallt this Declaration as said parcels are created or roe.. B. Developer is the owner of the Entire Property. C. Developer desires that the Entire Property at all times be developed, owned and operated as an integratM mixed use commercial retail center- for the mutual benefit of all land comprising the Entire Property and any and all siabsequent owners thereof and their Occupants (as hrimer defined), and accordingrly does hereby establish a general plan for the improvement, dovelopment, maintenance and use of the Shopping Center as a commerclaL mixed use shopping center and for such purposes. Developer does hereby establish cert in easements,, covenants, rc tr tin , liens and charges (collectively, the "Restrictions") as are hereinafter set forth, upon and subject to which the Entire Property shall be improved, ,maintained, held., exchanged, leased, used, occupied, sold and/or conveyed. SECTION 1. GENERAL PROVISIQNS AND DEFINITIONS. SECTION 1.1 Site Plan. Developer intends to develop the Shopping Center in generally the roamer shown on the Entire Site Plan (Exhibit A), Phase I Site Plan (Exhibit C-l) and phase U 0 Site Plan (exhibit C- 2). Nothing on the Entire Site Plmi or the Phase I Site Plan or the Phase 11 Site Plan constitutes any representation r warranty that any particular occupant will be located in or will remain in or operate in the Shopping Center, (a) Phase 1, With respect to Phase L until such time as the final plat of Phase I is recorded, Developer rmrves the r'ght t (1) modify the Phi I Site Plan, including the configuration of the parking and drive aisles, provided the parking requirement' set forth in.Scction 2.2.r not thereby violated; (11) modify the access points from Highway 93 into the Shoppilig Center in accordance with the requirements of the Montana Department of Transportation or other governmental agency of competent un'i ti ; and (iii)modify the lot lines of individual Peels provided the parking ratios set forth i Sect are not thereby violated. Nothing in this Section 1. 1 shallnegatively affect or impact the "N Build Ar " as it is shown on the Phase I Site Play, and no modifications to the Phase I Site Plan that materially or adversely impacts any Owaer shatl be made after recordation of the fiat plat for Phase I without prior consent of all Owners affected by said modification. (b) Phase H. With respect to Phase 11, until such time as the final plat of Phase 11 is recorded, the Developer retains the absolute Tight to modify the Phase U Site Plan in any respect, with the exception of the location .rive -aisles located in Phase II and t to Phase I of the Shopping Center which shall remain in the locations depicter in the Phase I Site Plan and Phase 11 Site, Plan (Exhibits C-1 and C-. No modifications to the Phase 11 Site Plan that materially r adversely impacts any der shall be made der recordation the finial plat for Phase 11 witbout prior consent of all Owners affected by said modification., SECTION 1.2 Building and Crn.Are a. For the pose of this Declaration, the Entire Property is divided into two categories which relate to uso, hereinafter rear t -respectively s "BuRdIn Area" n '"Common Area's, as more particularly described below. Within the definition o "Common Area"',, for various purposes as set forth herein, there shall be vanous categories, i.e. Common Area that is located on an Owner's Parcel between the exterior 2 f the Building and the inside of the curb line on such Owner's Parcel, Common Area that is on an Owner's parcel From the inside of the curb lire to the Parcel boundary,, and Common Area that is developed primarily for poses of parkingand ingess and egress to the Shopping Center and is shown on the Phase I Site Plwi as ""No Rudd Area,"' and will be shown as "'N Build tea" on the Phase If Site Plan prior to recordation ofthe Phase 11 final plat. SECTION * Tryteat that Declaration Controls Develotmentand..lLse. of Entire *€ . Each f the Restrictions i is imposed upon each parcel of land now or herder comprising all or any portion of the Entire Property (each, a `€R," and together, -the "'Parcels"') . mutual equitable servitude in favor of all Parcels comprising the Entire Property, ll create r efi r eal n'ghts and obligations between and among each Owner of such Parcels, and iii shall create a privity of contract and estate between and among the Owners of such Parcels. Each of the Restrictions 2we intended to aridshall rm with the land, and each parcel of land now or ereafter composing all or any portion of the Entire Property is and shall be burdened by the ,covenants of it )Neer for the bencfit of the other Parcels in the Entire Property. Each covenant to do or refrain from doing some act on a Parcel 1 is a been upon such Parcel for the benefit of the Entire Property, li nms with each Parcel, and 1 shall bind each Owner of a Parcel during its ownershipportion thereof or any interest therein derived in any marmer. SECTION 1 A No..G4*f1,..Dg_d_1cationr Third a Beneficiaries. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Shopping Center r of any Parcel or portion thereof to the general public, or for any public use or pose whatsoever. Except a herein specifically provided, no right, privileges or immunities of any Omer or Occupant shall inure t -the benefit of any third paw, nor shall any third ply be deemedto be a beneficiary of any of the provisions contained herein. ,SECTION 1.5 Right tgAppoint Occypant. as Atto -in-Fact, Each Owner f a Parcel shall have -the right to appoint one Occupant of its Parcel as its attorney —fir- fact and to assign to one Occupant of its Parcel the right to enforce the rights and benefits such Parcel is entitled t, and t -satisfy the obligations of such Parcel and the Owner thereof, Lmder this Declaration. .however, 3 -no such a intn t and/or i� t shall relievethe wcr � �i a� r� iiitt satisfy all obligations of ffir, Owner and its Parcel horetinder. Notwithstanding any such appointment or assignment, the Parcel Owner shall continue to havethe fight to independentlyr concurrently enforce the rights and benefits such Parcel 'I's entitled to hereunder, and if the position of the Owner and its Occiipant conflict, the Owner's position shall prevail with respect o the other Owners. SECTION 1.6 Definifions. When used in this Declaration, the terms defined in the Recitals shall have the meanings yet forth in the Recitals and the terms defined elsewhere In the Declaration shall have the meaning set fob in the ,Declaration and the following terms shall have the following meanings: aAUhate. VAien used with reference to a specific Person, any Person that directly or indirectly dough one or more intermediaries controls or is controlled by or is under common control with the specific Persona (b) Building. Any structural 'improvement any Parcel which 'is enclosedy exterior walls, floor and roof and is designed for human occupaticy and the conduct ithin of activities and business by the Owner or Occupant of such improvements. For purposes of an Owner�sai to n obligations, Building canopies, awnings, overhangs, support columns, pilasters, footings and Service Facilities shall not be deemed part of the Coi=on Area, but shall be deerned Building. Build��ca; All those areas n each a.rcel Ding wlthir tie .lding Umit Limes a shown for each Parcel on the Phase I Site Plan and as will be shown on the Phase 11 Site Plan prior to rocordation of the Phase H final plat, which are from time to time covered with a Building, (d) Building Limit Lines, Lines established by the Developer, from time to time, within each Parcel and across Parcel lines. (e) Common Area. All those areas on each Parcel which art not a Building Area or a Service Facility together with those portions of the Building Area on each Parcel which 4 axe net from time to time actually covered by a Buildiligr other commercial stmeture or which coot -under the terms.s of this Declaration be used for w'Idi . Curb_,,Ljne. The lines which consists of a concrete or similar potion between the sidewalk surrounding a Building and parking area adjacent to the sideway., The Curb Lines may be relocated in connection with a modification of the location of Building Limit Lilies, (g) Mye . Hutton Bch Plaza Associates, LIE, or any "Developer Affiliated Entity" r "Developer r Assignee') ( hereinafter defined) which acquires all r a portion of t Shopping Center and to which the rights and obligations of Developer .ere -under are assigned. For purposes of this Der.tirn, i the trm `Dever `iat3ed Emit f" shall mean Philip His, an individual, or any partnership, corporation, hTnIted liability company or other entity owned, directly or indirectly, iri whole or in part by Philip Harris; and h a Developer Assignee shall be any single entity acquiring twenty percent (20%) more of the "Pennissible AggregateBuilding area ', as herein defined, calculated without reference to the Parcels on which the movic tbeater and hotel are located (Lots 4 and 6, respectively, as depicted on the Phase I Site Plwi, Exhibit C-1), and to whicb Developer has assigned its duties, rights and obligations hereunder. (h) Entire Prgporty. That property depicted on the Entire Property Site flan, Exbibit A hereto, comprised of both Phase I and Phase H of the Project. 1 Floor Am. The total number of square feet of floor space pemitLed to be constructed within a Building Area until such time as a 13uilding is in fact constructed and then the actual Floor Area in the BWIding whether or not actually ace d (but excluding any basement, balcony r mezzanine space i �f the same is not used for sales area or generally open to the public, unless such Floor Area is used by the City of Kalispell in determining the number of parking spaces required in the Project), .door Area shall be measured from the exterior lie of the exterior walls and from the center line of any ply or common int r r walls without deduction for columns, walls or other structural or non- structural cm.poet, 5 rr r men . The Building, Service Facilities, landscaping signs and any other improvements ntruy an Owner and located on a Ps . (k) Mortggle • M ortgagee. A Mortgage means a mortgage of trust encumbering Parcel or other portion of the Shopping Center, A Mortgagee means the mortgagee under a Mortgage. (1) No -Build Area. The portion of the Common Axeas designated "No -Build" Area as shown on the Phase I Site Plan (Lots 5 & and Phase H Site Plan, which may be modified prior to final plat recordation, also herein sometimes called '"General Common Area,"' In no event shall miy ocumpiable stnicture be tmeted on the No -Build Area. (m) Oceuvant. Any Person clairnileasehold or subleasehold 'Interest in a Parcel or similar right to exclusively use and occupy all or any portion of a Parcel under or through the Owner, (n) Owner. The record owner, whether one or more persons, of fee simple title to any Parcel which is part of the Shopping Center. Owner shall not include those having any such I. interest merely as security for the performance of an obligation. Owner is sometimes herein referred -to as ",owner." (0) Pa . Each of the separate. Parcels contained in Phase I or Phase 11 as described in the Phase I Site Play. or Phase 11 Site Plan as modified ft m time to firn . If any Parcel i sub-sequently divided into one or more separate legal parcels (whether by parcel map, fiwd subdivision map, lot lire adjustment, or other legal proms) s) then the rights and restrictions set forth in this Declaration that apply to the Parcel which has been so divided shall apply to each of tho resulig legal parcels, as well. (p) Permissible e ate Building a. The aggregate number of square feat of Building Area permitted to be constructed in the Shopping Center from time to time, which shall never be morethan the lesser i the amount allowed under applicable legal parking requirements for the Shopping Center as that is defined in the final Development .gemt between the Developer and the City of Kalispell, or f the amount allowed 6 pursuant to Section 2.2.. A Parcel size and the permissible building area on any particular Parcel may be modified by Developer, from time to time, provided the total number of square feet of Permissible aggregate Building Area is not increased thereby, 'ermissl._ r Area. The maximum square feet of Floor Area permitted to be constructed can a Parcel from time to time. 'ermittees. The respective officers, directors, shareholders, members., partners, employees, licensees, agents, contractors,, invitees, visitors, customers and tenants and subtenants(and. each tenant's and subtenwit's respective officers, directors, share -holders, members, partners, employees, licensees, agents, contractors, invitees, visitors, customers and subtenants) the GvNmers and Occupants. e� " e "' shall mevai a natural person, a corporation, a partnership, a trust, a limited liability company* or any other forte of entity. t ease 1. The areas of the Shopping Center as shown on the Phasc I Site Play. (Exhibit C- I ereto). Phase . The areas of the Shopping Center as shown on the Phase 11 Site Plan, wbic . may be modified Pn r to final plat recordation (Exhibit C-2 hereto) . Prol' et. Thy Hutton Ranch Plaza commercial retail center as depicted on the Phase I Site Plan and Phase Site Plan (Exhibits C -1 and C-2 hereto). (w) Service Facilities. Loading docks, Eck ramps and trek wells and similar loading areas, trash enclosures, bottle and waste paper storage areas, dive through stmaurcs, outside dining areas, play areas a ,d customer service facilities and other similar service Facilities untended for the exclusive use of less than all Occupants of the Shopping Center. (x) Si ... Program. The Sim Program for the Shopping Center adopted or to be adopted by Developer, as the same may e amended fr rn time to time in accordance with the teen s f this Declaration. 7 (Y) utility. Systems, The electrical, gas, fiber optics, telephone, cable or satellite telcvision, and water, sprinkler, drainage and sewer systems or structures servicing the Parcels including, ar.mong otier things, C of the limes, wiring, outlets, pipes, conduits, valves, and meters relating thereto* SECTION 1.7 Approvals by Devoloper. Wbre this Declaration specifies Developer's approval is required, it sball mean the wriften approval of Develear. SECTION 2, NARE# PARKING RE'ARE FNT SECTION 2.1 BuildingArea. The construction,, establislunent and m .i to wee of Buildings ,upon the Entire Property shall be located only within the Building Limit Lines, as modified b Developer from time to time pursuant to Section & No Building on a Parcel shall have a Building Area in excess of the amount when added to all other Building Areas in the Phase e eecds the Permissible Aggregate Building area for the Phase, Every Building shall be of first quality construction. No Building salt be built in such a manner as to adversely affect the structural integrity of any other Building in the Shopping Center. Every Building shall be constructed in such a manner as not to adversely affect the fire rating of any Building built upon any other Parcel, so that Buildings bWlt on each Parcel may be fire rated as separatc and distinct wefts. The Developer will make modification to any Building Area or Building Limit Line that matefially or adcrsely impacts any Owner without consent by the affected Owner. SECTION 2.2 Patking-Reauirernents. The parking requirements for 'Phase I of the Project and for Phase H of the Project shad be independent of each other. For Phase 1# i if there is a hotel, there shall be not less than I parking space per room; and/or H if there is a theatre, there shall be not less than I Parking space for ever, 5 seats in the theatre; and fil) in additit)n to the parking Waves required for a hotel and/or theatre, there shall be not less than 4,0 parking spaces for every 1,000 square feet of Building Area exclusive of the square footage occupied by the hotel and/or the theatre. In addition to the foreagoing requirements, so tong as s theatre i located 'n Phase I of the Project, there shall be not less than 5 spaces for every 1,000 square feet of Building Area in Phase I of the Project excluding the square footage of the hotel" except that if there is neither a hotel nor a theater in Phase I of the Project, then there shall be not less than 4.5 spaces for eve, I , 000 squarefeet of BuildingArea in Phase I of th'eProject. For Phase IT of the Project, i if there is a hotel there shall be not less than I parking space per room, and b in addition to the parking spaces required for a hotel, there shall be not less than 4.5 parking spaces for eve 1,000 square feet of BuildingArea exclusive of the square footage occupied by the hotel and by a.y gas station. -4.y gas station constructed shall have the number of parking spaces'on the gas station parcel equal to the total number of such spaces reqWred under parking regulations adopted by the City which are in effect at the time o construction of the gas station. SECTION 3 CONSTRUCTION AND DEVELOPMENTS SECTION . �' and Construction of Buildius. (a) All Buildings to be constmeted in the Shopping Center shall conform to the requirements of the Architectural Guidelines as modified by Developer and as approved by govemmental a-.thorities from time to time, attached hereto as Exhibit E t "ALchi ect l G l i ')' The Architectural Guidelines applicable to a building will not be modified as to that building after conveyance of the Property to the Owner, with the exception of any modification which i required by govemmantal authorities. (b) The grade or drainage of any Parcel shall confonn to the requirements set forth by Developer at the. time Plans and Specifications are reviewed and may not be altered, modified or otherwise changed in any roomer whatsoever without the consent of Developer, which may be granted or withheld in Developer"sabsolute and sole discretion. SECTION 3.2,Raview and..Aoroval of Plans. a Submittal ot.Plans. No Improvements of any nature whatsoever shall he commenced, constructed, placed, assembled, replaced or erected and maintained on any Parcei, nor shall any addition, change or alteration to the extetior of any hnprovements (collectively, "C tr r i " ) be made until Developer has approved the plans and specifications therefor in accordancewith the provisions of this Sectig&3,2. Prior to commencing any W Constraction, the applicable Owner shall deliver to Developer for Developer's review a complete set of building and situ plans (collectively, "Plan and S i eatl )' (showing, among other things, exterior color and = ft t aj gn and decor), elevations, aesthetic treatment and other like pertinent informatior4 and a plan for staging of construction,, including, without limitation, the location of any temporaty buildings or construction sheds, the storage of building materials, and the parking of construction vehicles and equipment, and t.e location. of fenct'ligfor such staring and storage areas. All improvements that will be constructed in the Comm A-reas whether by Owner or Developer located on the Parcel that is the subject of the review shall be shown on the Plans acid Spci i ations. All material irnro cme is shaft be commenced alad constructed only in accordance with Plans and Specifications approved y Developer in accordance with this Section 3.2. Each Owner shall construct its own Building, any adjacent sidewalk (up to but not including the curb) 111cluding installing any landscaping between the Btfflding acid the Curb Line, and any Service Facilities located on such Owner" l a=l, and shall be responsible for extending to the Building any utilities brought to the Curb Line by Deer. Subject to the preceding sentence, Developer shall he responsible for constmeting or installing all landai, all paving (including paving of drive -up or drive -through lanes), and all parking areas,, automobile ingress and egress, curbs and curb cuts, d i eiva. s, and the like, whether on are Owner"s Owner"Parcel or on the General Common Area, Developer s ail stub all utilities to the Curb Line on each Parcel. Notwithstanding the above but subjoct to the pfior approval of Developer pursuant to this Scetion 3.2, the Owner(s) of a gas statimi facility shall be responsible for the construction on its Parcel of all improvements on such Parcel including but not limited to utilities,paving, sti* ate. (b) Ply r� . . i r . Within twenty-one (21 days following submission. of tbePlans and Spec W cations, Developer shall notify the applicable Owner whother the same are, approved, disapproved or conditionally approved. Developer may conditionally approve any Construction. Any disapproval shall set forth the general reasons for 10 s-ach disapproval. Thereafter, the applicable Owner shall revise its Plans and Specifications to fficorporate such changes as may be requested to secure Developer's approval, and shall resubmit the revised Plans and Specifications to Developer for review, This process shall continue until such fime that the Plans and Specifications have been approved by Developer, which approval shall not be unreasonably withheld. To the extent any subsequent material charges are made y the applicable Owner to any approved Plans and Specifications, such changes shall be subject to the provisions of this Section 3*2 and the der shall secure the approval of Developer as provided herein. 0 4) Ordof Review;l�n�lahllt royal r Dijb=royal. Plans and Specifications hal1 be reviewed by Developer to determine if the C yeti n i consistent with the Architectural Guidelines, and to ensure that the Plans and Specifications are in comphatice with this Declaration. The Plans and Specifications shall not be reviewed and/or approved for engineen'ng design, or for Compliance with zoning and building ordinances, or otber applicable statutes, ordinances r govemmental rules and regulations,, Developer and its shareholders, officers, directors, employees, members, agents, attomeys, consultants and independeM contractors shall each not he liable in damages or otherwise for and: reason, including any Mlstalke in judgment, ligen e or nonfeasance arising out of or in connection with the approval or disapproval or faiture to approve or disapprove any Plans aid Specifications. General„tC nstruef. � Rgoi r �. t . Manner of ce, All work performed by an Owner pursuant to Section 3.2a i -the Construction of any Improvements located on a Parcel shall be effected as expeditiously as possible and in such a manner as not to umeasonably interfere with, obstmct or delay access to or from any Parcel, or any part thereof, or to or ftrn any public right-of-way; (R) construction work being perfonned on any other Parcel,- C the use, enjoyment or occupancy of a. other Parcel. Unless otherwise Tecifically stated herein, are Owner shall, at its 11 sole cost and expense, promptly repair and restore all damage on other Parcels damaged destroyed in the performance of such Construction. Any tagin area approved by Developer shall be removed as soon as possible following completion Constwtion and any damage thereto shall be repaired by the constructing Owner. If an Owner of Occupant commenccs Construction Improvements within the Shopping Center, but such Construction ceases prior to the completion of the Improvements for a. period in excess of one hundred twenty (120) days, and Developer in its reasonable discretion determines that such unfinished Improvements create are unsafe or unsightly conditioTi detri-Mentalt the Shopping Center, Devc1oper may sit a barricade around such Irnprovements, Upon any sueb work by Developer or if the Constructing Owmer fails to restore any stagingarea upon completion of Constmetion, the Owner upon whose Parcel the Improvements are located shall reimburse Developer upon demand .a,n for monies so expenda Such reimbursement shall be paid within thirty (30) days after receipt by Owner of a detailed involce from. Developer. If an Owner or Occupant commences any Construction of Improvements itbi the Shoppina Center, such Owner or Occupant is required to diligently pursue such Cos�tion to completion. The cost of fencing any staging area approved by Developer shall be bonie by the vert The person or entity -undertaking Construction work on a Parcel shall: i pay all costs and expenses associated with such work; i take necessary measures to minirnize disruption and inconvenience caused by such work., i i make adequate provisions for the safety and convenience of Owners, Occupants are.d their ttec; i control dust, noise and other effects of such work using methods customarily utilized in order to control such deleterious effects acts associated with construction projects in a populated or developed area; r al* any and all damage which may be caused by or result from such work; i restore all affected portions of any Parcel to a condition equal to or better than the condition existing prior to beginning such work; ii) indelTinify and hold harmless Owner and all other Occupmits of the Shopping Center against any 12 mechanics liens for such work, particularly as to Common .areas, aTid cause any such outstanding lien or claim of lien to be released or transferred to bond i accordance with applicable law. Such construction shall not unreasonably interfere with the business opeTations on any other Parcel and shall not block or impede the Shopping Center ingress or egress ftom public streets: (H) Standard of Work. All work performed in the.Construction of any Improvements located on any Parcel shall be done in a good and workinanfike manner and, as applicable, in accordance with good engineering standards. 010 TeLicense. Each Owner hereby grants to the other moors a t m oraq license for access and passage over and across the Common Area located on the granting Owner's Parcel, to the extent reasonably necessary, including temporary staging area, for an Owner to construct improvements upon its Parcel; provided, however, that such license shall be in effect only during periods when actual ConsiTuction is being performed, and provided Sher that once an Owner constructs a building nG such license shall be tised which negatively interferes with that Owner's or its occupant's business operations, 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 or materially interfere Wit the operation of the granting wner"s Parcel, or its occupant's business. Prior to exercising the lights tented herein, an owner shall provide each granting Owner witli a written statement describing the need for such license, and shall furnish a certificate of iLtisurance showing that its contractor has obtained the minimum insurance coverage required by this Declaration. The 01%-Pner shall promptly pay all costs and expenses associated with such Construction, shall complete such Construction as quickly as possible, and shW1 promptly clean and restore the affected portion of the Common Area on the granting Owner's PaTc el to condition which is equal to or better than the, and do . which existed prior to the commencement of such Construction. Notwithstanding the foregoing, if a dispute exists betwccn the contractors, laborers, suppliers and/or otbers coimected with 13 such construction activities, the, grmiting owner shall have the right to prohibit the contractors, laborers, suppliers and/or others working for an Omer frox using the Common Area on the granting Owner's Parcel. In addition, each Owner hereby its to Developer a temporary construction i insand casement for purposes of completing. construction of those Common Area improvements (including Utilities) as set forth in this Declaration o be constructedby Developer which have not been completed prior to the l i of the sale of the siibject Parcel to such Owner, (N) Indqm-niLy. I. addition to the indemnification set forth in Section 6.3 herein, each Owner shall indemnify, defend, protect and hold Developer mid the other Owners, and their respective officers, directors, shareholders, employees and agents harmless for, from and against any and ah causes of action, clalras,, 116a ifiti ,, lessen costs and expenses (including reasonable attorneys fees and court costs) and damages arising out of or r.td to injury to or death of any person or damage to or destruction of any property i arising out of or resulting from. any Construction activities performed by or at the request of such Owner or its Occupants, or Ii wcurring within such Owner's Parcel during pen*ods o Construction. 2-e—bds Excavation. During all Construction on the Parcels, the der undertaking such work shall keep the construction site and sounding areas clean and free* of constraction materials, trash and debris, and shall take appropriate precautions to protect against personal ink and property damage to the other Owners and their Occupants. Unless approved or directed by Developer, with regard to excavation, and without limiting any other provision of this l rati n, no excavation shall be made on, and no sand, gravel, soil or other material shall be removed from, any Parcel, except in coiinection with the Con tr ction of Buildings or "Provements approved in the manner set forth in this Declaration, and upon completion of any such operations, exposed openings shall be backfilled and disturbed ground shall be graded, leveled and paved or 14 landscaped in accordance with the approved Plans and Specifications. Each Parcel shall, until developed, be continuously maintained free of debfis and weeds, (d) Specific Construction Re�c uizMents. Refuse and Trash & t l /Refuse Pickup.and Removal. Developer sball require ali Owners of Lots I � 8, 97 10, 113, 12� 13, 14, 15, 16, and 1 (that i , the Buildings that border Highway 93, and those that border Hutton Ranch Road Fast), to construct a. refuse or trash containment room in each Building, for the s pec i "i pose of storing refuse and trash inside. No outside re -fuse and trash tainm t areas o receptacles �11 approved r a t ty d, Developer 0 person or entity selected and/or retained by Develop-er shall pick-up and remove the refuse and trash from Lots 1, � 95 109 15 , 13, 14, 15, 16, and regular basis, (ii) Air Qgndifionerand He ti u With regard to all Lots in Phase I and Phase tL any and all air conditioning and heating equipment located on the exten'or of those buildings at grade and any and all equipment located on the roof tops of those buildings shall be fatly screened in a manner approved by the Architectural Review Committee, such that the equipment coot be seen or viewed from aaiy location from within the Entire Property, SECTION 4. COMMON ARFA C NS C I SSE IMAINENANCE AND MANAGEMENT; AND SHOPPING CEINJER SIGNAGE SECTION 4.1 Description of C mM n Area. Once the � d.i * � l t all area outside the exterior walls except Service Facilities shall become a part of the Common Area; ; Owner may later modify, niter or rebuild its Building within its Parcel, subject to the requirements of Section 3, and provided no such rebuilding shall occur within the "'No -Build Area" and provided, further, that the rebuilding does t cause. a violation of the parking requirements in Section 2.2 15 SECTION 4,2 Parking Areas, Those portions of the Common Area which are constructed and intended for parking, drive aisle and drive way areas, and access points to public sttects, a shown on the Phase I Site Plan and Phi H Site Plan, whether or not located on are Owner's Parcel, shall be used only for: a The parkin; of passenger vehicles acid the pedestrian and vehicular traffic of the Owners, Occupants and their respective Permitt ; (b) The ingress and egress of any of the Owners, Occupants and their Penilittees and the *chides thereof, to any and from any portion of the Common Area and the Building ,area and public strects adjacent to the Coma Area; (c) The movement of pedestrimisand passenger vehicles of Owners, Occupants and their Pennittees between mercantile, si ss and professional establishments Jocated or to be located within Building Areas, (d) The ingress and egress of deliver and service trucks and vehicles to and from Building ,areas or any portion thereof and the public streets adjacent to the Shopping Center for the delivery of goods, wares or merchandise and the rendition of services to the Owmers and Occupants. Delivery vehicles should use rear entrances to Buildings whenever such rear entrance is available; Other taxi in designated loading areas as designated by Developer), the Common Area shall not at any time be used for the parking of M k , or the loading or unloading thereof, except for the tempos parking, loading or unloading of trucks dwing and in connection with the construction or demolition of Buildings upon a Building ,area, the servicing and supplying of a Building Area a which carrot b sorviced and supplied from areas det5lViated as loading areas, the del' err or removal of trade fixtures (including signs) or the constraction, repair or maintenance of parking area and improvements and facifities Wrein penitt d, upon the condition, however, that any such use shall be confined to that which is reasonably necessary in connection with the matters h r m specified and shall be diligently and promptly performed and shall not interfere with the now business Operations of, any Permittee and./or delivery or access , other Occupants in the Shopping Center. 16 Subject to Section .2(d), the temporary parking or standing of trucks, tractors, trailers and other delivery vehicles used M conjunction with the exercise of any of the activities descfibed in _$etion 4.3. f) Landscaping and lighting, other facilities such as waffboxes, public telephones and benches for the comfort and convenience of Owners, Occupants and Permittees of the merewitile, business and professional establistunents located or to be located upon i ldftig Area. (g) The installation, use, maintenance and e a'r of underground Utilities. (h) Developer shall have the right to grant temporary licenses for use of parts of the General Common Area for incidental uses such as,, but not limited to, music fairs, art shows, farmer markets, etc., so long as such use does not unreasonably interfere with the use and operation of the General Common Area, In no event shall suet licenses grant use of parking, drive aisles, access road, or cause material 'Interferwith the operations of any business in ffic Shopping Center or provided, fintb.cr, no such use shall be permitted in excess of four times in any calendar year or longer than four consecutive days. Any net revenue generated by the temporary licensed events and paid to Developer (i.e., the net revenue after Developer pays all costs associated with such special event, such a insurance, clean-up, permits, promotional expenses, etc.) will be wqed to offsetCommon Area Cot (See Section 4.9 and 4, 10 herein) No Owner or Occupant shall hinder or obstruct the free movement of pedestrians and vehicles across those portions of the Common Area which are constructed and intended for parking, drive aisle and drive way areas, and access points to public streets, as shown on the Phase I Site PImi and Pbase II Site Plan whether or not located on a i Owner's Palcel or on the General Col= n Area. SECTION 4.3 Common Las Located on a Parcel. Whose portions of the Gorman Area a located on an Owner's .parcel M*sIde the Curb Line may be used as follows: (a) The sale of merchandise from sidewalks which are immediately adj a ent to Building Areas which use shall int unreasonably impair pedestrian access along said sidewalks, impede vebicular traffic flow within the Shopping Curter nor diminish the number of the parking spaces as shown on the Phase I Site Plan and Phase11 Site Plan, and which sale may only be conducted after tho Occupant has obtained all necessary governmental permits and approvals at the Occupant's sole expense and after having obtained from Developer a ficense ,for the use such area; (b) The storage of shopping carts and the operation o 'vending machines on the sidewalk immediately adjacent to a BW'Iding, provided such storage and operation does not unreasonably impair pedestrian access along said sidewalks, and that the Occupant thereof has obtained all necessary govermuental pen -nits and approvals at the Occupant" sole expense and is consistent with the architecture and aesthetics of tilt Entire r e ty; (c) Outdoor dining and play areas, as approved by Developer; (d) Such other uses as may be approved by Developer, provided no such use shall be approved that will detract from the overall image of the Shopping Center as a first-class commercial, mixed use center. Alt the services and activities permitted within the Common Area shall be perfortned with reason and 4udgment, in a manner commensurate with first-class shoppi centm in the region and so as not to create a nuisance or to interfere with the nonnal business operations of, and customer access- to, other Occupants in the Shopping Center or the serving and supplying of the loading areas of the i din . SECTION 4.4.. a h r men . (a) Common Area ConsLra tion. All Common Area improvements, inducting but not limited to Utilities, paving, striping, landscaping, signag , and lighting, except for SeMec Facilities located within the Common Aram on a Parcel, shall be constructed by Developer, After completion of the develop=nt and to the extent feasible, Developer will attempt to avoid performing Common Area improvements or repairs during the summer or peak holiday seasons, 18 (b) No ImMdiments, The movement of pedestr' anand vehiclesbetween establishments located and to be located upon the Shopping Center (arid to and from the public streets) shall be unimpeded; ae.eor i glyx no building, fence, wall, or barricade shall bc erected or maintained over or upon the Genet Common Area or any Parcel, except as otherwise expressly allowed by this Declaration, and: (i) Such as may be necessaTy to protect members of the public from construction or excavation activities; (fi)Light standards and approp6ate landscaping, including hedges, planters and planting boxes and edgers; (iii)Architectural dements and other items or features which are i shown on the Phase I Site Plan Dr Phase H Site Plan, 2 installed or approved by ;developer and/or required by the City or other govemmental agencies; (iv) Such fences are the perimeter of the Shopping tenter as may be approved by Developer or required by any goverment agency; (v) Mail boxes, public telephones, recycling center, beaches, and other public convelijences approved by Developer; (vi) Signs as allowed herein or otherwise as approved by Developer and the applicable govenimental authorities, (e) No ParcelBiers, Except as specifically depicted on the Phase I Site Plan and Phase 11 Site Plan, and except with respect to railings surrounding outside dining areas as part of a Service Facility, no fence, division, rail or obstruction of any type or kind shall ever be placed, kept, pennitted or maintained between the properties of any Owners of any portions of the Shopping Center, or between any subsequent division si thereof, or upon or atong any of the cornmon Parcel lines of any portion thereof. (d) No Q ar for Use. No charge, fee, toil or bevy shall ever be required, assessed or made of or received (unless imposed by a govenimental agency having n etio from any 19 customer Of anY Offer or Occupants The cost and expense of the operation, management. maintenance, replacement and repair of the Common Area shall be borne and. discharged only as provided for in this Declaration. LiOiting. Lighting will be installed in the Genes Common Area in compliance with all applicable laws, ordinances and regulations. Lighting of access drives north of Hutton Ranch Road East shall remain on until 1:00 a.m., wilewiless prohibited by applicable laws, ordinances or regulations or otherwise agreed to by the Theatre Owner, operator of the theater, and the reeler. SECTION 4.5 Sipmage. All signage in the Shopping Center shall comply with the Sign Program as may be modified and approved by the City of Kalispell fx m time to time (the "Sig Program', (a) and Monument SDeveloper may revise and/or supplement the Sign Program for the Shopping Center from time to time, subject to the approval of all required governmental authorities and provided that any Owner or Occupwit with cxisting signage in the Shopping Center shall not have its rigbt to its signage interfered with by such changes unless such change is approved by at leastseventy-five percent 5 all Owners and such change is at no cost to the negatively affected Owner. In the event an Owner desires to vary from the Sign Program to accommodate the needs of a particular Occupant's exterior i, the der shall, at the Owner"s sole cost and expense, prepare or cause to be prepared the proposed variance tom the Sign Program. The Owner shall submit the proposed vadance to Developer for Developer's review and approval, which, to ensure aesthetic harmony and consistency within the Shopping Center, Developer may withhold in Developer's sole and absolute discretion. If Developer approves the proposed variance from tho Sign program, such Owner shall be entitled to seck variance from the design criteria imposed by any applicable govermnental regulation or req-uirementgoveming exterior signs in the Shopping Center (collectively, "Goem ent Sign Rogd!LtIms")that the Government Sign Restrictions will permit the Owner's proposed variance frorn the Sign Program, Developer may, in Its sole wid absolute discretion, at such Owner' request and expense, reasonably cooperate 20 with such Owner in seeking such variance from tho Govemin it Sign Rest t- ns. Nothing in this Section w shall allow the Developer to alter any Owner's signage rights following approval and construction of si. Maint .any Multi nant Si s. The multi -tenant pylon and monument signs (which includes all utilities serving each such sign) shall be maintained by the Developer i good, clean and first-class state of order and repair, including the prompt removal and repainting of graffiti. (c) ent of Cggs of Ma_ t a tip Mull -Te ant S . T. cost of illmiainating, operating, rna nWning, repairing and replacing the multi -tenant ylo and monument signs and panels thereon shall be a Common Area Cost. Provided, however, nothing in this paragraph shall prohibit nor obligate Developer to seek reimbursement r such costs from Owners whose signage is located on such pylon or monument sign. (d) Maintenance of Individual B-milding Si as. All exterior Building signs sal comply with the Sign Program and shall be restricted to identification of the business or service located or provided in the Building on such Parcel. All exterior 130ding signs shall be maintained in good, clean and first-class state of order end repair, including the prompt replacement of broken, faded or damaged sign panels, the prompt replacemont of b med- t or broken light bulbs and the prompt removal and repainting of graffiti', The cost of mtr eti g, installing, illuminating, operating, maintaimong, repairing and replacing each exterior Building and single -tenant monument signs shall be bomethe Owner of the Parcel on which such sign is located. No OthU.-SigLas Permitted.. There shall be no signs in the Sbop i g Center except 1 a pitted hereunder, as permitted tm er the sign .grogram; and such directional signs as are 4 iea l for conunon areas. Anv Owner may have more restrict'ive signage provisions in a lease with its Occupant than are provided for hemin. No Omer shall place or allow on its Paicel any signs advertising spaer, or land for sale or lease, unless such sign acid the location thereof has first been approved In writing by Devcloper, and any such sign which is so approved shall only be maintained for a reasonably temporary 21 period and shall be maintained in a first class condition and shall not block thevisibility of any other signs or interfere with the convenient use of the Common Area. Occupants may install temporary signs and banners on or about their premises, provided the sane comply with the Sign Program and applicable laws, are removed ithi thirty 3 days f initial display r promptly upon damage thereto), are kept neat, clean and in first- class condition, and have first been approved by Developer. Any temporary construction Signage shall be removed within seven days following completion of construction. All signs for promotional events for which Developer grants a temporary license pursuant to Section , (h) shall be removed immediately upon completion of the event. Developer shall have an casement over a y Parcel to locate any permitted directional or pylon signs as desired by Developer, provided, no r>uch casement shall be located within the Curb Line on any Parcel, and no such casement shall interfere with an ner"s p e rnittel Service aides. SECTION 4.6 QVerationsAnd Mai to a e . (a) Maintenance,Common & as, Except for service facilities constructed by Owners, all of the Common Areas shall be maintained ed in good condition and repair by Developer. Said maintenance shall include, vnfthout limitation', the provision of adequate lighting, water, electricity, 'e i. gar em*g and landscaping, janitoiial SMiee , maintenance f recycling center, repairs to and replacing of asphalt paving so as to maintaina smooth and level surface, bumpers, striping, light bulbs, ligbt standards, sign stracWres and signs advertising the name of the Sbopping Center, snow removal and sp n ler systems and planting areas, any alterations, additions or improvements required to be made to the Common Area in order to comply with applicable govemmental laws, ordinances, rules, rtis and orders not applicable as of the date Developer commences the improvements referenced in Section 4.4 and miy other items of repair, replacement or maintenance that may be needed from tune to time to properly maintain and operate the Common Area.. As a pait of said maintenance and operation, Developer shall obtain and maintain insurance as required by Section. 8.4. Each Owmer hereby grants to Developer a permanent easement and license for access and passage over and across the Common 22 Area located on the Owneri Parcel, to the extent reasonably necessary for Developer to ei `orm its obligations under this Section 4. SECTION 4.7 Maintenance Director. Developer may, at its option, a of-nt an individual or entity (hereiii, the Mx tee.., -Director") to which Developer may delegate its responsibilities re f er. The Maintenance Director may be an affiliate of Developer or an Owner or Occupant. Developer shall have (and is hereby given) the fall right and authority of operation, control and maintenance of the entire Common Area ce t for exclusive areas as provided herein, wphich the Owners of such areas shall keep in a neat, orderly, safe and attractive condition, commensurate with the, condition of the Common Area as intended hereby), such authority to also include the ght to enact rules and regulations for the use and operation of the Common Area, including without imitat employee parking. Such rules and regulations, i any, concerning employee parking shall be reasonable, and shall be administered in such manner as to not interfere with the operation of any business. Each Owner hereby grants to the Maintenance Director a license to enter upon each Parcel in the Shopping Center as reasonably necessary to discharge its duties to operate, maintain and repair the Common leas on its Parcel. SECTION 4.8 Contracts Fee Rec s. Teloper is hereby authorized to contract with third parties (each such contract to contain a provision for cancellation upon sixty 0 clays notice) for the operation and maintenwice of the Common Areas, and Developer is authon'zedto pair .for, on behalf of the Owners of the Entire Property, all of the Common Area operating and maintenance expenses incurred to comply with this Declaration, and charge a service charge of tell percent 10% of such expenses. Developer shall not be entitled to a service charge on insurance promiums,, non-recumng single expenditures in excess of ten thousand dollars (which $10,000 amount shall be adjusted every five years by the see perrte that the Consumer Pace d" (U.S. City Average) has increased ding the swne period, if any), and Utilities. Developer shall keep accurate books and records in t o State of Montana, and agrees to allow each Owner to audit, upon at least ten baseness days' Witten notice, at no expense to the Developer, all records pertaining to the Common Area for the last four gars. Any such audit or inspection may only occur at the office of Developer, and any period of such charges may 23 only be audited once* The audit may only be conducted an independent Certified Public Accountant CPA agreed to by both the Owner(s) who has requested the audit and Developer. Should the pies not agree to a C-' , each party shall select one CPA, and together those two CPA's shall select a third. CPA to perfonnthe audit. The chosen CPA shall charges a flat fee or on an hourly basis, and no audit may he conducted any person or finn which ebarges 4� o tinge. fee" or is otherwisecompensated on the basis of overbilling allegedly or actually discovered_ In the evert the independent audit contains results in favor of the Owner, the Developer shall pay the costs of the aiadit. In the event the independent audit contains results in favor of Developer, the Owaer or Owners requesting the audit shall pay the costs of the audit, and. shall reituburse Developer the sum of five hundred dollars 500as compensation for its staff time in responding to the audit request. If it is detennined that the is pro rata share of Common Area Costs exceeds such owner's payments, Owner shall pay the deficiency to Developer within thirty days. If it is determined that the Owner"s payments exceed such Owner's pro rats, share of Common Area Costs, Owner shall receive a crept against Common Area Costs next thereafter becoming due. No Owner shall be entitled to a credit or refund for papnents of excess Common Area Costs made more than t fo 2 years prior to the, end of any calendar year. SECTION 4.9 Pa tof ProRats► Share;..Audits; dual Adiustment The Owners shall pay to Developer monthly, on an estimated basis, their pro r to sharp provided in Section 4.10) all Common Area Costs, for operation, management, repair, replaceme .t and maintaa ne costs (including service charge) with the first payment date being the first day of the month following Been days after the date said Common Area is open for use to the general public. Developer shall teasonably estimate such expenses in advance for a crivencalendar year and hill the Owners for such expenses (including service charge) in equal monthly amoutits* The Developer may revise such y=iy estimate based on the actual expenses being incurred, and inform Owners of the new estimated amount. The owners shall pay the estimated monthly payment on the first day of each calendar month until Developer makes the Dual adjustment referred to below. Said annual adjustment shall identify each maintenance category, vendor ad amount. An annual adjustment based on actual expenses in such calendar year shall be made by Developer within sixty days following the close of each calendar year whereby an Owner 24 shall receive a refund or pay any additional amount, both within tern (10) days of own-er"s receipt of notice thereof (provided that Developer"s Failure to provide such adjustment within such 60 days shall not relieve any Owner of the duty to pay its pro rasa share of such expenses). As used here n, "Common Area Costsil means all real property taxes the Gaineral Common Areas not othem'se directly taxed to the Owner, premiums and other costs of the insurance coed by Developer pursuant to Section 8.4. security (ifdeemed necessary) and all other costs of offing, managing, operating, repairing and replacing the GenerM Common Area , and otherwise of performingDeveloper's obligations under this Declaration, including without limitation, capital cxpcnditurea lucumd by Developer for necessary replacements of Common Area impr .e .t (such as air including, t Developer's sale election., reserves themfor ("Common Area Expenses"). Capital expenses will be amortized over them- useful life, however, capital expenses shMI not include resurfacing, re -striping or other maintenance of pavedparking areas and. drives, the cost of which shallexpensed as a Commmi Area Cost as it is incurred, Any matiagrement fees included in the Common area Expenses, whether outsourced or internally generated, will not exceed .ono of expenses incurred, and the Common Area Expenses shall not include miy interest, fees or other assessments axising from any loan or debt on the General a Common Area. SECTION 4.10 Pro Rata ar Developer shall use good faith efforfis, using sound accounting principles and practices, to allocate Common Area Costs to Phase I and Phase H or both, as applicable, (a) Regardless of the Floor Area, if a movie theatre is constructed in the Shopping Center, the Owner of the Parcel on which the movie theatre is constructed t o "Theatre Owner"') shall bear 25% of Common Area Costs. Regardless of the Floor Area, if a. hotel is constructed in the Shopping Center, the Owner of the Parcel on which the hotel i constructed (the ""Hotel Owner,"') shall hear eight -tenths of one percent . % of Common Area Costs for each 10 rooms r ftaction thereof, The balance of Phase I Common Area Costs shall be borne by the Owners of the remaining Parcels in Phase I after deducting a f t ' y the Theatre Owner and the Hotel Owner, i applicable. The pro rata share of the cost of operation, management, repair and maintenance of the Phase I Common on 25 Area that is to be borne and paid monthly In accordance VVIth Section 4.9,by the Owner of a Phase I Pmel other than the Theater der and Hotel Ovmr shall be in the same ratio that the number of square feet of Permissible Floor Area within such Owner's Parcel(s) bears to the total number of square feet of Permissible. r at Building Area allowed within Phase r (excluding the Theater and the Hotel). If a Building is damaged or destroyed from any cause, for the purpose of calculatingpro ra. a shares such event shall not charge the number of square feet of Floor Area within the affected. Parcel, (b) Common Area Casts for Pbase 11 shall be borne by the Owners of Phasefor the cost of operatfoll, management, repair and maintenance of the Phase 11 Common Area and shall be paid monthly in accordance with Section 4,9 in the satne ratio that the number of square feet of Floor Area Within such Owner" r bears to the total number of square feet of Permissible aggregate Building Area allowed within Phase U. If a Building is damaged or destroyed from any cause, for the purpose of calculating pro rata shares such event shall not cbange the number of square feet of Floor Area within the affected Parcel excluding the Floor Area of any Parcel on which a gas station is located. The Owner of a Parcel on which a gas: station is located shall be solely responsible for all Common area Costs associated with such Parcel, as well as general Common Area Costs which Developer reasonably believes is a benefit to and therefore a o a le to the was station Parcel. SECTION 4.1 J e or Destruction of Common Are& In the event any of t1le Common Area is damaged or destroyed and' a whatsoever, er insured or uninsured} the Developer shall repair or restore such Common Area in accordance with the provisions of this Section.,11. T'he cost to repair and restore the Common Area shall be a Common Area Cost, SECTION 4.12 Default by Owner{ In the event that any Owner fails orrefuses at any time t pay its share of any of the C rnrno . Area Costs when due, then, after Witten demand and failure to pay within ten days after receipt of such demand, legal action may be instituted by the Developer against the defaulting Owner for reinibursemcn4 plus i tm t at the rate set forth in Section 2.15, any and all delinquent amounts together with said interest shall be a lien acid charge upon all of the Parcel of such defaulting Owner subject to, and junior to, and shall in no 26 way impair or defeat the lien or charge of, any bona fide mortgage or deed of trust upon the same Pagel w1hich is recorded prior to the recording of such lien against such Parcel in the official records of the Court'. SECTION 4.13 gonLict. Leases. Notwithstanding anything contained b r in to the contrary, in the evert that the provisions of a particular lease between an Owner and its Occupants with respect to the calculation, time and method of billing and payment of Common Area operating and maintenatice expenses are different from thv. provisions of this Declaration, the lease provisions shall -prevail among said Owner and its Occupants, but as among the Owncrs, this Declaration shall prevail. SECTION 4.14ecut. Each Owner and Occupant is solely responsible for the security, safety and well-being of all persons within its Building and Service Facilities. Each Owner agrees to conduct its own independent assessment of the need for seeu ty guards or other eat mmures for its own protection, and/or the protecfion of its Occupants and its/their Permittees and all persons coming onto its Parcel or onto the Common Area located thereoti, Each Owner and Occupant acknowledges and agrees that the Developer sball have no obligation to provide security or policing, and shall ha-vre no responsibility or liability to the der, its Occupwits and its/their l ennittees in connection withthe provision or failure to ro ido uaity guards or Tneasures and hereby releases the Developer and each other Owner and Occupant individually and collectively ftom any such responsibility or liability. if an Owner or the Developer elects to provide security personnel, such Owner or the Developer, as the ease mad, be, sball cam, or reqiaire any provider of security personnel to carry not less than Two Million .dollars($2,000,000.00)combined single limit commercial general liability insurance coverage, naming all the Owners and Developer as additional insureds, i s u u against liability arising from, the act or omission of such security personnel- provided that Developer may from time to time by notice to the Owners (crease the required amount o coverage of such public liability insurance to reflect o mer is standards then in e ' `eett A- n tl l herein to the eontraTy om#ith tan ding, each Owner shall maintain in good condition and repair, at its sole cost and expense, any Service Facilities located within the 27 CommonArea on such Ow-ner"s Parcel, including but not limited to drive -through structures, trash enclosures, loading docks, play structures, dining facilities, and all related equipment, and the exposed ground area.. SECTION 5. T-AXES.AN SES MEN S C I 5 .1 SqpamteTax Parcels; u to Pv, It is intended and agreed that all real estate taxes and messments which may be le -vied, assessed, or charged by any public authority against . Parcel,, or any part thereof (including the Common Area t r t), shall be paid prior t delinquency by the respective der of said Parcel, subject, however, to the right of wiy such Owner to contest the amount or validity of all or any part of said taxes and assessments, SECTION 5.2 Right to Cot. I. the event that any 0-ivner shall deem any Teat estate tax or assessment (Including the rate thereof or the assessed valuation of the property in question or miy other aspect thereof) to be paid by said Ommr to be excessive or illegal or otherwise improper, said Ovnier shall have the right, at its own cost and expense,, to contest the satne by appropriate proceedings, and nothing c ntam d in this Section 5.2 shall require the Owner to pay any such real estate tax or assessment as long a a no otheir Omi 's Parcel could be affected by such faituxe to pay, mid �bthe amount or validity thereof shall be contested in good faith. th. If the failure to pay such -tax would affect any other Owner's Parcel, such other Owner shall have the ngbt to pay such tax and shall have a lien on the non -pang Owners Parcel for the amount s paid* Any such lien shall hjuniorsubject t , and to, and shall m n way impa'r o defeat the lien or charge of any bona fide mo-ttgage or deed of trust upon the same Parcel recorded prior to the recording f such lien in the official records of the County. SECTION 6. SHQPPING CENTER USES SECTION 6,1 General, Except as prohibited in S ti ro 6.2, the types s perinitted in the Shopping Center shall include, but of be limited to grocery and nova -grocery anchored retail, motion picture theater,, hotel, restaurant, spice offices (including but not limited to medical, dental, optical, real estate, financial, insurance, title mid mortgage), mercantile, business and Professional establishments and related Facilities, provided however, that miy motion picture theatre shall only be constructed on Lot 4 as shown on the final plat of Phase I recorded by the 28 Developer. ar. Any restaurant may contain gaming machines, as defined by state and local authorities, as an ancillary use to the pn'mary restaurant use, so long as suet gaming machines d not occupy more than five pment % of the constructed Floor Area in such restaurants and such gang is not advertised outside the restaurant premises. All uses in the Shopping Center must comply with all requirements imposed by the City of Kalispell. No ParceI shall be used for anything other than purposes which may be permitted by applicable zoning regulations, nor�hajl anything be doneon any Parcel which shall constitute a public nuisance to the community. N ovemight Parking shall be permitted in the Common Area except as required to accommodate any business Which operates on a 2 --hour basis. No Parcel shall be used for anything other than purposes which may be permitted by applicable zoning regulations, nor shall anteing be done on anyParcel which shall constitute a public nuisance to the community}. No sound amplification equipment sball be used by any Owner or Occupant of the Shopping Center which produces soaudible from outside of an Occupant's space except for drive-thru speaker audio boxes or similar devices; SECTION 6.2 Prohibiter. ) Except as provided below, no portion of the Entire Property all be, used for the following: any nuisance or obnoxious use or other use inconsistent with the types of uses typically found in first class mix use rtilrra it*�;(b) an adult bookstore or adult video store or other establishment engaged in the business of selling, exbibifing or delivering pomographic, obscene or -called "adult" material inchAin , without limitati w magazines, books, movies, videos, photographs or so called `'sexual toys); live ""adults' entertainment (including, without limitation, any displays or activities of a variety involving, exhibiting or depicting sexual themes, nudity or lewd acts); provided, however, that such prohihition shall t prohibit the sale of adult materials in compliance with applicable Laws and as an incidental part of a bona fide video store, such as Blockbuster or Hollywood Video, or bona fide general interest bookstore, such as Bames& Noble or Borders, that has an adult section properly screened from view and with controlled access to exclude minors; so- called `ahead shop"'; gams room or arcade (except as are incidental to the operation of other r 'tt d activities such . movie theater r hotel), including video game, virtual reality r pe laser tag room or facility; f) wi off-track betting parlor; a pawn shop, h) funeral home, mortuary or crematorium, i) a junk yaxd or flea market; 0 recycling facility other than one 29 operated by a supemiarket, or as required by lawt a Imid fill, gaxbage dumpr other such facility for the dumping, disposing, incineration or reduction of garbage; (k) a auditorium, dance hall, night club, disco -r massage parlor; l a bar, tavem, banquet facilRy or lounge, other than incidental to, as part of and under the same name as a restaurant permitted b r n r; m a school, educational or trmffiing facility, n amusernent park, eaniival or other amusement center; o any iT. ustria use; the conduct of any auction; any production, manufacturing industial , or storage (including m'1 i-war s use of any kind or a atar , except for storage and/or production products ineldontal to the retail sale thereof from tho Shopping Center; (r) for the sale, display for sale, repair or storage (other than temporary parking while transacting busincoss within the Shopping Center) of motor vehicles, boats, trailers, or motor homes; any t .b i h. nt in which the primary business is or is Similar t that of Dollar Free Stores, Big Lots or 99 Cent Clearance Centers; t body shop or for the repair of motor vehicles, boats, trailers or motor homes, except in connection with a business selling general merchandise which includes the sale of automobilc relate items; or a car wash, except in connection with the approved use of a Parcel as a gas station, provided however, that a gas station may only b located on Lots 1, 8, 15, 16 or 17 as depicted on the final pat recorded by the Developer. SECTION 6.3 Hazardogs.-MaterialsUse. No Owner shall use, or allow the use o,, "'Hazardous Materials" (defined below) on, about, under or in its Parcel., or the. Shopping Center, except a part of the business operation conducted therein iri the ordinary course as part of afirst�cjass shopping center in accotdance with the standards of this Declaration, and shell only i accordance with all applicable laws, rules and regulations. In the event of a release in, about under or on the Shopping Center, or any portion thereof, of any "Hazardous Materials"' (defined Wow)., the Owner responsible for such release (which includes releases caused by the der, or the Occupant on the Owner's Parcel, or their Pennittee shall inaunediately take or cause to be t n -such remedial actions may e necessary t clean p the same in accordance with the requirements of alt EnviroiimcnW Laws. Each Owner shall use, handle and store any Hazardous Materials hereunder in accordance with the applicable roquirements of Environmental Laws. Each Owner shall notify the other Owners of any such release of Hazardous Materials of which it gains knowledge or r i notice, mid of any violation of EnviMnMentalLaws of which i receives notice from any rmto agency having Jurisdiction; Each Owner shad 30 indemnify, defend, protect and hold the other Owners harmless from and against any and all aims, actions, proceedings, losses, suits, liabilities, damages, deficiencies, fines, penalties, costs or expense (M'cludingwitbout limitation sums paid in settlement of ` claims, reasonable att r. e 's' fees, ns .ltmits' fees, it esti atiGn and laboratory fees, court costs and litigation expenses), which arse out of or in connection with the l dem ifyiOwner's breach of the provisions of this Secti 6.3. For Poses of this Section . , the following terns shall have the following meanings: (a) "fin irowne tal 4,ws" shall mean all present and future statutes, ordinances, orders, axles and regulations of all federal, state or local governmental agencies relating to the use, generation, manufacture, instaila..ti n, release, discharge, storage or disposal of Hazardous Materials; and "Hmardous Mgteri le' small mean petroleurn, petrolewn products, asbestos, polychlorinated i n s, radioactivematerials, radon gas and any chemical, x at nal or substance .a or hereafter defined as or included in the definition "'hazardous s .bsta ces," "hazardous wastes,„ "hazardous materials," "extremely hazardous waste," "'restricted hazardous waste" or '"toxic substances,"" or words of similar import, under any Environmental Law, or listed r identified in, r related by, any Environmental Law} SECTION 7. EXPRIESa.GRANTS OF EASEMENTS SECTION 7. 1 Ingress. , ss and r in , Each Own r, as grantor, heireby grants to each other voier and to its respective Occupants and Permittees, for the benefit of the grwiteo owner's Parcel a. d the use thereof by the grantee Owner and its Occupants and Pemittees, nnecuive aweant easement for ingress and egress by vehic-alar and pedestrian traffic and vehicular parking upon; over acid across that porfio the Common Area located on the grantor's axc Xs) and improved for such purposes from time to time, except for those areas devoted to Service Facilities or dri-ve up or dtive through stonier se-rVice facilities or except a otherwise expressly provided in this Declaratiorl. SECTION 7.2lit Lines i, a Grant g tilit Eas ine ts. Each Owner, as grantor, hereby grants t -thc Developer for the benefit of each .parcel belonging to the other Owners, as grantees,, a nonexclusive appurtenant easement (subject t to relooation as provided below) under, tbrough and across 31 the Common Axea of the grantor'Parcel(s) for the operation of Utility Systems, all of which shall initially be installed by Developer to the Curb Line on each Parcel. All such systems., act xes, mains, sewers, conduits, lines and other utilities shall be installed and mai t ned 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; Developer shall be responsible for the operation, maintenance, repair and replacement of such Utility Systems, the cost of which shall be included in Common Area Celts unless the need for repair results from the willful misconduct or negligence of any particular Owner or Occupant, in which event the cost of such repair shall be pad by such Owner (on behalf itself or its Occupant). Relocation. At any tirnand from time to time the Owner of a Part shall have the rigb to relocate On its Parcel any Utflity System istalled pursuant to the foregoing grant of easement which is then located on the land of such Owner, providcd that any suoh relocation: i shall be performed as expeditiously as reasonably possible and only after sixty days notice of the Owner's intention to undertake the relocation shall have been given to all the other Owners whose Parcels will be affected by such relocation; ii shall not materially interfere with or diminish utility service to the Parcels served by the Utility System; iii shall not reduce or seasonably impair the usefulness or function of the Utility Systems; i 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 rat rd to the n i.n l specifications in a manner harmonious with the condition and operation of the Shopping Center; acid (vi) shal not Hiterfere with or alter the grading acid drainage patterns in the Shopping Center nor interfere with the use of any ether Parcel or the business located on any ether Parcel. If any such relocation work would result in a disruption of utility service to any other Parcel or Occupant for any period of time whatsoever during the normal business hours thereof, such work shall be scheduled for non -business hours, at the sole cost of the Ch r performing the rclocation. The Owner perfonTling such -relocation shall provide as -built plans for all such relocated Utility Systems to the Owners of all parcels served by such Utility Systems within thirty (30) days after the date of completion of such relmati n. 32 (c) Additional. Utility Easements. Each der agrees to grant such additional easements a are reasonably required by any public or pnvate utility for the purpose of providing the utility lines and facilities descTibed herein and allowing for the proper maintenance, rVair and replacement thereof, provided such easements are not othcrwise inconsistent w itli the prmisions of this Declaration. SECTION 7.3 i iEncroachments, Each Owner, as grantor, hereby grants to the other Owners for the benefit of each Paxcel belonging to the other Owners, as grantees, an underground casement for footings, piers, piles, grade beams and the like which may encroach into or ceder the grantor's adjoining are * The eas a. nt granted in this Section .7.3 shall survive S this Declaration 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 piior condition within two 2 years following a casualty or condemnation. In no event shall anything in this Section.3.3 be construed or interpreted so as to cmate my eax . license, or other right allowing encroachment of any Building onto another Parcel. SECTION Co t nt= o asement . Unless. all o the Owners agree o�em s M Wnti g Prior to the expiration or earlier termination of this Declaration, the non-exclusive easements granted in this Section 7 shall be perpetual and shall serve the expiration or earlier termicdo of this Declaration and, to the extent requested by any Owner upon the expiration or earlier termination of this Declaration,' the Owners shall enter into and record an casement agreement memorializing such perpetual non-exclusive easements. SECTION 7,5 Restriction, No owner shall grant any casement for the benefit of any property not within the Shopping Center; ro i .c , however, that the foregoing shad not prohibit the granting or dedicating of casements by an owner on its Parcel to go e n ent or quasi- govemmental authorities or to public -atill-fies, subject to the approval of Developer which shall not be unreasonably ithh ld. 33 SECTION S. INSURANCE, SECTION 8.1 Pro m-r .nee on Each Parcel. At all tines during the term of this Declaration, each Owner shall, at its sole expense, continuously maintain or cause to be, continuously maintained property insurmice in an mtount equal to one hundred percent % of the 'Insurable replacement cost from time to time, without a co-insurance penalty, on all Buildings and Service Facilities located on its ai , Coverage must be not less than that provided by the ISO Causes of Loss --Special Fomi CP 103 0. and shall include, a sprinkler leakage endorsement. An Owner may satisfy ics obligationhereunder by causingan Occupant of its Parcel to provide and keep in farce the required insurance, SCeasyand d er re a ion. Each Owner (the,, "Releasing Owner" hereby releases and waa-ves for itself and on behalf of its insurer any nglits 't may have against Developer and each and all other Owners (the "'Released miners from and against any liability der arising in contract or tort (including the active or passive negligence of the Released Owners) for any loss or damage to any property of the Rel=ing Owner located upon any portion of the Shopping Center (whether or not the .rt suffering the loss or damage actually carries any insurance, recovers under any insurmi e or self insures the loss or damage) which right of recovery arises from loss of earnings or rents resulting from loss or damage to any slich Property. The or i* gng waiver shall extend to losses for which a Releasing Owner .may have self -Insured r which are within the mount of any deductible provided for under a policy of insurance, Each Releasing Owner shall notify its property insurer of the provisions hereof and shall obtain there from, a waiver of the insurer's right of subrocyation against the Released Owners, by endorsement or otherwise. It is the intent of the Releasing Ovmer that with respect to any loss from a risk of the natwe referred to above, the Releasing Owner shall look solely t its insurance companies or programs of self-insurance for recovery. However, to the extent possible without violating any law or voiding any insurance coverage, failure to obtain such waiver shall not affect the release herein given. If an Owner's insurer will not give such a waiver, or wiJI do so only with the payment of an additional fee, the der shall immediately notify the other Released Parties of such fact, who shall have the right to pay such fee in order to obtain the waiver. Each lease and sublime for any Parcel shall contain a provision similar to the above pursuant to which the lessee or -sublessee waives its claims against the Released Parties for loss or damage to the property of the lessee or sublessee. SECTION 8 .3 LiabilityInsurance. (a) At all times during the tern of this Declaration, each Owner shall, at its sole expense, confinuously maintain or cause to be continuouslY i' ned commercial general liability insurance, with a combined single limit of at least a limit of One Million and 00/100 Dollars 1 ,, per occurrence and Two Million and 00Y100 Dollars k ($2,000,000.00)vainual aggregate, with coverage at least as broad as the standard 18 Occurrence Form CG0001, mdorsed to cover personal ink (including false arrest), bodily injury and property dainage, liability an'in ; from the use and occupancy of its Parcel and the Owner's operations in the Shopping Center. Said policy limit may be adjusted from time to time to reflect commercial standards then in effect at the election of Developer. If the use of a Parcel includes the sale of alcoholic beverages, Owner sball also obtain or cause its Occupant to obtain for the bcnefit of all Owners coverage for liquor 1i . i ty, or -called "dram shop"' ha i it , providing coverage of not les's than One Million Dollars $ , o, , 0 n an " ecurren e" basis and not on a "claim made" basis. Insurance policies maintained by eao Owner as provided herein shall contain a waiver of subrogation for the benefit off'the Developer. (b) Each Owner shall, upon written request of auiy other Owner, finish certificates of such insumce or other satisfactory written evidence of such insuranceat any time during the tern. hereof, SECTION 8.4 Common Area I ur .n . a) At all times duringthe term of this Declaration, the Developer shall continuously maintain or cause to be maintained commercial general liability insurance, and such other coverage as the Developer may deem prudent, Indorsed to cover personal injury (including false arrest), covering the Common Area and the operations of the Developer with respect thereto. Such insurance shall afford protection to the Developer and all Owners as additional insureds, with a combined single limit of not less than Two Million i and. Dollars 2,0, per oerrelee with covorage at least as broad as the standard ISO Occurrence Fenn CG0001 for death of, or bodily injury to, or personal 35 injury to, one or more Persons. All insurance policies maintained by Developer as provided herein shall contain a waiver of subrogation for the benefit of the Owners. Developer shall wish to all Owners, Within thirty days der issuance of thepolicy and within thirty days der each renewal thereof, a certificate stating that. such i mic i n fall force and effect; b all Owners are designatedadditional i Te , and c such insurance may not be c�celed or coverage redijoed below the levels required to be maintained hereunder without at least thirty (30)days prior written (ten days ,for non-payment) notice to Developa and the additional insureds. Said policy limits may be adjusted from time to time to reflect commercial standards then in effect at the election of Developer; provided, the Developer shall not in any way be liable for any failure to adjust such limits. (b) The premiums for the above policy shall be apportioned among the Owners as a Common . Area Cost as set forte in Section 4.9. SECTION &5 Insgrance for Construction. Prior to commencing an Cor� t c on actIvities within the Sbo in Center, each Owner shall obtain or require its contractor to obtain and thereafter maintain so long as siich Construction activity is oQc ' , t least the min im . 0 Insurancecoverages as may be measured by Developer to reflect commercial standards then i effect) set forth below: (a) Workers" Compensation statutory 11mits (b) Employers? U abi lity 1,000,000 (c) Cotnm r i l General Liability and Business Auto Liability as follows* 1 Bodily Injury - S 1,000,000 per occurrence (2) Proper damage - $1,000,000 per occuxrence (3) ffidependent Contractors Liability; same coverage as set forte and 2 above; (4) Products/Completed Operations Coverage which shall be kept In effect for two (2) years after completion of work; (5) `"XC '* Hazand Endorsement, if applicable; (6) "'Broad ortn" Property Damage Endorsement; 36 (7) "Personal jury' Endorsements; and (8) "'Blanket Contractual Liability"' Endorsement. If the construction activity involves the use of another Owner's Parcel (without implying any obligation of the, other Owner to consent to the same, unless this Declaration allows for such use, and then only in accordance .resit, then such other Owner shall be named an additional insured only under the insurance rided .br in Section 8.5 Up and such insurance shall provide that the same shall not be canceled., or reduced in amount or coverage below the A mquirements of this Declaratior4 "a-thaut at least thirty days ' r written notice to the .at.cd ins .r ds and each additional insured. if such insurance is canceled or expires ten the constructing Owner shall immediately stop all work on or use of the other m is Parcel until either the required insurance is reinstated or replacement insuxance tairi d. The foregoing r .i insurance r m .ts s .aH not apply to routine maintenance of the Common Area by the Developer or its agents. SECTION 8.6 blicy- Form. . All policies of ir)surance required herein shall be issued by inswance companies it a general pohoy holder"'s rating of not less than "A-" and a financial rating not less than Class &r.XvIr as rate, in tho most current available "Test"s Kir,,y Rating Guide" -",,and which are authofized to do businessin the State of Montana. SECTION 9., NARY RPSF -SECTIONT 9.1 I If an Owner rebuilds or restores a Building on its Parcel after an event of destruction of, or damage to, the Building of such Owner, said Owner shall re -build, repa0. ir and restore such Building within the Building Area of such Parcel, s, and damaged Common Area and Smice Facility(with respect to Parcels permitted hereunder to have a. Service Facility) t inside the Curb Lines surrounding such Building Area t the sate general as arar�cc and condition such other manner as approved by Developer pursuant to this Declaration), and consistent with the requirements this Declaration and are integrated, first-class sb in cent r located in Kalispell,, Montana,, as existed prior to the damage or destmction or as otbeirwise allowed hereunder. All other Common Areas cyn an v.cr's Parcel shall be repaired or rebuilt 37 pursuant to Section , SECTION 9,,2 Timeit, Any hnprovements or Common Area rebuilt, repaired or restored by an Owner pursuant to this Declaration, shall commence to robuild, repair and restore within fifteen months of saiddate of damage or destruction and shall be ready for occupancy within eighteen months thereafter, subject, however, to delays caused by smokes, labor difficulties, govemrnemtal restrictions on building activity, fire, war or acts of God. Notwithstanding the foregoing, in the event that the provisions of a particular least between a Owner and its Occupwit are different from the provisions of this Section 9, them a as bem e such der and its Occupant, the lease proviSlonsshall Vrevail, and s among the Owners, this Declaration shall prevail. SECTION 93 MWrements- Any repair, reconstruction r replacement of any Improvements or Cammon Area performed by any Owner, pursuant to this Section. 9. shall be performed i accordance with the following requirements a Plans and specifications therefor not previously approved for the original Construction of any L-nprovements shall be approved by Developer as to exterior architectural design,, exterior construction and location of ImprovemeriNbeing restored, prior to the commencement of the work of such repair, reconstmcdon and replacement, which approval shall not be withheld without good and valid reason and notice thereof made i writing. (b) Any hnprovements and Common Area being restored shall be at least of equal quality, and at least as usable for its intended pose, as such hnProvements and Common Area caret prior to the happening of such casualty. SECTION 9.4 Election Not to Rebuild/Election to Not Use .Four 'rim° e* (a) In the.ewent any Owner does not promptly rebuild and restore its damaged improvements 4 in accordance with the provisions of this Section- , sacb Owner shall clear its Building Area and Common .area to the Curb Line of all debn's and hazardous conditions, and shall maintain its Building Area and Common area to the Curb Line in a clear, safe and 38 attractive condition; provided, however, that in no event shall any Owner have the right to withdraw its Parcel or portion thereof from the Common Ares or from any easements created mid provided for hereunder, r be rell'oved of any Common Area Costs as required i Section 4.9 (b) Rep t�e�In the event of damage to or destruction of the Improvements on a Pacre , or partial condemnation of a Parcel, following which the Owner fails to rebuild its hnprovements and re -open for business Wit i , twelve 12 months following the date of such dat.age or destruction or the date on which the tang occurs, or Developer shall have the right to repurchase the subject Parcel at the greater of the fair market value or the book value on the books of the business as determined under Generally Accepted Accounting Principles G AP , by giving notice to the Owner within sixty da after expiration of the ig -mot period ("Recapture Notice"'). Developer shall notify the Owner of the Fair Market Valtie as determinedby Developer in its Recapture Notice. If the Owner agrees with Developerls Fair Market Value determination, Owner shall so notify Developer within fifteen 1 business days after Owner's receipt of the Recapture Notice `'Notice of Agreement""), If Owner fails to deliver a Notice of A r=-neat within such 15 -business day period, Owner shall e deemed to have accepted Developer's determination of the Fair Market Value. If Owner agrees with or is deemed to have accepted Developer's determination of the Fair Market 'value, then the closing shall occur at such price within this days after to end of such 15-bushiess day period at a title company selected by Developer, If Owner disagrees with Developer's determination of the Fair Market Value, then within such -day period, Owner may elect to have the Fair Market Value determined by arbitration, which arbitration shall be conducted in accordance with the following: "Fair Market Value"' shall mean the price "or i .il property in similarshopping centers in Kalispell, Montana, with similar amenities, taking into consideration all relevant factors, including: size and location. The arbitration shall be conducted and determined in the City of Kalispell 'n accordance with the then pre-vrailing rules of the American Arbitration Association or its successor for a ` itratiort of commercial disputes, except 39 that the procedures mandated by such rules sball be modified as :follows: {owner's demard for arbitration shall be in VM't1nBare.d sba. l specify the name and address the person -to act as the arbitrator on Owner" . The tr . r shall be a real estate appraiser With at least five years full -blue commercial appraisal experience who is .aiiliar with the Fair Market Value of shopping center real estate in the City of Kalispell. Failure, on the part of Owner to male the timely and proper demand for such arbitration shall constitute a waiver of the right there, Within ten business days aver the service of the demand for arbitration, Developer shall give notice to der specifying the name and address of the person designated by Developer to act as arbitrator on its behalf, which arbitrator shall be similarly qualified. If Developer fails to notify Ovmer of the appoiriUnent of its arbitrator, within or by the time vecified, then the arbitrator appointed by Owner shall be the arbitrator to determine the Fair Market Value for the P ayl . (2) If two arbitrators are chosen pursuant to sub above, the arbitrators so chosen shall meet within ten business days aver the second arbitrator is appointed and shall appoint a third arbitrator; who shall be a competent and impartial person with qiaalffications similar to those required of the first two arbitrators pursuant to sue, ram„ h (1) above. If they are unable to agree upon such appointment within five business days after expiration of such ten day period, the third arbitrator shall be seJected by the parties themselves. If the parties do not agree can the third arbitrator within five ) business days after expiration of the foregolng five business day period, teen either party, on behalf both, may request appointment of such a qualified person by the then re *de .t of the 'Northwest Montana Association of Realtors# The three arbitrators shall decide the dispute, if it has not been previously resolved, by following the procedures set forth i ,�zrbelow. Each party shall pay the fees and expenses of its respective arbitrator and both shall share the fees and expenses of the third arbitrator, Attorneys' fees and expenses of counsel are of witnesses for the respective parties shalt be paid by the respective party 40 engaging such counsel or calling; such witnesses, (3) The Fair Market Value shall be fixed by the three arbitrators in accordance with the following procedures. Each of the arbitrators selected by the parties shall state, in writing, his or her detenninatimi of the Fair Market Value supported by the reasons therefor and shall make counterpart copies for each of the other arbitrators. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions within tern business days after apint.et of the third arbitrator. If either arbitrator fails to deliver to the other arbitrators his or her deten-nination within such ten 1 business day period, then the determination the other arbitrator sball final and binding upon the parties. The role of the third arbitrator shall be to select which of the two proposed resolutions most closely approximates his or her detennination of Fair Market Valuu. The third arbitrator shall bave no right to propose a middle ground or any Modification either of the two proposed resolutions, The resolution he or she chooses as that most closely approximating his or her determination of the Fair Market Value shall constitute the decision of the arbitrators aid shall be final and binding upon the patties. If either party fails to ray its she of the fees of the third arbitrator within five business days der receipt of an invoice, or fails to execute and deliver any documents reasonably required by the third arbitrator within five (5) usi .ess days after receipt thereof, then the Fair Market Value shall be determined solely by the arbitrator selected by the other party. the event of a ,failure, refusal or inability of any arbitrator to act, his or her successor shall be appointed by him or her, but In the case of the third arbitrator, his or her successor shall be appointed in the see manner as that set forth herein with respect to the appointment of the original third arbitrator, The arbitrators shall attempt to decide the issue within ten 1 business dais after the appointment the third arbitrator. Any decision in which the arbitrator appointed by Developer and the arbitrator appointed by Owner concur shall be binding and conclusive upon the parties, except that such arbitrators shall not attempt by themselves to mutually as . mdn the Fair Matket V and any such detennination, in a manner other t mi that provided for in sub .ra b 41 above, shall not be binding on the parties* (5) The arbitrators shall have the right to consult experts and competent authorities for factual information or evidence ert ni to a determination a'r Market Value, but any such consultation s ail be made in the presence of both parties with .full right on their part to cToss-examjjie,. The wbitralors shafl render the decision and award in writing with counterpart copies to each pafty. The arbitrators shall have no power to modify the provisions of this Section t , SECTION 9.5 Nn-Use of B-taldingfor ri'ese. a hi the event an Owner falls to continue to operate the original husiness in the building which was originally approved and opened for business, for any reason or by any ease, Owner immediately- shall n t 5,, Developer In Ming of Owner"s cessation of businessr anticipated cessation of business, Owner s a I have eighteen montlis C'Replacement Perjod"' during wbich to find a replacement owner or tenant to operate the same or substantially similar business in thv, Building. (b) Recvjure. K, after reasonable due diligence in attempting to either sell or lease the Building, Owner is unable to find an occupant who would operate a same or substantially similar business In the Building ding the applicable Replacement Period, Developer shall have the right to repurchase the subject Parcel at the greater fair r market value r the book value on the books of the business as determined under Generally Accepted Accounting rinc * es �.� , y giving notice t the Owner whin sixty days after expiration of the three-month rl "eca t re Notice"). Developer shall notify the Owner of the Fair Market Value as determined by Developer in its Recapture Notice, If the Owner agrees with Developer's Fair Market Value dutermination, Owner shall so notify Developer within fifteen business days after Owner's receipt of to Recapture Notice "Notice of Agreer. e t" . If Owner falls to deliver a Notice of Agreement within such -business day period, Owner shall he deemed to have accepted D l er's determination the Fair Market Value. If Owner agrees with or is deemed to have accepted Developer's determination of the Fair Market Value, then the closing shall occur at such price w ffiin thirty dap after the end of such 1 -business day period at a title company selected by Developer. If Owner disagrees with Developer's 42 deteTrnination of the Fair Market Value, ten within such -day period, Owner may elect to have the Fair Market Value determined by arbitration, which arbitration shall be conducted in accordance with the l e g. "'Fair Market Value" sal mean, the ee for similar property in similar sho Ong centers in Kalispell, Montana, with similar amenities, taking its consideration all relevant factors, including: size and. location,, The arbitration shall be condiicted and detemined in the City of Kalispell in accordance with the then prevailing rules of the Aramaean Arbitration Association or its successor for arbitration of commercial disipates, except that the procedures mandated by such rules shalt be modified as follows: (1) Owner's demand for arbitration shall be in writing and shall specify the name and address the person to act as the arbitrator on Owner"s behalf The arbitrator shall be a real estate appraiser with at least five 5 years full -tine commercial appraisal experience who is familiar with the Fair Market Value of shopping center real estate in the City of Kahspell. Failure on the part of Owner to make the timely and proper demand for such arbitration shall constitute a waiver of the right thereto. Within ten 1 business days der the service of the demand for arbitration, Developer shall give notice to Owner specifying the name and address of the person designated by Developer to act as arbitrator on its behalf, which arbitrator shall be similarly qualified. If Developer fails to notify Owner of the appointment of its arbitrator, r, within r by the time specified, then the ar itr .t r appointed by Owner shall be the arbitrator to determine the Fair Market Value for the Parcel, (2) If two arbitrators are chosen pursuant t .h ara rgah above, the arbitrators s chosen shall meet within ten l business days a.f r the second arbitrator i appointed and shall appoint a third a bIt at r, who shall he a competent and impartial person with qualifications similarthose required of the first two arbitrators r ant to subparagVh.. above. If they are unable to agree upon such appointment within five business d.ys after expiration of such ten(10) day prod, the third arbitrator shall be selected by the parties themselves. If the parties do not agree on the third arbitrator within five business days after %iratioii of the foregoing, fie business day period, then either m-t , on 43 behalf of both, may request appointment of such a qualified person by the then president of the Northwest Montana Association of Realtor's. The three arbitrators shall decide the dispute, if it has not been previously resolved, by following the Procedures set forth in gb .m raph 033) below. Each party shall pay the fees and expenses of its respective arbitr for and both shall share the fees and expenses of the third arbitrator. . tt m s' fees and expenses of counsel and f witnesses for the respective .parties shall be paid by the respective party engaging such counsel or calling such wits. (3) The Fair Market Yal shall be fixed by the free arbitrators in accordance witb the following procedures. Each of the arbitrators selected by the parties shall state, iz writing, his or her detemihiation of the Fair Maxk t Value supported b the reasons therefor and sbali make counterpart copies for each of the other arbitrators. The arbitrators shall arrange for a simultanemis exchangesuch proposed resolutions within ten (10) business days after appointment of the, third arbitmtor. If either arbitrator fails to deliver to the other arbitrators his or her detennination within such ten l 'business day period, then the determination f the other arbitr .t r shall be final and binding upon the parties. 11v role of the third arbitrator shall be to select which of the two proposed resolutions most closely approximates his or her delennination of Fair Market Value. The third arbitrator shalt have no right to propose a middle ground or any modification of either of the two Proposed resolutions. The resolution he or she chooses as that most closely approximating his or her determination of the Fair Market Value shall constittite the decision of the arbitrators and shall be final and binding n the parties. If either party fails to pay its share of the fees of the third arbitrator Withi five badness days after receipt f a invoice, r falls to execute and deliver any documents reasonably required by the third arbitrator within five (5) business days after receipt th. reo `, then the Fair Market Value shall b determined solely by the arbitrator selected by the other. party. 4 the evert of a. failure, refusal or inability of any arbitrator to act, his or her successor shall be appointed by hirn or her, but ill the case of the third arbitrator, his or her successor shall be appointed in the same manner as that set forth berein 44 with respect to the appointment of the original third arbitrator. The arbitrators shall attenipt to decide the issue within 1 business days after the appointment of the third arbitrator. Anny decision in which the arbitrator appointed by Developer and the arbitrator appointed y Owner concur shall be bindins and conclusive upon the parfies, except that such arbitrators shall not attempt by themselves to mutually ascertain the Fair Market Value and any such determination, in a mar other than that provided for in subparaggrVh.. above, shall not be binding on the pies. (5) The arbitrators shall have the right to consult experts and competent authorities for factual information or evidence pertainingto a determination of Fair Market Value, but any such consultation shall be irade 'in the presence of both parties with full right on their PaTt to cross-examine. The arbitrators shall render the decision and award in writing with counterpart copies to each per. The arbitrators shall have no power to modify the provisions of this Si_.N_ 45 SECTION . THE ASSOCIATION SECTION , m ; _ _ _ _ _ . obi. (a) Formation. So long as Developer owns any Parcel within the Shopping Center, .developer shall have all the rights and obligations of the Developer hereunder. Developer may assign its rights and obligations hereunder to a Developer Affiliated Entity, or to a Developer Assignee, inwhich case the wignee shall assume all the rights and obligations of the Developer hereunder. At such tliTle as Developer awns no Parcel within the Shopping Center, acid has not assigned its rights and obligations hereunder t either a Developer Affiliated Entity or to a Developer Assignee, the Assmiation shall automatically succeed to the rights and obligations of the Developer hereunder. (b) General. At any time after the date of this Declaration, Developer may cause an Association to be horned and take such steps as may be necessary or appropriate i connection with such formation including the preparation, execution, acid filing of alticles of incorporation t "Articles Ines rati"' and bylaws (the "Bylaws") of the Association acid the making of a1l other appropriate filings far the following proses subject to the provisions of Section .1 a : 1*) asswning any or all of the rights and obligations of Developer under this Declaration, and ii exercising any or all of the duties and powers set forth in this Declaration, in the Articles Incorporation and the Bylaws (hereafter, this Declaration.- the Articles of Incorporation and the Bylaws may sometimes e collectively preferred to as the {`Govemin Documents"). (c) CgMorate Name and Powers. The Association shall be incorporated as a nonprofit mutual benefit corporation pursuant to the nonprofit corporafion law of the State Montana under such game as shall be selectedby Developer, The duties and powers o the Association shall be as set forth in the Governing Documents togcthx with the general and implied powers of a nonprofit corporation to do any and all things that a corporation organized and r the laws of the State of Montanamay lawfully do which are necessary or proper to operate for the peace, healtb, eomforsafety and general welfare f its members (the "Members#' , subject t only to the limitations G the exercise of such powers as are expressly set forth in the Governing Documents. d r tion Powers. Not -withstanding the formation of the Association, the Association shall have no rights or obligations hereunder unless and until the provisions 46 of S apply, at which time the voting rights of Members shall effective. SECTION 10.2 Memrsu. Upon succession of the Association to the, rights and obligations of Ditwelom, as d. s r* vd ,� every Owner s a eon � � - � ' . `thereafter, each person or entity that becomes an Owner shall thereupon become a member. The terms and provisions set forth in this Declaration which are binding upon all Owners are not cxclusive, and hers shall, in addition, be subject to the terms and provisions of the Articles and Bylaws to the extent the provisions thereof are not in conflict with this Declaration and d not impose material obligations on the: Owners other than as contemplated by this Declaration. The imerner'ship (the "Mpmbers of Owners In the Association sliall be appurtenant to and may not be separated from the interest of such Owner in its Parcel. The sole qualification for Membership in the Association shall be a pafty's status as Owner of a Parcel. Occupants of a Omer and Mortgagees are not entitled to become Members unless such right is assigned to then. by the Owner of the Parcel* There shall be only one Membership attributable to each Parcel. SECTION 10.3 r r, The Membership 1111 the Association held by any Owner shall not be transferred, pledged or alienated in any way, except that Membership with respect to a particular Parcel shall automatically transfemd to the person who shall acquire all of an Owner's right, title and interest in a Parcel or Parcels within the Shopping Center, a.d upon such acquisition, the transferor of the Parcel or parcels shall no longer be a Member as to the transferred Parcel o Parcels. Any attempt to make a prohibited transfer shall be void and will not be reflected upon the hooks and records of the association.. The Association shall have the right to retard the transfer upon the books of the Association without any fir action or consent by the transfer6ag Owner. The ,association sball have the r*ght to impose a reasonabRx, fee on tbim transferring Owner to cover the cost of documentation and clerical services incurred with respect to the transfer of Membcrshlp interests on the hooks and records of the Association. Notwithstanding any other provision of this Declaration, anOwner's right to vote shall not vest �rtii such transfer fee has been paid.. 47 SECTION 10A Vix . All Voting rights in the Association steal be subject to the resttictions and limitations proVided herein and the other G vetn' Documents. SECTION 10.5 VotLngRi2hts of Members. As of the date that voting rights for all -Members become effective in accordance with Section J� each Member shall entitled to vote that percentagethe total votes available to all Members ers (such total being deemed to be 100) reflected or matters affecting all the Shopping Center, the ratio that the total Floor Area itliin all Parcels owned by a Member bears to the total Floor Area of all Buildings on the Entire Property, and for matters affecting only a portion of'the Shopping Center s detemined Parcels which will be burdened by such matters), the ratio that the total Floor Area within all -burdenedar is owned by a Member bears to the total Flmr Area of all Buildings on those Parcels burdened by such matter at the time of the vote. Notwithstanding the o r goi , n provision r .i for the shaxing of costs by the Members shall be modified or Wilended or any covenants or obligations imposed o d r Member without the prior Witten consent of each Member whose share thereof or covenant and obligation thereof would be increased by such modification. Wlre than one person owns a portion of the interest in arare required for membership, all such persons collectively shall be a Member and the vote for such Parcel shall be exercised as they mon themselves .et n-nine, but in no event swill more votes he cast with respect to aliv Parcel than could be cast if such Parcel were owned by only one Member. If any Member casts a vote representing his Membership, it will thereafter be conclusively presumed for all pwposcs that he was actingwith the authority and consent of allother Owners of the sane Parcel. Any votes cast Mviolation this provision shall null and void. SECTTON O. , r MI n �� ts, Unless tbe�ispecifically i�i Declarationor the. Bylaws, any provision of the Governing Documents that requires the vote or written consent of the. voting power of the Association shall be deemed satisfied by the following: (a) the vote of the specified percentage required for the pWicular issue on which the Members r are voting t a me ri duly called and noticed pursuant to the provisions of the Goveming Documents dealing with annual or special meetings of the Members. The denominator of such percentage must include the votes representing the Total Fleur Area 48 weed by all Members entitled to vote at such meeting and not just reflect a percentage of those Members present; written consents signed by the required percentage of Members as provided in the Governing Documents; and (c) in any matter requiring the consent of the Members, but not specifically provided for i the Governing .e t any a ntra t cxecuted by the Association, a simple ma r't of the voting power ofMembers entitled to vote on such natters shall suffice. SECTTONT 10.7Duties and. Powers of Asappiation. I. addition to the duties and powers enumerated in the Governing Documents and without limiting the generality thereof, the Association shall have the pecduties and powers of the Developer as specified in this Declaration, including, but not limited to: a Assessments. The Association shall fix, levy, collect and enforce Common area Cast assessments nt as anther described in this Declaration and assessments as Sher defined i the Goveming Documents. (b) Common Area. The Association shall maintain, repair, replace, restore, operate, control and m i ge the Common Area and all facilities, improvements and equipment located thereon, as farther descrihed in this Declaration. except to the extcnt such maintenance has been assumed by a govemmeWal agency or public or private utility, and except a otherwise set forth herein, (c) The aright to appoint a "Maintenance .tena it t " as describe. in Section 4.7. (d) Inguance. The association shall maintain such policy or policies of insurance a required by this Declaration or as itother-wise deems necessary in its reasonable good faith discretion. Pg=ent of Expenses. The Association shall pay all expenses and obligations incurred. y the Association in the conduct of its business, including, without limitation, all licenses, taxes or govemmental charges levied or imposed against the progeny of the SECTION 10.8 General Corporate Power of the socIliation. Without limitation on any of the tenns and provisions set forth herein, the Association through the Board shall have the power, rights and duties provided elsewhere in this Declaration and in the Governing Documents and those powers granted to a non-profit mutual benefit corpoTation pursuanto Montana law, I including, but not limited to: qpertv. The AsscwHation shall have the power to acquire (by 'R, 91 purchase or o erwi, own, hold, improve, operate, maintain, convey, sell, lease, transfer, dedicate for public use or otherwise, dispose of real or personal property i connection with the affairs of the ss iatio .. (b) Borrowigg. The Association shall have the power to borrow funds to pay costs of operation, secured by assessment revenues due for succeeding gears or by assignment or pledge of rights agamtst delinquent Owners; (c) Contr . The Association shall have the power to contractfor goods and/or services .for the Common Area or for the performance of any power or duty of the AsscwHation, subject to limitations set forth elsewhere in this Declaration, the Articles or the Bylaws. The .association's power to contract shall include, without limitation, the right to enter into agreements With one or more other owners' associations for the purposes described in this Section} (d) le tion., The Association shall have, the power to delegate its authority and powers to committees, officers or employees of the Association, which shall be authorized to perform all or any designated portion of the duties and responsibilities of the Association hrwidr. (e) Enforcement. The Association shall have the power to enforce thisDec]aratio ., Board, acting ' r the Association, shall have the power to grant reasonable variances from the provisions of this Declaration in accordance with and subject to the provisions of this Declaration. (g) Membership Di es. The Board may resolve all disputes conceming Membership i the association. (h) Association Rule. The Board shall also have the poor to adopt, amend and repeal such races and regulations as it deems reasonable and which are not inconsistent with the provisions the Governing Documentswhich include any prior agreementsntr into between cio r acid an Owner (the "Association Rates"),and such rates and regulations shall be binding upon Ownm and Occupants of the Parcels* The association 50 Rules may include guidelines interpreting the construction standards. The Association Rules may regulate the use and enjoyment of the Corson Area in a rnaiiner not inconsistent with the provisions this Declaration. Each Owner shall observe and comply with and sball cause its Occupants to observcand comply with the Association Rules. SECTION I I# .MORTGAGEE PROTECTION 'Tbis Declaration and the rights, obligations, covenants conditions, restrictions and casements hereunder shall be superior and senior to any lien placed upon any Parcel, including the lien of an-v Mortgage, but no breach of this Declaration sal defeat, render invalid, diminish r impair the lien of any Mortgage made in good faith and for value. This Declaration and all of the covenants, conditions, restn'ctions and easements hounder shall be binding upon and effective against any person or entity (including any Mortgagee) who acquires tits.e to any Parcel, r interest therein, by foreclosure, trustee's sale, deed in lieu of forecloswer otherwise, SECTJON 12. AUSCELftANFOUS PROVISIONS SECTION 12.1 This Declaration shall create ptivity of contract and estate with and among all Owners of all or any part of the EntireProperty and their respective heirs, executors, I. successors and assigns.administrators, SECTION 12,2 Any assignment, conveywice or provision in any lease or contract made i violation of th-IsDeclaration shall be void and may be set aside upon petition of Developr or one or more of the Ownbrs. All cosits and expenses of any such suit or proceeding, , including .tt m y fees as hereinafter provided, shall be assessed against the defaulting Olxn r and shall constitute alien against its real property or the interest therein wrongfully deeded, leased, assigned, conveyed or contracted for until paid, such lien to be effective upon the recording of notice in the official records of the County, though anew such lien shall be subordinate to any previously recorded bona fide Mortgage coveting any portion of the Entire Property, and any purchaser at any foreclosure or trustee's sale as well as any grantee, by a deed in lieu of foreclosure or trustee's sale) under any such Mortgage shall take fitle free from any such later recorded lien, though otherwise subject to the provisions hereof* 51 SECTION 12.E If this Declaration provides that a consent or approval shal I riot be unreasonably withheld, such consent or approval shall be granted or withheld without unreasonable delay, and, if consent is withheld or approval not granted, the reasons for wiffiholding consent or approval shalt be stated with reasonable detail. SECTION 12.4 In the event that suit is brought for the enforcemmt of this ar ati n or as the result of a1v alleged breach, the prevailing party r parties shall be entitled t paid court costs, including reasonable attorney fees, by the losing party or parties including any attomey fees incurred in executing upon or appealing any judgment. 1 aSEC� N 2. of any m.at r quasi -public use) of all or any part of the Entire Property, the portion of the award attTibutable 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 Entire pert'; - red, however, that all other Owners the E ire r rt r may file collateral airs h the condem-ning authority over and above the value of the land taker, and provided further, however, that the Owner of any portion ofth area so condemned shall promptlyrepair and restore the remaim*ng portion of the area owned by such Owner as nearly as practicable to its condition immediately prior to the condemnation without contributions from any other Omer* SECTION 12.6 The captions heading the various sectionshis Declaration are for convenience and identification only, acid shall not be deemed to limit or define the contents of their respective sections, SC' .` Each Owner shall keep, lr ta. n, repair, manage ag and operate their respective Buildings, whether occupied or unoccupied., located on its respective Parcel(s) in good and clean order, operation, condition and repair in conformity with first-class shopping center standards, and in such Manner to establish, maintain and present, at all times, the appearance of a clean, well -managed, attractive, well coordinated and unified operation. 52 SECTION 12.8 E.xcept as herein Vecifically provides, no rights, privileges or immunities conferred upon ixmry this Declaration shall inure to the benefit of any Occupant or P n.itt e of the Entire Property or any other third ply; nor shall any Occupant or Perynittee o the Entire Property or any other third ply be deemed to be a third party beneficiary of any o the provisions contained herein. SFC,T10N 12.9This Declaration and the application or interpretation thereof shall be goy#erred exclusively its terms and by the laws of thState of Montana. SECTION t, 10 This Declaration mad, e executes in any number of counterparts to the see `'et as if each ply hereto had signed the sa= document. All counterparts shall be construed together, and shall constitute one De.claration. SECTION 12- 1 Each party hereto shall execute such other and further documents and instruments reasonably requested by the other party to more clearly evidence and carry out the Provisions of this Declaration. SECTION 12,12 Nothing contained in this Declaration shall be deemed or construes, either by the owners or by any third party, to create the relationship of pnincipal and agent or create any partnersbip, joint venture or other association between the Owners. SECTION 12.13 Nothing in this Declaration will hti deemed to be a cif. or dedication of any portion of the Entire Proporty to the e r .l public or for the general public or for any public purpose whatsoever. It is the intention of the parties hereto that this .declaration will be strictly limited to and for the poses expresses h r ll . SECTION Imo, 14 Default. (a) The occurrence of any one or more of the following eventssb1l constitute a material default axis breach of tis Declaration by the non -performing wr (the ""Defaulfin.R 53 (b) The failure to make any payment required to be made herewider within ten (10) days of the due date, or (c) The failure to observe or perform any of the covenants, conditions or obligations of this Declaration, within thirty days- or if such ail ire cannot with due diligence be cured within such 30-day period, then prompt commencement of cure within each 30-day end, and diligent prosecution of cure to completion as soon as possible tbefter after the issuance of a notice by another owner (the "Non -Defaulting ') specifyirig the ire of the default claimed. (d) t t _ QK , The provisions of Sect ....11J. notwithstanding, any Owner or Developer shall have the t to enforce the provisions of Section 6.2 of this Declaration. The provisions of any other provisions of this Declaration may only be enforced by Developer. e Lieu Costs e . Each Owner, acceptance deed thereof, whether or not it shall be so expressed in such deed. is deemed to agree to pay all costs and expenses a provided herein, together with interest, late charges, costs and reasonable attomeys fees, and shall be a charge on the land and furtherfurthcr agrees that costs and expenses accruing and/or assessed pursuant to this Declaration (i ing pursuant to this Section 12.1 shall eonstit .te a lien against the interest of the Defaulting Party in the Defaulting rt 's Parcel. The lien shall attach and take effect only upon recordation of a claim of lien in the official records of the County. The claim of lien shall include the following: 0 The name of the lien claimant; (ii)A statement concerning the basis for the claim of lien; (1*1' 1 identification of the Owner or reputed owner of the Pared or interest therein against which the lien is claimed; Ov) A description of the Parcel against which the lien is claimed; M A descfiption of the work performed, if any, which has given rise to the claim of lien and a statement itemizing izin the amount thereof, and; 54 (vi) statement that the lien is claimed pursuant to the provisions of this .rati ., reciting the date, book and page of recordation thereof. The notice shall be duly verified, acknowledged and contain a certificate that a copy thereof has been served upon the Owner against whm the lien is claimed, by perso-nalservice or by mailing pursuant to Section 13. The lien so Claimed shall attachfrom the date of recordation solely in tbe, amount clanined there -by and may be enforced in mi Judicial proceedings allowed by law, including withmit limitation, suit in the nature of a suit to foreclose a Mottgage or mechanic's lien -under the applicable provision of the law of ffie State of Montana. (f) Developer shall have the right to prosecute any proceedings at law or in equity a ain t any Defaulting Pity hereto, or any other person, violating or attempting to violate or defaulting upon any of the provisions contained. In this Declaration, and to recovcr damages for any such violation or default. Such proceeding shall include the right to restrain by ilijunction any i atio r threatened i atx another of any of the tens, covenants, or conditions of this Declaration, or to obtaina decree to compel performance of any such terns, covenants, or conditions, it being aid that the remedy at law for a breach of any such term, covenant, or condition (except those., if any, requiring the Payment of a liquidated sum) is not adequate. All of the remedies Permitted or available under this Declaration or at law or in equity shall be cumulative and not afte iative, and invocation of any such rigJA or remedy shall not constitute a waiver or elecfion remedies with respect to any other permitted or available right orTemedy. SECTION 12.15 Any time an der shall not pay any sum payable hereunder to another then, aver written demand and failure to pay within ten days after receipt of such demand, such delinquent Owncr shad pay interest on such amount from the due date to and ij)cluding the date such Payment is received, at the lesser (a) highest rate permitted by law to be paid on such type of obligation; or (b) Tell percent i ° , 55 SECTION 1 # NOTICES SECTION 13.1 All notices., consents, requests, demands, approvals, waivers and other communications desired r required to be given hereunder (referred to coll i el y as "notices") " all be in Ming and signed by the party so giving the notice., and shall be deemed effectively given or served as of the date hereinafter specified; 1) on the date the notice is received or rejected, provided it is relit prepaid, registered or certified mail, rem receipt requested, and 00 on the date the notice is delivered by a ear service(including Federal Express, Express Mail, Emery r similar operation) to the address of the won to whom It is directed provided it is sent r w , return receipt -requested (if available). The address of each signatory to this Declaration is set forth below; DEVELOPED: Hutton Ranch Plaza Associates, LLC Sunset Plaza, Suite 201 Kalispell, MT 59901 Anyone entitled to receive notice hereunder may, from time to time, change its address for receiving notices by giving written notice thereof in the manner outlined above,, provided such change contains a street address for personal delivery. In the rent any notice using a address provided in accordance with this Section 13.1 is r t med undeliverable, sueb notice shall e effective five days after being mailed to the adds &s shown on the most recent records of the County Tax Assessor for the Owner's Parcel. SECTION 14.1 Amendment R Termination. This Declaration may only be amended or terminated by the written agreement of Developer and with respect to any amendment which shall have a material, negative impact upon a Parcel or the use thereof, then also the Owner of such Parcel, and Owners of seventy-five percent ,% the Entire Property. Any such amendment or t rniatian shall be effcctive only when duly acknowledged and recorded in the official records of the County, SECTION 14.2 Effectiveness of Declaration. This Declaration, thotigh executed on the date above written, shall only be effective upon, from and after its r=rding in the official records of the Cunt. 56 SECTION 14.3 Continuation of Easements. Unless all of the hers agree otherwise in writing prior to the expiration or earlier termination of this Declaratim, the easements granted in this Declaration for public street access, passage between parcels, parking, -utilities, building encroachments and signage shall be perpetual and shall survive die expiration or e r ier termination of this Declaration and, to the extent requested by any Owner upon the expiration or earlier ten-nination of t is Declaration, the Owners shall enter into and record an casement agreement t memorializing sneh perpetual non-exclusive easements,, provided if any of the foregoingease.ments are not used and enjoyed by the dominant Parcel for a period of more than one l year after the oxpiration or earlier termination this Declaration, then such easements) shall expire and be of no bier force or effect. SECTION 14.4 uration. Except as otherwise provided herein, the terrm of this DeeJaration shall be for e en - five years ftorn the date this Declaratioa is first recorded.. SECTION . Breach ShPermit Terminations It is expressly agreed that no breach of this Declaration shall entitle miy vner to terminate this Declaration. SECTION 14.6 Waiver, The failure to insist upon strict performance of any of the restrictions contained herein shall net be deemed a waiver of any rights or remedies hereunder, and shall not he deemed a waiver of any subsequent reach r default i the r or ranee any the restrictions contained herein the same r any ether Owner. SECTION 143 S ra * . if any teen or provision of this Declaration or the application of it to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Declaration or the application of such term or provision to persons or cire rnstaance , other than those as to which it is invalid or unenforceable, shall not he affected thereby, and each term and provision of this Declaration shall be valid and shall be enforced to the extent permitted by law. S CTJ N 14.8 Obli gation to Give Este net -Statements. a Developer shall, at any time, and from time to time, in coTinection with the sale, lease, sale -leaseback or other transfer or the financing or refinancing of an Own is Parcel, 57 deliver wn'tten notice to such Owner and/or the proposed transferee or lender designated by such Owner certifying in w6ting that to the best of the knowledge of Developer: i this Declaration t in fail force and effect and a bindingobligation of suchOwner; i this Declaration has not been amended or modified, or if it hs been amended or modified, identifying the amendments and modifications; and iii the requesting owner is not in default in the perfonnance of its obligations order this Declaration, or, if i default, to describe therein the specific nature and details of any and all defaults. Developer shall execute and return such certificate in westing within fifteen 1 days following receipt of a request therefor. (b) Upon the written request of any Owner to mother Owner, mich other Owner shall certify in writing whetherlt has or is aware of any claims or liens against the requesting Owner under the terms of t. cla .i n and, if so, the nature and amount of such claims and liens. If the other der fails to respond within fifteen days der rec, t of Such request the other Owner shall be deemed to have waivcd any claims or liens against the requesting Owner, provided such request in capital letters identifies this Declaration and Section and explains that .failure to respond shall result in the other Owner being c to p d from raising any clatin or lien known to exist by the other owner against the requesting w r on or beforo the otherOwner's receipt of said request. SECTION 14.9 Exhibits. The following exhibitsare attached to this i ati d incorporated herein. - Exhibit A: Entire Property Site Plan (showing Building Urnit Lines) Exhibit 13. Legal Description of Entiro Property Exhibit C-.. Phase, I Site Plan Exhibit C- . Phase U Site Plan Exhibit . Sign Program Exhibit . Architectural Guidelines [SIGNATURES TO FOLLOW ONNEXT PAGE] 58 BN WITNESS WHEREOF, this Declaration is executed by the pies hereto as of the day and ear Witten, DEVELOP, B: ,Phil t# r hi His & Associates, Inc., f t# Manof of Ranch Plaza Associates, C STATE OF MNAN County t On t i�� day of12LC...-1-1 2 L- before me, a notary publicfor the State of Montana, personally appeared, F ILE HARRIS, President of PhilipHarris & Associates, Itic., Manager . HUTTON RANCH PLAZA ASSOCIATES, LLC,, known to me to be the person whose name is subscribed to the within ins rarnn, and acknowledged to me that this document was executed in his1her official capacitor, a -ad he/sbe executed the am *,,,'--' #{� 0 TA S Nar: bhr &�State Montana - lza�-�o (SEAL) Req'ding at. My Commission expires 59 77-7-1 A -1 f P X-M - .2. 7777, A 'rt-TIT -7 .7 uf N6 K A v IV' " vt- r v- vV y J IPAI( A z V 1-14 v.. ... ..... .......... J, ................. "-7 PA "L7 1 1A oe 0&m �-" TFIM -M 70 ]4,]" A:T J111 A Z -" o"z-' -xz T N {Jf _J A /yz/ 7 .... .. ........ ... . .... . .. OL- 19 1I Tl T i" E 11, I J.. 9_46 I f j- 1IFF 'PA6 /k 'i-I 9= LEGEND -IN BUILDNG LIMIT UNES NO -BUILD AREA -sh St�gu Road [)P'AVVN By: _M_HP Fngfnvers 122S VVhqefk MORIKa�ispeil [�OT59901 CHKD- BY- SON HUTTON RANCH PLAZA MONTANA su"YVI Phoni;: (40(5) 752-2216 APPR. BY: -3 INR EXHOT NUMBER Mx:406 752291 Ar TA" GC ND REXH"'" A BMAIYEVcRnLEC4K M P1Q-0w'oINC 2fj,'c'. UeV39',9\005 Cmi Des�n�ACADCjvj[1Fjr?dinp, Of Foc€ E_gjiibjtsExhiS A,dwg Psotied by mark paulti an Apr/201 Nw ...... .. . ... ........... ............ . .. ... .. . . . ..... ................ Exhibit LEGAL DESCRIPTION Tract I A of Certieate of Survey No. 1713 2, a tract o f laud located and being a portion of the Southeast Quarter of the Northwest Quarter SE1 NW 1 , the Northeast Quarter of the Southwest Quarter NEI SWI , and Govemment Lots 2 & 3 of Section. 3 1, Township 29 North., Range 21 West, P.M..M., Flathead County, Montana. E , -�¢.- P'- � - ;s ... ... }, / •rY. ..�. �i'jr,• �,: �• {�r�"}/'•},^" _i"- }, � x r�'- �--' }r '`}, � '<- r" {:' ri �• / }.� }, _' ,/ r ! �' �J .� '{{% / �� :,..., s r{ � { � } r { } r{ r! }r{ �' I• { r' . �'} ! }{� } / f }� r' r}' r :`� /{ % f� j } /r rf `j f � r� r}' rx , �' f �d , ...- ............... .........................." ..-.....-......_ .-..._.... .... ,.. x . ........ , , x .... ............................... "... .. .w. , <t , , , n r {+ ' r �` 3.,w,M i f _{+ • �(} fir= {+ {' i C c - , i , S7777-7 te} ' { Z� e . r„ { } r• }' sr.«.,.. ....�«ti r' } * t }r r l• rr. :'r f {{ ' i t' ' r .'/ s,�;, v- # r i � r I}r .F ... E.....F. .�....*.-i .. .. VER F-0 W'm��'os my-k 'vj2 *R WF W-"*9 W" 3S3 OR R'E'R' "i f , r SAD ..J < r Wit'',. '� f n.. LEGEND ..1L LIMIT -BUILD AREA _ -,: Aim,-.C-._v r_--.- ,< �• i• }l_� 1225 WhitiA!8 � Stag Rs) i DRAWN N BY: M H P MORRISON SE a roes HK'D- BY: TVVR x MAIERLE INC. c3�r��ists Pft�r� Phone: {406; � 2-22115 AR R, BY: TUR KAL I P L L "V+ � fax- {4fi+�� r5�-�,3 *�� DATE-- Y /� 4/2r!�0'16 (� HUTHUTTON RANCH PEA . AND R. #BI I "C-1" MONTANA PRO�ECT NO. 319,E E H!BJT NUM8CR c - COFY R!0r-7 rC, MORRiSON-t !ER4r-. irdC., M)rj UAa''t)iW05 Civ:k Des n�ACA.�IOzv'hF;M Trigs Of Fact kxNbito\F_X }ibit -1 Ami Pko:ted by ��rk� paulson on Api720!2G76 LEGEND V ti BUILDING LIMIT LINES f NO -BUILD AREA �M1 1R�C V1=hsia£e53< �1� Stage load DRAWN BY:�...hHP... RANCHHUTTON PROJECT NO- uves T 69901 BY-. 'D_ TWRMORRISON �CALI .LL TA A . scs se.APPR. Phoritom.. MAIERLE EXHIBiT NUMBER Fax: {406) 75-'2391 .fir) p1vy -mod C y £'.Cti`Y!SIC'I"<<'i7�?V�'�15Cho-PolAl�fi:.k..l?,1C.2'J+}: DATA: �kl Q$ N R. EXiLJIT P4—}f Civil DesignACAE)�C: v llri ?Qlf?.13 0` Fact Ex€ ib'WExhjbit C-` -C vqj Picil,i Cd b f lafk pcILJ{ [)F ,' , 4 Apf/ 01 . } 10 4 4 R44 4 Count SAGmw 0 7A 5B 4 5EN 511A County 7A 7 7AA P.1 7B i %Ile 6A VICINITY MAP scn� 1 200' PHILIP & DONNA HARRIS/HUTTON RANCH PLAZA, LLC FINAL PLAT HUTTON RANCH PLAZA PHASE I A 17 LOT COMMERCIAL SUBDIVISION ON 29.20 ACRES FWT DAM 3/31/06 FILE # KFP - 0 5 - 4 8 H:\gis\site\wsrO5-3.dwg ........................................................... 9eCTIC4 _.w C3RNER x1K�- THE FINAL PLAT OF HUTTON RANCH PLAZA PHASE I SUBDIVISION LOCATED IN THE NW 1/4 AND THE SW 1/4 Of SECTION 31, T29N, R21W, P.M.M-, CITY OF KALISPELL, FLATHEAD COUNTY, MONTANA OWNER ENG€t E E R PIJRI'OSE HU 7pN RANCH PIA A M'1RRI1,13fi-VAIERLE, INC.BD:Y;510N ='LA'S A SOCiA :s, LLC 3 6 N. RAILROAD S_ 5,i1TF- .05 JNSI[7 P t ZA a�»0 :A ' 59802 SL5- 201 KALISPEIi MONTANA ." SURVEY Gp5'1 LOCATION i y -- ouo<varn"p zR 'Av� S86'22'3I"E 1303,43' (Ri&F) ram LEGEND N l J A2: - WV A Lil_ r A uut Rc ADDRESS TABLE MONUMENT DESCRIPTION n AK v RJ N : KaTF ti 1H nR 0 E- lC E $ ,EE -(' BE G� I.E. OKI ADPR- -A�'E A3 2 C. 011W1 0 UCN'AW RW 1DC - 3 J343 - y 6 'J 44 4] s3 p 8' GB 9a h8 5 5.•L; ',.r Mhk 1 M2 AND 9525 - - l M1D3 ] E _ C. 39 E 475E ] 4 DC 133 G6 Iv68 3 0 1/ MhC 47J N: 3 r 3 C G3 ) f ml C '2'oa3 4S 57 G ? g 97 Mh F. a urtG -.GPN C- S1 �NIANA 2N 8D 1 _ M C 1 AREASUMMARY C 6 6 J 8 5 S]2 54 4 .G ML GI CA!5 r' E l.S G3D SE Sf 59 G.28 G 63 8 865 /} _.' A C MJ' 2 5C 16 ] 9 - 6G '3 e IB Sl C 4 39 13394 J3 EC 9 U ASC COMMO h EA D A-/ 2" 0. I.IY II ;IhA: 6 6.0'l _FNA .iW : <J GRAPHIS SCALE '•1 E - "JF---wAv _ -s MS - 2' F C M M RR 0- hA ,INC.-C'92 ES 'EG / 8 v I 4.2 9]25C .._.0 ] 5 E4G I ,- BD G u_ 3 '33 �a - a '- 8,,..,..,�.,.,..3 ]J S,4 ,3 41�w.., �., /.5� 4CO1 , 1 5S 33 I /➢3.49 hs] 31 ? RC M,K ,. MRR.SG:'t.MF___ IAC. - lL �44}s.? 1 4364 I�.F S3L_5Gr'?- -E IN ] A�CR3r 4�38 cc, c- - - ,<- R, k i L, t 1) in ffffIT"t T. ri ri 11 0". 0- Kalispell, Montana Comprehensive Sign Plal 915 hiH'roft circle, ca 946�O 8 9 1 - 5 8 4 0 fax (510) 893-584i IP-G" (ACTIVE SIGN AREA) f 101-1V SIGN A - PRIMARY PYLON SIGN v 93 at north and South ends of site area 199 sq ft -one surface, structural steel, aluminum cabinet illuminated letters and graphics ,cant corporate colors rs, exposed neon and logo signature - tenant graphics 4te foundation. 975 hdlcraft circle cakIan6, ca 94610 (510) 893-5640 fax (510) 893-5841 ferry �jerrywyman.com Hutton Ranch Plaza Kalispell, Montana Comprehensive Sian Plan PYLON Lacation At major intersection within Center Size each panel 2' x 10' Materials Aiurninum - acrylic Finishes Per Center colors Illumination 800 MA Fluorescent Graphics Tenant names - arrows Installation On masonry wall feature I01-0" 4I-0II _l SIGN G - MALL DIRECTIONAL SIGN is ` k 3i 975 hillcrolt circle Oakland, ca 94610 (5i0) 893-5840 1811 fax (5l0) 893-5841 jerry@-)jcrrywymari.com Hutton Ranch Plaza Kalispell., Fontana Comprehensive Sign Plan Location Various within site Size 2' x 4' maximum materials Aluminum post & panel Finishes Per Center coolorscherne Illumination Nora Illuminated Graphics per Center Typestyle Installation Concrete footings SIGN D - SMALL WAY -FINDING SIGN 314" -1'-J' 975 hillcroft circle oak Ian d, ca 946[0 (5I0) 893.3840 fax (510) 893-5841 ferry ,jer"yMan.com Nftnn Ranch Plaza Kalispell, Montana Comprehensive Sign flan Fri- 91T Tim a TENANTS OF ALLOCATED SPACES OF 40,000 SQ.FT, OR MORE LU W '-- A-- ANCHOR TENANT SIGN - INDIVIDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY 3/16" SUGGESTED FABRICATION ALUMINUM LETTERS WITH 5" RETURNS TO BE PAINTED INSIDE WHITE, OUTSIDE BLACK. 3/4" BLACK TRIM CAPS AND 3/16" WHITE ACRYLIC FACES W/ TRANSLUCENT VINYL OVERLAY, LETTERS TO BE ILLUMINATED WITH D/T 15MM NEON TUBES, ELECTROBITS WIRING COMPONENTS AND 30MA/110V REMOTE TRANSFORMERS. LETTERS TO BE MOUNTED ONTO THE FACADES WITH APPROPRIATE FASTENERS. TOTAL SIGN AREA BASED ON RATIO OF 1.5 SQUARE FOOT FOR EACH LINEAL FOOT OF PRIMARY ENTRYFRONTAGE SIGNS CANNOT EXCEED 70% OF THE LENGTH OF FACADE, TYPICAL ELEVATION 1/32" = 14" Location On facade over entry, side and rear wails subject to Owner approval - Size 1.5 sf ft per lineal ft frontage, Maximum - 6 ft letters Materials Aluminum / acrylic Finishes per Tenant Corporate color scheme Illumination Neon or LED internal Graphics Par Tenant Corporate Graphics Installation On facades d-Baxins enoneciacn betwoon the !et:ers 3116 Amyli 114" K 2 I12' Sum {}tin. 4 Per Lim) New SwO-Ns --. — Short Sleeve Elect€ W 25 E ' Wo Sleev ng373fl End Cap Wide Electrobit EM5 13 cr 15 mm '2 Va Mira in ;lea \ sorduit to remote 314° B1aek ;rim Bps . r-.---------- 5" Black Aluminum Bet ,<: - � ;=� lraralMmer LVI discallnect switch suave ceiling. 1 PAN-CHAINNEL 1-FTERS C14 UNTING DETAIL Building 'Nall N T,S. �?t - ..` n si 975 hillcroft circle aakland, ca 94610 i510,1 893-3840 fax (5i0) 8 93. 584 1 ferry jerrywymxn.com Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan Anchor Tenant TENANTS OF ALLOCATED SPACES OF 101000 TO 39,999 SQ.FT. i---------- - - -- -- --- -- i I , I I I i I L i L6 p i I ! F— LOGO � t— � i t I k � � I i i i � I i I I `------------- i ! - - -- -- u--R--------------------,---I i MAJOR TENANT SIGN - INDIVIDUALLY, ILLUMINATED PAN CHANNEL LETTER DISPLAY 1/21' = 11-0I1. SUGGESTED FABRICATION ALUMINUM LETTERS WITH 5" RETURNS TO BE PAINTED INSIDE WHITE, OUTSIDE BLACK, 3/4" BLACK TRIM CAPS AND 3/16" WHITE ACRYLIC FACES VV/ TRANSLUCENT VINYL OVERLAY. LETTERS TO BE ILLUMINATED WITH D/T 15MM NEON TUBES, ELECTROBITS WIRING COMPONENTS AND 30MA/110V REMOTE TRANSFORMERS. LETTERS TO BE MOULTED ONTO THE FACADE WITH APPROPRIATE FAST ENERS. SIGNS CENTERED ON THE FASCIA TOTAL SIGN AREA RASED ON RATIO OF 1.5 SQUARE FOOT FOR EACH LINEAL FOOT OF PRIMARY ENTRY FRONTAGE SIGNS CANNOT WEED 70% OF THE LENGTH OF FACADE TYPICAL ELEVATION 1/l6" = 1,-0" Location On facade over entry, side and rear walls subject to Owflar approval Size 1.5 sf ft per lineal ft frontage, Maximum - 4 ft letters Materials Aluminum / acrylic Finishes perTenant Corporate color scheme Illumination Neon or LED internal Graphics Per Tenant Corporate Graphics Installation On facades 975 hillero(t circle oakland. ca 94610 (510i 693-5840 fax �5i0) 693-5641 jerry6jerrywymanxom Hutton Ranch Plaza Kalispell, Montana a Comprehensive Sign Plan 0 rill. TENANTS OF ALLOCATED SPACES OF9,999 SQ.FT, AND LESS ---------------, ,_ _ __- _ _ __ ---------------------------- -_I I i ; � I I f g LOGO BOXIn I r r J as r---------------_---------------------------------------------------------------- Ifs-LINE TENANT SIGN - INDIVIDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY 1/2" = P-On SUGGESTED FABRICATION ALUMINUM LETTERS WITH 5" RETURNS TO BE PAINTED INSIDE WHITE, OUTSIDE BLACK, 3/4" BLACK TRIM CAPS AND 3/16" WHITE ACRYLIC FACES W/ TRANSLUCENT VINYL OVERLAY. LETTERS TO BE ILLUMINATED WITH D/T 15MM NEON TUBES, ELECTROBITS WIRING GOMPONENTS AND 30MA/I10V REMOTE TRANSFORMERS. LETTERS TO BE MOUNTED ONTO THE FASCIA WITH APPROPRIATE FASTENERS. SIGNS CENTERED ON THE FACADE TOTAL SIGN AREA BASED ON RATIO OF 1.5 SQUARE FOOT FOR EACH LINEAL FOOT OF PRIMARY ENTRY FRONTAGE SIGNS CANNOT EMCEED 70% OF THE LENGTH OF FASCIA. TYPICAL ELEVATiGi'i 1/16" = 1'-0`I Location On, facade over entry, and walls subject to Owner approval Size 1,5 sf ft per lineal ft frontage; Maximum - 24" letters Materials Aluminum / acrylic Finishes per Tenant Corporate color scheme Illuminaton Neon or LED internal Graphics Per Tenant Corporate Graphics Installation On facades i 1-Baxiarconnsriiae tetwaeo the idtvs 3!f a Actyi 1 j4" a 2112" Scre fia©nStzr6..G„; �yt per Ltrs.i 3hoit Moaut Ell irobil SsS ^•f f �a 3 GTO Siaeving 3730 I: g End Cap'Alide £Ieclrohit EC4Y , f;TO SYlre to flex 13 or 15 mm Waa r fu rmduit Ie temale 'rul»;aps - - t[2nsiar,�nerw/disco-nrec�. sfatcl; stave ceiling Irrvirm Mum — Bulging Wall NNEL LETTERS MOUNTM DErAlt N.T.S. 975 hii11crQ(t circle o a k i a r-, ca 94516 ( 5 1 0 ) 893.5840 fax (510) 893-5841 jerry q jerrywyman-cam Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan TENANTS OF SOLITARY STRUCTURES SPECIFIED AS PAD BUILDINGS } I I € i I € i I r CC7 LOGO BOX "' 3 I 1 I 3 I I cX,i I I I .--t I I i I I i ---------------� I-------__^__Pa—d -----.....,...B—I--d—g�...._...-- PAD BLDG TENANT SIGN - INDIVIDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY 1/211= P-011 SUGGESTED FABRICATION ALUMINUM LETTERS WITH 5:' RETURNS TO BE PRINTED INSIDE WHITE, OUTSIDE BLACK. 3/4" BLACK TRIM CAPS AND 3/16' WHITE ACRYLIC FACES V`y/TRANSLUCENT VINYL OVERLAY, LETTERS TO BE ILLUMINATED WITH D/T 15MM NEON TUBES, ELECTROBITS WIRING COMPONENTS AND 30MA/11OV REMOTE TRANSFORMERS. LETTERS TO BE MOUNTED ONTO THE FASCIA WITH APPROPRIATE FASTENERS. SIGNS PLACED ON ALL FOUR SIDES OF BUILDING (IF APPLICABLE) TOTAL SIGN AREA BASED ON RATIO OF 1.5 SQUARE FOOT FOR EACH LINEAL FOOT OF PRIMARY ENTRY FRONTAGE SIGNS CANNOT EXCEED 70% OF THE LENGTH OF FASCIA. TYPICAL ELEVATION 1/16" = 1'-01` Location On facade over entry, side and rear walls subject to Owner approval Size 1.5 sf ft per lineal ft frontage, Maximum - 28" letters Materials Aluminum / acrylic Finishes per Tenant Corporate color scheme Illumination Neon or LED internal Graphics Per Tenant Corporate Graphics Installation On facades i ftforsanuebon .heF=vaxnihe IeCcls .yil' I;d" x 2 312"Scrams laad4tfs Mn, t Per LLm) Iceee Jecitahi! S95 --- .; 4. sang PH {; 1 v ds E:c hbat EM 'hV:=• GTC rise in flex i mm.' - sandsit IIm ramm rkTriro-CaPs — - Vanne.mer:vloia€enned s0chal'ma p0g, BaNdng'r'iei3 Ned 915 hillcroft circle 0ahiard, ca 94610 (510) 8 9 3 - 5 8 4 0 fax (510) 893-5841 g erryQj errywyma m. com Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan 1,11GI-IWAY .93. 975 hillcroft circle OaklalA' a 94610 (5 10) 8 9 3 - 5 8 4 0 fax (510 1 893-5841 jerryCO)jeri)tWyTnan.<OM Hutton Ranch Plaza SeYbac'r..erual.o Kalispell, Montana Comprehensive Sign Plan 4- 25 ft Hjh E5iv! 20 Do q ft 51ft, rinin Sctback