HomeMy WebLinkAboutDeclaration of Secondary Covenants_091421 2520935
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Charlotte Mills-Gallatin County, MT MISC
DECLARATION OF SECONDARY COVENANTS,
CONDITIONS,AND RESTRICTIONS
This Declaration of Secondary Covenants,Conditions, and Restrictions (this
"Declaration") is made and entered into as of ZO (the "Effective Date"), by
BOZEMAN SHOPPING CENTER, LLC, a Mont limited liability company ("Bozeman")
and BOZEMAN SHOPPING CENTER III, LLC, a Montana limited liability company
(`Bozeman II1").
RECITALS
A. WHEREAS, Bozeman is the fee owner of that certain parcel of real
property labeled "Bozeman Shopping Center, LLC" on the site plan that is attached hereto as
Exhibit A, and legally described on Exhibit B hereto(the "Bozeman Parcel").
B. WHEREAS, Bozeman III is the fee owner of those certain parcels of
real property labeled `Bozeman Shopping Center III,LLC"on the site plan that is attached
hereto as Exhibit A, and legally described on Exhibit C hereto(the `Bozeman III Parcels").
C. WHEREAS, Bozeman desires to enter into a lease (the "Harbor Freight
Lease") with Harbor Freight Tools USA, Inc., a Delaware corporation ("Harbor Freight") for
approximately 14,008 of rentable square feet situated on the Bozeman Parcel and depicted on
Exhibit D hereto(the "Harbor Freight Premises").
D. WHEREAS, as a condition to entering into the Harbor Freight Lease,
Harbor Freight requires that certain covenants, conditions, and restrictions be imposed on the
Bozeman III Parcels as set forth in this Declaration.
E. WHEREAS,Bozeman III recognizes potential benefits that could be
realized by Bozeman III as a result of Harbor Freight conducting business at the Harbor
Freight Premises, and is thus willing to enter into this Declaration for purposes of facilitating
a lease between Bozeman and Harbor Freight.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
agreements hereinafter set forth, Bozeman and Bozeman III (collectively, the "Parties")
agree and declare as follows:
1. Definitions.
1.1. Common Areas. For purposed of this Declaration, "Common
Areas" shall mean all areas within the exterior boundaries of the Bozeman III Parcels
exclusive of buildings and related building canopies, support columns, pilasters,
overhangs, footings, appurtenant truck loading or delivery docks.
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1.2. Existing CC&Rs. The term "Existing CC&Rs" shall mean and
refer to that certain Declaration of Covenants, Conditions, Restrictions and
Reciprocal Easements dated June 30, 2004, which were recorded on September 29,
2004,as Instrument No. 2165090, in the Real Property Records of Gallatin County,
Montana(as amended).
2. Maintenance of Common Areas on Bozeman III Parcels. Except to the
extent the Common Areas are required to be maintained by others pursuant to the Existing
CC&Rs (which obligations to maintain by others the Parties shall use commercially
reasonable efforts to enforce), Bozeman III shall maintain or cause to be maintained the
Common Areas on the Bozeman III Parcels in good order, repair, and condition, in
compliance with all applicable laws,regulations, and ordinances.
3. Maintenance of Buildings on Bozeman III Parcels. Bozeman III shall
maintain or shall cause to be maintained all buildings situated on the Bozeman III Parcels in
compliance with all applicable federal, state, and local laws, regulations, and ordinances and
shall maintain or shall cause to be maintained the exterior of all buildings situated on the
Bozeman III Parcels in good order, repair, and condition.
4. Restrictions on Construction. Construction of buildings on the
Bozeman III Parcels shall be subject to the following restrictions and limitations:
(i) No building may be constructed on either of the Bozeman III Parcels
within two(2)years of the "Rent Commencement Date" under the Harbor Freight
Lease.
(ii) No building shall be constructed on either of the Bozeman III Parcels
except within the area marked"Future Building Area"on Exhibit D hereto.
(iii) The total square footage of all buildings constructed in the aggregate on
the Bozeman III Parcels shall be 20,000 square feet or less.
(iv) Any and all buildings constructed on the Bozeman III Parcels shall be
one story, and shall not exceed 25 feet in height (including architectural features).
(v) No building shall be constructed on either of the Bozeman III Parcels
that would result in the Bozeman Parcel and the Bozeman III Parcels, when taken
together,having an overall parking ratio of less than 4.5 parking spaces per 1,000
square feet of leasable floor area.
5. Casualty. In the event any building on either of the Bozeman III
Parcels is damaged by fire or other casualty, Bozeman III shall promptly remove any debris
resulting from such casualty, and within a commercially reasonable time thereafter shall (i)
repair or restore the building to a complete unit, (ii) raze such building or portions thereof
and erect other buildings in their place(subject to the restrictions and limitations of Section 4
of this Declaration)or(iii) raze such building or portions thereof and replace the same with
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parking areas, landscaping areas,or other Common Areas as are consistent in kind and
quality with those then existing on the Bozeman Parcel and the Bozeman III Parcels.
6. Payment of Real Property Taxes. Bozeman III shall pay or cause to be
paid, prior to delinquency, all real property taxes and other taxes and assessments levied or
assessed against the Bozeman III Parcels, or any buildings or improvements thereon,
provided that if such taxes or assessment or any part thereof may be paid in installments,
Bozeman III may pay each such installment as and when the same becomes due and payable.
Further, Bozeman III may contest,at its own cost and expense, any such taxes and
assessments in any manner it elects, so long as such contest is maintained with reasonable
diligence and in good faith. Bozeman III agrees to furnish to Harbor Freight, upon written
request, proof that real estate taxes and assessments have been paid as required pursuant to
this paragraph or, if such taxes and assessments have been contested,proof of such contest.
7. Liability Insurance. Except to the extent such coverage is provided by
others pursuant to the existing CC&Rs, Bozeman III shall maintain or cause to be maintained
in full force and effect commercial general liability insurance with a combined single limit of
liability of not less than $2,000,000 for bodily or personal injury or death, or property
damage, occurring on the Bozeman III Parcels. Such insurance shall be procured from a
company licensed in the state where the Bozeman III Parcels is located, and such company
shall be rated by Best's Insurance Reports not less and A-/X. Such insurance may be
provided under an individual policy covering the Bozeman III Parcels, or under a blanket
policy or policies that include other liabilities, properties, and locations. Bozeman III agrees
to furnish to Harbor Freight, upon written request, a certificate or certificates of insurance
evidencing that the insurance required to be carried out by this paragraph is in full force and
effect.
S. Harbor Freight's Exclusive Use Restriction. Bozeman III shall not use
any portion of the Bozeman III Parcels, or lease any portion of the Bozeman III Parcels to
any tenant or occupant who has the right to use such leased portion, for the purpose of
operating as a general tool and tool accessories merchandise retailer; provided,however, that
the foregoing restriction shall not preclude the sale of tools and tool accessories on an
incidental basis, so long as the seller of such tools and tool accessories does not devote more
than the lesser of 250 square feet or 10% of such seller's retail selling space to the sale of
tools and tool accessories.
9. Additional Restrictions. In no event shall any building constructed on
the Bozeman III Parcels be used for(i) a training or education facility (including, but not
limited to, a beauty school,barber college, reading room, or other place of instruction
catering primarily to students rather than customers), (ii) a health spa,gym or exercise
facility, or other similar business, (iii) a place of religious worship, or(iv) a movie theater.
10. Signage. In the event one or more pylon signs or monument signs are
constructed on the Bozeman III Parcels, Harbor Freight shall have the right to place a single
full-length double-sided sign panel thereon in the location of Harbor Freight's sole choosing.
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Such sign panel shall be fabricated, installed, and maintained at Harbor Freight's sole cost
and expense. In the event Bozeman III does not construct any such pylon or monument sign
on 151h Avenue within the Bozeman III Parcels, then, as a condition to Bozeman III being
allowed hereunder to construct any building on the Bozeman III Parcels, Harbor Freight shall
have the right to place its standard retail store building sign on either the eastern-facing or the
southern-facing fagade of the building constructed on the Bozeman III Parcels.
11. Ingress/Egress and Parking Easements. Harbor Freight, together with
its employees, customers, contractors, vendors, suppliers, visitors, and invitees, shall have
easements over and across the Bozeman III Parcels as follows: (i)over drive aisles existing
on the Bozeman III Parcels from time to time, for purposes of ingress and egress to and from
the Bozeman Parcel and the Harbor Freight Premises from adjacent public streets, and (ii) for
the parking of motor vehicles in designated parking spaces existing on the Bozeman III
Parcels from time to time, during such periods as the operators of such motor vehicles are
patronizing the business operated at the Harbor Freight Premises.
12. Defaults; Self-Help. Bozeman III shall be in default under this
Declaration if, and only if, Bozeman III materially fails to observe or perform any of the
covenants, conditions, or restrictions set forth in this Declaration, and such failure continues
for thirty (30) days after the date on which Bozeman III receives written notice of such
default from Harbor Freight specifying the nature of the default claimed; provided, however,
that if the nature of the alleged failure is such that it cannot reasonably be cured within such
30-day period,no default shall be deemed to have occurred if Bozeman III commences to
cure the alleged failure within such 30-day period, and thereafter diligently prosecute such
cure to completion. In the event of a default by Bozeman III that creates an emergency
condition, affects health or safety, or materially affects Harbor Freight's use and enjoyment
of the Harbor Freight Premises, Harbor Freight shall have the right,but not the obligation, to
cure such default and charge Bozeman III the reasonable out-of-pocket costs of such cure.
Any notice of default sent to Bozeman III hereunder shall be sent by reputable overnight
courier or by certified mail, return receipt requested, to Bozeman Shopping Center III, LLC,
c/o Red Mountain Retail Group, Inc. 1234 East 171h Street, Santa Ana, California 92701, or
to such other address as has been provided by Bozeman III in writing to Bozeman and
Harbor Freight for notice purposes. Any notice of default sent to Bozeman hereunder shall
be sent by reputable overnight courier or by certified mail, return receipt requested,to
Bozeman Shopping Center, LLC, c/o Red Mountain Retail Group, Inc. 1234 East 17'h Street,
Santa Ana, California 92701, or to such other address as has been provided by Bozeman in
writing to Harbor Freight and Bozeman III for notice purposes. Any notice of default sent to
Harbor Freight hereunder shall be sent by reputable overnight courier or by certified mail,
return receipt requested, to Harbor Freight Tools USA, Inc., Attn: Vice President, Real
Estate, 26541 Agoura Road, Calabasas, CA 91302,with a copy to same address Attn:
General Counsel, or to such other address as has been provided by Harbor Freight in writing
to Bozeman and Bozeman III for notice purposes.
13. Successors and Assigns. This Declaration shall be binding upon and
shall inure to the benefit of the Parties and their respective successors and assigns. Upon the
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assignment, conveyance, sale, or other transfer by Bozeman III of its interests in the
Bozeman III Parcels, Bozeman III shall be released from any obligations arising under this
Declaration subsequent to the effective date of such assignment, conveyance, sale, or other
transfer, and in no event shall any transferee of Bozeman III be liable for any default under
this Declaration which occurred prior to the effective date of such assignment, conveyance,
sale,or other transfer. References in this Declaration to Bozeman and Bozeman III shall
refer to the owner, from time to time, of the Bozeman Parcel and the Bozeman III Parcels,
respectively. References herein to Harbor Freight shall refer to the holder, from time to time,
of the tenant's leasehold interest under the Harbor Freight Lease.
14. Effective Date. This Declaration shall become effective and binding
upon recordation in the official records of Gallatin County, Montana.
15. Termination. This Declaration shall terminate and shall be of no
further force or effect upon the earlier to occur of the following: (i)the date on which the
Harbor Freight Lease expires or is lawfully terminated,or(ii)the date on which a notice of
termination of this Declaration, executed by Harbor Freight, Bozeman, and Bozeman III, is
recorded in the official records of Gallatin County, Montana.
DATED this V day of , 2015.
BOZEMAN SHOPPING CENTER,LLC,
a Montana limited liability company
By
Name rVU ]i t Q N, rl(
Its
BOZEMAN SHOPPING CENTER III,
LLC, a Montana limited liability company
By
Name NJ Chj : k 14, ,A A
Its
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§1189
! A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California )
County of Orange )
On ao before me, ---Linda Hendrich,notary public
Date Here Insert Name and Title of the Officer
personally appeared Michael H Mugel
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person( whose name(s) Wake
subscribed to the within instrument and acknowledged to me that he/sfle/tfRy executed the same in
his/ti(¢r/t!ftbtr authorized capacity(i#.),and that by his/hdf•/tiKMr signature(A on the instrument the person(d),
or the entity upon behalf of which the person(i)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
LINDA HENDIiICH is true and correct_
Commission#1955857 WITNESS m hand and official seal.
-d Notary Public-California i Y
` Orange County '
My Comm.Expires Oct 9,2015
Signature
Signature of Notary Public
Pface Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Documentr ' , tc ax1J �2tr2wo
Title or Type of Document:. 0% v tOl Document Date:
Number of Pages: Signer(s) Ot er Than N med Above:
Capacity(ies)Claimed by Signers) '
Signer's Name: u Signer's Name: Yh 4_e." �t l hrG,cVJ
Corporate Officer — Title(s): Corporate Officer — Title(s):
Partner — Limited '-General Partner — Limited .General
Individual -Attorney in Fact Individual Attorney in Fact
Trustee Guardian or Conservator _Trustee Guardian or Conservator
Other: j' Adl )c Other:
Sign r Is Representing: Signer Is Representing:
C' _��21�dwsri. LL --
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02014 National Notary Association•www.NationaiNotary.org- 1-800-US NOTARY(1-800-876-6627) Item#5907
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Exhibit"A"
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Bozeman Shopping Center III,LLC
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Exhibit`B"
Bozeman Parcel Legal Description
Parcel I:
Lot 1 of Minor Subdivision No. 352, located in the NWIA of Section 12,Township 2 South, Range
5 East, P.M.M., City of Bozeman,Gallatin County, Montana, according to the official plat thereof
on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana,
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Exhibit"C"
Bozeman III Parcels Legal Description
Parcel II;
Lot 2 of Minor Subdivision No. 352, located in the NWIA of Section 12,Township 2 South, Mange
5 East, P.M.M., City of Bozeman,Gallatin County, Montana, according to the official plat thereof
on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana.
Parcel III:
Lot 3-A of Minor Subdivision No. 352A, located in the NWI/a of Section 12,Township 2 South,
Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana,according to the official plat
thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County,
Montana.
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Exhibit"D"
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