Exhibit C Sample AgreementSAMPLE
EXHIBIT C
[OUTPARCELI
EASEMENTS AND RESTRICTIONS AGREEMENT
THIS EASEMENTS AND RESTRICTIONS AGREEMENT (this "Agreement"), is
made this day of , 2007, by WOLFORD DEVELOPMENT
MONTANA, LLC, a Montana limited liability company ("Declarant").
WITNESSETH:
WHEREAS, Declarant is the fee owner of certain real property located in Kalispell,
Flathead County, Montana, more particularly described on Exhibit "A" attached hereto and
made a part hereof (the "Out Parcels"), which are adjacent to Declarant' s development known
as "Glacier Mall Town Center", more particularly described on Exhibit "B" attached hereto and
made a part hereof (the "Shopping Center"), and which Out Parcels and Shopping Center are
depicted on Exhibit "C" attached hereto and made a part hereof; and
WHEREAS, Declarant desires to impose certain restrictions on the Out Parcels to
promote the orderly development and use thereof in a manner compatible with the Shopping
Center.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Declarant hereby
declares that the following restrictions are imposed on the development of the Out Parcels for the
benefit of the Shopping Center, and Declarant:
A. SITE IMPROVEMENTS
1. Buffer Strip.
A buffer strip containing landscaping only shall be maintained between the
property line and the edge of the pavement around the perimeter of each Out Parcel, and
no above -ground improvements of any type shall be erected thereon other than signs
installed in accordance with Section C of this Agreement, landscaping, directional signs,
fencing, traffic barriers, light poles, walkways and entrances to the perimeter drive of the
Shopping Center. Said buffer strip shall be at least ten feet (10') in width, except where
an Out Parcel has a common boundary with another Out Parcel, in which event the buffer
strip shall be five feet (5') wide on each side of such common boundary.
2. Curbs and Pavement.
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(a) Concrete curbs and gutters shall be constructed on or adjacent to the Out
Parcels in each of the following locations: (i) around the entire perimeter of each Out
Parcel, at the edge of the pavement, to separate the paved area from the adjacent
landscaped buffer; (ii) on both sides of the landscaped buffer in those areas where the
buffer separates an Out Parcel from adjacent access drives and/or adjacent public
roadways; (iii) around the building(s) and any landscaped islands constructed on each
Out Parcel; and (iv) at all vehicular entrances to the Out Parcels from adjacent public
roadways, adjacent access drives, and contiguous Out Parcels. All such curbs shall be
full -depth eighteen inch (18") poured -in -place concrete curbs. No bumper blocks or
precast, extruded or asphaltic curbs shall be permitted. Minimum height of curb or curb
and gutter above paved areas shall be six inches (6") except at entrances. Handicapped
ramps shall be provided as required by applicable code.
(b) The pavement section of the parking areas shall conform to the section
used for the Shopping Center parking areas.
3. Parking and Access.
(a) Each Out Parcel shall be self-sustaining as to parking. There shall be
maintained at all times on each Out Parcel the greater of: (i) not less than four and one-
half (4.5) automobile parking spaces of standard size for each one thousand (1,000)
square feet of floor area constructed on the Out Parcel, or (ii) such number of automobile
parking spaces as may be required by applicable law (after taking into account any
variances); provided, however, notwithstanding clause (a)(i) above: any restaurant shall
maintain the greater of ten (10) spaces per one thousand (1,000) square feet of floor area
or such number of spaces as maybe required by applicable law.
(b) The owners and patrons of the Out Parcels shall not have any right of
parking upon the Shopping Center.
(c) Design of the parking areas shall be in accordance with the following:
(i) Compact car spaces are not allowed.
(ii) Handicapped spaces should be provided in accordance with
applicable codes.
(iii) In general, parking aisles should be perpendicular to the building
serviced by same, when possible.
(iv) Whenever possible, curbed islands should separate a change in
direction of parking stalls and aisles.
(v) Parking lot striping shall match that of the Shopping Center
parking lot in width, length, angle, color and paint specification. Striping shall be
maintained in good order and re -striping shall be provided as reasonably required
by Declarant.
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(d) Declarant hereby establishes, to and for the benefit of the Out Parcels and
the owners, tenants, occupants, customers and invitees of the Outparcels, a non-exclusive,
perpetual easement for vehicular and pedestrian access, ingress and egress to and from
U.S. 93 over and across the drive and the entrance drives, in the areas identified as the
"Perpetual Access Easement Area" on Exhibit "C", of the Shopping Center. Declarant
reserves the right to approve the number, location and width of all curb -cuts from the Out
Parcels onto the perimeter drive of the Shopping Center. Curb -cuts onto the perimeter
drive of the Shopping Center shall not be less than one hundred feet (100') apart,
measured center line to center line. No curb cuts except "right in/right out only" shall be
permitted onto any entrance/exit drive which connects the perimeter drive of the
Shopping Center with
4. Utilities.
(a) Grant of Easement. Declarant hereby acknowledges that the utility and
drainage systems ("Utilities") serving the Out Parcels are part of the systems serving the
Shopping Center. Declarant hereby establishes, for the benefit of the Out Parcels, a
perpetual, non-exclusive easement to connect with and use such utility and drainage
systems upon and subject to the following terms and conditions:
(i) All connections shall be designed by a professional engineer. All
points of connection shall be located outside of the perimeter drive of the
Shopping Center at locations approved in writing by Declarant. The plans for all
connections shall be subject to the prior written approval of Declarant.
(ii) The quality of materials used in connecting lines, pipes, conduits
or other materials shall be of quality equal to or better than those to which they
are connected.
(iii) The materials and workmanship shall comply with all applicable
governmental codes and regulations.
(iv) All work done in making said connections and repairs to such
Utilities shall be completed expeditiously and in such a manner so as to cause no
undue interference with the businesses being conducted on the Shopping Center,
so as to minimize any disruption to the perimeter drive, access drives and parking
areas in the Shopping Center, and so as not to interrupt or interfere with utility
services to any improvements in the Shopping Center.
(v) After completion of such work, the fee owner of such Out Parcel
shall, at its cost and expense, promptly restore a 11 property and improvements
affected thereby to the same or as good condition as existed immediately prior to
the commencement of such work.
(vi) The fee owner of an Out Parcel undertaking such work or such Out
Parcel owner's contractor shall furnish liability insurance with a minimum
liability of two million dollars ($2,000,000.00) general aggregate limit prior to
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commencement of such work, naming Declarant, and all fee owners of the
Shopping Center as additional insureds as their interests may appear.
(vii) With respect to any water, sanitary and storm utility systems which
are not maintained by a utility company or governmental authority, the fee owner
of each Out Parcel served by such utility system shall pay to Declarant, or to its
designee, upon receipt of periodic statements therefore a proportionate share of
the cost of operating, maintaining and repairing such utility system based upon
the area of the Out Parcel and the total area of the Shopping Center and Out
Parcels served by such utility system.
(viii) All fee owners of the Shopping Center shall have the right to
relocate such utility lines located on their respective parcels in the Shopping
Center without the consent of the Declarant or the fee owners of the Out Parcels
at the time in question, provided such relocation is performed in such a manner so
as to cause no undue interference with utility services to the Out Parcels and the
businesses being conducted on the Out Parcels.
(b) General. All utility lines shall be entirely underground, with no overhead
lines, poles or wires permitted.
(c) Storm Sewers. All storm sewers shall be designed such that the entire
storm water run-off will be contained within the Out Parcels, but shall discharge through
the storm water drainage system for the Shopping Center. Storm water drainage shall be
implemented by the use of catch basins and underground storm lines. No open ditches
will be permitted. Construction of the storm sewer system shall be in accordance with
the following:
(i) Storm sewer design of pipe and size shall be determined on storm
frequency of not less than ten (10) years or as determined by local code.
(ii) Storm sewer size of main line is to be a minimum of twelve inches
(12") in diameter.
(iii) Catch basin, manholes and drainage appurtenances shall be spaced
in accordance to local codes and as required to provide necessary drainage.
(iv) Material type shall conform to local codes and American Society
for Testing and Materials.
(v) Each Out Parcel owner's design engineer is responsible for
determining that its system is in compliance with applicable codes and that its
system does not exceed the design capacity of the system into which the Out
Parcel system flows.
(d) Sanitary Sewers. No on -site septic system for sanitary sewer treatment
facility will be permitted on the Out Parcels. Construction of the sanitary sewer system
shall be in accordance with the following:
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(i) Public sanitary sewers shall be minimum diameter of eight inches
(8"). Service lines to the building shall be a minimum of six inches (6") in
diameter.
(ii) Materials shall conform to American Society for Testing and
Materials and local codes.
(iii) Installation of sanitary sewer pipe shall conform to local codes.
Trench detail and method shall be incorporated into the plans.
(iv) Sanitary sewer line shall be tested for infiltration, exfiltration, and
air tested.
(e) Gas. Gas service, if available, shall be provided by the local gas company.
The Out Parcel owner shall be responsible for obtaining any and all necessary consents or
approvals for obtaining gas service and for the payment of any fees. All gas lines shall be
below grade. All gas meters, valves, etc. shall be concealed from public view.
(f) Electric. Electric service shall be provided by the local electric company.
The Out Parcel owner shall be responsible for obtaining any and all necessary consents or
approvals for obtaining electrical service and for the payment of any fees. All electric
service shall be below grade. All electric meters, transformers, etc. shall be concealed
from public view.
(g) Telephone. Telephone service shall be provided by the local telephone
company. The Out Parcel shall be responsible for obtaining any and all necessary
consents or approvals for obtaining telephone service and for the payment of any fees.
All telephone service shall be below grade. All telephone equipment shall be concealed
from public view.
(h) Utility Easements. Declarant hereby reserves a perpetual, nonexclusive
easement for the construction, maintenance, operation, repair, inspection and alteration of
utility lines and/or pipelines, together with reasonable rights of access thereto, under,
upon and across a fifteen foot (15') wide strip along the inside of and adjoining all
boundaries of the Out Parcels. There shall be no above -ground improvements other than
curbing and/or paving on the portion of said easement lying outside of the buffer strip.
5. Traffic Flow.
Pavement markings, directional signs and other traffic indicators on the Out
Parcels shall be the same as those in the Shopping Center and shall provide for a traffic
plan compatible with that of the Shopping Center. Design of the interior traffic flow and
parking layout of each Out Parcel shall be in accordance with the following:
(a) All access points will allow for sufficient vehicle stacking distance.
(b) Entrances directing traffic to a "head-on parking condition" should be
avoided.
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(c) Drive-thru facilities should allow for sufficient vehicle stacking distance
and should be removed from parcel access points.
(d) All two-way access shall be via twenty-four foot (24'-0") wide (face to
face of curb) curbed driveways.
(e) All one-way access, when required, shall be via twelve foot (12'-0") wide
(face to face of curb) curbed driveways.
radius.
(f) All access driveways shall have athirty-five foot (35'-0") minimum
(g) Service access for use by semi -tractor trailer or fire trucks may require
wider driveways with greater radius.
(h) Access driveways to public roads and/or Shopping Center access drives (if
allowed) may require special acceleration/deceleration lanes.
(i) All pedestrian access shall be clearly identified. When same crosses a
landscaped area it will be via a five foot (5'-0") wide hard -surfaced
sidewalk.
(j) The minimum distance between access driveways shall be one hundred
feet (100'-0") centerline to centerline. No driveway shall be closer than
one hundred feet (100'-0") to a Shopping Center access drive.
6. Landscaping
(a) The following landscape standards or the ordinances or zoning
requirements of the local governing bodies, whichever are more stringent, shall prevail:
Plant material will vary, and particular attention should be placed on the selection best
suited for the location of the Shopping Center to make an attractive parcel that is
compatible with the quality of the entire Shopping Center. The primary landscaping
materials should be of quality that will serve in enhancing the environment and also serve
as a functional part of the project. Trees should not only provide shade when mature, but
also have character and interesting color as they grow. Shrubbery and ground covers
should also provide visual effects in color and texture, while providing screening in
needed areas and also highlighting the architecture of surrounding structures. Effective
use of earth beams and existing topography with existing trees, if any, is also encouraged
as a component for a good landscaping plan. The landscaping and planting areas should
be reasonably dispersed throughout the site. The interior dimensions of any planting area
or planting medium should be sufficient to protect the landscape materials planted within
and to insure proper growth with attractive appearance. Irrigation should be supplied to
assure the viability of the plant material and ease in the maintenance of the site.
(b) The following design criteria shall be followed:
(i) Minimum Development Size Requirements.
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(A) All buffer strips and other portions of the Out Parcel not
devoted to buildings, parking, signage, driveways or
sidewalks shall be suitable grassed and/or landscaped in a
manner compatible with that of the Shopping Center. Not
less than fifteen percent (15%) of the area of each Out
Parcel shall be devoted to landscaping and/or green space.
The landscaping on the Out Parcel shall not obstruct
(through either original planting or untrimmed growth) the
view of improvements on the Shopping Center or any
adjacent Out Parcel.
(B) Unless a variance is approved by Declarant, landscaping
expenditures for an Out Parcel shall be at least five percent
(5%) of the total building cost. This would include all in -
ground landscaping within the Out Parcel, exclusive of
irrigation and various site amenities.
(ii) Plant Material Requirements.
(A) Existing plant material of appreciable size and character
will be incorporated into the new landscape plan and any
other significant landscape features will be preserved.
(B) No plant material shall be planted that is not capable of
growing in the local area.
(C) Plant material should be selected for type, size, and quality
on the basis of suitability to climate, setting and
compatibility with other development plantings, character
and functions.
(D) Plant materials should be free of disease and harmful
insects. Plants selected which are prone to disease and
insect problems or which may jeopardize the health of
adjoining plantings will not be acceptable.
(E) The quality of plant material selected will follow the
guidelines of the "American Standard for Nursing Stock"
by the American Association of Nurserymen unless
otherwise indicated.
(F) Proper drainage will be required for all major plantings to
insure the establishment of a good root system and a
healthy growth.
(G) The installation of all landscaping shall be done by a well
established landscape contractor who follows the
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procedures set forth by the American Association of
Landscape Contractors and its local agencies.
(H) No artificial plants of any type, size or color will be
allowed within the landscaped area or around or on the
building within the Out Parcel for the life of the
development.
(I) The Out Parcel owner shall be responsible for providing,
protecting and maintaining all landscaping in a healthy and
growing condition, replacing it immediately, when
necessary, with the same type, size and quantity and
keeping it free of refuse and debris.
(iii) Plant Material Specifications.
(A) Trees shall be species having a minimum mature spread of
fifteen feet (15') to twenty feet (20'), with a minimum
mature height of fifteen feet (15') and installation size of
three and one-half inch (31/2") to four inch (4") caliper.
Evergreens will have a minimum of six feet (6') to seven
feet (T) in height when installed.
(B) Shrubs shall be a minimum of three feet (Y) in height when
used as a hedge and five feet (5') to six feet (6') in height if
used as an ornamental planting.
(C) Vines shall be a minimum of two (2) to three (3) years old
when planted and should be used for screening on walls
and fences, etc.
(D) Ground cover shall be a minimum of two (2) years old
when planted and shall be spaced so that a complete
coverage can be obtained after one growing season.
(E) Grass areas shall be planted with species indigenous to the
area, disease resistant and one that will require low
maintenance in cutting and watering. It should be an
immediate cover, and sod is recommended in areas of the
country in which it will grow. Various grasses, for drier
areas, will be planted in groupings for an effect.
(F) Flower beds are encouraged and shall be planted in
acceptable areas of the country to create color, texture and
interest at the discretion of the landscape architect.
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(iv) Landscape Accent Material.
(A) Site furnishings such as benches, waste receptacles, tables,
etc. will be in character with the building architecture and
the surrounding landscaping.
(B) Paving materials for paths, patios, etc. are recommended to
be of porous nature when installed, such as patio bricks,
interlocking pavers or concrete stepping stones.
(C) Mulch materials will be of small size gravel, shredded bark
or other organic material best suited and adapted for the
local area.
(D) Edging used to separate grass areas from shrubs, ground
cover and mulch will be a good quality steel edging,
secured with metal stakes. No plastic edging will be
accepted.
(v) Landscape Definitions.
(A) Landscaping — Shall consist of any of the following or
combination thereof: materials such as, but not limited to,
grass, ground covers, shrubs, vines, hedges, trees, or other
live plant material growth in the area of development.
Non -live material such as rocks, pebbles, mulches, fences,
walls, pavers, benches, irrigation systems and other site
amenities would also be included in landscaping.
Mounding, berming or grading would be part of
landscaping but not necessarily included.
(B) Trees —Any self-supporting woody plant which usually
produces one main trunk and a more or less distinct and
elevated head with many branches.
(C) Shrubs — A woody plant that usually remains low and
produces shoots or trunks from the base. It is not usually
tree -like nor single -stemmed.
(D) Vines —Plants which normally require support to reach
mature form.
(E) Ground Cover —Plants of various types and low in height,
dense growing and used for covering the ground, as in
areas where it is difficult to grow grass.
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7. Grading and Drainage.
Each Out Parcel shall be graded to provide positive drainage to the
retention detention area (if required) or storm sewer lines that have been sized to receive
Out Parcel discharge. All necessary erosion control methods shall be utilized to avoid
siltation onto adjacent properties and into pipelines. Stockpiling of topsoil or excessive
material shall be done so as not to interfere with drainage before, during or after
construction. Existing drainage areas will not be altered during the grading sequence or
after unless accepted by Declarant. Parking lot slopes shall be a minimum one and one-
half percent (1.5%) and maximum four percent (4%). All trenches and excavation near
or adjacent to existing curbs, sidewalks, and pavement shall be backfilled with trench
backfill material. Required density of compaction shall be indicated on the plans.
8. Site Lighting_
Poles shall be restricted to twenty feet (20') in height, exclusive of base, or as
otherwise required by local code. Illumination shall be not less than two (2.00) nor more
than five (5.00) foot candles minimum maintained throughout parking lot. Cut-off
fixtures (shrouds) shall be installed whenever necessary to avoid spillover to adjacent
property. All lighting poles and fixtures and bases installed on the Out Parcels shall be
the same as those located on the Shopping Center including manufacturer, make, model
and color.
B . BUILDING CRITERIA
1. Architectural Design.
The design of each building should be compatible with and/or complement the
Shopping Center and other peripheral buildings. The design should be a simple
geometric shape and finished on all sides. It is suggested that each building have a
canopied entrance or pedestrian arcade where applicable. No Out Parcel shall contain
more than one (1) building without the consent of Declarant. Without the prior written
consent of Declarant to be exercised in its sole discretion, no building on any outparcel
shall be partitioned or subdivided or leased or occupied for multiple stores or users.
2. Materials and Colors.
Substantially maintenance -free materials such as brick, architecturally -treated
concrete and stucco should be used wherever possible. Materials and colors should be
compatible with those used for the Shopping Center. Fire -treated wood shakes and
shingles are preferred to asphalt shingles for sloping roof surfaces. Use of exterior colors
shall be in good taste and in character with the remaining development. Color should be
an aesthetic consideration combined with the building form, proportions and materials.
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3. Screening.
All mechanical and/or electrical units, roof -top or ground mounted, will be
screened with the same material used on the building facade. Whenever possible, the
exterior building walls will be extended to accomplish same.
4. Delivery; Trash.
Loading docks and refuse areas are to be located on the least visible side of the
building and screened as called for above. Outside storage is specifically prohibited.
Whenever possible, refuse areas should be accommodated inside the building.
5. Orientation.
All buildings shall be subj ect to the following set -back requirements in addition to
those contained in local zoning ordinances and building codes. In no case will a building
be located closer than fifteen feet (15'0") to an adjoining property line or twenty-five feet
(25V') to a property line on a public or private roadway. Set -back requirements may be
affected by the public or private characterization of adjacent roadways and access roads.
6. Aesthetics.
Exterior exposed fire escapes, exposed service stairs or ladders, radio or television
towers and antennae or satellite receivers are not permitted, except that one (1) satellite
dish not exceeding two feet (2") in diameter shall be permitted.
7. Utilities.
All utilities are to be underground with no exterior visible connections to Out
Parcel facilities, except for required meters or transformers. Meters and transformers
shall be screened.
8. Hei ht.
No building(s) or other improvements erected upon Out Parcels shall be more
than one (1) story above grade or exceed twenty-seven feet (27') in height, measured
from the finished floor elevation to the top of the highest building protrusion, including,
without limitation, roof -mounted equipment, decorative roof screening and other such
appurtenances, but excluding in each instance decorative architectural features such as
but not limited to a spire, clock tower, or cupola.
C . SIGN CRITERIA
1. General Requirements and Prohibitions.
(a) The following criteria shall apply to all exterior signs or insignia placed or
installed on the buildings or improvements thereon. Where these criteria are more
stringent or restrictive than the applicable ordinances controlling a particular locale, then
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these criteria shall be controlling. Where these criteria are less stringent or restrictive
than the applicable ordinances of a particular locale, then the latter shall control.
(b) No painted lettering, painted symbols or painted identification of any
nature shall be allowed.
(c) No exposed wiring, conduits, tubing, lamps, ballast boxes or raceways will
be permitted, except that with the prior written consent of Declarant, exposed neon
lighting or other lighting tubes may be used in an aesthetically desirable manner as
provided in Section 3(f) of this Agreement.
(d) All penetrations of the building structure required for sign installation
shall be neatly sealed in a watertight condition.
(e) No labels will be permitted on the exposed surface of signs, except those
required by local ordinances and, if required, shall be in an inconspicuous location.
(f) All electrical signs shall bear the U.L. label and shall be connected to the
electrical service for the Out Parcel on which such sign is located.
(g) All cabinets, conductors, transformers, ballasts, attachment devices and
other equipment shall be concealed.
(h) No flags or banners shall be installed or permitted on the Out Parcels nor
on any improvements constructed thereon, unless approved in writing by Declarant in
connection with a grand opening or other special event. In no event shall the period for
the display of said flags or banners exceed three (3) weeks for any single occasion. No
paper, cloth or cardboard signs shall be permitted. This provision shall not prohibit the
erection of flagpoles to display national, state or corporate flags on the Out Parcels.
(i) No portable signs shall be permitted.
2. Freestanding
(a) All freestanding signs shall be of a monument type in a planter setting,
uniform in design and setback. The location of all monument signs must be approved by
Developer.
(b) A planter area of five (5) square feet for each six (6) square feet of sign
area, including both sides, shall be required at the base of the sign. Landscaping and
planter shall not be measured as a part of the freestanding sign for the purpose of meeting
horizontal and vertical size requirements. All landscaped areas shall be maintained to
minimum standards set forth in this Agreement.
(c) Only one (1) freestanding sign shall be allowed per Out Parcel. Said sign
may be doubled -faced. The display area shall not exceed forty-five (45) square feet per
face.
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(d) All freestanding signs shall be of permanent construction and shall be
subject to the provisions of the building code of the locale in which it is located.
(e) Freestanding signs may be internally illuminated or backlighted.
Illumination shall be turned off within one (1) hour of closing and turned on within one
(1) hour of opening.
(f) The vertical dimensions of the freestanding sign display area shall be no
greater than five feet (5') and the top of the said sign shall be no higher than six feet (6')
from grade level.
(g) The horizontal dimensions of the freestanding sign display area shall be no
greater than nine feet (9').
(h) Such freestanding sign shall contain only the name or trademark of the
business, building or building complex which it identifies and shall not contain change
panels, advertising or names of individual tenants; provided, however, with the written
consent of Declarant, a bank may have an electronic reader strip as an element of its sign.
No graphic logos will be allowed.
(i) For multiple user facilities such as office buildings, site identification
signage includes additional variables that must be considered. Conceptual designs for
freestanding signs serving these types of facilities shall be submitted to Declarant early in
the project development stage to allow ample time for revisions and resubmittal.
3. Buildingg-Mounted Wall Signs.
Except as approved by Developer:
(a) Wall signs shall identify the individual business, building or building
complex by name or trademark only.
(b) One (1) flat wall sign may be installed on each of two (2) separate facades
of the building on each Out Parcel. With the consent of Declarant, a third building
mounted wall sign maybe permitted.
(c) The length of any building -mounted wall sign shall not exceed the lesser
of (i) forty percent (40%) of the length of the wall or facade upon which the sign is
mounted, or (ii) thirty feet (30'0"); nor shall the height of any such sign exceed thirty-six
inches (36"); provided, however, on a building containing twenty thousand (20,000)
square feet or more of floor area, any building -mounted signs shall not exceed fifty
percent (50%) of the length of the wall or facade upon which the sign is mounted, and the
height of any sign shall not exceed sixty inches (60").
(d) One wall sign per occupant will be allowed for buildings of multiple
occupancy.
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(e) No panel signs will be permitted. Wall signs shall consist of three-
dimensional individual characters mounted in relief upon the face of the building. Such
signs shall be back -lighted so as to appear in silhouette or internally lighted.
(f) Exposed neon shall be subject to Declarant's prior written approval.
Exposed neon letters may be allowed if the neon tubing is designed to highlight flat
letters of the same in a broader stroke. The flat letters may be painted or some other
appropriate material applied to the background field. Colors must be chosen with
highlighting of the letters as the major consideration.
(g) No building -mounted wall sign, nor any portion thereof, may project
above the parapet wall or top of the exterior wall or building facade upon which it is
mounted.
(h) There shall be no rooftop or penthouse signs of any kind.
(i) No signs perpendicular to the face of the building or its facade will be
permitted.
4. Traffic Directional Signs.
Out Parcel owners shall be permitted to install signs designed and located solely
for the purpose of relieving traffic congestion and promoting the smooth flow of traffic.
Such signs shall contain no advertising or identification copy of any sort and should
conform to the design of the building and site signage.
5. Prohibited Signs/Pylon Signs.
(a) No flashing, smoking, moving, audible signs or rooftop signs are
permitted, except that with the prior written consent of Declarant, a bank or other
financial institution may install a time/temperature sign.
(b) No freestanding pylon signs shall be permitted, except for traffic and
directional signs.
D. CONSTRUCTION
1. A written schedule of construction and project events is required to be filed with
Declarant seven (7) working days in advance of construction start so that field personnel
may be notified. Before starting a operations on site, the Out Parcel owner's contractor
must supply Declarant's personnel on site with the name and phone number of the field
superintendent and copies of all required permits. Declarant will issue written
verification upon receipt of this information at which time the contractor may commence
his activities. The Out Parcel owner's contractor shall be liable for any damage caused to
the facilities of the Shopping Center or adjacent property owners and shall immediately
repair any such damage.
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2. Use of the Shopping Center easements, access and interior roads and parking
areas is prohibited unless prior permission is granted. A request for use of roads should
be made a minimum of two (2) working days in advance of the intended use.
3. Construction hazard areas of and around the site must be clearly marked and
barricaded from non -construction pedestrian and vehicular traffic.
4. Temporary structures, signs, barricades, and construction equipment must be
clean, neat and uniform in appearance, maintained regularly and removed immediately
when their use is no longer required.
5. Signage at the construction site shall be limited to the necessary hazard, warning
and directional information. A development sign may be allowed but must conform to
the criteria for temporary signs. Separate contractor, architect or other advertising
signage is not allowed.
6. Construction materials, equipment, temporary shelters, signs and operations are to
be confined to the project site for the sole purpose of the proj ect' s construction and shall
not present a hazard or infringe on any adjoining developments, operations, easements or
rights -of -way.
7. Any on -site construction dirt and debris must be stored and screened from view or
removed from the premises, all on a daily basis. Construction dirt and debris are not
allowed to accumulate on any adjoining roads, parking areas, walks or other property and
shall be broom cleaned immediately.
8. Once Out Parcel development has begun, construction should be diligently
pursued to its finish. No structure, facility or Out Parcel improvement is to be left
incomplete. All construction shall be completed within a reasonable construction time
period.
9. All required permits must be clearly posted.
10. Copies of all construction change orders are required to be filed with Declarant.
11. Declarant must be notified of any planned interruption to any utility service
(water, gas, electric, etc.) seven (7) days in advance. Declarant must be notified
immediately of any accidental interruption to any utility service.
E. MAINTENANCE
1. Each Out Parcel owner shall, at all times, at its sole cost and expense, keep its Out
Parcel, including all improvements thereon, in a well -maintained, safe, clean and
attractive condition, Such maintenance includes, but is not limited to, the following:
(a) Prompt removal of all litter, trash, refuse, wastes, snow and ice.
(b) Keeping all landscaping alive, weed -free and attractive.
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(c) Keeping exterior lighting and mechanical facilities in working order.
(d) Keeping parking areas, driveways, and roads in good repair.
(e) Complying with all government health and safety requirements.
(f) Striping of parking areas and repainting of improvements.
(g) Repair of exterior damage to improvements.
(h) Maintenance of utility lines.
2. Enforcement.
If any Out Parcel owner fails to maintain its Out Parcel in accordance with the
foregoing in such manner as may be deemed necessary by Declarant to preserve and
protect the value and attractive appearance of the Out Parcel, then Declarant may give
such Out Parcel owner written notice of the work or repair required to be carried out or
undertaken and diligently pursued within thirty (30) days from the date of such notice.
Should such Out Parcel owner fail to carry out such maintenance and repair, then
Declarant, through its authorized agent or agents, shall have the right and power to enter
onto such Out Parcel and perform such care and maintenance without any liability for
damages for wrongful entry, trespass or otherwise to Out Parcel owner. The Out Parcel
owners of any part of the property on which such work is performed shall be jointly and
severally liable for the cost of such work and shall promptly reimburse Declarant for such
cost.
F. USE RESTRICTIONS
The Out Parcels shall only be used for commercial, retail (including without
limitation restaurants), service, banking and financial institutions, professional and office,
and no use or operation shall be permitted which is incompatible with a first-class
regional outdoor shopping center, including, but not limited to, the prohibited uses set
forth on Exhibit "D" attached hereto and incorporated herein.
G. SUBDIVISION/RE-ASSEMBLY
Declarant (but not any purchaser of any Out Parcel) shall have the right to
combine two (2) or more Out Parcels into a single Out Parcel, to subdivide the Out
Parcels into two (2) or more Out Parcels, and/or to relocate common boundary lines
between Out Parcels, provided, however, that the prior written consent of the Benefitted
Parties shall be required for any of the foregoing matters which (i) will result in the
combination of more than two Out Parcels or (ii) will result in the creation of any single
Out Parcel lot in excess of forty thousand (40,000) square feet or more. Each of such
reconfigured Out Parcels shall constitute a separate Out Parcel hereunder and shall be
subject to all of the terms and restrictions of this Agreement.
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H. BENEFITS OF RESTRICTIONS
The restrictions contained herein shall be effective as of the date hereof, shall run
with the land burdened thereby, shall be binding upon all owners and occupants thereof,
or any part thereof and improvements thereon, and their respective successors and
assigns, shall constitute encumbrances on the Out Parcels, and shall inure to the benefit of
Declarant and its designee and the Benifitted Parties, as hereinafter defined, and their
respective tracts. The Benifitted Parties are the fee simple owner of the
Tract and the fee simple owner of the Tract (as shown on Exhibit Q
and their successors and assigns who are owners of fee simple title to such tract. The
restrictions created herein shall terminate and expire on the later of (i) January 31, 2082,
or (ii) the termination or expiration of the Construction, Operation and Reciprocal
Easement Agreement by and between Declarant, and
dated of even date herewith. The restrictions set forth
herein shall not bind any other property of Declarant.
I. NO THIRD PARTY BENEFICIARIES
The restrictions created herein are for the sole benefit of Declarant and the
Benefitted Parties and are not intended and shall not be construed to dedicate any
easements to or create any rights in favor of any person, entity or the general public.
J . AMENDMENT
This Agreement may be amended by the written agreement of Declarant, or its
designee, and the Benefited Parties without the joinder of any other person or entity,
notwithstanding the fact that Declarant may sell the Out Parcels to third parties; provided,
however, such amendments shall be effective only as to such of the Out Parcels as are
owned by Declarant at the time of recording of such amendment. Declarant reserves the
right (notwithstanding the fact that Declarant may sell Out Parcels to third parties or that
Declarant no longer owns any Out Parcels) to grant variances in writing with respect to
this Agreement or any amendment hereto as to a particular Out Parcel without the joinder
of any other person or entity except that the written consent of the Benefited Parties shall
be required with respect to a change in (1) the use of an Outparcel to a use which would
violate this Agreement (2) the height of any buildings or other improvement on an
Outparcel which would violate this Agreement (3) a parking ratio on an Outparcel which
would violate this Agreement or (4) a variance from any of the provisions of Paragraph C
regarding sign criteria. Any designee of Declarant shall be designated by written
instrument executed by Declarant which states that the designation is made pursuant to
this Agreement and which is recorded in the Recorder's Office of Flathead County,
Montana.
K. SEVERABILITY
If any term, covenant or restriction herein shall be invalid or unenforceable, the
remainder shall not be affected thereby, and each term, covenant and restriction shall be
valid and enforceable to the fullest extent permitted by law.
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L. ENFORCEMENT
In the event of a violation or an attempted violation of the foregoing restrictions,
Declarant, or its designees may prosecute any proceedings at law or in equity to enjoin
such violation and to recover damages for such violation, including reasonable attorney' s
fees. If Declarant elects not to prosecute any violation, then any of the Benefitted Parties
may do so following fifteen (15) days prior notice to Declarant of said intention to
prosecute the violation or attempted violation.
[SIGNATURES ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
WOLFORD DEVELOPMENT MONTANA,
LLC, a Montana limited liability company
By:
Name:
Title:
STATE OF TENNES S EE
COUNTY OF HAMILTON
Before me, , a Notary Public in and for said State and County
aforesaid, duly commissioned and qualified, personally appeared , with
whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and
who, upon oath, acknowledged himself to be the of WOLFORD
DEVELOPMENT MONTANA, LLC, the within -named bargainor, a Montana limited liability
company, and that he, as such , being duly authorized so
to do, executed the foregoing instrument for the purposes therein contained by signing the name
of the limited liability company by himself as such
WITNESS my hand and seal at office on this the day of
Notary Public
My Commission Expires:
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, 2007.
EXHIBIT "A"
OUT PARCELS
[Insert legal description]
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EXHIBIT "B"
SHOPPING CENTER
[Insert legal description]
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EXHIBIT "C"
SHOPPING CENTER PLAN
[See attached.]
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EXHIBIT "D"
USE RESTRICTIONS
1. Environmental remediation facility;
2. Exterminating service;
3. Butane distribution;
4. Exterminating and fumigating warehouse;
5. Bulk storage of gasoline or fuel oil tanks.
6. Bulk storage of paint and varnish (except as incidental to retail sales);
7. Petroleum products packaging and storage (except as incidental to retail sales);
8. Adult book store or adult novelty store (meaning a store primarily engaged in the sale,
rental, distribution or display of pornographic, lewd, sexually explicit or so-called adult
materials and not a general interest bookstore such as Barnes & Noble or B .Dalton or a
full -line video store such as Blockbuster Video, Video Update or Hollywood Video);
9. Adult theater or so-called "gentlemen's club" featuring nude, topless or scantily clad men
or women;
10. Day labor hiring hall;
11. Pawn shop;
12. Religious mission, including a charity dining hall;
13. Commercial loading of small arms or manufacture of ammunition;
14. Rock quarrying, sand and gravel or other mineral extraction;
15. Any assembling, manufacturing, distilling, refining, smelting, agriculture or mining
operation;
16. Transit terminal (except to the extent required by government authorities having
jurisdiction);
17. Propane sales (except as incidental to other retail sales or service);
18. Drive-in movie theater;
19. Movie theater,
20. Tattoo establishment;
21. Body -piercing establishment;
22. A second-hand store, thrift store, swap shop, liquidation outlet or used clothing store,
including any business that regularly sells merchandise referred to as "odd lot",
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"cancellation", "second", "factory reject", "sample", "floor model", "floor demonstrator",
"obsolescent", "distress", "salvage" or "damaged", but this shall not prohibit the operation
of a typical Ross or T.J. Maxx store or comparable store;
23. An auditorium or other general place of assembly;
24. Concrete or cement products manufacturing;
25. Plating or polishing shop (except as incidental to a jewelry store);
26. Plating works or electric plating (except as incidental to a jewelry store);
27. Foster home or group foster home;
28. Farm devoted to hatching, raising, breeding and marketing of chickens, turkeys or other
foul, rabbits, fur -bearing animals or fish;
29. Feeder lot for horses, cattle, goats or sheep;
30. Farm;
31. Bail bond company;
32. Body and fender shop;
33. Cannery, slaughter house or meat processing or packaging plant;
34. Cesspool service;
35. Flour or grain elevator;
36. Motor vehicle fuel distribution facility;
37. Outdoor hay and straw storage;
38. Massage establishment (except for massage services offered by a health club, fitness
center, day spa beauty salon, beauty parlor, barber shop, nurse or chiropractor);
39. Repair and rewinding of transformers or generators;
40. Outdoor paving materials storage;
41. Welding shop;
42. Wrecking yard or i unkyard;
43. Shelter or dormitory intended to provide temporary shelter;
44. Residential uses;
45. Carnival;
46. Dumping or disposal of garbage or refuse (except as may be incidental to an otherwise
permitted use);
47. Flea market;
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48. Booths for the sale of fireworks;
49. Rehabilitation or treatment center for physical, mental or substance abuse;
50. A cemetery, crematorium, funeral home, funeral parlor, or facility for the sale of caskets;
51. A so-called "head shop" or facility for the sale, rental, distribution or display of drug
paraphernalia such as roach clips, bongs, water pipes, coke spoons, cigarette wrapping
papers, pipes and/or syringes;
52. A bowling alley, billiard parlour, pool room, game room or, amusement arcade;
53. A coin -operated laundry or dry cleaner (but this shall not be deemed to prohibit a pick-up
and drop-off facility offering incidental services such as pressing and tailoring);
54. The sale, rental or storage of motor vehicles or mobile homes (but this shall not prohibit
the promotional display of motor vehicles (but not mobile homes) in the common areas);
55. Churches, temples or other houses of religious worship;
56. The conduct of any auction, loss of lease, fire, bankruptcy or going out of business sale;
57. A school, including the operation of a pre-school or day care center;
58. Any business which operates on a part-time basis for only a portion of the week or
month;
59. Any governmental use;
60. Any outdoor sales or display of merchandise, other than ancillary to the operation of a
business conducted on the Out Parcel and which is approved by Declarant;
61. Or any other business which creates strong, unusual, obnoxious or offensive odors,
fumes, dust, dirt, fly ash or vapors, is a public or private nuisance, emits noise or sounds
which are objectionable due to intermittence, beat, frequency, shrillness or loudness,
creates any unusual fire, explosion or other damaging or dangerous hazard (including the
storage, display or sale of explosives or fireworks).
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