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Staff Report/Final Plat Phase 1REPORT TO: FROM: SUBJECT City of Kalispell Planning Department 17 - 2 Street East, Suite 211, Kalispell, Montana 59901 Telephone: (406) 751-1850 Fax: (406) 751-1858 Website: kalispellplanning.com Kalispell Mayor and City Council Sean Conrad, Senior Planner James H. Patrick, City Manager Final Plat for Hutton Ranch Plaza Phase I MEETING DATE: May 1, 2006 BACKGROUND: This is a request from from Morrison Maierle, 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 July 5, 2005. All of the conditions have been adequately met or otherwise adequately addressed. A Subdivision Improvements Agreement (SIA) 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 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 SIA. RECOMMENDATION: A motion to approve the final plat for Hutton Ranch Plaza Phase I and to accept the Subdivision Improvements Agreement would be in order. FISCAL EFFECTS: Positive impacts once developed. ALTERNATIVES: As suggested by the city council. Respectfully sub ted, t Sean Conrad Senior Planner Report compiled: April 25, 2006 James H. Patrick City Manager Attachments: Letter of transmittal Final plat application and supporting documents Return to: Theresa White Kalispell City Clerk P.O, Box 1997 Kalispell; MT 59903 APPENDIX E SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of ---, 2006, by and between the CITY CO-LNCIL, CITY OF KALISPE LL, MONTANA, Party of the First Part and hereinafter referred to as the CITY, and Hutton Ranch Plaza associates, I.,C_, a Com. an�----------�--_� (Nmne of Developer) (Individual, Company oc-Co€•lxxat€on) located at 4 Sunset Plaza, Suite 201,a11sl�cll�i�lpinhead, Montana, 59201, Marty of the Second Part (Street AddmsWP. ©. Box) (City, County, State, Zip) and hereinafter referred to as DEVELOPER. WITNI SSETH: THAT WHEREAS, the Developer is the owner and developer of a new subdivision known as Iutton Ranch Plaza. Phase 1 located at. 135 Hutton Ranch Rd, Kalispell, MT 59901 (I.A)calion ofSubdivision) (Name orSubdivision) hereinafter known as The Project, and WHEREAS, the City has conditioned it's approval. of the -final plat of flutton Ranch Plaza Phase I. upon (Name of S thdiv-isi€ nl 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 City's Subdivision Regulations require that a subdivider shall provide a financial security of I25% of the estimated total cost of construction of said improvements as evidenced by an estimate prepared by a licensed public engineer included herewith as "Exhibit A" ; and WHEREAS, the estimated total cost of construction of said remaining public improvements is the sum of $, 1143_ 100.00. NOW THEREFORE, in consideration of the approval of the Final plat of said Subdivision by the City, the Developer 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 expiration date of at least sixty (60) days following the date set for completion of the improvements, certifying the following: a. That the creditor guarantees funds in the sum of $2,303,875.00 the estimated cost of completing the required improvements in Hutton. Ranch Plaza Phase 1. (Name orsuadivisim) b. That if the Developer fails to complete the specified improvements within the required period, the creditor will pay to the City immediately, and without further action, such funds as are necessary 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 completed by May 31, 2007. 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; b. 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 from the date of acceptance of the completion of those improvements by the City; c. 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; and., f. All applicable fees and surcharges have been paid. 4. The 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. IT IS ALSO AGREED BY AND .BETWEEN 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 be 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 determines that the Developer will not construct any or all of the improvements in accordance with the specifications, or within the required time limits, it may withdraw the collateral and employ such funds as may be necessary to construct the improvement or improvements in accordance with the specifications. The unused portions of the collateral shall be returned to the Developer or the crediting institution, as is appropriate. IN WITNESS WHEREOF, the Parties have hereunto set their hands and. suits the day and year herein before written. by S 'ATE ( t MONTANA 6 this clay of } ....A , 20L�L., before me, a Notary Public :For the State of .Montana, personally appeared__jj known to me to he the �-1DE ._.— � ;;, _, whose name is subscribed to - of t w �� Ri� :...---- the foregoing instrument and acknowledged to me that he/she executed the same, IN WITNESS WHER I IF h e hereunto set my hand and affixed my Notarial Seal this day and year F first above w ' i =?e Notary 'ublic for the State of Montana S E Residing at ..: —e — My Commission Expires :.;.. NOTARY PUB' ic-iMON-1 ANA MAYOR, CITY OF KALISPELL ATTEST: � �� Resdir!g al Kalispell, ,. _, 2007 Co ". Expires Qn,ce—.nbc M1iY0it-"--_—.._...--------------- C:'I'Y CLI:IZK _._._. EXHIBIT A This agreement specifically includes the following improvements, their projected construction completion date and estimated construction costs. CHECK CONSTRUCTION ESTIMATED PERCENTAGE. APPROPRIATE COMPLETION CONSTRUCTION COMPLETE IMPORVEMENTS DATE COSTS Street Grading/Paving' X Street Base' X I-Sep-2006 $277,000.00 0% Sidewalks X Curbs and Guttersi X Sanitary Sewers Mains X 1-Sep-2006 $235,100.00 24% Other( ) On -Site Sewage Facilities Water Systems Mains X I-Sep-2006 $22,500.00 90% Fire .hydrants X On -Site Water Supply Water Storage 'ranks Storm Sewer or X I -Sep-2006 $849,500.00 0% Drainage Facilities Street Signs X I-Sip-2006 $1.0,000.00 0% Street Lighting X 1-Sep-2006 $97,000.00 0% Street Monuments Survey Monument Boxes Landscaping/ Boulevard trees' X 30-Oct-2006 $89,000.00 0% Other( ) SUBTOTAL $1,580,100.00 FEES $263,000.00 TOTAL COSTS $1,843,100.0f TOTAL COLLATERAL (TOTALS COSTS X 125%) $2,303,875.0( 1 Includes Hutton Ranch Road and Highway 93 Access Improvements AGLAcIER BANK IRREVOCABLE LETTER OF CREDIT Letter of Credit No. 1-06-284 Dated: April 25, 2006 Expiration Date: July 31, 2007 Amount: $2,303,875.00 Kalispell City Council City of Kalispell PO Box 1997 Kalispell, MT 59901 We hereby establish in your favor an Irrevocable Letter of Credit up to the aggregate amount of $2,303,875.00 at the request of Hutton Ranch Plaza Associates, LLC. If Hutton Ranch Plaza Associates, LLC fails to complete the specified improvements in the Hutton Ranch Plaza Phase I, within the time period set forth in the attached Improvements Agreement, we will pay on demand your draft or drafts for such funds, to the limit of credit set forth herein, as are required to complete said improvements. All drafts must 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 specifying the default or defect in question. All drafts must be presented prior to the expiration date stated above, and this better of Credit must accompany the final draft for payment. This letter may not be withdrawn or 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 Uniform Commercial Code and the Uniform Custom and Practice for the Documentary Credits (1993 Revision) International Chamber of Commerce Document No. 500. Sincerely, Dennis S. Beams Executive Vice President Glacier Bank website: www.glacierbank.com email: giacier@glacierbank.com MEMBER FDIC AN EQUAL OPPORTUNITY LENDER City of Kalispell Planning Department 17 - 2nd Street Fast, Suite 2 11 , Kalispell, Montana 59901 Telephone: (406) 751-1850 Fax: (406) 751-1858 Website: kalispellplanning.com April 27, 2006 James H. Patrick, City Manager City of Kalispell P.O. Drawer 1997 Kalispell, MT 59903 Re: Final Plat for Hutton Ranch Plaza Phase I Dear Jim: Our office has received an application from Morrison Maierle, 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 July 5, 2005. All of the conditions have been adequately met or otherwise adequately addressed. A Subdivision Improvements Agreement (SIA) 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 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 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 WITH CONDITIONS OF APPROVAL Condition No. 1. That the development of the site shall be in substantial compliance 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 plat for Phase 1 is in compliance with the approved preliminary plat 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 be 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 Works Department. (Kalispell Subdivision Regulations, Chapter 3, Design Standards, Section 3.01). • The Kalispell Public Works Department has reviewed and approved the plans for the water and sanitary sewer system. The developer has submitted an S1A 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 an engineer licensed in the state of Montana certifying the improvements have been constructed in accordance with the approved plans and specifications. As built drawings shall be submitted to the Kalispell Public Works Department prior to final plat submittal for the completed infrastructure. A letter from the public works department shall accompany the engineer's certification stating that this condition has been met or otherwise 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 project engineer and the Public Works Department will be forthcoming once all of the improvements are in place. Condition No. 4. The proposed development 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 construction on the site will be reviewed to insure it is in substantial compliance with the approved preliminary site plan. Any changes outside the scope of the preliminary plat may require additional review. Condition No. 5. That the internal access road 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 road design shall be coordinated through the Kalispell Public Works Department. (Site Development Review Committed • The internal access road located in the southwest portion of the site was abandoned due to conflicts with Flathead Valley Community College's build out. The Public Works Department 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 met 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 met per the Kalispell Fire Department: (Kalispell Subdivision Regulations, Section 3.20). a. 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 International Fire Code (2003) Appendix B. • The application notes that water mains were designed to provide minimum fire flows and installed per city specifications at the approved locations. b. Fire hydrants shall be provided 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 pad C or an existing hydrant be moved in order to achieve a 300 foot distance between hydrants. This will need to be completed prior to combustible construction. c. Fire Department access shall be provided in accordance with International Fire Code (2003) Chapter 5. • The road designs will be in compliance with the International Fire Code, Chapter 5, in order to provide adequate Fire Department access. d. It should be noted that hazardous weed abatement shall be provided in accordance with City of Kalispell Ordinance 1 D-8. • Hazardous weed abatement for the subdivision is addressed in the maintenance plan within the covenants. e. Street naming shall be approved by the fire department. • Street names will be coordinated with the Kalispell Public Works Department and the Kalispell Fire Department. Condition No. 7. A plan shall be developed and in place that addresses the grading, revegetation, irrigation and maintenance 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 revegetation, irrigation and include a maintenance plan for the undeveloped areas in order to create a weed free, dust -free area. Condition No. S. 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 of Transportation and the City of Kalispell. • The Montana Department of Transportation (MDOT) has provided a letter indicating the two approach permits Hutton Ranch Plaza has requested and has listed five items which the approach permits are contingent upon. Once the five items listed in the letter are addressed, the approach 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 main 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 Department. 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, dated April b, 2006 grants approval of the proposed landscaping plans for Hutton Ranch. The letter notes that final approval will be given upon completion, inspection and approval of the landscaping and tree plantings, at which time the letter of credit would be 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 of landscaped terracing be 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 of the buildings be included in the development agreement with the City. • This condition is met. The development agreement, Section III 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 fixtures 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. • A lighting plan was submitted with the final plat application with light poles and fixtures 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 events associated with the other businesses on 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 wall. • 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 view. • This is a condition of the PUD which will be enforced upon issuance of a building permit. 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 227 2005 requests in writing the owners of the property to the north to agree to provide a shared access between the two developments. A subsequent letter from Scott Deskins, SCC Development Company, dated August 25, 2005 denied the request for cross access between the two developments. 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. IN Covenants were included with the final plat application that insure maintenance of common areas within the development and 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. • The phasing of the subdivision is consistent with the proposal reviewed under the preliminary plat. The developer has submitted a Subdivision Improvement Agreement (SIA) 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. Condition No. 20. The developer and City of Kalispell shall execute a development agreement based on terms and conditions included in the planned unit development. • A development agreement was executed between the City of Kalispell and the developer on January 6, 2006. COMPLIANCE WITH 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 SUBDIVISION REGULATIONS: This subdivision plat has been found to be in compliance with the State and City Subdivision Regulations. COMPLIANCE WITH THE ZONING REGULATIONS This subdivision can be found to be in compliance with the Kalispell Zoning Ordinance and the B-2/PUD, General Commercial/Planned Unit Development, zoning designation for the property which governs the dimensional requirements of the lots within the subdivision as well as the uses. RECOMMENDATION: 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 button Ranch Plaza Subdivision. Please schedule this matter for the regular city council meeting of May 1, 2006. Sincerely, Sean Conrad Senior Planner Attachments: Vicinity map 1 opaque Mylar of final plat 1 reproducible Mylar of final plat 1 copy of final plat 11 x 17" Copy of plat Final plat application dated 3 / 21 / 06 Ltr from Kalispell Public Works dated 10 / 19 / 05 Ltr from Flathead County Environmental Health Services dated 10/25/05 Ltr from. Kalispell Public 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 Scott Deskins dated 8/25/06 Subdivision Improvement Agreement Letter of Credit from Glacier Bank for the amount of $2,303,875.00 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 Ltr from Montana Department of Transportation dated 4/27/06 Copy w/att: Theresa White, Kalispell City Clerk Copy w/o att: Morrison Maierle, Inc 1228 Whitefish Stage Road Kalispell, MT 59901 Philip and Donna Harris 360 Tetrault Road Kalispell, MT 59901 3 i aww A �rv�g aw �retnr. April. 27, 2006 Montana Department of Transportation 2701 prospe-It Avenue PC 8ox 20 I00 t ,4eJq,=nO MT 59620-11401 Keith Belden, F.E. Morrison Maierle, In.c. 3011. Palmer Street Missoula, Montana 59802 Subject: Hutton Ranch Plaza Develo rnent Access to US 93 Jim Lynch, Directnr Brian Schweitzer, Governor The Hutton Ranch. Plaza Developers are requesting two approach permits from the Montana Department of Transportation. (.l44,DT) for access to US 93 along the highway frontage owned by Hutton Ranch Plaza Associates, LLC. One approach is planmd as a signalized access known as Hutton Ranch .road approxirmtely ire the center of the development and the second would be a right -in right -out southerly access. Approval. of these two approach permits by MDT will. be contingent upon the following: e Tbc Hutton Ranch Read will be designed to accommodate traffic expected for this development and. we also request right-of-way set backs necessary to provide far additional lanes needed for traffic volumes anticipated for a future Kalispell -By - Pass Loop Road. Once these projected traffic volumes have been provided to us we will, be able to determine wrhat these set backs will be. * All goom.etri.c, signing and striping and electrical designs must meet MDT requirements. • The Hutton Ranch Plaza developers must agree not to contest efforts to provide for. roadway intercomcctivity between Hutton Ranch and the Target, Herne Depot Complex to the north. • All necessary utility pen-ni.ts must be requested., reviewed and approved by the hMT Missoula District. • If Hutton Ranch Road is to be a. public road then. MDT will issue a public approach permit .for this access. We will then require that the Torriaining private approach be deeded track to the State of Montana,. If you have any questions please contact me at (4 6) 444-6343. pMgMm & Pofty An8fysls Bureau An Equal Opportunity Employer Rail, hens and Afanning 010don Phone: (409) 444--34V T7Y: (000) 335-7592 pgx; (405) 44 A-7671 Web page: wvww.mdfAfate.mLua Keith Belden ApnI 27, 2006 Page 2 of 2 04�-z -0�� Dan. Martin, Plamer Program & Ealicy Analysis Bureau Rail, 'Transit and Planning Division. copies: Dwane Kailey, P.E., Missoula District Adrnini.strator Smadra Strael.l, Rail, Transit and Planning Division Add ini.strator Steve Hemog, P.E., Area Maintenance Engineer Kalispell. Danielle Bolan, P.E., Traffic Rogiineer Stan Brelin, P.E., Traffic and Safety Bureau Aaron Sandon, Traffic and Safety Bureau Glen Cameron, Missoula District Traffic Engineer City of Kalispell Public Works Department Post Office Box 1997, Kalispell, Montana 59903-1997 - Telephone (406)758-7720, Fax (406)758-7831 October 19, 2005 Department of Environmental Quality Permitting and Compliance Division PWS/CSB 109 Cooperative Way, Suite 105 Kalispell, Montana 59901 Attention. Walter M. Lauder, P.E. Environmental Engineer Specialist RE: Hutton Ranch Plaza Kalispell, Montana Dear Max, 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 Morrison- Maierle, 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, �A - A — Frank Castles, P.E. Assistant City Engineer cc: Bill Buxton, P.E. Morrison-Maierle, Inc. Environmental Health Services 1035 First Avenue West Kalispell, MT 59901 (406) 751-8130 Fax: 751-8131 Tuesday, October 25, 2005 Bill Buxton, P.B. Morrison & Maierle Engineering Inc. P.Q. Box 8057 Kalispell MT 59904-1057 Re: Hutton Ranch Plaza, Water & Sewer Main Extensions, Kalispell Prej. 4 FH-05-22, DEQ 05-1577 Dear Bill, Administration 751-8101 FAX751-8102 Community Health Services 751-8110 FAX 751-8111 Reproductive Health Services 751-8150 FAX 751-8151 WIC Services 751-8170 FAX 751-8171 s V OCT 2 ! 2005 Morrison - Maiede5 InG 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 & sewer main extensions as shown on plans prepared by Morrison & Maierle Engineering Inc., and approved by this office on 10/24/05. The plans were submitted under the sea] and stamp of Patrick J. White, P.E. # 14090 PE. 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 be 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 certify 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 project engineer. It 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 be resubmitted and 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. Please contact this office if you have any questions. Sincerely, '' Richard T.'lViontgomery,':E. _. Environmental Engineer copies to: Water Quality Division- Helena 8 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. City of Kalispell Public Works Department ;w Post ©Rice Box 1997, Kalispell, Montana 5953 i-1997 - Telephone l() ?58-77'0, Fax tc)C '58-71i3. April 21, 2006 Hutton Ranch Plaza Associates, LLC 4 Sunset Plaza, Suite 201 Kalispell, Montana 59901 Re: Hutton Ranch Plaza Phase 1 Kalispell, Montana Gentlemen, The City of Kalispell Public Works Department hereby agrees that the projected costs to complete the referenced project as stated in the Subdivision Improvement Agreement, Exhibit A, for the referenced subdivision appear adequate. Approval by the City of Kalispell is granted based 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 Felzer, 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 appears that Flathead Valley Community College is resistant to the connection 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, 0 Frank Castles, P.E. Assistant City Engineer Cc: Sean Conrad, Senior Planner Kalispell Planning Department Tony Felzer, P.E. Morrison Maierle, Inc. 04/24/2006 13: 48 FAX 406 752 2391 Morrison-Malerle KAL IM 002/002 APR-20_2fflG 15:47 FROM: TO:486 752 2391 ' P.1f7. 312 Tint Avww & RwAy Dradchl -:rake Chief Ka bRIL Meta Om Dicthi - Ate C,icRW=Whm (4%) 758-7740 Brant L. Ctaistaph x vm - Asyi~ CWOOPrhova Oft FAX (406) 758-79 VIA FACSMILIE TRANSMISSION Morrison Maierle, Inc. ATTN: Tony Felizer 1228 Whitefish Stage Road Ka", MT 59901 RE; CLARIFICATION - Final Plat aeon for Hutton Ranch Plaza Dear Mr. Feibmr: As folow-up to Your e-mail today which included a graphic representation of Phase Phase 2 of the Hutton Ranch Plaza project, I have the fcllowkV irrtsor nOtion. The internal access road at the soWmmst portion of the Hutton Ranch Plaza site 1s for fire department access for Pads 1, J, and K, as part of Pipe 1 of the pmJect, ho we have no requirernm t that the access road crass over into or connect to the Valley Corrkmurirty College property. Addibonaly, it appears from the drawing the W Pact K provides tum-around (or drive4hm) actress, negating access ovnsidera pertaining to dead-end reads. The internal road traversing the south side of Major and Mrtjt>'r Shops will be required for fire department access as Phase 2 is de If you have any questions, please dorit hesitate to contact me. xc: Sean Conrad, Kalispell Planning Department Brent Christopherson, Assret. Chiefi/l invention " ARslattpg ortr eommWjW in m4*w(rxgy pmwntfng. and Mettga ft emOrbh'OWOM_ " and lot of Kahspe* r Parks and Recreation April 6, 2006 Sitescape Associates Bruce F. Lutz, A.S.L.A. 385 Golf Course Drive Columbia Falls, [Montana 59912 Phone: 406-892-3492 Re: Hutton Ranch Dear Bruce: 35 1st Ave East— P O Box 1997 — Kalispell MT 59903-1997 Phone: (406) 758-7718 Fax: (406) 758-7719 Email: parknrec@kalispell.com This letter is to serve as approval on the proposed landscaping plans for Hutton Ranch per our discussion Monday, April 3, 2006. It is agreed that if the project is extended the developer will be responsible for bonding for landscaping improvements as specified on the submitted plan for the building(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 enjoyable working with you, if you have any concerns or questions please give me a call. Sincerely, Michael Baker, Director Kalispell Parks and Recreation Cc: Tom Jentz, Kalispell Planning HUT1,Iw4 RANCH PLAZA ASSOCIATES, L:t 4 SUNSET PLAZA, SUITE 201 KALISPELL, MT 59901 August 22, 2005 Mr. Scott A..17esldns SCC Development Company LLC 4407 Bee Caves Road, Suite 112 Austin, Texas 78746 Re: Cross Basement for Access Between Mountain View Plaza and Hutton Rauch Plaza Bear Scott: I apologize for taking ,so long to fallow up on our telephone conversation of last month. As I indicated to you, the City of Kalispell has required as a condition to the approvals of Hutton Ranch Plaza, that I seek to obtain from the Owners of Mountain View Plaza, a cross easement for access between our two projects. As I indicated in our phone conversation, it would appear that the only place to effectively connect our projects would, be to the south of Target, with a road which cuts into the hillside between the two properties, nuraingparallel to the property lines and rising to a point on the southeast of our property behind the location of the approved theatre. I have attached an aerial depicting this concept. I realize that the engineering of such a read poses certain difficulties. However, I believe that the City sees added value to the m=hants and shoppers in both developments if cross shoppers can move freely between the properties' without having to exit either center to the main roads. I would very much appreciate it if you could indicate to me in writing your willingness or unwillingness to consider such a cross easement. I hope this letter finds you well, and that you have had an enjoyable summer. Very truly yours, HUTTON RANCH PLAZA ASSOCIATES, LLC i 9 ^! DEVELOPMENT COMPA-NY, LLC AUG 3 o 2005 TRANSMITTED VIA R1rGuUI.9. MAIL Thursday, August 25, 2005 Phillip Harris Hutton Ranch Plaza Associates,)-1.G 4 Sunset Plaza, Suite 201 Kalispell, MT 59901 RE. Cross -Access between Mountain View Plaza and Hutton Ranch Plaza - Kalispell, MT Dear Phil: Thank you for your letter dated August 22, 2005 concerning the proposed cross -access easement between our shopping center developments at the above -referenced location. Unfortunately several factors come into play which prevent us from approving your request for cross -access. First, the layout of our shopping center as it relates to your proposed layout is not conducive to "complimentary access," given the fact that traffic exiting our center would immediately be in the rear and delivery areas of your center. Secondly, this request would require amending the Recorded Reciprocal Access and Grant Easement Agreement which would require not only our approval but that of Target and Home Depot_ Lastly, based on the grade differentiation between the two properties. a fair amount of grading would need to take place as well as retaining walls would need to be installed and this could be a cost prohibitive item. I look forward to your successful development and if I may be of further assistance, please do not hesitate to call. Very Truly Yours, Mountain View, LP, a Montana limited partnership Sy: Mountain View Development, Inc., its general oartner sy SAD/le Plat Room Flathead County, Montana 800 S. Main St. Kalispell, MT 59901 (406) 758-5510 This Form is for Subdivisions & Condominiums Only MORRISON-MATERLE INC BY: FOR: HUTTON RANCH PLAZA ASSC LLC DATE: 4/12/2006 DESCP: HUTTON RANCH PLAZA PH 1 SUB PURPOSE: PLAT (TR 3 IN 31-29-21) 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. "Deputy' reasu rer (seal).-..:: APR 2 5 20% ARCHITECTURAL DESCRIPTION HUTTON RANCH PLAZA KALISPELL, MONTANA GENERAL BUILDING MASSING The 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 a scale proportional to its area at a height 28'-0", while maintaining pedestrian elements that create a pleasant human scaled environment. The roof lines shall be varied, with forms accentuating the main entrance and the corners of the buildings up to 42'-011 . The building mass will be de-emphasized by articulating vertical planes, creating shadow lines and variation of materials. There are varied treatments at the cornice, wainscot, canopies, and storefront areas. Display and merchandising areas are encouraged. The smaller stores and retail shops have even more flexibility and variation in their overall massing. Nall heights up to 2 F-0" and entry ways ranging up to 33'-0", there will be one two story building with roof heights to 35'-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 50; 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 cases will also punctuate the wall and enhance the pedestrian experience, 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, cornice and wainscot treatments. EXTERIOR MATERIALS AND FINISHES DESCRIPTION Commonality of building exterior material, finishes and colors will also be critically important in creating a cohesive fancily 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 northern Rocky mountain region, using stone veneer, wood framing, split face masonry and colors indigenous to the area. Entry roof forms will be created by standing seam metal roofs, open wood trusses and framing. Articulated cornices may be created from cement plaster over foam shapes, wood trellises or bracketing. Vertical planes will be enhanced by varying the textures, heights, scale of the material used, architectural detailing of accent material and will include stone veneer, cement plaster, split face masonry, and tile 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 patterns. 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 codas, olive and sage greens, golden browns, warm tans, burnt orange, slate grey/blue, stone greys. EXTERIOR LIGHTING Parking lot lighting will be designed to maintain 2± foot candles minimum utilizing 30'-0" high poles and 250 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 12'-0" high 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"d Street East, Smite 211, Kalispell, Montana 59901 Telephone: (406) 751-1850 Fax: (406) 751-1858 FINAL PLAT APPLICATION Project / Subdivision Name: Hutton Ranch Plaza Contact Person: Name: William Buxton. Address: 1228 Whitefish Stage Road Kalispell, Montana 59901. Owner & Mailing Address: Philip Harris III& Donna L Harris Hutton Ranch Plaza Associates LLC 4 Sunset Plaza Ste. 201 Phone No.. (406)752-2216 Kalispell, MT 59901 Date of Preliminary Plat Approval: Jul 5 2005 Type of Subdivision: Residential Industrial Total Number of Lots in Subdivision 17 Land in Project (acres) 46.05 Acres Parkland (acres) No. of Lots by Type: Single Family Duplex Commercial Condominium Cash -in -Lieu $ Townhouse Apartment Industrial Multi -Family Commercial PUD x Other Exempt Mobile Home Park Recreational Vehicle Park Planned Unit Development 17 Other Legal Description of the Property NW Y/4 of the SW Y/4 Section 31 all in Township 29 North Range 21 West PMM FILING FEE ATTACHED $ Minor Subdivision with approved preliminary plat Major Subdivision with approved preliminary plat Subdivisions with Waiver of Preliminary Plat Subdivision Improvements Agreement $400 + $100/lot $650 + $100/lot $600 + $100/lot $ 50 1 Attached Not Applicable X X X X X X X (MUST CHECK ONE Health Department Certification (Original) Title Report (Original, not more than 90 days old) Tax Certification (Property taxes must be paid) Consent(s) to Plat (Originals and notarized) Subdivision Improvements Agreement (Attach collateral) Parkland Cash -in -Lieu (Check attached) Maintenance Agreement Plats: 1 opaque OR 12 m lars 1 mylar copy 1 signed blueline 4 bluelines 4 bluelines, unsigned 11X17 Copy I lX17 Copy **The plat must be signed by all owners of record, the surveyor and the examining land surveyor. Attach a letter, which lists each condition of preliminary plat approval, and individually state how each condition has specifically been met. In cases where documentation is required, such as an engineer's certification, State Department of Health certification, etc., original letters shall be submitted. Blanket statements stating, for example, "all improvements are in place" are not acceptable. A 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 staff report. 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 signifies approval for Kalispell Planning 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 app ications be accompanied with a digital copy. s) Si a ure Date **A3digit copy of the final plat in a Drawing Interchange File (DXF) format or an AutoCAD file forri at onsisting of the following layers: 1. Exterior boundary of subdivision 2. Lot or park boundaries 3. Easements 4. Roads or rights -of -way 5. A tie to either an existing subdivision corner or a corner of the public land survey system 2 Guarantee - (CLTA Form) Rev. 6-6-92 GUARANTEE !SMJECT TO THE EXCLUSIONS FROM COVERAGE, THE LIMITS OF LIABILITY AND OTHER PROVISIONS OF THE CONDITIONS AND STIPULATIONS HERETO ANNEXED AND MADE A PART OF THIS GUARANTEE, AND SUBJECT TO THE FURTHER EXCLUSION AND LIMITATION THAT NO GUARANTEE IS GIVEN NOR LIABILITY ASSUMED WITH RESPECT TO THE IDENTITY OF ANY PARTY NAMED OR REFERRED TO IN SCHEDULE A OR WITH RESPECT TO THE VALIDITY, LEGAL EFFECT OR PRIORITY OF A -NY MATTER SHOWN THEREIN. 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 incorrectness in the assurances set forth in Schedule A. Dated: I r- chni- of the'Hoard Countersigned: 4 fli rized Cou ersignature Stewart Title of Flathead County, LLC 17 Main Street Kalispell, MT 59901 stewart the guaranty company N.O�"f�jj% A w•� »*� ld` President _ i . +► TEXAS r� Serial No. G-2222-22721 17 Page 1 of 3 - GUARANTEE-6/6/92 GUARANTEE CONDITIONS AND STIPULATIONS 1. Definition of Terms — The following terms when used in this Guarantee mean: (a) "the Assured": 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 Part 2, and improvements affixed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or referred to in Schedule (A)(C) or in Part 2, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways. (c) "mortgage": mortgage, deed oftrust, trust deed, or other security instrument, (d) "public records": records established under state statutes at Date of Guarantee for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. (e) "date": the effective date; 2. Exclusions from Coverage of this Guarantee — The Company assumes no liability for loss or damage by reason of the following: (a) Taxes 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) (1) IJnpatented mining claims; (2) reservations or exceptions in patents or in Acts authorizing the issuance thereof, (3) water rights, claims or title to water: whether or not the matters excluded by (1), (2) or (3) are shown by the public records. (c) Assurances to title to any property beyond the lines of the land expressly described in the description set forth in Schedule (A)(C) or in Part 2 of this Guarantee, or title to streets, .roads, avenues, lanes, ways or waterways on which 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 easements are expressly and specifically set forth in said description. (d) (1) Defects, liens, encumbrances, or adverse claims against the title, if assurances are provided as to such title, and as limited by such assurances. (2) 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 more of the Assureds; (b) which result in no loss 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. 3. 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. 5. Company's Option to Defend or Prosecute Actions; Duty of Assured Claimant to Cooperate — Even 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 cost, to institute 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 5(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. (c) 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 lien rights of the Assured. If the Company is prejudiced by the failure of the Assured to furnish the required cooperation, the Company's obligations to the Assured under the Guarantee shall terminate. 6. 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 (94) 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 of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the 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, books, 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 by 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 information 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 governmental 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 Tender Payment of the Amount of Liability or to Purchase the Indebtedness. Serial No.G2222-22721 Page 2 of 3 - GUARANTEE 5/6/92 The Company shall have the option to pay or settle or compromise for or in the name of the Assured any claim which could result in loss to the Assured within the coverage of this Guarantee, or to pay the full amount of this Guarantee or, if this Guarantee is issued for the benefit of a holder of a mortgage or a lienholder, 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 claimant which were authorized by the Company up to the time of purchase. Such 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 Paragraph (a) the Company's obligation to the Assured under this Guarantee for the claimed loss or damage, other tban 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 Other Than the Assured or With the Assured Claimant. To Pay or otherwise settle with other parties for or in the name 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 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 options under .Paragraph 5. 8. 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 who 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 in Schedule A. (b) the amount of the unpaid principal indebtedness secured by the mortgage of an Assured mortgagee, 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. 9. Limitation of Liability — (a) If the Company establishes the title or removes the alleged defect, lien or encumbrance, or cures any other matter 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 obligations with respect to that matter and shall not be liable for any loss or damage 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 loss or damage until there has 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. Reduction 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 destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within thirty (30) days thereafter. Subrogation Upon Payment or Settlement — Whenever the Company shall have settled and paid a claim under this Guarantee, all right of subrogation shall vest in the Company unaffected by any act of the Assured claimant. The Company shall be subrogated 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 Company 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 remedies. If a payment on. account of a claim does not fully cover the loss of the Assured the Company shall be subrogated to all rights and remedies of the Assured after the Assured shall have recovered its principal, interest and costs of collection. 13. Arbitration — Unless prohibited by applicable law, either 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 he 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 land 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 situs of the land shall apply to an aribitration 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 amendment 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, the 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 famished the Company shall include the number of this Guarantee and shall be addressed to the Company at P.O. Box 2029, Houston, Texas 77252-2029. Serial No. G-2222-22721 Page 3 of 3 - GUARANTEE 6/6/ 92 SUBDIVISION GUARANTEE Order No. STK-103552 Guarantee No. G-2222-22721 Date of Guarantee: March 9, 2006 Liability: $1,000.00 A. ASSURED: Hutton Ranch Plaza Associates, LLC B. ASSL�NCES: 1) Description of the land: A tract of land located in the Northwest Quarter (NW'!) and the Southwest Quarter (SWY4) of Section 31, Township 29 North., Range 21 West; P.M.M., Flathead County, Montana, described as follows: Commencing at the Nest One -Quarter (WV4) corner of Section 31, Township 29 North, Range 21 West; P.M.M.; thence along the north boundary of the South One -Half of said Section 31 South 86118'04" East a distance of 59.24 feet to the intersection of said North boundary with the West boundary of Tract 1A of C.O.S. 17132, and the Point of Beginning of the herein described tract; thence along said Nest boundary the following three courses: North 03141'l7" East a distance of 249.62 feet; North 17151'29" East a distance of 82.52 feet; and North 03041'17" East a distance of363.99 feet to the Northwest corner of said Tract 1A; thence South 86"22'31" East along the North boundary of said Tract IA a distance of 1303.43 feet to the Northeast corner of said Tract 1A; thence along the East boundary of said Tract 1A the following five courses: South 04004'44" West a distance of695.33 feet; and South 04104'44" West a distance of 86.90 feet; thence South 04104'44" West a distance of 6.50 feet; thence North 86°18'04" West a distance of 44.94 feet; and South 03140'46" West a distance of 463.53 feet; thence North 86118'04" West a distance of 241.13 feet; thence North 03'41'56" East a distance of 470.03 feet; thence North 86018'04" West a distance of 405.21 feet; thence South 03041'56" West a distance of 195.67 feet; thence South 86118'04" West a distance of 456.88 feet; thence South 03041'56" West a distance of 573.49 feet to a point on the South boundary of said Tract 1A.; thence North 86119' 14" West along said South boundary a distance of 154.12 feet to the Southwest comer of said Tract 1A; thence along the West boundary of said Tract 1A the following two courses: North 10020'31" West a distance of 67.95 feet; and North 03°43'23" East a distance of 790.19 feet to the Point of Beginning. 2) Name of Proposed Subdivision Plat: 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 map, as follows: Hutton Ranch Plaza Associates, LLC Glacier Bank C. EXCEPTIONS: 1) General taxes and assessments for the year 2005 First half $57.26 PAID Second half. $57.25 PAID Assessor No.: 0009585 AFFECTS: Northerly portion 2) General taxes and assessments for the year 2005 First half: $140.20 PAID Second half. $140.19 PAID Assessor No.: 0980059 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 of construction and improvements. 5) Subsequent assessments or taxes and any penalties and interest, due to any change in ownership of the land, change in the land usage or loss of exemption. 6) Easements, reservations, dedications, and notes as shown on Certificate of Survey No. 14935, records of Flathead County, Montana. (AFFECTS: Southerly portion) 7) Easements, reservations, restrictions notes and dedications, as shown on Certificate of Survey No. 16333, records of Flathead County, Montana. (AFFECTS: Northerly portion) 8) Easements, reservations, restrictions notes and dedications, as shown on Certificate of Survey No. 17132, records of Flathead County, Montana. (AFFECTS: All) 9) Easements, reservations, restrictions notes and dedications, as shown on the ALTA/ACSM Land Title Survey dated July 23, 2004, prepared by Morrison Maierle, Inc. (AFFECTS: Northerly portion) 10) Easements, reservations, restrictions notes and dedications, as shown on the ALTA/ACSM Land Title Survey dated June 20, 2005, prepared by Morrison Maierle, Inc. (AFFECTS: Southerly portion) 11) 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. 12) An easement affecting the portion of said premises and for the purposes stated herein For: utilities In Favor of: Montana Power Company _ Recorded: May 3, 1988 Instrument No: 88-124-12340 13) State of Montana Department of Transportation Bargain and Sale Deed Recorded: March 10, 1992 Instrument No: 92-070-08510 For: ingress and egress and private road approaches 14) An easement affecting the portion of said premises and for the purposes stated herein For: utilities In Favor of Flathead Electric Cooperative Recorded: December 6, 1995 Instrument No: 95-340-08140 15) Reservation of oil, gas, coals and mineral rights, 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. Hutton in Warranty Deed recorded July 31, 2001, Instrument No. 2001-212-11320, records of Flathead County, Montana. The Company makes no representation as to the present ownership of this interest. 16) Resolution No. 5024 (Annexation) Recorded: July 11, 2005 Instrument No: 2005-192-11450 17) 18) AND Re -recorded: September 23, 2005 Instrument No: 2005-266-14220 Petition to Annex and Notice of Withdrawal from Rural Fire District Recorded: July 11, 2005 Instrument No: 2005-192-11460 Petition to Annex and Notice of Withdrawal from Rural Fire District Recorded: November 9, 2005 Instrument No: 2005-313-16180 19) Resolution No. 5078 (Annexation) Recorded: November 9, 2005 Instrument No: 2005-313-16190 20) Drainage Swale Easement Agreement and Temporary Construction License Recorded: January 20, 2006 Instrument No: 2006-020-16550 21) Drainage Pipe Easement Agreement and Temporary Construction License Recorded: January 20, 2006 Instrument No: 2006-020-16560 22) Stormwater Retention Pond Easement Agreement Recorded: January 20, 2006 Instrument No: 2006-020-16570 23) Slope Easement Agreement and Temporary Construction License Recorded: January 20, 2006 Instrument No: 2006-020-16580 24) Easement for Water and Sewer Main Recorded: February 1, 2006 Instrument No: 2006-032-11130 25) Deed of Trust (with future advance clause) Grantor: Hutton Ranch Plaza Associates, LLC Trustee: Stewart Title of Kalispell Beneficiary: Glacier Bank Amount: $7,000,000.00 Recorded: January 27, 2006 Instrument No: 2006-027-16251 26) Any and all unrecorded leaseholds, leases, and tenancies, if any; rights of parties in possession other than vestees herein; rights 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. 27) County and/or City road rights -of -way not recorded and indexed as a conveyance of record in the office of the Clerk and Recorder pursuant to Title 70, Chapter 21, M.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. 28) No examination has been made herein for State U.C.C.'s and/or Federal Bankruptcy's and coverage is excluded herein. 29) Exceptions and reservations contained in Patents of record. 30) Any off record facts, encumbrances, easements or possessory claims a survey or inspection would disclose 31) Rights of the United States of America to recover any public funds advanced under the provisions of the Hill -Burton Act or various Federal statues relating to health. 32) Survey/Plat when recorded, must be in compliance with the provisions of the Montana subdivision and Platting Act, 1973 (Sections 76.3-101 M.C.A.) and the Regulations adopted pursuant thereto. 33) No search has been made for water rights or unpatented mining claims and liability thereon is excepted from the Certificate. 34) The above described property is located within and subject to the jurisdiction of the Kalispell Fire District. THE END \ / } } all, LOT 2 LOT, 4 4.E 3 &}lIlls-29M Z I 4". + 4 + SAA IcX ry"i s",laF"1 I1U I I UN KANUH PLAZA NHASk I SUfjUIVIbION LOCATED IN THE NW s/9 MD FHE SW I/s OE" SECTIOM A T2.., R21W, V.M.N., MI OF I4131ELL. "TREAD Co—, MONT— ��AA u 4 Ms�su�u�fved nc .n _�<oc5 nu 1 LSOUL'A�i oN � w VIgNTY 4♦8F? xxc w IEGENO * eow xnw mwn c xaawo ( nw v,mw.mxwm inn. ra amrnm.ex n. ww s Nv(eYOR iv RINA A . � �i s". NT0.1TY iuASEMENT9 ��v;iin'Ss'nw:wm. <wacs. ue.ra.me eex.i CERTFICATF OF CffY WUNC:IL n,we(r°ie� v,i ee. x � uR ww a w nu. F.PTIFICAIY OF qT, cEP1YfiGniE nF FJ[AMIXW G uno_HUE, Y_ 04 �o ixwn[�c wuw w LIENHOLDER'S CONSENT TO PLAT The undersigned, Glacier Bank, as Beneficiary under that certain Deed of Trust executed by Hutton Ranch Plaza Associates, LLC, as Grantor, recorded in the official records of Flathead County, Montana as Instrument Number 2006-027-16251, does hereby consent to the recordation of the Final Plat of Hutton Ranch Plaza. Phase I, Subdivision in the form attached hereto as " Exhibit A" , and incorporated herein by this reference. Glacier Bank: 1-7 By: Title: .tbscribed and sworn to before ate on this" .. 1 any § � ...., 20 :. L. Buds fit s;I..RY PUBLIC for the State of Montana Lcun y of Flathead � Residing at Kalispell I C' commission expires La"JL' l ::Q Dated: RECORDING REQUESTED DV AND WHEN RECORDED RETURN TO, Hutton Rand Plaza Associates, LLC clo .Philip Harris 4 Sunset Plaza, Suite 201 Kalispell, Montana 59901 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANTS OF EASEMENTS By HUTTON RANCH PLAZA. ASSOCIATES, LLC 03/0912006 TABLE OF CONTENTS Pave SECTION I. GENERAL PROVISIONS AND DEFINITIONS .................................. I SECTION 2. BUILDING AREA; PARKING REQUIREMENTS ..............................8 SECTION 3. CONSTRUCTION AND DEVELOPMENTS................ ........................ 9 SECTION 4. COMMON AREA CONSTRUCTION, USE, MAINTENANCE AND MANAGEMENT; AND SHOPPING CENTER SIGNAGE................................................15 SECTION 5. TAXES ,AND ASSESSMENTS ..........................................................I....28 SECTION G. SHOPPING CENTER. USES..................................................................28 SECTION 7. EXPRESS GRANTS OF EASEMENTS ............................................... 31 SECTION8. INSURANCE ............................... .......................... :................................ 34 SECTION 9. DAMAGE AND DESTRUCTION; NON-USE OF BUILDING FOR. PRIMARY PURPOSE .................... 37 SECTION 14. THE ASSOCIATION..............................................................................46 SECTION 11. MORTGAGEE PROTECTION.............................................................51 SECTION 12. MISCELLANEOUS PROVISIONS.......................................................51. SECTION13. NOTICES................................................................................................. 56 SECTION 14. AMENDMENT; TERM AND TERMINATION; OTHERMATTERS................................................................................56 03/09/2U06 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANTS OF EASEMENTS THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANTS OF EASEMENTS {"Declaration") is made as of the day of , 2006, by Hutton Ranch Plaza Associates, LLC, a Delaware limited liability company ("Developer"), located at 4 Sunset Plaza, Suite 201, Kalispell, Montana 59901. A. The property subject to this Declaration (hereinafter referred to as the "Entire Property" or the "Shopping Center") is situated in the City of Kalispell ("City"), County of Flathead ("County"), State of Montana ("State'). The Entire Property is shown on the Site Plan attached hereto as Exhibit A (the "Entire Property Site Plan"), and legally described in Exhibit B attached hereto. .Each of the parcels existing under the Phase I Site Plan (Exhibit C-1) and the Phase II Site Plan (Exhibit C-2), as hereinafter defined, shall be subject to this Declaration as said parcels are created or modified. 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 integrated mixed use commercial retail center for the mutual benefit of all land comprising the Entire Property and any and all subsequent owners thereof and their Occupants (as hereinafter defined), and accordingly does hereby establish a general plan for the improvement, development, maintenance and use of the Shopping Center as a commercial, mixed use shopping center and for such purposes. Developer does hereby establish certain easements, covenants, restrictions, 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 anchor conveyed. SECTION 1. GENERAL PROVISIONS AND DEFINITIONS. SECTION 1.1 Site Plan. Developer intends to develop the Shopping Center in generally the manner shown on the Entire Site Plan (Exhibit A), Phase I Site Plan (Exhibit C-1) and Phase li 03f0912006 1 Site Plan (Exhibit C-2). Nothing on the Entire Site Plan or the Phase I Site Plan or the Phase II Site Plan constitutes any representation or warranty that any particular occupant will be located in or will remain in or operate in the Shopping Center. (a) Phase I. With respect to Phase 1, until such time as the final plat of Phase I is recorded, Developer reserves the right to: (i) modify the Phase I Site Plan, including the configuration of the parking and drive aisles:, provided the parking requirements set forth in Section 2.2 are not thereby violated; (ii) modify the access points from Highway 93 into the Shopping Center in accordance with the requirements of the Montana Department of Transportation or other governmental agency of competent jurisdiction; and (iii) modify the lot lines of individual Parcels provided the parking ratios set forth in Section 2.2 are not thereby violated. Nothing in this Section 1.1 shall negatively affect or impact the "No Build Area" as it is shown on the Phase I Site Plan. and no modifications to the Phase I Site Plan that materially or adversely impacts any Owner shall be made after recordation of the final plat for Phase I without prior consent of all Owners affected by said modification. (b) Phase H. With respect to Phase II, until such time as the final plat of Phase II is recorded, the Developer retains the absolute right to modify the Phase U Site Plan in any respect, with the exception of the location of drive -aisles located in Phase Ii and adjacent to Phase I of the Shopping Center which shall remain in the locations depicted in the Phase I Site Plan and Phase II Site Plan (Exhibits C-1 and C-2). No modifications to the Phase 11 Site flan that materially or adversely impacts any Owner shall be made after recordation of the final plat for Phase II without prior consent of all Owners affected by said modification. SECTION I.2 Buildine and Common. Areas. For the purpose of this Declaration, the Entire Property is divided into two (2) categories which relate to use, hereinafter referred to respectively as "Building Area" and "Common urea", as more particularly described below. Within the definition of "Common Area", for various purposes as set forth herein, there shall be various categories, i.e. Common. Area that is located on an Owner's Parcel between the exterior 2 of 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 line to the Parcel boundary, and Common Area that is developed primarily for purposes of parking and ingress and egress to the Shopping Center and is shown on the Phase I Site Plan as "No Build Area," and will be shown as "No Build Area" on the Phase 11 Site Plan prior to recordation of the Phase 1Ti final plat. SECTION 1.3 Intent that Declaration Controls Development and Use of Entire ro ert . Each of the Restrictions (i) is imposed upon each parcel of land now or hereafter comprising all or any portion of the Entire Property (each., a "Parcel," and together; the "Parcels") as a mutual equitable servitude in favor of all Parcels comprising the Entire Property, (ii) shall create reciprocal rights 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 are intended to and shall run with the land, and each parcel of land now or hereafter comprising all or any portion of the Entire Property is and shall be burdened by the covenants of its Owner for the benefit of the other Parcels in the Entire Property. Each covenant to do or refrain from doing some act on a Parcel (i) is a burden upon such Parcel for the benefit of the Entire Property, (ii) runs with each Parcel, and (iii) shall bind each Owner of a Parcel during its ownership of such Parcel or any portion thereof or any interest therein derived in any manner. SECTION 1.4 No Oils. Dedication or Third Party Beneficiaries. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Shopping Center or of any Parcel or portion thereof to the general public, or for any public use or purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities of any Owner or Occupant shall inure to -tire benefit of any third party, nor shall any third party be deemed to be a beneficiary of any of the provisions contained herein. SECTION 1.5 Rr' fit to Ap aointt Occupant as Attorney -in -Pact. Each Owner of a Parcel shall have the right: to appoint one Occupant of its Parcel as its attorney —in -fact and to assign to one Occupant of its Parcel the right to enforce the rights and benefits such Parcel is entitled to, and to satisfy the obligations of such Parcel and the Owner thereof, under this Declaration. However, 3 no such appointment and/or assignment shall relieve the Owner of the primary responsibility to satisfy all obligations of the Owner and its Parcel hereunder. Notwithstanding any such appointment or assignment, the Parcel Owner shall continue to have the right to independently or concurrently enforce the rights and benefits such Parcel is entitled to hereunder, and if the position of the Owner and its Occupant conflict, the Owner's position shall prevail with respect to the other Owners. SECTION 1.6 Definitions. Veen used in this Declaration, the terms defined in the Recitals shall have the meanings set forth in the Recitals and the terms defined elsewhere in the Declaration shall have the meaning set forth in the .Declaration and the following terms shall have the following meanings: (a) Ciliate. When used with reference to a specific Person, any Person that directly or indirectly through one or more intermediaries controls or is controlled by or is under common control with the specific Person. (b) Building. Any structural improvement on any Parcel which is enclosed by exterior walls, floor and roof and is designed for human occupancy and the conduct within of activities and business by the Owner or Occupant of such improvements. For purposes of an Owner's maintenance obligations, Building canopies, awnings, overhangs, support columns, pilasters, footings and Service Facilities shall not be deemed part of the Common Area, but shall be deemed Building. (c) Building tkrea. All those areas on each Parcel I}ping within the Building Limit Lines as shown for each Parcel on the Phase I Site flan and as will be shown an the Phase II Site Plan prior to recordation of the Phase II 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 are not a Building Area or a Service Facility together with those portions of the Building Area on each Parcel which 4 are not from time to time actually covered by a Building or other commercial structure or which cannot under the terms of this Declaration be used for Buildings. (f} Curb Line. The lines which consists of a concrete or similar partition between the sidewalk surrounding a Building and parking area adjacent to the sidewalk. The Curb Lines may be relocated in connection with a modification of the location of Building Limit Lines. (g) Developer. Hutton Ranch Plaza Associates, LLC, or any "Developer Affiliated Entity" or "Developer Assignee") (as hereinafter defined) which acquires all or a portion of the Shopping Center and to which the rights and obligations of Developer hereunder are assigned. For purposes of this Declaration, (i) the term "Develop&r Affiliated Entit „ shall mean Philip Harris, an individual, or any partnership, corporation, limited liability company or other entity owned, directly or indirectly, in whole or in part by Philip Harris; and (ii) a Developer Assignee shall be any single entity acquiring twenty percent (20%) or more of the "Permissible Aggregate Building Area", as herein defined, calculated without reference to the Parcels on which the movie theater and hotel are located (Lots 4 and 6, respectively, as depicted on the Phase I Site Plan, Exhibit C-1), and to which Developer has assigned its duties, rights and obligations hereunder. (h) Entire Property. That property depicted on the Entire Property Site Plan, Exhibit A, hereto, comprised of both Phase I and Phase II of the Project. (i) Floor Aria. The total number of square feet of floor space permitted to be constructed within a Building Area until such time as a Building is in fact constructed and then the actual Floor Area in the Building whether or not actually occupied (but excluding any basement, balcony or mezzanine space, if 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). Floor Area shall be treasured from the exterior line of the exterior walls and from the center line of any party or common interior walls without deduction for columns, walls or other structural or non- structural components, 5 (j) Improvements. The Building, Service Facilities, landscaping, signs and any other improvements constructed by an Owner and located on a Parcel. () Mortgage: Mortgage . A Mortgage means a mortgage or deed of trust encumbering a 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 Areas designated "No -Build" Area as shown on the Phase I Site Plan (Lots S & 7) and Phase II Site Flan, which may be modified }prior to final plat recordation, also herein sometimes called "General Common Area." In no event shall any occupiable structure be constructed on the No -Build Area. (in) Occupant. Any Person claiming, a leasehold 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 interest merely as security for the performance of an obligation. Owner is sometimes herein referred to as "owner." (o) Parcel. Each of the separate Parcels contained in Phase I or Phase II as described in the Phase I Site Plan. or Phase Il Site Plan as modified. £rota time to time. if any Parcel is subsequently divided into one or more separate legal parcels (whether by parcel map, final subdivision map, lot line adjustment, or other legal process) 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 the resulting legal parcels, as well. (p) Pemissible Aggregate Building Arp The aggregate number of square feet of Building Area permitted to be constructed in the Shopping Center from time to time, which shall never be more than the lesser of (i) the amount allowed under applicable legal parking requirements for the Shopping Center as that is defined in the final Development Agreement between the Developer and the City of Kalispell, or (ii) 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 ofPennissible Aggregate Building Area is not increased thereby. (q) Permissible Floor Axea. The maximum square feet of Floor Area permitted to be constructed on a Parcel from time to time. (r) Permittees. The respective officers, directors, shareholders, members, partners, employees, licensees, agents, contractors, invitees, visitors, customers and tenants and subtenants (and each tenant's and subtenant's respective officers, directors, shareholders, members, partners, employees, licensees, agents, contractors, invitees, visitors, customers and subtenants) of the Qv,vners and. Occupants. (s) Person. "Person" shall mean a natural person, a corporation, a partnership, a trust, a limited liability company, or any other form of entity. (t) Phase I. The areas of the Shopping Center as shown on the Phase 1 Site Plan (Exhibit C- I hereto). (u) Phase H. The areas of the Shopping Center as shown on the Phase II Site flan, which may be modified prior to final plat recordation (Exhibit C-2 hereto). (v) Froject. The Hutton Ranch Plaza commercial retail center as depicted on the Phase 1 Site Plan and Phase Cl Site ,Plan (Exhibits C-1 and C-2 hereto). (w) Service Facilities. Loading docks, truck ramps and truck wells and similar loading areas, trash enclosures, battle and waste paper storage areas, drive through structures, outside dining areas, play areas and customer service facilities and other similar service facilities intended for the exclusive use of less than all Occupants of the Shopping Center. (x) Sign�Prograin The Sign Program for the Shopping Center adopted or to be adopted by Developer, as the same may be amended from time to time in accordance with the terns of this Declaration. FA (y) UtiliMSystems. The electrical, gas, fiber optics, telephone, cable or satellite television, and water, sprinkler, drainage and sewer systems or structures servicing the Parcels including, among other things, all of the lines, wiring, outlets, Tripes, conduits, valves, and meters relating thereto. SECTION 1.7 Apyroyals by Developer. Where this Declaration specifies Developer's approval is required, it shall mean the written approval of Developer. SECTION 2. BUILDING AREA t PARKING REQUIREMENT SECTION 2.1 Building Area. The construction, establishment and maintenance of Buildings upon the Entire Property shall be located only within the Building Limit Lines, as modified by Developer from time to time pursuant to Section t.G(d)t.G(d). 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 exceeds the Permissible Aggregate Building .Area for the Phase. Every Building shall be of first quality construction. No Building shall 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 built on each Parcel may be fire rated as separate and distinct units. The Developer will make no modification to any Building .Area or Building Limit Line that materially or adversely impacts any Owner without consent by the affected Owner. SECTION 2.2 Parking_ Rec. uirements. The parking requirements for Phase I of the Project and for Phase II of the Project shall be independent of each other. For Phase 1, (i) if there is a hotel, there shall be not less than 1 parking space per room; and/or (ii) if there is a theatre, there shall be not less than 1 parking space for every 5 seats in the theatre; and (iii) in addition to the parking spaces 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 foregoing requirements, so long as a theatre is located in 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, they there shall be not less than 4.5 spaces for every 1,000 square feet of Building Area in Phase I: of the Project. For Phase U of the Project, (i) if there is a hotel, there shall be not less than 1 parking space per room, and (h) in addition to the parking spaces required for a hotel, there shall be not less than 4.5 parking spaces for every 1,000 square feet of Building ,Area exclusive of the square footage occupied by the hotel and by any gas station. Any gas station constructed shall have the number of parking spaces on the gas station parcel equal to the total number of such spaces required under parking regulations adopted by the City which are in effect at the time of construction of the gas station. SECTION 3 CONSTRUCTION AND DEVELOPMENTS SECTION 3.1 Design and Construction_ of Buildings. (a) All Buildings to be constructed in the Shopping Center shall conform to the requirements of the Architectural Guidelines as modified by Developer and as approved by governmental authorities from time to time, attached hereto as Exhibit E (the ".Architectural Guidelines"). 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 is required by governmental authorities. (b) The grade or drainage of any Parcel shall conform 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 manner whatsoever without the consent of Developer, which may be granted or withheld in Developer's absolute and sale discretion. SECTION 3.2 Review and Approval of Plans, (a) Submittal of Plans. No Improvements of any nature whatsoever shall be commenced, constructed, placed, assembled, replaced or erected and maintained on any Parcel, nor shall any addition, change or alteration to the exterior of any Improvements (collectively, "Construction") be made until Developer has approved the plans and specifications therefor in accordance with the provisions of this Sect, io., n 3.22. Prior to commencing any 0 Construction, the applicable Owner shall deliver to Developer for Developer's review a complete set of building and site plans (collectively, "Plansand S ecifiGations") (showing, among other things, exterior color and architectural design and decor), elevations, aesthetic treatment and other like pertinent information, and a plan for staging of construction, including, without limitation, the location of any temporary buildings or construction sheds, the storage of building materials, and the parking of construction vehicles and equipment, and the location of fencing for such staging and storage areas. All improvements that will be constructed in the Common Areas whether by fawner or Developer located on the Parcel that is the subject of the review shall be shown on the Plans and Specifications. All material improvements shall be commenced anal constructed only in accordance with Plans and Specifications approved by 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) including installing any landscaping between the Building mid the Curb line, and any Service Facilities located on such Owner's Parcel, and shall be responsible for extending to the Building any utilities brought to the Curb Line by Developer. Subject to the preceding sentence, Developer shall be responsible for constructing or installing all landscaping, all paving (including paving of drive -up or drive -through lanes), and all parking areas, automobile ingress and egress, curbs and curb cuts, driveways, and the like, whether on an Owner's Parcel or on the General Common Area. Developer shall stub all utilities to the Curb Line on each Parcel. Notwithstanding the above but subject to the prior approval of Developer pursuant to this Section 3.2, the Owner(s) of a gas station facility shall be responsible for the construction on its Parcel of all improvements an such Parcel including but not limited to utilities, paving, striping, etc. (b) Flan Appmal. (i) Procedure. Within twenty-one (21) days following submission of the Plans and Specifications, Developer shall notify the applicable Owner whether the same are approved, disapproved or conditionally approved. Developer may conditionally approve any Construction. Any disapproval shall set forth the general reasons for 10 such disapproval. Thereafter, the applicable Owner shall revise its Plans and Specifications to incorporate 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 time that the Plans and Specifications have been approved by Developer, which approval shall not be unreasonably withheld. To the extent any subsequent material changes are made by the applicable Owner to any approved Plans and Specifications, such changes shall be subject to the provisions of this Section 3.2, and the Owner shall secure the approval of Developer as provided herein. (ii) Standard; of Review., Non -liability for Apnrovai_ or Disapproval. oval. Plans and Specifications shall be reviewed by Developer to determine if the Construction is consistent with the Architectural Guidelines, and to ensure that the Plans and Specifications are in compliance with this Declaration. The Plans and Specifications shall not be reviewed and/or approved for engineering design, or for compliance with zoning; and building ordinances, or other applicable statutes, ordinances or governmental rubs and regulations. Developer and its shareholders, officers, directors, employees, members, agents, attorneys, consultants and independent contractors shall each not be liable in damages or otherwise for any reason, including any mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any Plans and Specifications. (c) General Construction RggRjrernents. (i) Manner of Performance, All work performed by an Owner pursuant to Section 3.2(al in the Construction of any huprovements located on a Parcel shall be effected as expeditiously as possible and in such a manner as not to unreasonably interfere with, obstruct or delay (A) access to or from any Parcel, or any part thereof, or to or from any public right-of-way; (13) construction work being performed on any other Parcel; or (C) the use, enjoyment or occupancy of any other Parcel. Unless otherwise specifically stated herein, an Owner shall, at its 11 sale cast and expense, promptly repair and restore all damage on other parcels damaged or destroyed in the performance of such Construction. Any staging area approved by Developer shall be removed as soon as possible following completion of Construction and any damage thereto shall be repaired by the constructing Owner, If an Owner or Occupant commences Construction of 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 an unsafe or unsightly condition detrimental to the Shopping Center, Developer may construct a barricade around such Improvements. Upon any such work by Developer or if the Constructing Owner fails to restore any staging area upon completion of Construction, the Owner upon whose Parcel the Improvements are located shall reimburse Developer upon demand for monies so expended. Such reimbursement shall be paid within thirty (30) days after receipt by Owner of a detailed invoice from Developer. If an Owner or Occupant commences any Construction of Improvements within the Shopping Center, such Owner or Occupant is required to diligently pursue such Construction to completion. The cost of fencing any staging area approved by Developer shall be borne by the Owner. The person or entity undertaking Construction work on a Parcel shall: (i) pay all costs and expenses associated with such work; (ii) take necessary measures to minimize disruption and inconvenience caused by such work; (iii) make adequate provisions for the safety and convenience of Owners, Occupants and their Pennittees; (iv) control dust, noise and ether effects of such work using methods customarily utilized in, order to control such deleterious effects associated with construction projects in a populated or developed area; (v) repair any and all damage which may be caused by or result from such work; (vi) restore all affected portions of any Parcel to a condition equal to or better than the condition existing prior to beginning such work; (vii) indemnify and hold hamless Owner and all other Occupants of the Shopping Center against any 12 mechanics liens for such work, particularly as to Common .Areas, and cause any such outstanding lien or claim of lien to be released or transferred to bond in accordance with applicable law. Such construction shall not unreasonably interfere with the business operations on any other Parcel and shall not block of impede the Shopping Center ingress or egress from public streets. Standard of Work. All work performed in the Constructions of any Improvements located on any Parcel shall be done in a good and workmanlike manner and, as applicable, in accordance with good engineering standards. TeMorm License, Each Owner hereby grants to the other Owners a temporary license for access and passage over and across the Common ,Area located on the granting Owner's Parcel, to the extent reasonably necessary, including temporary staging area, for an (honer to construct Improvements upon its Parcel; provided, however, that such license shall be in effect only during periods when actual Construction is being performed, and provided further that once an Owner constructs a building no such license shall be used 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 with the operation of the granting Owner's Parcel, or its occupant's business. Prior to exercising the nights granted herein, an Owner shall provide each granting Owner with a written statement describing the need for such license, and shall furnish a certificate of insurance showing that its contractor has obtained the minimum insurance coverage required by this Declaration. The Owner shall promptly pay all costs and expenses associated with such Construction, shall complete such Construction as quickly as possible, and shall promptly clean and restore the affected portion of the Common Area on the granting Owner's Parcel to a condition which is equal to or better than the condition which existed prior to the commencement of such Construction. Notwithstanding the foregoing, if a dispute exists between the contractors, laborers, suppliers and/or others connected with 13 such construction activities, the granting Owner shall have the right to prohibit the contractors, laborers, suppliers and/or others working for an Owner from using the Common Area on the granting Owner's Parcel. In addition, each Owner hereby grants to Developer a temporary construction license and easement for purposes of completing, construction of those Common Area improvements (including Utilities) as set forth in this Declaration to be constructed by Developer which have not been completed prior to the closing of the sale of the subject Parcel to such Owner. (iv) Sn.dgmnity. In addition to the indemnification set forth in Section 6.3 herein, each Owner shall indemnify, defend, protect and hold Developer and the other Owners, and their respective officers, directors, shareholders, employees and agents harmless for, from and against any and all causes of action, claims, liabilities, losses, costs and expenses (including reasonable attorneys fees acid court costs) and damages arising out of or related 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) occurring within such Owner's Parcel during periods of Construction. (v) 1_]ebtis Excavation. During all Construction on the Parcels, the Owner undertaking such work shall beep the construction site and surrounding areas clean and free of constructions materials, trash and debris, and shall take appropriate precautions to protect against personal injury 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 prevision of this Declaration, no excavation, shall be made on, and no sand, gravel, soil or other material shall be removed from, any Parcel, except in connection with the Construction of Buildings or Improvements 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 debris and weeds. (d) Specific Construction ReQuireznents. (i) Refuse and Trash Rece tacles/Refuse Pick-up and Removal. Developer shall require all Owners of Lets 1, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 (that is, the Buildings that border Highway 93, and those that border Hutton Ranch Road East), to construct a refuse or trash containment room in each Building, for the specific purpose of staring refuse and trash inside. No outside refuse and trash containment areas or receptacles will be approved or allowed. Developer or person or entity selected and/or retained by Developer shall pick-up and remove the refuse and trash from Lots 1, S, 9, 10, 11, 12, 13, 14, 15, 16, and 17 on a regular basis. (ii) Air Conditioner and Heating E ui Lnent. With regard to all Lots in Phase I and Phase IL any and all air conditioning and heating equipment located on the exterior of these buildings at grade and any and all equipment located on the roof tops of those buildings shall be fully screened in a manner approved by the Architectural Review Committee, such that the equipment cannot be seen or viewed fromwiy location from within the Entire Property. SECTION 4. COMMON AREA CONSTRUCTION. USE MAINTENANCE AND MANAGEMENT,• AND SHOPPING CENTER SIGNAGE SECTION 4.1 Description of Common Area. Once the construction of a Building is completed, all area outside the exterior walls except Service Facilities shall become a part of the Common Area; an Owner may later modify, alter 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 not 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 streets, as shown on the Phase Z Site Plan and Phase 11 Site flan, whether or not located on an Owner's Parcel, shall be used only for; (a) The parking of passenger vehicles acid the pedestrian and vehicular traffic of the Owners, Occupants and their respective Permittees; (b) The ingress and egress of any of the Owners, Occupants and their Permittees and the vehicles thereof, to any and from any portion of the Common Area and the Building Area and public streets adjacent to the Common Area; (c) The movement of pedestrians and passenger vehicles of Owners, Occupants and their Permittees between mercantile, business and professional establishments located or to be located within Building Areas; (d) The ingress and egress of delivery 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 Owners and Occupants. Delivery vehicles should use rear entrances to Buildings whenever such rear entrance is available. Other than in designated loading areas (as designated by Developer), the Common Area shall, not at any time be used for the parking of trucks, or the loading or unloading thereof, except for the temporary parking, loading or unloading of trucks during and in connection with the construction or demolition of Buildings upon a Building Area, the servicing and supplying of a Building Area which cannot be serviced and supplied from areas designated as loading areas, the delivery or removal of trade fixtures (including signs) or the construction, repair or maintenance of parking area and improvements and facilities herein permitted, upon the condition, however, that any such use shall be confined to that which is reasonably necessary in connection with the matters herein specified and shall be diligently and promptly performed and shall not interfere with the normal business operations of, any Permittee and/or delivery or access to, other Occupants in the Shopping Center. 16 (e) Subject to Section 4.2td3the temporary parking or standing of trucks, tractors, trailers and other delivery vehicles used in conjunction with the exercise of any of the activities described in; Section 4.34.3. (f) Landscaping and lighting, other facilities such as mailboxes, public telephones and benches for the comfort and convenience of Owners, Occupants and Per ittees of the mercantile, business and professional establishments located or to be located upon Building Areas. (g) The installation, use, maintenance and repair 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, fanner markets, etc., so lung as such use does not unreasonably interfere with the use and operation of the General Common Area. In no event shall such licenses grant use of parking, drive aisles, access road, or cause material interference with the operations of any business in the Shopping Center or provided, f=her, no such use shall be permitted in excess of four (4) times in any calendar year or longer than four (4) 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 as insurance, clean-up, permits, promotional expenses, etc.) will be used to offset Common Area Costs (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 Plaii and Phase 11 Site Plan whether or not located on an Owner's Parcel or on the General Common Area. SECTION 4.3 Common Areas Located on a Parcel. Those portions of the Common Area located on an Owner's Parcel inside the Curb Line may be used as follows: (a) The sale of merchandise .from sidewalks which are immediately adjacent to Building 17 Areas which use shall not unreasonably impair pedestrian access along said sidewalks, impede vehicular traffic flow within the Shopping Center nor diminish the number of the parking spaces as shown on the Phase i Site Plan and Phase TT Site Plan, and which sale may only be conducted after the Occupant has obtained all necessary governmental permits and approvals at the Occupant's sole expense and after having obtained from Developer a license for the use of such area; (b) The storage of shopping carts and the operation of vending machines on the sidewalks immediately adjacent to a Building, provided such storage and operation does not unreasonably impair pedestrian access along said sidewalks, and that the Occupant thereof has obtained all necessary governmental permits and approvals at the Occupant's sale expense and is consistent with the architecture and aesthetics of the Entire Property; (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. All the services and activities permitted within the Common Area shall be performed with reason and judgment, in a manner commensurate wvith first-class shopping centers in the region and so as not to create a nuisance or to interfere with the normal business operations of, and customer access to, other Occupants in the Shopping Center or the serving and supplying of the loading areas of the Builditzg(s). SECTION 4.4Qrnnlon Area Improvements. (a) Common Area Construction. All Common Area improvements, including but not limited to Utilities, paving, striping, landscaping, signage, and lighting, except for Service Facilities located within the Common Areas on a Parcel, shall be consh-acted by Developer, .After completion of the development 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 Impediments. The movement of pedestrians and vehicles between the establishments located and to be located upon the Shopping Center (and to and from the public streets) shall be unimpeded; accordingly, no building, fence, wall, or barricade shall be erected or maintained over or upon the General Common Area or any Parcel, except as otherwise expressly allowed by this Declaration, and: (i) Such as may be necessary to protect members of the public from construction or excavation activities; (ii) Light standards and appropriate landscaping, including hedges, planters and planting boxes and edgers; (iii) Architectural elements and other items or features which are (1) shown on the Phase I Site Plan or Phase H Site Plan, (2) installed or approved by Developer and/or (3) required by the City or other governmental agencies; (iv) Such fences can the perimeter of the Shopping Center as may be approved by Developer or required by any government agency; (v) Mail boxes, public telephones, recycling center, benches, and other public conveniences approved by Developer; (vi) Signs as allowed herein or otherwise as approved by Developer and the applicable governmental authorities, (c) No Parcel Barriers. 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, permitted or maintained between the properties of any Owners of any portions of the Shopping Center, or between any subsequent division thereof, or upon or along any of the common Parcel lines of any portion thereof (d) No Charges far Use. No charge, fee, toll or levy shall ever be required, assessed or made of or received (unless imposed by a governmental agency having jurisdiction) from. any 19 customer of any Owner or Occupant. 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. (e) Lighting. Lighting will be installed in the General 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., unless prohibited by applicable laws, ordinances or regulations or otherwise agreed to by the Theatre Owner, operator of the theatre, and the Developer. SECTION 4.5 SSi gaage. All signage in the Shopping Center shall comply with the Sign Program as may be modified and approved by the City of Kalispell from time to time (the "Sign Program"), (a) Pylon and Monument Signs. Developer 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 fawner or Occupant with cxisting signage in the Shopping Center shall not have its right to its signage interfered with by such changes unless such change is approved by at least seventy-five percent (75%) of 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 sign(s), the Owner shall, at the Owner's sole cost and expense, prepare or cause to be prepared the proposed variance from the Sign Program. The Owner shall submit the proposed variance 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 fxozxi the Sign Program, such Owner shall be entitled to seep variance from the design criteria imposed by any applicable governmental regulation or requirement governing exterior signs in the Shopping Center (collectively, "Government Sign Restrictions'') so that the Government Sign Restrictions will permit the Owner's proposed variance froze the Sign Program. Developer may, in its sole and absolute discretion, at such Owner's request and expense, reasonably cooperate 20 with such Owner in seeking such variance from, the Government Sign Restrictions. Nothing in this Section 4.5(a) shall allow the Developer to after any Owner's signage rights following approval and construction of signage. (b) Maintenanceof Multi -Tenant Signs '. The multi -tenant pylon and monument signs (which includes all utilities serving each such sign) shall be maintained by the Developer in good, clean and first-class state of order and repair, including the prompt removal and repainting of graffiti. (c) P@3MgnLgf Costs of Maintaining and Operating Multi -Tenant Sigm. The cost of illuminating, operating, maintaining, repairing and replacing the multi -tenant pylon 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 for such costs from Owners whose signage is located on such pylon or monument sign. (d) Maintenance of Individual wilding Signs. All exterior Building signs shall 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 Building, signs shall be maintained in good, clean and first-class state of order and repair, including the prompt replacement of broken, faded or damaged sign panels, the prompt replacement of burned - out or broken light bulbs and the prompt removal and repainting of graffiti. The cost of constructing, installing, illuminating, operating, maintaining, repairing and replacing each exterior Building and single -tenant monument signs shall be borne by the Owner of the Parcel on which such sign is located- (e) No Other Signs Permitted.. There shall be no signs in the Shopping Center except (1) as permitted hereunder; (2) as permitted under the Sign Program; and (3) such directional signs as are typical for cominon areas. Any Owner may have more restrictive signage provisions in a lease with its Occupant than are provided for herein. No Owner shall place or allow on its Parcel any signs advertising space or land for sale or lease, unless such sign mid the location thereof has first been approved in writing by Developer, 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 aad shall not block the visibility 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 same comply with the Sign Program and applicable laws, are removed within thirty (30) days of initial display (or 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 (7) days following completion of construction. All signs for promotional events for which Developer grants a temporary license pursuant to Section 4,2(h) shall be removed immediately upon completion of the event. Developer shall have an easement over arty Parcel to locate any permitted directional or pylon signs as desired by Developer, provided, no such easement shall be located within the Curb Line on any Parcel, and no such easement shall interfere with an Owner's permitted Service Facilities, SECTION 4.6 Operations And Maintenance. (a) Maintenance of Common Areas. Except for service facilities constructed by Owners, all of the Common Areas shall be maintained in good condition and repair by Developer. Said maintenance shall include, without limitation, the provision of adequate lighting, water, electricity, sweeping, gardening and landscaping, janitorial services, maintenance of recycling center, repairs to and replacing of asphalt paving so as to maintain a smooth and level surface, bumpers, striping, light bulbs, light standards, sign structures and signs advertising the name of the Shopping Center, snow removal and sprinkler systems and planting areas, any alterations, additions or improvements required to be made to the Common Area in order to comply with applicable governmental laws, ordinances, rules, regulations and orders not applicable as of the date Developer commences the improvements referenced in Section 4.4 and any other items of repair, replacement or maintenance that may be needed from time to time to properly maintain and operate the Common Area. As a part of said :maintenance and operation, Developer shall obtain and maintain insurance as required by Section 8.4. Each Owner hereby grants to Developer a pe,ananent easement and license for access and passage over and across the Common 22 Area located on the Owner's Parcel, to the extent reasonably necessary for Developer to perform its obligations under this Section 4. SECTION 4.7 Maintenance Director. Developer may, at its option, appoint an individual or entity (herein, the "Maintenance Director") to which Developer may delegate its responsibilities hereunder. The :Maintenance Director may be an affiliate of Developer or an Owner or occupant. Developer shall have (and is hereby given) the full right and authority of operation, control and maintenance of the entire Common .Area (except for exclusive areas as provided herein, which 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 right to enact rules and regulations for the use and operation of the Common Area, including without limitation employee parking. Such roles and regulations, if any, concerning employee parking shall be reasonable, and shall be administered in such a manner as to not interfere with the operation of any business. Each Owner hereby grants to the Maintenance Director a license to eater upon each Parcel in the Shopping Center as reasonably necessary to discharge its duties to operate, maintain and repair the Common Areas on its Parcel. SECTION 4.8 Contracts, Fee, R.ecyrds. Developer is hereby authorized to contract with third parties (each such contract to contain a provision for cancellation upon sixty (60) days notice) for the operation and maintenance of the Common Areas, and Developer is authorized to pay 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 ten percent (10%) of such. expenses. Developer shall not be entitled to a service charge on insurance premiums, non -recurring single expenditures in excess of ten thousand. dollars (which $10,000 amount shall be adjusted every five (5) years by the sarne percentage that the Consumer Price Index (U.S. City Average) has increased during the same period, if any), and Utilities. Developer shall keep accurate books and records in the State of Montana, and agrees to allow each Owner to audit, upon at least ten (10) business days' written notice, at no expense to the Developer, all records pertaining to the Common Area for the last four (4) }fears. 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 by an independent Certified Public Accountant (CPA) agreed to by both the Owner(s) who has requested the audit and Developer. Should the parties not agree to a CPA, each party shall select one CPA, and together those two CPA's shall select a third. CPA to perform the audit. The chosen CPA shall charges a flat fee or on an hourly basis, and no audit may be conducted by any person or farm which charges a "contingency fee" or is otherwise compensated on the basis of overbilling allegedly or actually discovered. In the event the independent audit contains results in favor of the Owner, the Developer shall pay the costs of the audit. In the event the independent audit contains results in favor of Developer, the Owner or Owners requesting the audit shall pay the costs of the audit, and. shall reimburse Developer the sure of five hundred dollars ($500) as compensation for its staff time in responding to the audit request. If it is determined that the Owner's pro rata share of Common Area Costs exceeds such Owner's payments, Owner shall pay the deficiency to Developer within thirty (30) days. If it is determined that the Owner's payments exceed such Owner's pro rata share of Common Area Costs, Owner shall receive a credit against Common Area Costs next thereafter becoming due. No Owner shall be entitled to a credit or refund for payments of excess Common Area Costs made more than two (2) years prior to the end of any calendar year. SECTION 4.9 Payment of Pry Rata Share; -Audits, Annual Adjustment The Owners shall pay to Developer monthly, on an estimated basis, their pro rats. share (as provided in Section 4.10) of all Common Area Costs, for operation, management, repair, replacement and maintenance casts (including service charge) with the first payment date being the first day of the month following fifteen (15) days after the date said Common Area is open for use to the general public. Developer shall reasonably estimate such expenses in advance for a given calendar year and bill the Owners for such expenses (including service charge) in equal monthly amounts. The Developer may revise such yearly 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 annual adjustment referred to below. Said annual adjustment shall identify each maintenance category, vendor and amount. An annual adjustment based on actual expenses in such calendar year shall be made by Developer within sixty (60) days following the close of each calendar year whereby an Owner 24 shall receive a refund or pay any additional amount, both within ten (10) days of owner'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 rats share of such expenses). As used herein, "Cornmon Area Costs" means all real property taxes on the General Common Areas not otherwise directly taxed to the Owner, premiums and ether costs of the insurance carried by Developer pursuant to Section 8.4. security (if deemed necessary) and all other costs of owning, managing, operating, repairing and replacing the General Common Areas, and otherwise of performing Developer's obligations under this Declaration, including without limitation, capital expenditures incurred by Developer for necessary replacements of Common Area improvements (such as paving) including, at Developer's sale election, reserves therefor ("Common Area Expenses"). Capital expenses will be amortized over their useful life, however, capital expenses shall not include resurfacing, re -striping or other maintenance of paved parking areas and drives, the cost of which shall be expenscd as a Common Area Cost as it is incurred, Any management fees included in the Common Area Expenses, whether outsourced or internally generated, will not exceed 10% of expenses incurred, and the: Common Area Expenses shall not include any interest, fees or other assessments arising from any loan or debt on the General Common Area.. SECTION 4.10 Pro Rata_Shares, Developer shall use good faith efforts, using sound accounting principles and practices, to allocate Common Area Costs to Phase I and Phase U or both, as applicable, (a) Phase I. 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 (the "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 is constructed (the "Motel Owner") shall bear eight -tenths of one percent (.8%) of Common Area Costs for each 10 rooms or fraction thereof, The balance of Phase I Common Area Costs shall be borne by the Owners of the remaining Parcels in Phase I after deducting payments by the Theatre Owner and the Hotel Owner, if applicable. The pro rata share of the cast of operation, management, repair and maintenance of the Phase 1 Common 25 Area that is to be borne and paid monthly in accordance with Section 4.9 by the Owner of a Phase I Parcel other than the 'Theater Owner and Hotel Owner 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 Aggregate Building Area allowed within Phase I (excluding the Theater and the Hotel). If a Building is damaged or destroyed from any cause, for the purpose of calculating pro rats shares such event shall not change the number of square feet of Floor Area within the affected Parcel. (b) Common Area Costs for Phase 11 shall be borne by the Owners of Phase II for the cost of operation, management, repair and maintenance of the Phase II Common Area and shall be paid monthly in accordance with Section 4.9 in the some ratio that the number of square feet of Floor Area within such Owner's Parcel(s) 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 rats shares such event shall not change 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 allocable to the gas station Parcel. SECTION 4.11 Damage or Destruction of Common Area. In the event any of the Common Area is damaged or destroyed by any cause whatsoever, whether insured or uninsured, the Developer shall repair or restore such Common Area in accordance with the provisions of this Section 4_,11. The cost to repair and restore the Common Area shall be a Common Area Cost. SECTION 4.12 I7efault by Owner. In the event that any Owner fails or refuses at any time to pay its share of any of the Common. Area Costs when due, then, after written demand and failure to pay within ten (10) days after receipt of such demand, legal action may be instituted by the Developer against the defaulting; Owner for reimbursement, plus interest at the rate set forth in Section 12.15. Any and all delinquent amounts together with said interest shall be a lien and 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 Parcel wbich is recorded prior to the recording of such lien against such Parcel in the official records of the County. SECTION 4.13 Conflict.with Leases. Notwithstanding anything contained herein to the contrary, in the event 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 maintenance expenses are different from the provisions of this Declaration, the lease provisions shall -prevail among said Owner and its Occupants, but as among the Owners, this Declaration shall prevail. SECTION 4.14 Security. 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 security guards or other security treasures for its own protection, and/or the protection of its Occupants and its/their Permittees and all persons coming onto its Parcel or onto the Common Area located thereon. Each Owner and Occupant acknowledges and agrees that the Developer shall have no obligation to provide security or policing, and shall have no responsibility or liability to the Owner, its Occupants and its/their Permittees in connection with the provision or failure to provide security guards or measures and hereby releases the Developer and each other Owner and {occupant individually and collectively from any such responsibility or liability. If an Owner or the Developer elects to provide security personnel, such Owner or the Developer, as the case may be, shall carry, or require 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, insuring 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 increase the required amount of coverage of such public liability insurance to reflect commercial standards then in effect. Anytl-iing herein to the contrary notwithstanding, each Owner shall maintain in good condition and repair, at its sole cost and expense, any Service Facilities located within the Common Area on such Owner'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. TAXES AND ASSESSMENTS SECTION 5.1 Separate Tax Parcels; Duty to Pay. It is intended and agreed that all real estate taxes and assessments which may be levied, assessed, or charged by any public authority against a Marcel, or any part thereof (including the Common Area thereof), shall be paid prior to delinquency by the respective Owner of said Parcel, subject, however, to the right of any such Owner to contest the amount or validity of all or any part of said taxes and assessments. SECTION 5.2 Right to Contest. In the event that any Owner shall deem any real estate tax or assessment (including the rate thereof or the assessed valuation of the, property in question or any otber aspect thereof) to be paid by said Owner to be excessive or illegal or otherwise improper, said Owner shall have the right, at its own cost and expense, to contest the same by appropriate proceedings, and nothing contained in this Section 5.2 shall require the Owner to pay any such real estate tax or assessment as long as (a) no ether Owner's Parcel could be affected by such failure to pay, and (b) the amount or validity thereof shall be contested in good faith. If the failure to pay such -tax would affect any other Owner's Parcel, such ether Owner shall have the right to pay such tax and shall have a lien on the non-paying (3wner's Parcel for the amount so paid. Any such lien shall be subject to, and junior to, and shall in no way impair or defeat the lien or charge of any bona fide mortgage or deed of trust upon the same Parcel recorded prior to the recording of such lien in the official records of the County. SECTION 6. SHOPPING CENTER USES SECTION 6.1 General, Except as prohibited in Section 6.2, the types of uses permitted in the Shopping Center shall include, but not be limited to grocery and non -grocery anchored retail, motion picture theater, hotel, restaurant, service offices (including but not limited to medical, dental, optical, real estate, financial, insurance, title and mortgage), mercantile, business and professional establishments and related facilities, provided however, that any motion picture theatre shall only be constructed on Lot 4 as shown on the final plat of Phase I recorded by the 28 Developer. Any restaurant may contain gaming machines, as defined by state and local authorities, as an ancillary use to the primary restaurant use, so long as such gaming machines do not occupy more than five percent (5%) of the constructed Floor ,Area in such restaurants and such gaming 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 Parcel shall be used for anything other than purposes which may be permitted by applicable zoning regulations, nor shall anything be done on any Parcel which shall constitute a public nuisance to the community, No overnight parking shall be permitted in the Common Area except as required to accommodate any business which operates on a 24-hour basis. No Parcel shall be used for anything other than purposes which may be permitted by applicable zoning regulations, nor shall anything be done on any Parcel which shall constitute a public nuisance to the community. No sound amplification equipment shall be used by any Owner or Occupant of the Shopping Center which produces sound audible from outside of an Occupant's space except for drive-thru speaker audio boxes or similar devices. SECTION 6.2 Prohibited Uses. Except as provided below, no portion of the Entire Property shall be used for the following: (a) any nuisance or obnoxious use or other use inconsistent with the types of uses typically found in first class mixed use retail/commercial shopping centers; (b) an adult bookstore or adult video store or other establishment engaged in the business of selling, exhibiting or delivering pornographic, obscene or so-called "adult" material (including, without limitation; magazines, books, movies, videos, photographs or so called "sexual toys'); (c) live "adult" 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 prohibition shall not prohibit the sale of adult materials in compliance with applicable Laws and as are incidental part of a bona fide video store, such as Blockbuster or Hollywood Video, or bona fide general interest bookstore, such as Barnes & Noble or Borders, that has an adult section properly screened from view and with controlled access to exclude minors; (d) a so- called "head shop"; (e) a game room or arcade (except as are incidental to the operation of other permitted activities such as a movie theater or hotel), including video game, virtual reality or laser tag room or facility; (f) an off-track betting parlor; (g) a pawn shop; (h) funeral home, mortuary or crematorium; (i) a junk yard or flea market; 0) a recycling facility other than one 29 operated by a superniarket, or as required by law, a land fill, gaxbage dump or other such facility for the dumping, disposing, incineration or reduction of garbage; (k) an auditorium, dance hall, night club, disco or massage parlor; (1) a bar, tavern, banquet facility or lounge, other than incidental to, as part of and under the same name as a restaurant permitted hereunder; (m) a school, educational or training facility, (n) an amusement park, carnival or other amusement center; (o) any industrial use; (p) the conduct of any auction; (q) any production, manufacturing, industrial, or storage (including mini -warehouse) use of any kind or nature, except for storage and/or production of products incidental to the retail sale thereof from the Shopping Center; (r) for the sale, display for sale, repair or storage (other than temporary parking while transacting business within the Shopping Center) of motor vehicles, boats, trailers, or motor homes; (s) any establishment in which the primary business is (or is similar to) that of Dollar Tree Stores, Big Lots or 99 Cent Clearance Centers; (t) a 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 automobile related items; or (u) 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 be located on Lots 1, 8, 15, 16 or 17 as depicted on the final pat recorded by the Developer. SECTION 6.3 H ardo s aterials Use. No Owner shall use, or allow the use of, "Hazardous Materials" (defined below) on, about, under or in its Parcel, or the Shopping Center, except as part of the business operation conducted therein in the ordinary course as part of a first-class shopping center in accordance with the standards of this Declaration, and then only in 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 below), the Owner responsible for such release (which includes releases caused by the {homer, or tbe Occupant on the Owner's Parcel, or their Permittees) shall immediately take or cause to be talcen such remedial actions as may be necessary to clean up the same in accordance with the requirements of all Environmental Laws. Each. Owner shall use, handle and store any Hazardous Materials hereunder in accordance with the applicable requirements of Environmental Laws, Each Owner shall notify the other Owners of any such release of Hazardous Materials of which it gains knowledge or receives notice, and of any violation of Environmental Laws of which it receives notice from any goveminental agency having jurisdiction. Each Owner shall 30 indemnify, defend, protect and hold the other Owners harmless from and against any and all claims, actions, proceedings, losses, suits, liabilities, damages, deficiencies, fines, penalties, costs or expense (including without limitation sums paid in settlement of claims, reasonable attorneys' fees, consultants' fees, investigation acid laboratory fees, court costs and litigation expenses), which arise out of or in connection with the indemnifying Owner's breach of the provisions of this Section 6.3. For purposes of this section 6.3, the following terms shall have the following meanings; (a) "IBxzvirorr ngntal Laws" shall mean all present and future statutes, ordinances, orders, rules and regulations of all federal, state or local governmental agencies relating to the use, generation, manufacture, installation, release, discharge, storage or disposal of Hazardous Materials; and (b) "Hazardous Materials" shall mean petroleum, petrolewn products, asbestos, polychlorinated biphenyls, radioactive materials, radon gas and any chemical, material or substance now or hereafter defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous waste," "restricted hazardous waste" or "toxic substances," or words of similar import, under any Environmental Law, or listed or identifier) in, or regulated by, any Environmental Law. SECTION 7. EXPRESS GRANTS OF EASEMENTS SECTION T 1 In e�Egress and Parking, Parking, Each Owner, as grantor, hereby grants to each other Owner and to its respective Occupants and Permittees, for the benefit of the grantee Owner's Parcel and the use thereof by the grantee Owner and its Occupants and Permittees, a nonexclusive appurtenant easement for ingress and egress by vehicular and pedestrian traffic and vehicular parking upon, over and across that portion of the Common Area located on the grantor's Parcel(s) and improved for such purposes from time to time, except for those areas devoted to Service Facilities or drive up or drive through customer service facilities or except as otherwise expressly provided in this Declaration. SECTION 7.2 Utility Dines and Facilities. (a) _Grant of Utility Easements. Each Owner, as grantor, hereby grants to the Developer for the benefit of each Parcel belonging to the other Owners, as grantees, a nonexclusive appurtenant easement (subject to relocation as provided below) under, through and across 31 the Common Area of the grantor's 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, struetures, mains, sewers, conduits, lines and other utilities shall be installed and maintained below the ground level or surface of such easements except for ground mounted electrical transforrriers 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 cast of which shall be included in Common Area Costs unless the need for repair results from the willful misconduct or negligence of any particular Owner or Occupant, in which event the east of such repair shall be paid by such Owner (on behalf of itself or its Occupant). (b) Relocation. At any time and from time to time the Owner of a Parcel shall have the right to relocate on its Parcel any Utility System installed pursuant to the foregoing grant of easement which is then located on the land of such Owner, provided that any such relocation: (i) shall be performed as expeditiously as reasonably possible and only after sixty (60) days notice of the Owner's intention to undertake the relocation shall bane been given to all the other Owners whose Parcels will be affected by such relocation; (h) shall not materially interfere with or diminish utility service to the Parcels served by the Utility System; (iii) shall not reduce or unreasonably impair the usefulness or function of the Utility System; (iv) shall be performed without cost or expense to the Owner or Occupant of any other Parcel; (v) shall provide for the original and relocated area to be restored to the original specifications in a manner harmonious with the condition and operation of the Shopping Center; mid (vi) shall not interfere with or alter the grading and drainage patterns in the Shopping Center nor interfere with the use of any other Parcel or the business located on any other 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 fours thereof, such work shall be scheduled for non -business hours, at the sole cast of the Owner performing the relocation. The Owner performing 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 relocation. 32 (c) Additional Utility Easements. Each Owner agrees to grant such additional easements as are reasonably required by any public or private utility for the purpose of providing the utility lines and facilities described herein and allowing for the proper maintenance, repair and replacement thereof, provided such easements are not otherwise inconsistent with the provisions of this Declaration. SECTION 7.3 BuildingEncroachments, Each Owner, as grantor, hereby grants to the other Owners for the benefit of each Parcel belonging to the other Owners, as grantees, an underground easement for foatings, piers, piles, grade beams and the like which may encroach into or under the grantor's adjoining Parcels). The easements granted in this Section 7.3 shall survive this Declarations and shall last so long as the encroaching Building is standing following its initial construction or following its reconstruction where such Building is substantially restored to its prior condition within two (2) years following a casualty or condemnation. In no event shall anything in this Section 7.3 be construed or interpreted so as to create any easement, license, or other right allowing encroachment of any Building onto another Parcel. SECTION 7A Continuation of Easements. Unless all of the Owners agree otherwise in writing prior to the expiration or earlier termination of this Declaration, the non-exclusive easements granted in this Section 7 shall be perpetual and shall survive the expiration or earlier termination 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 easement agreement memorializing such perpetual non-exclusive easements. SECTION T5 Restriction. No owner shall grant any easement for the benefit of any property not within the Shopping Center; provided, however, that the foregoing shall not prohibit the granting or dedicating of easements by an owner on its Parcel to governmental or quasi- govenunental authorities or to public utilities, subject to the approval of Developer which shall not be unreasonably -withheld. 33 SECTION S. INSURANCE SECTION 8.1 Property Insurance on Each Parcel. At all times during the term of this Declaration, each Owner shall, at its sale expense, continuously maintain or cause to be continuously maintained property insurance in an arnount equal to one hundred percent (100%) of the insurable replacement cost from time to time, without a co-insurance penalty, on all Buildings and Service Facilities located on its Parcel. Coverage must be not less than that provided by the ISO Causes of Loss -Special Form CPI 030, and shall include a sprinkler leakage endorsement. An Owner may satisfy its obligation hereunder by causing an Occupant of its Parcel to provide and keep in force the required insurance. SECTION 8.2 Release and. Waiver. of Subrogation. Each Owner (the "Releasing Owner") hereby releases and waives for itself and on behalf of its -insurer any rights it may have against Developer and each and all other Owners (the "Released Owners") from and against any liability whether arising in contract or tart (including the active or passive negligence of the Released Owners) for any loss or damage to any property of the Releasing Owner located upon any portion of the Shopping Center (whether or not the party suffering the loss or damage actually carries any insurance, recovers under any insurance or self insures the lass or damage) or which right of recovery arises from loss of earnings or rents resulting from loss or damage to any such property. The foregoing waiver shall extend to lasses for which a Releasing Owner may have self -insured or which are within the amount 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 subrogation against the Released Owners, by endorsement or otherwise. It is the intent of the Releasing Owner that with respect to any loss from a risk of the nature referred to above, the Releasing Owner shall look solely to 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 live such a waiver, or will do so only with the payment of an additional fee, the Owner shall immediately notify the other Released Parties of such fact, who shall have the right to pay such fee in order to obtain the vvaiver. Each lease and sublease 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 34 loss or damage to the property of the lessee or sublessee. SECTION 8.3 Liability Insurance. (a) At all tithes during the terra of this Declaration, each Owner shall, at its sole expense, continuously :maintain or cause to be continuously maintained commercial general liability insurance, with a combined single limit of at least a limit of One Million and 00/100 Dollars ($1,000,000) per occurrence and Two Million and 00/100 Dollars ($2,000,000.00) annual aggregate, with coverage at least as broad as the standard ISO Occurrence Form CG0001, endorsed to cover personal injury (including false arrest), bodily injury and property dar age, liability arising 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 tune 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 shall also obtain or cause its Occupant to obtain for the benefit of all Owners coverage for liquor liability, or so-called "dram shop„ liability, providing coverage of not less than One Million Dollars ($1,000,000.00) can an "occurrence" basis and not on a "claims made" basis. Insurance policies maintained by each Owner as provided herein shall contain a waiver of subrogation for the benefit of the Developer. (b) Each Owner shall, upon written request of any other Owner, furnish certificates of such insurance or other satisfactory written evidence of such insurance at any time during the term. hereof, SECTION 8.4 Common Area Insurance. (a) At all times during the 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, endorsed 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 and 00/100 Dollars ($2,000,000.00) per occurrence with coverage at least as broad as the standard ISO Occurrence Farm 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 furnish, to all Owners, within thirty (30) days after issuance of the policy and within thirty (30) days alter each renewal thereof, a certificate stating that: (a) such insurance is in full force and effect; (b) all fawners are designated as additional insureds; and (c) such insurance may not be canceled or coverage reduced below the levels required to be maintained hereunder without at least thirty (30) days prior written (ten (10) days for non-payment) notice to Developer 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 forth in Section 4.9. SECTION 8.5 Insurance for Construction. .Prior to commencing any Construction activities within the Shopping Center, each fawner shall obtain or require its contractor to obtain and thereafter maintain so long as such Construction activity is occurring, at least the minimum insurance coverages (as may be measured by Developer to refleet commercial standards then in effect) set forth below: (a) Workers' Compensation statutory limits (b) Employers' Liability $1,000,000 (c) Commercial General Liability and Business Auto Liability as follows: (1) Bodily Injury - $1,000,000 per occurrence (2) Property Damage - $1,000,000 per occurrence (3) Independent Contractors Liability; same coverage as set forth in (1) and (2) above; (4) Products/Completed Operations Coverage which shall be Dept in effect for two (2) years after completion of work; (5) "XCU" Hazard Endorsement, if applicable; (6) "Broad Form" Property Damage Endorsement; 36 (7) "Personal Injury" 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 herewith), then such other Owner shall be named an additional insured only under the insurance provided .for in Section 8.5 (Cl, and such insurance shall provide that the same shall not be canceled, or reduced in amount or coverage below the "uirernents of this Declaration, without at least thirty (30) days prior written notice to the named insureds and each additional insured. If such insurance is canceled or expires then the constructing Owner shall immediately stop all work on or use of the other Owner's Parcel until either the required insurance is reinstated or replacement insurance obtained. The foregoing insurance requirements shall not apply to routine maintenance of the Common Area by the Developer or its agents. SECTION 8.6 Policy Form. All policies of insurance required herein shall be issued by insurance companies with a general policy holder's rating of not less than "A:-" and a financial rating of not less than Class "VlII", as gated in the most current available "Best's Key Rating Guide'', and which are authorized to do business in the State of Montana. SECTION 9. DAMAGE AND 1fiESTRTIC ION• NON-USE OF BUILDING FO P RIAIARY PURPOSE SECTION' 9.1 Rebuildin . 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 rebuild, repair and restore such Building within the Building Area of such Parcel, and damaged Common Area and Service Facility (with respect to Parcels permitted hereunder to have a Service Facility) to inside the Curb Lines surrounding such. Building Area to the same general appearance and condition (or such other manner as approved by Developer pursuant to this Declaration), and consistent with the requirements of this Declaration and an integrated, first-class shopping center located in Kalispell, Montana, as existed prior to the damage or destruction or as otherwise allowed hereunder. All other Common Areas on an Owner's Parcel shall be repaired or rebuilt 37 pursuant to Section 3. SECTION 9.2 Time Limit. Any Improvements or Common Area rebuilt, repaired or restored by an Owner pursuant to this Declaration, shall commence to rebuild, repair and restore within fifteen (15) months of said date of damage or destruction and shall be ready for occupancy within eighteen (18) months thereafter, subject, however, to delays caused by strikes, labor difficulties, governmental restrictions on building activity, fire, war or acts of Cod. Notwithstanding the foregoing, in the event that the provisions of a particular lease between an Owner and its Occupant are different from the provisions of this Section 9. then (a) as between such Owner and its Occupant, the lease provisions shall prevail, and (b) as among the Owners, this Declaration shall prevail. SECTION 9.3 Reuirements. Any repair, reconstruction or replacement of any Improvements or Common Area performed by any Owner, pursuant to this Section 9, shall be performed in accordance with the following requirements; 'a) Plans and specifications therefor not previously approved for the original Construction, of any Improvements shall be approved by Developer as to exterior architectural design, exterior construction and location of Improvements being restored, prior to the commencement of the work of such repair, reconstruction and replacement, which approval shall not be withheld without gonad and valid reason and notice thereof made in writing. (b) Any Improvements and Common Area being restored shall be at least of equal quality, and at least as usable for its intended purpose, as such Improvements and Common Area were just prior to the happening of such casualty. SECTION 9.4 Election Not to Rebuild/Election to Not Use For Primary Purpose. (a) In theevent any Owner does not promptly rebuild and restore its damaged Improvements in accordance with the provisions of this Section 9, such Owner shall clear its Building Area and Common Area to the Curb Line of all debris and h=wdous conditions, and shall maintain its Building Area and Common Area to the Curb Line in a clean, 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 Area, or from any easements created and provided for hereunder, or be relieved of any Common Area Costs as required in Section 4.9 (b) RecWtuze. In the event of damage to or destruction of the Improvements on a Parcel, or partial condemnation of a Parcel, following which the Owner fails to rebuild its Improvements and re -open for business within twelve (12) months following the date of such damage or destruction or the date on which the taking 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 (GAAP), by giving notice to the Owner within sixty (60) days after expiration of the eighteen -month period ("Recapture 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 determination, Owner shall so notify Developer within fifteen (15) business days after Owner's receipt of the Recapture Notice ("Notice of Agreement"}. If Owner fails to deliver a Notice of Agreement within such 15-business day period, Owner shall be 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 thirty (30) days after the end of such 15-bushaess day period at a title company selected by Developer. If Owner disagrees with Developer's determination of the fair Market Value, then within such 15-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 for similar property in similar shopping 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 in accordance with the then prevailing rules of the American Arbitration Association or its successor for arbitration of commercial disputes, except 39 that the procedures mandated by such rules shall be modified as follows: (1) Owner's demand for arbitration shall be in writing and skull specify the name and address of 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-time commercial appraisal experience who is familiar with the Fair Market Value of shopping center real estate in the City of Kalispell. 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 (10) business days after 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, within or by the time specified, then the arbitrator appointed by Owner shall be the arbitrator to determine the Fair Market Value for the Parcel. (2) If two arbitrators are chosen pursuant to subpara�ratth (1)lD above, the arbitrators so chosen shall tweet within ten (10) business days after the second arbitrator is appointed and shall appoint a third arbitrator; who shall be a competent and impartial person with qualifications similar to those rewired of the first two arbitrators pursuant to subparaMph (1) above. If they are unable to agree upon such appointment within five (5) business days after expiration of such tent (10) day period, the third arbitrator shall be selected by the parties themselves. If the parties do not agree on the third arbitrator within five (5) business days after expiration of the foregoing five, (5) business day period, them either party, on behalf of both, may request appointment of such a qualified person by the then president 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 in su�b�arat rap,h_ (3) below. Each party shall pay the fees and expenses of its respective arbitrator and bath shall share the fees and expenses of the third arbitrator. Attorneys' fees and expenses of counsel and of witnesses for the respective parties shall 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 determination 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 ten (10) business days alter appointment of the third arbitrator. If either arbitrator fails to deliver to the other arbitrators his or her determination within such ten (10) business day period, then the determination of the other arbitrator shall be 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 determination of Fair Market Value. The third arbitrator shall have no right to propose a middle ground or any modification of either of the two proposed resolutions. The resolution be or she chooses as that most closely approximating his or her determination of the Fair Market Value shall constitute the decision of the arbitrators and shall be final and binding upon the parties. If either party fails to pay its share of the fees of the third arbitrator within five (5) business days alter receipt of an invoice, or fails to execute and deliver any documents reasonably required by the third arbitrator within five (5) business days after receipt thereof, theta the Fair Market Value shall be determined solely by the arbitrator selected by the other party. (4) In 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 same 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 (10) business days after the appointment of 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 ascertain the Fair Market Value and any such determination, in a manner other than that provided for in subparajuaph (2,) 41 above, shall not be binding on the parties. (S) The arbitrators shall have the right to consult experts and competent authorities for factual information or evidence pertaining to a determination of Fair Market Value, but any such consultation shall be made in the presence of bath parties with .full right on their part to cross-examine. The arbitrators shall render the decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the provisions of this Section 9,4(b). SECTION 9.5 Non -Use of -Building for Prim.ga P ose. (a) In the event an Owner fails to continue to operate the Original business to the wilding which was originally approved and opened for business, for any reason or by any cause, Owner immediately shall notify Developer in writing of {owner's cessation of business or anticipated cessation of business. Owner shall have eighteen (18) months ("Replacement Period') during which to find a replacement owner or tenant to operate the same or substantially similar business in the Building. (b) Recapture. If, after reasonable due diligence in attempting to either sell or lease the. Building, fawner is unable to find an occupant who would operate a same or substantially similar business in the Building during the applicable Replacement Period, 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 (O.AAP), by giving n©Else to the Owner within sixty (60) days after expiration of the three-month period ("Recapture Notice"). Developer shall notify the fawner of the Fair Market Value as determined by Developer in its Recapture Notice. If the Owner agrees with Developer's Fair Market Value determination, fawner shall so notify Developer within fifteen (1S) business stays after Owner's receipt of the Recapture Notice ("Notice of Agreement"). If Owner fails to deliver a Notice of Agreement within such I5-business day period, Owner shall be 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 thirty (30) clays after the end of such 1 S-business day period at a title company selected by Developer. If Owner disagrees with Developer's 42 determination of the Fain Market Value, then within such 15-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 for similar property in similar stropping 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 in accordance with the then prevailing rules of the American Arbitration Association or its successor for arbitration of commercial disputes, except that the procedures mandated by such rules shall be modified as follows: (1) Owner's demand for arbitration shall be in writing and shall specify the name and address of 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-time commercial appraisal experience who is familiar with the Fair Market Value of shopping center real estate in the City of Kalispell. 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 (10) business days after 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, within or by the time specified, then the arbitrator appointed by Owner shall be the arbitrator to determine the Fair Market 'Value for the Parcel, (2) If two arbitrators are chosen pursuant to subparagraph (1) above, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed and shall appoint a third arbitrator, who shall be a competent and impartial person with qualifications similar to those required of the first two arbitrators pursuant to subparagraph f l )f l) above. If they are unable to agree upon such appointment within five (5) business days after expiration of such ten (10) day period, the third arbitrator shall be selected by the parties themselves. If the parties do not agree on the third arbitrator within five (5) business days after expiration of the foregoing five (5) business day period, then either party, on 43 behalf of both, may request appointment of such a qualifier) person by the then president 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 in sub aragraph l31 below. 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 and of witnesses for the respective parties shall be paid by the respective party 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 skull state, in writing, his or her determination of the Fair Market Value supported by the reasons therefor and shall mare counterpart copies for each of the other arbitrators. The arbitrators shall arrange for a simultaneous exchange of such proposer] resolutions within ten (10) business days after appointment of the third arbitrator. If either arbitrator fails to deliver to the other arbitrators his or her determination within such ten (1 0) business day period, then the determination of the other arbitrator shall be 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 determination of Fair Market Value. The third arbitrator shall 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 constitute the decision of the arbitrators and shall be final and binding upon the parties. If either party fails to pay its share of the fees of the third arbitrator within five (5) business days after receipt of an invoice, or fails to execute and deliver any documents reasonably required by the tbird arbitrator within five (5) business days after receipt thereof, then the Fair Market Value shall be determined solely by the arbitrator selected by the other party. (4) lit the event of a failure, refusal or inability of any arbitrator to act, his or her successor shall be appointed by hirn or her, but in the case of the third arbitrator, his or her successor shall be appointed in the saute manner as that set forth herein 44 with respect to the appointment of the original third arbitrator. The arbitrators shall attempt to decide the issue within. ten (10) business days after the appointment of 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 ascertain the Fair Market Value and any such determination, in a manner other than that provided for in subparaarabh (2) 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 pertaining to aL determination of pair Market "Value, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render the decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the provisions of this Section 9.4(b). 45 SECTION J.Q. THE ASSOCIATION SECTION 10.1 Formation of As ciation. (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, in which case the assignee shall assume all the rights and obligations of the Developer hereunder. At such time as Developer owns no Parcel within the Shopping Center, mid has not assigned its rights and obligations hereunder to either a Developer Affiliated Entity or to a Developer Assignee, the Association 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 formed and take such steps as may be necessary or appropriate in connection with such formation including the preparation, execution, mid filing of articles of incorporation (the "Articles of IngWoration') and bylaws (the "Bylaws") of the Association mid the making of all other appropriate filings far the following purposes subject to the provisions of Section 10.1(a): (i) assuming 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 of Incorporation and the Bylaws (hereafter, this Declaration, the Articles of Incorporation and the Bylaws may sometimes be collectively referred to as the "Governing Documents"). (c) Car.Irorate Name and Pouters. The Association shall be incorporated as a nonprofit mutual benefit corporation pursuant to the nonprofit corporation, law of the State of Montana under such name as shall be selected by Developer. The duties and powers of the Association shall be as set forth in the Governing Documents together with the general and implied powers of a nonprofit corporation to do any and all things that a corporation organized under the laws of the State of Montana may lawfully do which are necessary or proper to operate for the peace, health, comfort, safety and general welfare of its members (the "1Vlembers"), subject only to the limitations upon the exercise of such powers as are expressly set forth in the Governing Documents. (d) Pre -Association Powers. Notwithstanding the formation of the Association, the Association shall have no rights or obligations hereunder unless and until the provisions 46 of Section_10.1[a) apply, at which time the voting rights of Members shalt become effective. SECTION 10.2 Membership. Upon succession of the Association to the rights and obligations of Developer, as described in Section 10.1 f al, every Owner shall become a member (° i'1f1_ clx ber'). 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 exclusive, and Owners 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 do not impose material obligations on the Owners other than as contemplated by this Declaration. The membership (the "Aigu bership") of Owners in the ,Association shall 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 party's status as Owner of a Parcel. Occupants of an Owner and Mortgagees are not entitled to become Members unless such right is assigned to them by the Owner of the Parcel. There shall be only one Membership attributable to each Parcel. SECTION 10.3 Transfer. The -Membership in 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 be transferred to the person who shall acquire all of an Owner's right, title and interest in a Parcel or Parcels within the Shopping Center, and upon such acquisition, the transferor of the Parcel or Parcels shall no longer be a Member as to the transferred Parcel or Parcels. Any attempt to make a prohibited transfer shall be void and will not be reflected upon the books and records of the Association. The .Association shall have the right to record the transfer upon the books of the Association without any farther action or consent by the transferring Owner. The ,Association shall have the right to impose a reasonable fee on the transferring Owner to cover the cost of documentation and clerical services incurred with respect to the transfer of Membership interests on the books and records of the Association. Notwithstanding any other prevision of this Declaration, an Owner's right to vote shall not vest until such transfer fee has been paid. 47 SECTION 10A Voting Rights. All voting rights in the Association shall be subject to the restrictions and limitations provided herein and the other Governing Documents. SECTION 10.5 VotLniz Rights o • Members. As of the date that voting rights for all Members become effective in accordance with Section 10.1(a), each Member shall be entitled to vote that percentage of the total votes available to all Members (such total being deemed to be 100) reflected by (a) for matters affecting all the Shipping Center, the ratio that the total Floor Area within all Parcels owned by a Member bears to the total Floor Area of all Buildings on the Entire Property, and (b) for matters affecting only a portion of the Shopping Center (as determined by Paarcels which will be burdened by such matters), the ratio that the total Floor Area within all burdened Parcels owned by a Member bears to the total Floor Area of all Buildings on those Parcels burdened by such matter at the time of the vote. Notwithstanding the foregoing, no provision providing for the sharing of costs by the Members shall be modified or amended or any covenants or obligations imposed by any Member without the prior written consent of each Member whose share thereof or covenant and obligation thereof would be increased by such modification. Mien more than one person owns a portion of the interest in a Parcel required for membership, all such persons collectively shall be a Member and the vote f©r such Parcel shall be exercised as they among themselves determine, but in no event shall more votes be cast with respect to any Parcel than could he 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 purposes that he was noting with: the authority and consent of all other Owners of the same Parcel. Any votes cast in violation; of this provision shall be null and void. SECTION 10.6 p rovala and Consents. Unless otherwise specifically provided in this Declaration or 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 particular issue on which the Members are voting at a meeting duly called and noticed pursuant to the provisions of the Governing Documents dealing with annul or special meetings of the Members. The denominator of such percentage must include the votes representing the Total Floor Area 48 owned by all )Members entitled to vote at such meeting and not just reflect a percentage of those Members present; (b) 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 in the Governing Documents or any contract executed by the Association, a simple majority of the voting power of Members entitled to vote on such matters shall suffice. SECTION 10.7 Duties and Powers of Association. In addition to the duties and powers enumerated in the Governing Documents and without limiting the generality thereof, the Association shall have the specific duties 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 Cost assessments as further described in this Declaration and assessments as further defined in the Governing Documents. (b) Common Area. The Association shall maintain, repair, replace, restore, operate, control and manage the Common Area and all facilities, improvements and equipment located thereon, as farther describer) in this Declaration, except to the extent such maintenance has been assumed by a governmental agency or public or private utility, and except as otherwise set forth herein. (c) The right to appoint a "Maintenance Director" as described in Section 4.7. (d) insurance. The Association shall maintain such policy or policies of insurance as required by ibis Declaration or as it otherwise deems necessary in its reasonable good faith discretion. (e) Payment of Expenses. The Association shall pay all expenses and obligations incurred. by the Association in the conduct of its business, including, without limitation, all licenses, taxes or governmental charges levied or imposed against the property of the Association. SECTION 10.8 General Corporate Powers of the Association. Without limitation on any of the terms and provisions set forth herein, the Association through the Board shall have the power, U9 rights and duties providers elsewhere in this Declaration and in the Governing Documents and those powers granted to a non-profit mutual benefit corporation pursuant to Montana lave, including, but not limited to: (a) Acouisition of Prgperty. The Association shall have the power to acquire (by gift, purchase or otherwise), own, hold, improve, operate, maintain, convey, sell, lease, transfer, dedicate for public use or otherwise dispose of real or personal property in connection with the affairs of the Association. (b) Borrowing. The Association shall have the power to borrow funds to pay costs of operation, secured by assessment revenues due for succeeding years or by assignment or pledge of rights against delinquent Owners. (c) Contracts. The Association shall have the power to contract for goods and/or services for the Common Area or for the performance of any power or duty of the Association, 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) DeleD Baton. 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 hereunder. (e) Enforcement. The Association shall have the power to enforce this Declaration. (fj Variances. The ]Board, acting for 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) Membershi Dis utes. The Board may resolve all disputes concerning Membership in the Association. (h) Association Rules. The board shall also have the power to adopt, amend and repeal such rules and regulations as it deems reasonable and which are not inconsistent with the provisions of the Governing Documents which include any prior agreements entered into behveen Developer and an Owner (the "Association Rules"), and such rules and regulations shall be binding upon Owners 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 Common Area in a manner not inconsistent with the provisions of this Declaration. Each Owner shall observe and comply with and shall cause its Occupants to observe and comply with the Association Rules. SECTION 11. MORTGAGEE PROTECTION This Declaration and the rights, obligations, covenants conditions, restrictions and easements hereunder shall be superior and senior to any lien placed upon any Parcel, including the lien of any Mortgage, but no breach of this Declaration shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value. This Declaration and all of the covenants, conditions, restrictions and easements hereunder shall be binding upon and effective against any person or entity (including any Mortgagee) who acquires title to any Parcel, or interest therein, by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise. SECTION 12. ]VUSCELLAiVEOUS PROVISIONS SECTION 12.1 This Declaration shall create privity of contract and estate with and among all Owners of all or any part of the Entire Property and their respective heirs, executors, administrators, successors and assigns. SECTION 12.2 Any assignment, conveyance or provision in any lease or contract made in violation of this Declaration shall be void and may be set aside upon petition of Developer or one or more of the Owners. All costs and expenses of any such suit or proceeding, including attorney fees as hereinafter provided., shall be assessed against the defaulting Owner and shall constitute a lien 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 any such lien shall be subordinate to any previously recorded bona fide mortgage covering 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 title free from any such later recorded lien., though otherwise subject to the provisions hereof. 51 SECTION 12.3 If this Declaration provides that a consent or approval shall n.ot be unreasonably withheld, such consent or approval shall be granted or withheld without unreasonable delay, and, if consent is withheld or approval riot granted, the reasons for withholding consent or approval shall be stated with reasonable detail. SECTION 12.E In the event that suit is brought for the enforcement of this Declaration or as the result of arty alleged breach, the prevailing party or parties shall he entitled to be paid court casts, including reasonable attorney fees, by the losing party or parties including any attorney fees incurred in executing upon or appealing any judgment. SECTION 12.5 In the event of any condemnation (by any duly constituted authority for a public or quasi -public use) of all or any part of the Entire Property, the portion of the award attributable to the value of any land within the Common Area shall be payable only to the Owner(s) thereof, and no claim therefor shall be made by other Owners of any other portion of the Entire Property; provided, however, that all other Owners of the Entire Property may file collateral claims with the condemning authority over and above the value of the land taken, and provided further, however, that the Owner of any portion of the area so condemned shall promptly repair and restore the remaining portion of the area owned by such Owner as nearly as practicable to its condition immediately prior to the condemnation without contributions from any other Owner. SECTION 12.6 The captions heading the various sections of this Declaration are for convenience and identification only, and shall not be deemed to limit or define the contents of their respective sections. SECTION 12.7 Each Owner shall keep, maintain, repair, manage and operate their respective Buildings, whether occupied or unoccupied, located on its respective Parce)(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 Except as herein specifically provided, no rights, privileges or immunities conferred upon Owners by this Declaration shall inure to the benefit of any Occupant or Permittee of the Entire Property or any other third party, nor shall any Occupant or Permittee of the Entire Property or any other third party be deemed to be a third party beneficiary of any of the provisions contained herein. SECTION 12.9 This Declaration and the application or interpretation thereof shall be governed exclusively by its terns and by the laves of the State of Montana. SECTION 12.10 This Declaration may be executed in any number of counterparts to the same effect as if each party hereto had signed the same document. All counterparts shall be construed together, and shall constitute one Declaration. SECTION 12.11 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 1112 Northing contained in this Declaration shall be deemed or construed, either by the owners or by any third party, to create the relationship of principal and agent or create any partnership, joint venture or other association between the Owners. SECTION 12.13 Nothing in this Declaration will be deemed to be a gift or dedication of any portion of the Entire Property to the general public or for the general public or for any public purpose whatsoever. It is the intention of the parties hereto that this Declaration will he strictly limited to and for the purposes expressed herein. SECTION 12,14 Default. (a) The occurrence of any one or more of the following events shall constitute a material default and breach of this Declaration by the non performing O�ner (the "Defaulting Pally): 53 (b) The failure to make any payment required to be made hereunder 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 (30) days (or if such failure cannot with due diligence be cured within such 30-day period, then prompt commencement of cure within such 30-day period, and diligent prosecution of cure to completion as soon as possible thereafter) after the issuance of a notice by another owner (the ' Non -Defaulting fart ') specifying the nature of the default claimed. (d) Right., to C. The provisions of Section 12.14(a) notwitlistandin.g, any Owner or Developer shall have the right 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) Liens Costs and Ex erases. Each Owner, by acceptance of a deed thereof, whether or not it shall be so expressed in such deed, is deemed to agree to pay all costs and expenses as provided herein, together with interest, late charges, casts and reasonable attomeys fees, and shall be a charge on the land and further agrees that costs and expenses accruing and/or assessed pursuant to this Declaration (including pursuant to this Section 12.14) shall constitute a lien against the interest of the Defaulting Party in the Defaulting Party'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: (i) The name of the lien claimant; (ii) .A statement concerning the basis for the claim of lien; (iii) An identification of the Owner or reputed owner of the Parcel or interest therein against which the lien is claimed; (iv) A description of the Parcel against which the lien is claimed; (v) A description of the work performed, if any, which has given rise to the claim of lien and a statement itemizing the amount thereof, and; 54 (vi) A statement that the lien is claimed pursuant to the provisions of this Declaration, 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 whom, the lien is claimed, by personal service or by mailing pursuant to Section 13. The lien so claimed shall attach from the date of recordation solely in the amount claimed thereby and may be enforced in any judicial proceedings allowed by law, including without limitation, suit in the nature of a suit to foreclose a Mortgage or mechanic's lien: under the applicable provision of the law of the State of Montana. (1) Developer shall have the right to prosecute any proceedings at law or in equity against any Defaulting Party hereto, or any other person, violating or attempting to violate or defaulting upon any of the provisions contained in this Declaration, and to recover damages for any such violation or default. Such proceeding shall include the right to restrain by injunction any violation or threatened violation by another of any of the terms, covenants, or conditions of this Declaration, or to obtain a decree to compel performance of any such terms, covenants, or conditions, it being agreed 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 alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. SECTION 12.15 Any time an Owner shall not pay any sum payable hereunder to another then, after written demand and failure to pay within ten (10) days after receipt of such demand, such delinquent Owner shall pay interest on such amount from the due date to and including the date such payment is received, at the lesser of: (a) The highest rate permitted by law to be paid can such type of obligation; or (b) Ten percent (10%). 55 SECTION 13. NOTICES SECTION 13.1 All notices, consents, requests, demands, approvals, waivers and other communications desired or required to be given hereunder (referred to collectively as "notices") shall be in writing and signed by the party so giving the notice, and shall be deemed effectively given or served as of'the date hereinafter specified: (I) on the date the notice is received or rejected, provided it is sent prepaid, registered or certified mail, return receipt requested, and (ii) on the date the notice is delivered by a courier service (including Federal Express, Express Mail, Emery or similar operation) to the address of the person to whom it is directed provided it is sent prepaid, return receipt requested (if available). The address of each signatory to this Declaration is set forth below: DEVELOPER: Hutton Ranch Plaza Associates, LLC 4 Sunset Plaza, Suite 241 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 event any notice using an address provided in accordance with this Section 13.1 is returned undeliverable, such notice shall be effective five (5) days after being mailed to the address as shown on the most recent records of the County Tax .Assessor for the Owner's Parcel. SECTION 14. AMENDMENT; TERM AND TERMINATION; OTHER MATTERS SECTION 14.1 Amendment or 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 (b) Owners of seventy-five percent (750%) of the Entire Property. Any such amendment or termination shall be effective only when duly acknowledged and recorded in the official records of the County. SECTION 14.2 Effectiveness of Declaration. This Declaration, though executed on the date above written, shall only be effective upon, from and after its recording in the official records of the County. 56 SECTION 14.3 Continuation of Easements. Unless all of the Owners agree otherwise in writing prior to the expiration or earlier termination of this Declaration., 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 the expiration or earlier termination 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; provided, if any of the foregoing easements are not used and enjoyed by the dominant Parcel for a period of more than one (1) year after the expiration or earlier termination of this Declarations, then such easerncnt(s) shall expire and be of no further force or effect. SECTION 14.4 Duration. Except as otherwise provided herein, the terra of this Declaration shall be for seventy-five (75) years from the date this Declaration is first recorded. SECTION 14.5 Breach Sball Not Permit Termination. It is expressly agreed that no breach of this Declaration shall entitle any Owner to terminate this Declaration. SECTION 14.6 Waiver. The failure to insist upon strict performance of any of the restrictions contained herein shall not be deemed a waiver of any rights or remedies hereunder, and shall not be deemed a waiver of any subsequent breach or default in the performance of any of the restrictions contained herein by the same or any other Owner. SECTION 14.7 Severabiiity. If any term or provision of this Declaration or the application of it to any person or circurnstance shall to any extent be invalid or unenforceable, the remainder of this Declaration or the application of such terra or provision to persons or circumstances, other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Declaration shall be valid and shall be enforced to the extent permitted by law. SECTION 14.8 Obligation io Give Estc,,,�pet Statements. (a) Developer shall, at any time and from time to time, in connection with the sale, lease, sale -leaseback or other transfer or the financing or refinancing of an Owner's Parcel, 57 deliver written notice to such Owner and/or the proposed transferee or lender designated by such Owner certifying in writing that to the best of The knowledge of Developer: (i) this Declaration is in full force and effect and a binding obligation of such Owner; (ii) this Declaration has not been amended or modified, or if it has been amended or modified, identifying the amendments and modifications; and (iii) the requesting Owner is not in default in the performance of its obligations under this Declaration., or, if in default, to describe therein the specific nature and details of any and all defaults. Developer shall execute and return such certificate in writing within fifteen (15) days fallowing receipt of a request therefor. (b) Upon the written request of any Owner to another Owner, such other Owner shall certify in writing whether it has or is aware of any claims or liens against the requesting Owner under the terms of this Declaration and, if so, the nature and amount of such claims and liens. If the other Owner fails to respond within fifteen (15) days after receipt of such request the other Owner shall be deemed to have warred any claims or liens against the requesting Owner, provided such request in capital letters identifies this Declaration and Sectian and explains that .failure to respond shall result in the other Owner being estopped from raising any claim or lien known to exist by the other Owner against the requesting Owner on or before the other Owner's receipt of said request. SECTION 14.9 Exhibits. The following exhibits are attached to this Declaration and incorporated herein: Exhibit A.: Entire Property Site Plan (showing Building Limit Lines) Exhibit B: Legal Description of Entire Property Exhibit C-1: Phase 1 Site Plan Exhibit C-2: Phase IT Site Plan Exhibit D: Sign Program Exhibit E: Architectural Guidelines [SIGNATURES TO FOLLOW ONT NEXT PAGE] 58 IN WITNESS WHEREOF, this Declaration is executed by the panties hereto as of the day and year first :have written, By: 'of Philip Harris &: Associates, Inc., of Mutton Ranch .Plaza Associates, LLC STATE OF ?1 ONT'ANA ) . ss. County of Flathead ) On this- day of fi'1A C ....` 2(i ;- before me, a notary public for the State of Montana, personally appeared, PHILIP HARMS, President of Philip Harris & Associates, Inc., Manager of HUTTON RANCH PLAZA ASSOCIATES, LLC, Imown to the to be the person whose name is subscribed to the within instrument, and acknowledged to me .that this document was executed in his/her official capacity, and he/she executed the same. .. Fes. �. Not Public forihe-State ofMontana Printed Name:•. (SEAL) $ . Residing at: a _ ,.. L My Commission expires - • .: 59 0 1-1 / &5 V V /A h J/ A, ill., r J Il f ITT 11441 IfF .... . ...... ..... . . ...... . ... ... ..... ... ................ ...... ... ..... ........ ............... 1. J., ....... ... -7 7,// 177�'l -77 rRITI I I I I JAI$ 11 .... .... . .. .. ... . .. . .. . ......... fm LEGEND BiJILDING LIMIT LINES 228 WbRaflokS, 9R..,J By WE MORRISON Kalispell l"_r:a1 SY: —TWIR n (406) 762-MO APPR. BY: TNR MAIERLE INC. 1 DA-VE C14,191MB ABmpi.,—o-wd c—p-Y NO-13UILD AREA \N JIRWEC` No. HUTTON RANCH PLAZA MONTANA EXHIBITNUMBER G.0 AND R. EXHIBIT "A" A 539?95005 Civil Dlljg.,4ACAMCMRFindlngs OfFelk Exhlbit-ExhiNk A.d.g P;.Hd by —k PaW3 , on Ap,,20in 2! Exhibit LEGAL DESCRIPTION Tract I of Certificate of Survey No. 17132, a tract of land located and being a portion of the Southeast Quarter of the Northwest Quarter (SE'/NW/}, the Northeast Quarter of the Southwest Quarter (NE/SW'/), and Government Lots 2 & 3 of Section 31, Township 29 North, Range 21 West, P.M.M., Flathead County, Montana. 1.1..1..L1.11..11..1.1.J...[..1..1.1.1..1.J.1_li..l.l..f.l.l..: : ...1.1..;...1..1.1..1.1.. ... .......... ......... ................. ....::/ - 1 : (i f..(. f..(.1.1.:1:(...... A. r f..f..1.r..(..(..f..(.r.(.l.(..(...... ---------------------- J _ ,..: •..... ,.. .. •..... ..._.:.. .. ..: .... ...................................................... l .1 / p s \mil/..`,//// i % , .. .' :: ,: ; ................................................._.................._ .•(.!,(.1.I..I..I,1..1.1..1.1..1.i"I....I..I-l...l.l.. I.II.(1.1.1.(.I..1.1..: 4. LEGEND BUILDING LIMIT LINES ,:<c•.: Es6jn�rs 1226Whtefsh5tapRM DRAVJNBY: MiP `'' SwyoKalspdMT SJ4p1 CHK'f)-BY: 'rVVR®K1\ON Sdsn7ists Phone: (606)152-?_21fi A F7��yt, M�i./�E, A?PR, BY: TV.R ^ ; INC.Planners NCFax: (906) 752-2381 A. E.Ribyee•f-fCbnryxgv DATE. W2006 COUYR!OH? !e h10aRi90A-I:fNFAk[:.!NC.. Civil Oes:rrnViCAO1C?villF;ncir!6s Of Fact e.htbtalExh€bit C-1.avej P:o ed by n1sE'k Paulsen on Aprf20!2906 p-------«-R-- ��.\ �: \`• ��! NO -BUILD AREA PROJECT NO. HUiTON RANCH PLAZA 3819.!][78 MGNTANA EXH!B1T NUMBER C.0 AND R. EXHIBIT "C-1" C-1 00 :J-<<", Q BUILDING LIMIT LINES WN Sury 122 Ka1€sPe3!v47 991 [JRAK'DE1Y� M111'JMORRISON TWR 5ci-mo • P7®nrrem Pnone. 1406) 752-2216 APPR. 0Y: TLryiR MAIERLE. INC. Fax' 14061 752-2891 EI I3 MIN 111111f,11H �lll.f��llf;l NO -BUILD AREA PROJECTNO. f-IUTTON RANCH PLAZA 3919.005 T _ MONTANA C.0 AND R. EXHIBIT °C-2 C-2 ll �99;9:O:S Civil ResignSACACICivilSFiedir.;1=�` F'ac: wx!lipitsyExhii;it C-2-dt¢j NcRod by mark Paulson on Apr12012006 VIA Ar 0 0 &0 0 0 VICINITY M/' AP 00' PHILIP & DONNA HARRIS/HUTTON RANCH PLAZA, LLC FINAL ■ HUTTON ■► ■ PHASE 1 A 17 LOT ♦ SUBDIVISION ♦ • ACRES PWT DAM 3/31/06 FILE# KFP-06-08 H:\&\sito\wwO5-3.dwg . . ................... .. . THE FINAL PLAT OF HUTTON RANCH PLAZA PHASE I SUBDIVISION LOCATED IN THE NW 1/4 AND THE SW 114 OF SECTION 31, T29N, R21W, P.M.M., CITY OF KALISPELL, FLATHEAD COUNTY, MONTANA _. sa.w 4YYLIES ENGINEER Pu_RfPO „E Al U N zDDRE55 TABLE �s.wx MONUMENT DESCRIPTION .. s 1 .,, r CERTIF]SAj[„_QF DEDICATION w Fttvr wrr wm ms. _ ow. Qj LITY EASEMENTS CERI jQO.[[QF CITY COUNCIL CERTIFICATE OF CITY ATTORNEY CERTIFICATE ORjYAMIN. NCaj AND SURVEYOR � "6 , 7t- D Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan MI. 9 "' 0 fax (5 10) 893 -1111 j-9*WWY!-..-. 'i8' —'Ottng I V-6" (ACTIVE SIGN AREA) 16'-In" p 93 at nartti and South ends of site area 199 sq ft :one surface, structural steel, aluminum cabinet illuminated letters and graphics wt corporate colors ns, exposed neon and logo signature - tenant graphics ate foundation. SIGN A - PRIMARY PYLON SIGN 1/4" - 1'-0'' l -r "I hDlcralc wdr oaklan d, ca 94610 (510) 893 5640 iax (510) $93-5841 ImrvQ1+�M%m+n.com g3$SL-XtiuiiE!{g Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan PYLON 10'-0" SIGN C - WALL DIRECTIONAL SIGN Location Atmajor intersection within Center Size each panel 2' x 10' Materials Almninum-acrylic Finishes Per Center colors Illuminaam 800 MA Fluorescent (rapl8cs Tenant names - arrows InsteAatim On masonry wall feature 16" oaklan tl, ca 94 o (5I01 893.5840 �8n fax (SM 893.5841 jnry@jertywy ni n eo_na Wa c Hutton Ranch Plaza Kalispell; Montana Comprehensive Sign Plan iacatlen Various within site Size Tx4'maximum Materials Aluminum post &panel Finishes Per Center Ce0lerscheme lilumhralion Non Illuminated Graphics per Center Typestyle Installation Concrete footings SIGND-SMALLWAY-FINDING SIGN insz= an 975 hillcroft�ci�rcla Oakland. ca 99610 (510j 8935040 fax (51o) 8935841 lerty °QIciM�'Yman.com .:ion cv e;.,.t31n� Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan I r TENANTS OF ALLOCATED SPACES OF 40,000 SQ.FT. OR MORE ANCHOR ANCHOR TENANT SIGN - INDIVIDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY 3/16" = P-0° 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 DR 15MM NEON TUBES, ELECTROBITS WIRING COMPONENTS AND 3OMA,11OV REMOTE TRANSFORMERS, LETTERS TO BE MOUNTED ONTO THE FACADES WITH APPROPRIATE FASTENERS. TOTAL SIGN AREA BASED ON RATIO OF IS SQUARE FOOT FOR EACH LINEAL FOOT OF PRIMARY ENTRYFRONTAGE SIGNS CANNOT EXCEED 7O%OF THE LENGTH OF FACADE. TYPICAL ELEVATION 1/32" = V-9' Location On facade over entry, side and rear walls subject to Owner approval - &a 1.5sfIt per lineal ft frontage, Maximum -6ftletters Materials Aluminum/acrylic Finishes per Tenant Corporate color scheme Illumination Noon or LED internal Graphics Per Tenant Corporate Graphics Installation Onfacades PAN -CHANNEL LETTERS MOUNTING DETAIL US anHmm 7a �xa 975� hillcroftr circle oa Alan 94610 (51a 893-5840 fax (510) 893.5841 jemy@lerrywyman.com Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan Anchor Tenant N TENANTS OF ALLOCATED SPACES OF 10,000 TO 39,999 SQ.FT. LOGO ------------- INAJOR MAIOR TENANT SIGN - INDIVIDUALLY, ILLUMINATED PAN CHANNEL LETTER DISPLAY I/Z" = 1-0- 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/r 15MM NEON TUBES, ELECTROBrfS WIRING COMPONENTS AND 30MA/110V REMOTE TRANSFORMERS. LETTERSTO BE MOUNTED ONTO THE FACADE WITH APPROPRIATE FASTENERS. SIGNS CENTERED ON THE FASCIA 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 FACADE TYPICAL ELEVATION 1/16" = 1'-0" Locdon Onfacade aver entry, side and rear walls subject to Owner approval Size 1.5sfft per lineal ft frontage, Maximum -4ftletters Materiels Aluminum/acrylic Finishes perTenantCorporate color scheme IRumindon Neon or LED Internal Graphics Per Tenant Corporate Graphics Installadon On facades t erne �"emw�sa ��i��LeiJ c eaexRu�rm wc�ewwNam�a,Mm ua simumcw xmawa� mmup.mire PIHCNPoWaLT1EF5 MMNinXG ttTML NHS u gmw.e 97S hill—ft circle .a Wl d, 99618 (5101 A93-584N fax (51, 893-5841 i•�Y@ieriywyman.mm aan c.f�..153�$ Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan TENANTS OF ALLOCATED SPACES OF9,999 SQ.FT. AND LESS r-- , --------- —----------------------� LOGO BOXn -------- --ine ----------- I I N IN -LINE TENANT SIGN - INDMDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY 1/2" = 1'-O,. SUGGESTED FABRICATION ALUMINUM LETTERS WITH 5" RETURNS TO BE PAINTED INSIDE WHITE, OUTSIDE BLACK. 3/4" BLACK TRIM CAPS AND 3/I6' WHITE ACRYLIC FACES W,J 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 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 EXCEED 70% OF THE LENGTH OF FASCIA. TYPICAL ELEVATION 1/16" =1'-0" Location On facade aver entry, end walls subject to Owner approval Sh 1,5sfft per lineal it frontage, Maximum -24"letters Mamanals Aluminum/acrylic Fmshes per Tenant Corporate color scheme Illumination Neon or LED internal Graphics Per Tenant Corporate Graphics Installation On facades I�a"mrwm�"a &Uk, " VA'r1 VNSvrs 9ion9wrv0aw61A9A AM'n.1 FVAN.I cro mmrearm matry VNofleGrtd3FCWE 6IDMn'mae UmlSmm nw's(Numma+. twW emu WnS M IIn A —n6. NNELLETURSMGENGWA M.U. S—? wy—A 975 hillcrof[ tircla oa kland. ca 946I0 (ela] 893-5 B4a fax (S IOj 893-3841 jenynlamYwYman. tam onyx .,cnsuSf It+g Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan 1JUEBUIEUMEMM TENANTS OF SOLITARY STRUCTURES SPECIFIED AS PAD BUILDINGS PAD BLDG TENANT SIGN - INDIVIDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY 1/2" 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 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'-0" Location On facade over entry, side and rearwalls subject to Owner approval Size 1.5sift per lineal ftfronlage,Mardmum-28"letters Materials Aluminum/acrylic Finishes per Tenant Corporate color scheme Mumination Neon or LED internal Graphics Per Tenant Corporate Graphics Installation On facades 915 h Ilcrol�v c�rcie onFlnnd ca 9461P Isial esa _ego ra, Isial aea sesi i•�vC�ie.riwymAn.�en, Hutton Ranch Plaza Kalispell, Montana Comprehensive Sign Plan SitePlan PSign 737CHWAY 9.5 r" ry''' 975 hillcroft circle "I"", " 94610 (510) 89]-SB40 fee (510( 893-SB41 jertyQjenywyinencam Hutton Ranch Plaza Kalispell, Montana s�be kGg�al*.o n 0a..9ad Comprehensive Sign Plan ... -,.. « 28 ft high elgn 2OOsgft 51ft in sc .b k t City of Kalispell Public Works Department "~ Post Office Box 1.997, Kalispell, Montana 59903-1997 - Telephone (406)758-7720, Fax. (406)758-7831 REPORT TO: Mayor and City Council FROM: James C. Hansz, P.E., Director of Public Works SUBJECT: WWTP Expansion Design Task Order #4 MEETING DATE: 1 May 2006 (Reviewed: Work Session 24 April 2006) BACKGROUND: The expansion of the wastewater treatment plant is an. enormously complex task that began in 2003 with development of the Preliminary Engineering Report. Following its approval by MDEQ in 2004 work began to develop a Basis of Design Report that spells out in greater detail exactly how each portion of the wastewater treatment plant will be modified for this project. This task is now complete. From this Basis of Design Report the City's consultant team of Morrison Maierle and HDR Engineers will prepare the hundreds of design drawings and several volumes of technical specifications necessary for a construction contractor to build the new WWTP facilities and to modify the existing facilities. The design package is scheduled to be completed for MDEQ on 15 August 2006. Final review comments will be incorporated immediately after their receipt so that a final construction bid set can be ready by 26 September 2006. Advertisement for bids will follow shortly thereafter. The value of this work defined in this task order is $1,396,657.00. An additional. $50,000.00 is budgeted for additional design work that may become necessary but which cannot be known at this time. None of these added funds may be spent without written authorization and approval of the modification to the work scope in this task order. Inclusion of these funds is considered necessary to reduce the possibility of delays to the design schedule. Past task orders have included a similar contingency, but none of the funds were required and therefore none were spent. RECOMMENDATION: Authorize City Manager to execute WWTP Task Order #4 for final design of the WWTP expansion project. May 1, 2006 WWTP Design Task Order 44.doc