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Home My WebLink About017 Easements and Covenants 2207231 Please return to: Security Title Co. COS 1215G 600 South 19th Bozeman, SST 59718 Recording Requested By and When Recorded, Return To: Robert P. Doane, Esq. Lowe's HIW, Inc. 1530 Faraday Avenue,Suite 140 Carlsbad,CA 92008 111 �` �� I JI2207231 f.1[�J'j i.�� 5hallar VW40-0611atin Cc MT Mtsc 292 00 t,1AJ EASEMENTS COVENANTS, CONDITIONS AND RESTRICTIONS BY AND BETWEEN LOWE'S HIW, INC AND m = SACCOCCIA LANDS H. LLC m° AND NST SACCOCCIA LANDS III, LLC � 8 � r WCR'sV I0.DOC ICI III ICY III IN 1111111110120�23 i 11 q 0fwll�r wr+oMQ�llNin 00 MT MIOC 302.00 TABLE OF CONTENTS ARTICLE I BASIC DEFINITIONS................................................................................................2 ARTICLEII EASEMENTS............................................................................................................4 Section 2.1 Definitions and Documentation: .........................................................................4 Section 2.2 Easements Granted With Respect to the Project.................................................6 Section 2.3 Easements Granted With Respect to the Shopping Center...............................I I ARTICLE III USE RESTRICTIONS............................................................................................21 Section3.1 Nuisances: .........................................................................................................21 Section 3.2 Permitted Uses for the Shopping Center:..........................................................21 Section 3.3 Use Restrictions for the Project:........................................................................22 Section 3.4 Exclusive Use Restriction for the Benefit of the Lowe's Parcel:......................24 Section 3.5 Proprietary Rights of Lowe's:...........................................................................26 ARTICLE N GENERAL CONSTRUCTION &DEVELOPMENT...........................................26 Section 4.1 Development Parameters for the Shopping Center...........................................26 Section 4.2 Building Design for the Shopping Center:........................................................27 Section 4.3 Pylon or Monument Signage for the Shopping Center: ....................................28 Section 4.4 Outparcel Development for the Shopping Center:............................................31 Fo S Section 4.5 Parking on the Seller Adjacent Property...........................................................33 nR Section 4.6 Performance of Construction Work Generally N� Section 4.7 Compliance in Construction: .................................................34 g ............................................................................ si Section 4.8 Damage and Destruction:..................................................................................34 s ARTICLE V MAINTENANCE,TAXES AND INSURANCE....................................................35 Section5.1 Maintenance:.....................................................................................................35 I� g Section 5.2 Maintenance Director:.......................................................................................36 Section 5.3 Failure in Perforrting Maintenance Responsibilities:.......................................36 Section5.4 Taxes:................................................................................................................36 Section 5.5 Insurance: .....37 tSection 5.6 Failure to Carry Insurance:................................................................................38 Section5.7 Cross Indemnity: ...............................................................................................39 Section5.8 Waiver of Subrogation:.....................................................................................39 ii ECCR'sV 10 DOC 111101 III 2207231 1110111111 am ,,:pQ GheLlev V&noo—Qallatln CC Mr MISC U2.N ARTICLE VI DEFAULT, REMEDIES........................................................................................40 Section6.1 Default:..............................................................................................................40 Section6.2 Remedies for all Owners:.................. ...............................................................40 Section6.3 Right to Cure:....................................................................................................40 Section6.4 Liens:.................................................................................................................41 Section 6.5 Cumulative Remedies: .....................................................................................42 Section6.6 No Waiver:........................................................................................................42 Section 6.7 No Termination for Breach: ..............................................................................43 Section 6.8 Limitation of Liability:............................................. ........................................43 Section6.9 Attorneys Fees...................................................................................................43 ARTICLE VII MISCELLANEOUS..............................................................................................43 Section 7.1 Estoppel Certificates:........................................................................................43 Section7.2 Term and Perpetuity..........................................................................................44 Section 7.3 Amendment: Section7.4 Notices:..............................................................................................................45 Section 7.5 Ground Lessee Assignment:..............................................................................46 �p A Section 7.6 No Covenant to Continuously Operate:............................................................46 cSection 7.7 Severability:.......................................................................................................46 04 Section 7.8 No Public Dedication:.......... 46............................................................................ N Nd Section 7.9 Counterparts:.....................................................................................................47 Section 7.10 Relationship of the Parties: ...........................................................................47 � .4 S ECCW&V IO.DOC 11101IM102207231 1111 Page: 4 of so 2"6 11.074 fhn11fY V@M*-Gallatin Co SIT Nt*C 302.66 EASEMENTS COVENANTS,CONDITIONS AND RESTRICTIONS THESE EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS (hereinafter referred to as "ECC&Rs'), are made and entered into as of the date of the Iast execution hereof,which date is the ZL day of 2005 ("Effective Date"),by and between Saccoccia Lands II, LLC, a Montana limited liability company ("Saccoccia IPl and Saccoccia Lands III, LLC, a Montana limited liability company ("Saccoccia ur) and LOWE'S HIW, INC., a Washington corporation ("Lowe's') (the foregoing parties hereinafter collectively referred to as the"Parties'); WITNESSETH : WHEREAS, Lowe's is the owner of that certain tract of real property consisting of approximately sixteen (16) acres located in the City of Bozeman, Gallatin County, State of Montana, as more particularly described on.Sch1 attached hereto and made a part hereof for W all purposes(the"Lowe's Parcel');and co WHEREAS, Saccoccia II is the owner of certain tracts of real property located in the City N0 of Bozeman, Gallatin County, Montana, located contiguous with and adjacent to the Lowe's N ji Parcel, which are not intended to be developed in coordination with the Lowe's Parcel, and are $ more particularly described in Schedule II attached hereto and made a part hereof for all purposes (the"Seller Commercial Parcel"and"Seller Adjacent Parcel"); and WHEREAS, Saccoccia III is also the owner of a certain tract of real property located in � o the City of Bozeman, Gallatin County, Montana, located contiguous with and adjacent to the Lowe's Parcel which is intended to be developed in coordination with the Lowe's Parcel, and is more particularly described in Schedule 11[ attached hereto and made a part hereof for all i purposes("Lot 2'); and WHEREAS, the Lowe's Parcel, Lot 2, the Seller Commercial Parcel, and the Seller Adjacent Parcel are further designated on the site plan of the overall development, attached hereto and made a part hereof as Exhibit A(the"Site Plan"). NOW, THEREFORE, the Lowe's. Saccoccia 1I and Saccoccia III hereby declare, agree, covenant and consent that all of the Parcels described on Schedule I, Schedule II, and Schedule l ECMVI O.DOC 11MINNIN lose 6 of 220723156 1111 18127 f 2 11 !7A fAall*v v6noe-.0„llatln eo MT MtiC M." 1U shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions which are imposed on such Parcels to run with the land and be binding on and inure to the benefit of all parties having any right, title or interest in the described Parcels or any part thereof, their heirs, successors and assigns for the purpose of development and operation of the Parcels and to protect the value of such respective Parcels. Further, in consideration of the premises, the agreements and the covenants of the Parties hereto, the mutual benefits and advantages accruing to than, and other good and vahiable consideration, the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows: ARTICLE I BASIC DEFINITIONS Section 1.1. "Project" shall mean the Lowe's Parcel, Lot 2, the Seller Commercial Parcel,and the Seller Adjacent Parcel. Section 1.2. "Shopping Center"shall mean and refer to the Lowe's Parcel and Lot 2. m >6 Section 1.3. "Building" shall mean the permanently enclosed structure(s) which has(have) been, will be or may be constructed within the Project, but shall not include Common co coo Area Improvements or any garden center on the Lowe's Parcel. For purposes of these ECC&Rs, N " "Building" shall include any appurtenant canopies, supports, loading docks, truck ramps and g other outward extensions. 3 Section 1.4. "Common Area" shall mean all real property owned by the Parties within x the Shopping Center for the common use and enjoyment of the Owners in the Shopping Center and their respective Permittees, including, without limitation, parking areas, access and egress 3 drives, service drives, sidewalks and non-dedicated streets and shall consist of all portions of the Shopping Center not designated as Permissible Building Areas and all portions of any a Permissible Building Area upon which no Building is currently constructed. Common Areas do ' not include drive up or drive through areas and facilities, loading docks, patio areas, or 1; permanent outdoor sales areas. Section 1.5. "Common Area Improvements" shall mean all improvements constructed from time to time within the Common Area and intended for common use which may include, without limitation, parking areas, access and egress drives, service drives, non-dedicated streets, 2 ECCR'sv i o.Doc lull 111111111111111111111111111112207231Q Shelley Venw-Oall.t,n Ce RT MISC 302 H lighting standards, sidewalks, landscaping, fixtures, and signage. The initial Common Area Improvements are shown on the Site Plan. Section 1.6. "Consenting Owner" shall mean and refer to the Owner of the Lowe's Parcel and the Owner of the Seller Commercial Parcel. The Parties intend that there shall be only two (2) Consenting Owners for the Project consisting of only one Consenting Owner representing the Seller Commercial Parcel and only one Consenting Owner representing the Lowe's Parcel. In the event that the Lowe's Parcel or the Seller Commercial Parcel are fiuther subdivided, the current Consenting Owner shall designate the particular parcel of the subdivided Parcel whose Owner shall succeed as the Consenting Owner. Session 1.7. "Default Rate" shall mean the rate of interest that is the lesser of (i) twelve percent (12%) per annum, compounded monthly, and (ii) the maximum rate allowed by applicable law. Section 1.8. "lmprovement(s)" shall mean Building(s) and other structures within a Permissible Building Area and Common Area improvements in the Shopping Center and any g Building(s) and roadways, parking areas, landscaping, access and egress drives, service drives, ob e;: non-dedicated streets, lighting standards, sidewalks, fixtures and signage on the Seller Commercial Parcel and the Seller Adjacent Parcel. N=� Section 1.9. "Maximum Square Footage"shall mean and refer to the maximum square Nn� footage allowed for all Buildings contained within a single Permissible Building Area in the Shopping Center. The Maximum Square Footage for each Permissible Building Area is shown s on the Site Plan. Any change to the Maximum Square Footage shown on the Site Plan shall be = subject to the prior written consent of the Consenting Owners, which consent may be withheld in 3 the sole discretion of each of the Consenting Owners and any such change shall be reflected in an r amendment to these ECC&Rs. Section 1.10. "Owner" shall mean and refer to the record owner, whether one or more persons or entities,of fee simple title to any Parcel which is located in the Project or as otherwise specified in these ECC&Rs. Section 1.11. "Parcel" shall mean and refer to any parcel of land shown as a parcel on the Site Plan and also the Lowe's Parcel, Lot 2, the Seller Commercial Parcel and the Seller Adjacent Parcel. "Outparcel" shall mean and refer to"Lot 2"as shown on the Site Plan. Every 3 ECCWSV 10.DOC 2207f 56 INNINNIN111111 pallw yWW*.aall•etn w nt n150 302.0e Outparcel shall be a Parcel from the date of recording of a subdivision map showing the Outparcel, so that all references herein to Parcels shall apply with equal force to Outparcels; however,references to Outparcels shall be specific to Outparcels as herein defined. Section 1.12, "Permissible Building Area" shall mean the areas within the Shopping Center designated on the Site Plan within which a Building(s) may be constructed not to exceed the Maximum Square Footage. Any change to the Permissible Building Areas shown on the Site Plan shall be subject to the prior written consent of the Consenting Owners, which consent may be withheld in the sole discretion of each of the Consenting Owners and any such change shall be reflected in an amendment to these ECC&Rs. Section 1.13. "Penmittees" shall mean tenants and subtenants and the occupants, contractors, customers, agents, licensees, guests, and invitees of an Owner in the Project, its tenants and subtenants. ARTICLE II r EASEMENTS Section 2.1 Defmitions and Documentation: !C For the purposes of this Article II,the following will apply: N (A) An Owner granting an easement is sometimes called the "Grantor", it being intended that the grant shall thereby bind and include not only such Owner but also its successors and assigns. >i Y (B) An Owner to whom the easement is granted is sometimes called the "Grantee", it being intended that the grant shall benefit and include not only such Owner but its successors, 0 assigns, and Permittees; although not for the direct benefit of Permittees,the Grantee may permit l� 3 from time to time its Permittees to use such easements; provided, however, that no such s permission nor the division of the dominant estate shall permit or result in a use of the easement in excess of the use contemplated at the date of the creation of such easement. (C) The term"Utility Facilities"means utility systems and utility facilities serving the Shopping Center or the Project, as applicable, such as the following. storm drainage, detention, retention and disposal facilities and sanitary sewer systems,manholes,underground domestic and fire protection water systems, underground natural gas systems, underground electric power cables and systems, underground telephone and television cables and systems, and all other 4 ECCRsVIO DOC I 1111111111111101 milli 2207231 q 01+a11rY Yanoa-Oallatln Cc MT M18C W2.00 utility systems and utility facilities installed under the provisions of these ECC&RS and as replacements thereto. (D) The term "Common Utility Facilities" means Utility Facilities from time to time situated on or serving the Shopping Center, as specified in these ECC&Rs, up to the building wall of any Building, for use or service in common by all Owners. All Common Utility Facilities lying within any Common Area shall for all purposes be deemed to be included within the definition of Common Area Improvements. (E) The term "Separate Utility Facilities" means Utility Facilities not installed under the terms of these ECC&Rs for use in common by other Owners and not for service of any common area (F) The word"in"with respect to an easement granted`tie'a particular Parcel means, as the context may require,"in". "to", "on", "over", "through", "upon","across", and"under",or any one or more of the foregoing. (0) All easements granted herein are non-exclusive and are irrevocable and perpetual. g (H) All easements granted herein shall be easements appurtenant and not easements in gross. m•� (1) In the event an Owner transfers or conveys a portion of its Parcel in accordance N � with the terms of these ECC&RS, those easements granted under this Article II which benefit, bind, and burden the remainder of the Parcel not transferred or conveyed shall benefit, bind, and burden the portion of the Parcel so transferred or conveyed, and those easements granted under � - 9 this Article 11 which benefit, bind, and burden the portion so transferred or conveyed shall 01- benefit,bind,and burden the remainder of the Parcel of which it was a part. � s (J) All easements granted hereunder and herein shall exist by virtue of these ECC&Rs, without the necessity of confirmation by any other document. Likewise, upon the termination of any easement(in whole or in part)or its release in respect of all or any part of any = Parcel, in accordance with the terms hereof, the same shall be deemed to have been terminated or released without the necessity of confirmation by any other document. However, upon the reasonable request of an Owner, the other Owners shall sign and acknowledge a document memorializing the existence (including the location and any conditions), or the termination (in whole or in part), or the release(in whole or in part), as the case may be, of any easement, if the 5 EMUSV J O.DOc IIIN�II��SIN��I�IN�I III III III�II 22®272 66 11 31q Shelley Vane*-Oallatln Ce MT MISC 292-N form and substance of the document is approved by the other Owners, which approval shall not be unreasonably withheld. No grant of an easement pursuant to this Article II shall impose any greater obligation on any Owner to construct or maintain its Building(s) except as expressly provided in these ECC&Rs. Section 2.2 Easements Granted With Respect to the Project. The following easements apply to all or a portion of the Project. (A) Easement for the Private Road: Each Owner owning any portion of the Private Road as defined below hereby grants to the other Owner(s) easements for pedestrian and vehicular traffic across the roadway labeled"Private Road"on the Site Plan(the"Private Road"), together with the following rights and subject to the following restrictions and reservations: (i) The Grantors of the Private Road easement agree not to obstruct or interfere in any way with the free flow of pedestrian and vehicular traffic over the Private Road, !6 except to the extent necessary for reasonable repair and maintenance, traffic regulation and r' control, and to prevent a dedication thereof or the accrual of an prescriptive rights to any P YP P g� Person Na therein (provided, however, that prior to closing off any portion of the Private Road, as herein lV 1s provided, such Owner shall give fifteen (15) days written notice to each other Owner of its i g intention to do so and shall attempt to coordinate such closing with each other Owner, so that no unreasonable interference in the passage of vehicles shall occur). x (ii) After the initial construction of the Private Road, the location, road improvements, configuration or design of the Private Road shall not be changed without the prior >s� 5 written consent of each of the Owner of the Lowe's Parcel, the Owner of the Seller Commercial Parcel and the Owner of the Seiler Adjacent Parcel, which consent may be withheld in the sole discretion of each such Owner. i (iii) The Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent Parcel grant to the Owner of the Lowe's Parcel an easement for the installation, construction, maintenance, repair and replacement of the Private Road. Upon completion of the Private Road, the Owner of the Lowe's Parcel shall maintain, repair and replace the Private Road. Upon commencement of construction on the Seller Commercial Parcel or the Seller Adjacent Parcel (which shall be deemed to occur upon the commencement of rough grading on such Parcel), the Owner(s) of whichever above referenced Parcel on which construction has 6 ECCR'sV IO.DX 11111111111111 loll 1111111 220723 iA tlAal lw Varw�-O�3aun Co W M19C 3"'94 commenced shall be obligated to pay its Pro Rata Share to the Owner of the Lowe's Parcel of the reasonable costs incurred by the owner of the Lowe's Parcel for maintaining, repairing and replacing the Private Road (consistent with the maintenance standards set forth in Section 5.1). The above Pro Rata Shares are as follows: (i) the Lowe's Parcel is 44.5 percent, (ii) the Seller Commercial Parcel is 15.6 percent,and(iii)the Seller Adjacent Parcel is 39.9 percent Any item of maintenance, repair or replacement in excess of S5,000 (such as repaving) shall require the prior written consent of the above specified Owners, which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten(10) days, such Owner will be deemed to have consented to the request(s)of the requesting Owner. If such Owner does not respond to the second notice within ten(10)days, such Owner is deemed to have consented. Reimbursement will be due from such Owner within 10 g thirty (30) days after receipt by such Owner of an invoice with copies of reasonable backup rt o:: documentation(including paid invoices). Cal 1 (iv) The Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent NParcel shall have the right to make curb cuts anywhere upon their Parcels on the Private Road. (B) Easements for Stormwater Utility Facilities and Detention Pond. The Owner of the Seller Adjacent Parcel hereby grants to each Owner an easement for storm drainage within sma—M g the area shown on the Site Plan as the "Stormwater Drainage Easement Area" and to discharge, store, detain or retain stormwater in that area shown on the Site Plan as the "Detention Pond". The Owner of the Seller Adjacent Parcel hereby grants to the Owner of the Lowe's Parcel an easement to operate, maintain, repair and replace the Utility Facilities within the Stormwater Drainage Easement Area and the Detention Pond("Stormwater Utility Facilities"). (i) Each Owner shall be responsible for complying with all storm water pollution prevention laws, rules and regulations (including, without limitation, employing best management practices with respect to control and management of water flows, residual runoff and parking lot sweeping), and shall be responsible for its own plans and its own monitoring, record-keeping, and reporting for compliance with storm water pollution prevention regulations (collectively, the "SWPP Obligations"). The fact that the Owner of the Lowe's Parcel or the 7 6CCR'sV 10.DOC 111111111111111011111111 ,20'?56 31q an.ua 11.c/n ao Kr Me 392.W Owner of the Seller Adjacent Parcel are maintaining the physical condition of the Detention Pond and of the other portions of the Storm Drainage Easement Area shall not render the Owner of the Lowe's Parcel or the Owner of the Seller Adjacent Parcel liable or responsible for any other Owner's SWPP Obligations. (ii) The Owner of the Seller Adjacent Parcel hereby grants to the Owner of the Lowe's Parcel an easement to construct, install, maintain, repair and replace the Stormwater Utilities Facilities and the Detention Pond. Initially, the Owner of the Lowe's Parcel shall maintain, repair and replace the Stormwater Utilities Facilities and Detention Pond. Upon the commencement of construction on any portion of the Seller Commercial Parcel, Lot 2, or the Seiler Adjacent Parcel (which shall be deemed to occur upon commencement of rough grading on such Parcel), the Owner of the Seller Adjacent Parcel shall assume from the Owner of the Lowe's Parcel and shall commence to maintain the Stormwater Utilities Facilities and Detention Pond and the Owner(s) of whichever above referenced Parcel on which construction has �p n commenced shall be obligated to pay its Pro Rata Share of the costs of such operation, a0 o maintenance, repair and replacement of the Stormwater Utilities Facilities and Detention Pond to mthe Owner of the Seller Adjacent Parcel. For purposes of this Section 2.2(B), the Pro Rata s Shaves are as follows: (i)the Lowe's Parcel is 43.7 percent, (ii) the Lot 2 is 1.7%,(iii)the Seller 8 Commercial Parcel is 15.3 percent, and(iv) the Seller Adjacent Parcel is 39.2 percent. Any item of maintenance, repair or replacement in excess of$5,000 shall require the prior written consent of the above specified Owner(s) which consent shall not be unreasonably withheld, conditioned � 3 or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty(30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten(10)days, such Owner will be deemed to have consented to the request(s)of the requesting Owner. If such t Owner does not respond to the second notice within ten (10)days of receipt thereof, such Owner is deemed to have consented. Reimbursement will be due within thirty(30)days after receipt by an Owner of an invoice with copies of reasonable backup documentation (including paid invoices). (iii) Promptly after the commencement of the maintenance by the Owner of the Seller Adjacent Parcel of the Stormwater Utilities Facilities and Detention Pond, the Owner of 8 ECCR!svro.noC the Lowe's Parcel and the Owner of the Seller Adjacent Parcel shall use good faith efforts to mutually agree upon a maintenance company which shall maintain, operate, repair and replace the Stormwater Utilities and Detention Pond. Such maintenance company shall not charge more than ten(10)percent for any managerial or administrative expense. Upon the commencement by the agreed upon maintenance company of the maintenance, repair and replacement of the Stormwater Utilities Facilities and Detention Pond, the above specified Owner(s) shall each pay to the agreed upon maintenance company their respective Pro Rata Shares of the costs of such operation, maintenance, repair and replacement of the Stormwater Utilities Facilities and Detention Pond as set forth above. Any item of maintenance, repair or replacement in excess of $5,000 shall require the prior written consent of the above specified Owner(s) which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period,the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have �p consented to the request(s) of the requesting Owner. if such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. F.N m - Reimbursement will be due within thirty (30) days after receipt by an Owner of an invoice with copies of reasonable backup documentation(including paid invoices). g (iv) The location of the Stormwater Drainage Easement Area and the Detention Pond may not be changed and the Stormwater Utility Facilities therein may not be trelocated or altered without the prior written consent of each of the Consenting Owners and the � 8 Owner of the Seller Adjacent Parcel which consent shall not be unreasonably withheld, 3 conditioned or delayed more than thirty(30) days. if such Owner from which consent is sought a does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. (C) Qpen Space Easement Agreement. The Owner of the Seller Adjacent Parcel hereby grants to the Owner of the Lowe's Parcel an easement to construct, use, maintain, alter, 9 ECCR'sV10.DK 111111111111111111111111111 2202 of 56 si►.I i.r v.no.•o.1 l.t in Cc WT 11t6C 302.00 inspect, replace, repair, and install certain improvements required by the City of Bozeman to be located within the Open Space Easement Area ("Open Space Easement Improvements"). The Owner of the Lowe's Parcel shall not build or erect any structure or building(including, without limitation, any garage, shed, sign or paving) within that portion of the Seller Adjacent Parcel shown as the "Open Space Easement Area" on the Site Plan. The Owner of the Seller Adjacent Parcel agrees to execute any document reasonably required by any governmental entity pertaining to the Open Space Easement Area, provided that such does not result in any cost or expense to the Owner of the Seller Adjacent Parcel or any additional encumbrance to area other the Open Space Easement Area. (D) Private Access Drive No Change Area. No change to the location and or road improvements on the area depicted on the Site Plan as the "Private Access Drive No Change Area"shall be made without the consent of the Owner of the Lowe's Parcel and the Owner of the Seller Commercial Parcel which shall be in their sole discretion. However, the Owner of the Seller Commercial Parcel may make any curb cuts on the Private Access Drive No Change Area. g (E) The Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent CO o. Parcel hereby grant to the Owner of the Lowe's Parcel temporary construction related easements =' on their Parcels for the purpose of facilitating the initial construction of the Lowe's development 0 of its home improvement center. (F) No QWss Parking: The Owners in the Project hereby specifically disclaim any intention to create any reciprocal parking easements between the Lowe's Parcel and any other S Parcel in the Shopping Center(or in the Project). Mir (G) Prior Easements, Covenants. Conditions and Restrictions. Certain Easements, � s Covenants, Conditions and Restrictions recorded in the office of Gallatin County Clerk and Recorder on February 9, 2004 as Document Number 2139990 ("Prior ECC&Rs'J which were later partially terminated by that Partial Termination Of Easements, Covenants, Conditions and Restrictions recorded in the office of Gallatin County Clerk and Recorder on October 21 . 2005 as Document Number 2207198 The parties hereto acknowledge that the easements granted pursuant to these ECC&Rs are substantially similar to the easements granted in the Prior ECC&Rs, which certain easements, including, including, but not limited to, Article II (Easements) (the "Prior ECC&R Easements") run to the benefit of the City of Bozeman (the 10 BLMoviODOC Z202M 118 Shelley VWUM-2ALIMln of !R "Ise M.00 "City"}and which easements would have been terminated hereby and replaced by these ECC&Rs if the Prior ECC&R Easements did not run to the benefit of the City. Therefore, the parties to these ECC&Rs irrevocably agree that, as between such parties and their respective heirs, successors and assigns as the Owners in the Project, they shall enjoy, obey, comply with, use, enforce, and respect these ECC&Rs and all rights, easements, covenants, conditions, restrictions, duties, obligations, interests and duties set forth herein in these ECC&Rs in lieu of the Prior ECC&Rs and the Prior ECC&R Easements. Section 2.3 E&=onts Grankd With ReE=to the Shoppma The following easements apply to all or a portion of the Shopping Center and in some instances some of the provisions in this Suction 2.3, if specified, shall apply to both the Shopping Center and to the Project as a whole. (A) Easements for Use of Common Area. (i) Q=of Easement: Each Owner in the Shopping Center hereby grants to the other Owner in the Shopping Center easements in the Common Area on its(Grantor's)Parcel ao a l for: N (a) ingress to and egress from the Grantee's Parcel; N (b) the passage of vehicles; (c) the passage and accommodation of pedestrians;and (d) the doing of such other things as are expressly authorized or required a: g to be done on the Common Area under these ECC&Rs. (ii) Design of the Common Areas: � 3 (a) Initial Development of the,Common Areas: The Common Area Improvements depicted on the Site Plan are hereby deemed approved by the Consenting Owners. (b) Enjoyment and use of the Common Area easements granted by this Section 2.3(A) shall commence on the date the Common Area Improvements with respect to the 1� Common Area in question are substantially complete. (iii) Common Area Sales and D' Notwithstanding the grant of easements under Section 2.2(A), sales and displays may be located within the Common Area but only as follows: 11 ECCR7sV 10.D0C 2207231 Paw 14 2Ms ,.o7A Sh011ev Vwwe Qaltattn Cc ht hlse M." (a) The Owner of the Lowe's Parcel may conduct parking lot sales, conduct other business and/or display merchandise in that portion of the Common Area (including the parking field) to the side of or in front of any Building on the Lowe's Parcel so long as such activity does not materially interfere with ingress and egress to the rest of the Shopping Center and is not in violation of any applicable law or ordinance. (b) The Owner of the Lowe's Parcel shall have the right, but not the obligation, to install and maintain a bank teller machine or similar kiosk type structure(s) within and on the exterior of the Building on the Lowe's Parcel. (c) The Owner of the Lowe's Parcel may display merchandise, conduct sidewalk sales and/or conduct other business on the sidewalks on the Lowe's Parcel and may otherwise enclose and/or redesign its sidewalk areas without the need of obtaining any other Owner's consent. d The Owner of the Lowe's Parcel may ( ) y park vehicles or equipment in a the parking field of the Lowe's Parcel in connection with the leasing of vehicles and/or NS: equipment. �� 8 (iv) Easements for Agoess Roads: Each Owner in the Shopping Center hereby grants to the other Owner(s) in the Shopping Center easements for pedestrian and vehicular traffic in those drive aisles and access roads(not less than the widths therefor shown on the Site a,� x Plan) on its (Grantor's) Parcel which are shown on the Site Plan as an "Access Road" i g (hereinafter collectively referred to as the"Access Road(s)') for the purpose of providing ingress to and egress from the Grantee's and Grantor's Parcel and Tschache Lane, together with the following rights and subject to the following restrictions and reservations: (a) The use of the Access Road easements by any person entitled to the use thereof shall be in common with all other such persons. The Access Road easements and the land upon which they are located shall be considered in all respects part of the Common Area, and the improvements thereon shall be considered in all respects part of the Common Area Improvements; and (b) As further provided in Section 2.3(A)(vi) herein, Grantors of the Access Road easements agree not to obstruct or interfere in any way with the free flow of pedestrian and vehicular traffic over the roadways which comprise an Access Road,except to the 12 ECCR'sV I0.DOC 111111111111111111111111111111 ;:20�2Se 317a Shelley Vanoo-fallatin 00 MT MIN M.00 extent necessary for reasonable repair and maintenance, traffic regulation and control, and to prevent a dedication thereof or the accrual of any prescriptive rights to any person therein. After the initial construction of the Access Roads, the location, road improvements, configuration or design of the Access Roads shall not be changed by the Owner of the Lowe's Parcel without the prior written consent of the Owner of Lot 2 which shall be in its sole discretion. (v) General Provisions for Common Area Easements: (a) No barriers, fences, walls, grade changes or other obstructions shall be erected so as to impede or interfere in any way with the free flow of vehicular and pedestrian traffic between those portions of the Shopping Center from time to time devoted to pedestrian access, vehicular roadways or parking area, or in any manner unreasonably restrict or interfere with the use and enjoyment by any of the Owners in the Shopping Center of the rights and easements created by this Article 11. In addition, each Owner in the Shopping Center may temporarily close or block traffic on its Parcel for the time necessary for the purpose of protecting ownership rights and preventing creation of easements to the public and unrelated third parties (provided, however, that prior to closing off any portion of the Common Area, as herein provided, such Owner shall give fifteen(15)days written notice to each other Owner of its mo o _ rco intention to do so and shall attempt to coordinate such closing with each other Owner in the 11- 4D NShopping Center, so that no unreasonable interference in the passage of pedestrians or vehicles > shall occur), and may temporarily fence off portions of its Parcel as reasonably required for the as purpose of repair,construction and reconstruction. g (b) The easements granted under this Section 2.3(A) are limited to such r, portions of the Common Area of the Grantor's Parcel as are now or hereafter from time to time set aside or intended to be set aside, maintained and authorized for such use under these g� ECC&Rs,specifically including those portions of the Common Area shown on the Site Plan. 3 (c) Each Owner in the Shopping Center hereby reserves the right to eject from the Common Area on its Parcel any person not authorized to use the same. (d) The easements provided for in this Section 2.3(A) are subject to the rights to use and the restrictions on use of the Common Area provided for in these ECC&Rs. (B) Easements for Utility Facilities: 13 ECCW3V I O.DM 2207231 OF 111111111111111011 toes „.ova Shelley Vvve-Selletln Co MT MISC 392.06 (i) Grant of Easement: Each Owner in the Project hereby grants to the other Owner(s) in the Project perpetual easements to its (Grantor's) Parcel, except within an Owner's Permissible Building Area, for the installation, use, operation, maintenance, repair, replacement, relocation and removal of Common Utility Facilities and Separate Utility Facilities serving the Parcel of the Grantee. Such easements shall be located to minimize disruption of the Grantor's parking and other improvements on the Grantor's Parcel. (ii) Installation.Repair and Maintenance: (a) All Separate Utility Facilities installed, whether installed under this Section 2.3(B) or otherwise, and all Utility Facilities, shall be underground, if reasonably possible. (b) The location of the Utility Facilities shall be subject to the prior written consent of the Owner across whose Parcel the same are to be located, which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30) days. If such Owner from which consent is sought does not respond within the foregoing thirty(30)day period, the Owner M seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten(10) days, such Owner will be deemed to have consented to the request(s) Na of the requesting Owner. If such Owner does not respond to the second notice within ten (10) i E days of receipt thereof,such Owner is deemed to have consented. (c) Except as otherwise provided herein, the Grantee of any easement for Separate Utility Facilities under this Section shall be� g � ry responsible, as between such Grantee and the Grantor, for the installation,maintenance,repair and removal at Grantee's cost of all Separate IE d Utility Facilities installed by the Grantee pursuant to this grant of easement, as well as for all M —% Separate Utility Facilities installed by the Grantee on its own Parcel. The Grantee of any easement for Utility Facilities shall be responsible for the installation, maintenance, repair and removal at Grantee's cost of all Utility Facilities installed by the Grantee pursuant to this grant of t easement; Grantee may or may not be reimbursed by the Owners pursuant to a separate agreement,however nothing in this Agreement shall obligate the Owner of a Parcel to pay for the costs of installing, maintaining, repairing or removing Utility Facilities on its Parcel (other than relocation at Grantor's request pursuant to Section 2.3(B)(v)). 14 E WSV10.Qoc 231 INNIMMINININ 2207f54 t0'r,"',"d,A 00110Y VanOe-Otllatln Co " misc 3n." (d) Any installation, maintenance, repair, replacement, relocation and removal of Utility Facilities shall be performed by Grantee only after thirty (30) days advance notice to Grantor of Grantee's intention to do such work. However, in the case of an emergency (whereby either persons or property are in immediate danger of substantial damage and/or harm), any such work may be immediately performed after giving such advance notice to Grantor as is practicable and reasonable under the circumstances. (e) All installation, maintenance, repair and removal. of Utility Facilities shall be performed in a manner that causes as little disturbance to Grantor as may be practicable under the circumstances and any and all portions of the surface area of Grantor's Parcel which may have been excavated, damaged or otherwise disturbed as a result of such work shall be restored, at the sole cost and expense of Grantee, to essentially the same condition as existed prior to the commencement of any such work. (f) After the Building on the Lowe's Parcel has opened for business, fi0 g notwithstanding anything to the contrary in these ECC&Rs, no Owner in the Project, except the moo_ Owner of the Lowe's Parcel, shall do any installation, repair, replacement or removal of any Utility Facilities in the Project that will disrupt the business on the Lowe's Parcel, which Nincludes, but is not limited to, (i) blocking access and ingress and egress to the Lowe's Parcel, gand (ii) causing any disruption to or cessation of any utility services to the Lowe's Parcel a owever, temp orary porary interferences with and diminutions in utility services shall be permitted if x they occur during the non-business hours of Lowe's, and such Owner in the Project notifies the Owner of the Lowe's Parcel at least thirty (30) days prior to doing so and coordinates with the manager of the store on the Lowe's Parcel for a reasonably convenient time and duration for such temporary interference or diminution to avoid any adverse effect to the business on the Lowe's Parcel.) (iii) Easements to Public Utilities. Any grant or other conveyance of an easement to a public utility, as Grantee, by a Grantor in the Shopping Center on its Parcel shall, without necessity of further recital in the conveyancing instrument, be deemed to include the following conditions, covenants and restrictions, in addition to the other provisions of Section 2.3(B), to which such public utility and its successors shall be bound unless specifically stated otherwise in such instrument. 15 ECCR'sV 10.DOC IN N ICI IN 111 Mil NI oil 111220�23 7A Walley Vanua-Gallatin Ca MT MISC 392 08 (a) The easement is non-exclusive; (b) All Utility Facilities installed pursuant to the easement shall be underground, except for manholes and manhole covers which shall be flush with adjacent grade, and except as otherwise shown on plans subject to the prior written consent of Grantor, which consent shall not be unreasonably withheld,conditioned or delayed more than thirty(30)days. If such Owner from which consent is sought does not respond within the foregoing thirty(30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten(10)days of receipt thereof, such Owner is deemed to have consented; (c) The right to use the surface areas for the purposes allowed under these ECC&Rs is reserved; (d) Grantor reserves the right to require Grantee to relocate its facilities (and vacate the easement)to another location on Grantor's Parcel, subject to the conveyance of a similar easement, all at Grantor's cost and expense; 6 (e) Grantee shall not, in its use or installation, interfere with other o installations and easements in the area; (�A (f) Grantee shall protect its Utility Facilities against uses of the surface Nis made by Grantor and others; ai (g) Grantee shall make adequate provisions for the safety and convenience iof all persons using the area; � g (h) Grantee, following installation or other work, shall replace and restore 8 the areas and improvements to the condition in which they were immediately prior to Performance of such installation and work; = a (i) Grantee shall defend, indemnify and hold harmless Grantor against all loss, liability, and costs (including reasonable attorney's fees and excluding punitive damages) i except that which may result from Grantor's grossly negligent or intentional wrongful act or omission of Grantor,its agents, employees ag p gees and contractors; and (j) Grantee shall not permit any claim, lien or encumbrance to attach against Grantor's Parcel or any interest therein. 16 BCCWSV10.o0C 11MMINIMIN11 2207231 1Page: 19 of 0 2712MG 1"07A Shellev Vans -0aliatln co Mr Mlft W2.00 (iv) Indemnification: The Grantee shall defend, indemnify and hold Grantor harmless from and against any and all liens, losses, liabilities, costs or expenses (including reasonable attorney's fees and excluding punitive damages), incurred in connection with Grantee's use of the Utility Facilities easements under this Section 2.3(B), except to the extent occasioned by Grantor's grossly negligent or intentional wrongful act or omission to act. (v) Grantee's Rights as to Utility Facilities: (a) Use OLSM= Utilily Facilities: The Grantor of any easement for Separate Utility Facilities under this Section 2.3 may use the utility facilities installed pursuant to such easement; provided, however, that any increase in costs incurred in order to make such utility facilities adequate to serve Grantor's additional use shall be borne by such Grantor, and provided, further, that Grantor gives written notice within the time period called for under, and otherwise complies with,the requirements of Section 2.3(13)(v)(b). (b) Relocation of Utility Facilities Grantor's The Grantor of any easement under this Section 2.3 may relocate on its Parcel any Separate Utility Facilities or Utility Facilities installed thereon under any easement granted by it; provided,however,that such R relocation: (1) may be performed only after Grantor has given Grantee thirty (30) N=s days' written notice of its intention to relocate such facilities; N: s (2) shall not interfere with or diminish the utility services to the Grantee I (however, temporary interferences with and diminutions in utility services shall be permitted if g they occur during the non-business hours of the Grantee, and Grantee has been notified at least Ethirty(30)days prior to such temporary interference with or diminution in utility services); !� 3 (3) shall not reduce or unreasonably impair the usefulness or function of the facilities in question; (4) shall be located underground,if reasonably possible; (5) shall be performed without cost or expense to Grantee, and, if Utility Facilities or Separate Utility Facilities which provide service to the Grantee are involved, in accordance with plans approved by the Grantee which approval shall not be unreasonably withheld, conditioned or delayed more than thirty(30)days. If such Owner from which approval is sought does not respond within the foregoing thirty (30) day period, the Owner seeking 17 ECCR'sV 10.DOC 111111111111111111111 2207231 fhellw V.no.-o&t let in Co Nt ntsc 392.16 consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten(10)days, such Owner will be deemed to have approved the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof,such Owner is deemed to have approved.; and, (6) notwithstanding anything to the contrary in these ECC&Rs, shall not disrupt the business on the Lowe's Parcel, which includes, but is not limited to, (i) blocking access or ingress and egress to the Lowe's Parcel,or(ii) causing any disruption of or cessation to the utilities services to the Lowe's Parcel (however, temporary interferences with and diminutions in utility services shall be permitted if they occur during the non-business hours of Lowe's, and such Owner in the Project notifies the Owner of the Lowe's Parcel at least thirty (30) days prior to doing so and coordinates with the manager of the store on the Lowe's Parcel for a reasonably convenient time and duration for such temporary interference or diminution to avoid any adverse effect to the business on the Lowe's Parcel.) (C) Drainag_e: Each Owner in the Shopping Center hereby grants to the other Owners �O in the Shopping Center easements to use, maintain and repair any storm water drainage system a0 S (the "Storm Drainage System") now or hereafter located on their Parcels, together with the right ®~' to discharge surface water runoff across portions of any Parcel in accordance with the design of N� 1! $ the Storm Drainage System; provided, however, that use, maintenance and repair of any Utility ! Facilities for the Storm Drainage System shall comply with Section 2.2(A) and Section 2.2(B). = All Storm Drainage Systems shall be subject to the prior written consent of the Owner of the tt� s = Lowe's Parcel and the Owner of Lot 2, which consent shall not be unreasonably withheld, T conditioned or delayed more than thirty(30) days. If such Owner from which consent is sought 3 does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. Any alteration in the natural water flow which may occur as a natural consequence of normal construction activities and the existence of an Owner's Improvements (including, without limitation, Buildings, curbs, drives and paving) shall be permitted, provided that the same is in accordance with a drainage plan consistent with the 18 ECCtt'sV I ODOC 2207231 271200ti t 1.07A "Ilw vnoo-"llatln Co M RISC U2 00 requirements of the City of Bozeman and consented to by the Consenting Owners which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. Such drainage shall not cause water to settle or pool within another Owner's Parcel. The Owner of the Lowe's Parcel grants the Owner of Lot 2 an easement to connect the stormwater drainage facilities of Lot 2 with the stormwater drainage facilities of the Lowe's Parcel in a location and manner consented to by the Owner of the Lowe's Parcel which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10)days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10)days �tl^ a of receipt thereof,such Owner is deemed to have consented. m (D) Constatction Easements: N (i) Each Owner in the Shopping Center hereby grants to the other Owners in the Shopping Center temporary construction related easements in the Common Area of its (Grantor's) Parcel, and where appropriate and necessary in the Permissible Building Area on its g (Grantor's) Parcel, but only prior to and without delaying the conunencement of construction by r Grantor of Improvements on its own (Grantor's) Parcel, for the purpose of facilitating the initial � 8 construction of the Grantee Improvements contemplated within these ECC&Rs. ii With respect to an Parcels in the Pro' (��) Pe Y Project on which dirt is dumped, the area shall be sloped to moot any contiguous property within the Project or any public roads, and shall be smoothed in a level manner consistent with the contours of the adjoining g property or in r accordance with a grading plan consented to by the affected Owner, which approval shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. if such Owner from which consent is sought does not respond within the foregoing thirty(30) day period, the Owner 19 11111111111111111111111111111111111 2202 9 56 1Mllar Vanosrdallatln Ce Mf MIN 302.00 seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten(10)days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. (iii) The location and use of all temporary construction easements under this Section 2.3(D)shall be subject to the prior written consent of Grantor,which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty(30)day period,the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten(10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. (iv) Each Grantee agrees to pay the Grantor any additional cost of construction, maintenance, repair and replacement of any improvement or structure constructed by Grantor �p which may arise on account of or due to Grantee's exercise of its temporary construction CO e l easement rights under this Section 2.3(D). Each Grantee further agrees to use due care in the mexercise of the rights granted under this Section 2.3(D)and, in the event the exercise of the rights Nv C : granted under this Section 2.3(D) requires Grantee to enter upon the Parcel of Grantor, to first 8 obtain the consent of Grantor as to the specific activities, methods and timing in the exercise of such rights so as to avoid cost or damage to Grantor. (v) Each Owner in the Project covenants and agrees, respectively, that its l� exercise of such easements shall not result in damage or injury to the Building(s) or other l� g CImprovements of any other Owner, and shall not interfere with or interrupt the business operations conducted by any other Owner. Furthermore, once the final topcoat of asphalt or concrete paving has been placed on the Lowe's Parcel or any Common Area access, egress and S service drives to the Lowe's Parcel, all constriction traffic to or from Lot 2 shall be limited to the westernmost Access Road from Tschache Lane to the Shopping Center and otherwise not upon the Lowe's Parcel and all construction traffic to or from the Seller Commercial Parcel and the Seller Adjacent Parcel shall be limited to entrances on Baxter Lane and the Private Road (and shall use no portion of the Lowe's Parcel for such traffic). In addition, each Grantee, at its sole 20 ECCR'sV I O.DOC lIl� ��II lil�YINl Ili��I�II ICI 220�231q Sh6116y v.n0Q-G&11&ttn Cc et nrst M.00 cost and expense, shall promptly repair, replace or restore any and all improvements of Grantor which have been damaged or destroyed in the exercise by Grantee of the temporary construction easements granted under this Section 2.3(D) and shall defend, indemnify and hold Grantor harmless from and against all liens, losses, liabilities, costs or expenses (including reasonable attorneys' fees and excluding punitive damages) incurred in connection with or arising out of Grantee's exercise of said temporary construction easements, except to the extent occasioned by Grantor's grossly negligent or intentional wrongful acts or omissions. (vi) Grantee's Improvements made within such temporary construction easements shall, for purposes of cost allocation due to maintenance, operation, insurance, taxes, repairs, reconstruction and restoration under these ECC&Rs, be deemed to be part of the Grantee's Parcel and Building and shall be deemed not to be part of the Grantor's Parcel or Building for such purposes in the Project. (vii) Except as reasonably necessary for and during the construction of any W A Building, no structure of a temporary character shall be erected or allowed to remain on any Parcel. N m (E) $ign Easem . The Owner of the Lowe's Parcel hereby grants to the Owner of Lot 2,the Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent Parcel as a� provided in Section 4.3 of these ECC&Rs an easement to display a total of four(4) sign panels a, Y on the Center Sign, an easement for maintenance, repair and replacement of such sign panels. Section 2.3(E) shall not be construed to mean that each of the above Owners shall be entitled to - S display four(4) sign panels each. For clarification purposes, there may be only a combined total of four(4)panels beneath the Lowe's sign panel. ARTICLE III USE RESTRICTIONS _ Section 3.1 N- : No Parcel in the Project shall be used for anything other than purposes which may be permitted by applicable zoning regulations. Nothing shall be done on any Parcel in the Project which is a public nuisance to the community. Section 3.2 Permitted Uses for the ShMing Center: Each Parcel in the Shopping Center shall be used only for financial institutions, service shops, Retail Offices, retail stores selling 21 ECCW9V10.DDC INI207231 Shallar Vanoa4ollatin Co MT RISC M W retail merchandise normally carried in other shopping centers and restaurants with less than forty (40%) percent of gross revenues from alcoholic beverage sales, all as subject to the further restrictions of this Article III. "Retail Offices" shall mean offices of the type customarily found in retail shopping centers for use primarily with customers or clients including, without limitation, insurance offices, real estate offices, banks and financial institutions, and travel agents, but shall not include educational or training facilities or medical or dental offices. No Retail Office use shall exceed 7,500 square fed and the total of all Retail Office use in the Shopping Center shall not exceed 8,000 square feet. Section 3.3 Use Restrictions for the Shope Center and the Seller Commercial Parcel: (A) During the term of these ECC&Rs no portion of the Shopping Center and the Seller Commercial Parcel may be used for any of the following purposes without the prior written consent of the Consenting Owners which consent may be withheld in the sole discretion of a Consenting Owner: (i) A liquor store, or a tavern, bar, nightclub, cocktail lounge, discotheque, dance hall, or any other establishment selling alcoholic beverages for on-premises consumption; tl provided,however,the foregoing shall not prohibit the operation of a restaurant where the sale of �N alcoholic beverages therein comprises less than forty (4(r/o) percent of the restaurant's gross Nrevenues. (ii) A bowling alley,billiards parlor, bingo parlor, arcade or other amusement center. g (iii) A theater(motion picture or live performance). (iv) A health club, gymnasium or spa, provided, however, the foregoing shall 3 not prohibit a health club, gymnasium or spa containing less than 20,000 square feet of floor area on the Seller Commercial Parcel. � a (v) A service station,automotive repair shop or truck stop. (vi) A flea market,open air market,tent sale or pawn shop. (vii) A training or educational facility(including, without limitation, a school, college, reading room or other facility catering primarily to students and trainees rather than customers; provided that such restriction shall not prohibit the incidental use of an otherwise 22 ECCR'sV 10 DOC 2207231 5 I�I�IPass Shelley Varian-Qallatln Co MT MIie M." permitted business for training or classes, such as"tow to"classes taught in conjunction with the sale of retail items from an otherwise permitted retail use). (viii) A child day care facility. (ix) A car wash, except on an Outparcel and where the same shall have constructed and shall use sanitary sewer, water and storm water drainage lines entirely separate from those utilized by the Lowe's Parcel. (x) A medical clinic or medical office, provided, however, the foregoing shall be permitted on the Seller Commercial Parcel. (xi) A storage or mini-warehouse facility. (xii) An establishment for the sale of automobiles, trucks, mobile homes,boats or recreational motor vehicles (provided that such restriction shall not prohibit the lease of vehicles or equipment from the Lowe's Parcel). (xiii) A dry cleaning plant, central laundry or Laundromat, provided,however the foregoing shall not prohibit pickup laundry services or pick up dry cleaning with no washing or m g dry cleaning done on site shall be permitted. �p � g (xiv) A hotel or motel, provided, however, the foregoing shall be permitted on m !� the Seller Commercial Parcel. N": N d� (xv) Governmental offices, provided,however,the foregoing shall be permitted a on the Seller Commercial Parcel. (B) During the term of these ECC&Rs no portion of the Project may at any time be used for any of the following uses whatsoever: (i) An adult type bookstore or other establishment selling, renting, displaying � 3 or exhibiting pornographic or obscene materials(including without limitation:magazines,books, movies, videos, photographs or so called "sexual toys"}or providing adult type entertainment or activities (including, without limitation, any displays or activities of a variety involving, t 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 an incidental part of a bona fide national or regional chain video store, such as Blockbuster or Hollywood Video, or a bona fide national or regional chain general interest bookstore, such as Barnes&Noble or Borders. 23 ECCItsvtO.DOC 1111111H 11112207231Q 11 pIl fMirw Yanea-Mllatln Ce RT RIK MIN (ii) A massage parlor. (iii) A skating rink. (iv) A mortuary,crematorium or funeral home. (v) A mobile home or trailer court, labor camp,junkyard or stockyard. (vi) A land fill, garbage dump or other such facility for the dumping, disposing,incineration or reduction of garbage. (vii) A telephone call center on Lot 2, provided, however, the foregoing shall not be prohibited on the Seller Commercial Parcel and the Seller Adjacent Parcel. (viii) A casino, gambling establishment or betting parlor except as part of the operation of restaurant permitted herein, provided, however, that the total floor area of such restaurant used for gambling shall not exceed thirty (30) percent of the total floor area of the restaurant. (ix) Veterinary hospital or animal raising or keeping facilities except as part of a bona fide national or regional chain pet or pet supply store having at least ten (10) locations under the same name within one(1)or more states. (x) Assembling, manufacturing, industrial, distilling, refining or smelting LO � n facility, provided, however, light assembling and light industrial facilities shall be permitted on mthe Seller Commercial Parcel and the Seller Adjacent Parcel. Section 3A F.x lwive Use Restriction for the Benefit of the Lowe's Parcel: N g (A) No portion of the Project other than the Lowe's Parcel may be used for the following purposes: s (i) A hardware store or center containing more than 5,000 square feet of floor X l< area. l� 8 (ii) An appliance and/or lighting store or center containing more than 5,000 square feet of floor area, provided, however, the foregoing shall not prohibit the operation of a >c home electronics store such as a Best Buy, Circuit City, and Frye's Electronics. However, such t� home electronics stores shall be subject to the restrictions set forth in Section 3.4(A) through Section 3.4(B). Notwithstanding anything to the contrary contained herein, the square footage limitations contained in this Section 3.4(A)(ii) shall not apply to Best Buy, Circuit City and 24 ECCWsV IU.DOC 1N1011 2207231 age: 1@111111 tor27/moe(1�e70 Shelley Vance-6allalln Ce MT MliC sm." Frye's Electronics as they are operated and merchandised as of the Effective Date of these ECC&Rs. (iii) A nursery and/or lawn and garden store or center containing more than 3,000 square feet of floor area(including any outdoor areas). (iv) A paint store or center, wall paper store or center, file store or center, flooring store or center, or carpeting store or center, containing more than 4,000 square feet of floor area for each separate use described in this Section 3.4(A)(iv). (v) A retail and/or warehouse home improvement center, lumber yard, building materials supply center, home improvement service center and/or other stores or centers similar to those operated by or as Lowe% Home Depot, Home Depot Expo,Villagers Hardware, 84 Lumber, Wickes, Hughes Lumber, McCoys, Menard's, Sears Hardware, Great Indoors, Sutherlands,Scotty's and Orchard Supply. However,this Section 3.4(A)(v)shall not prohibit the operation within the Project of businesses named Diilards, Gottsehalk's, JC Penneys; Kohl's; May Department Store, Lord & Taylor; Foley's; Bon-Macy's; Bon-Macy's Furniture; Macy's; Saks; Herbergers; Off 5`h; Proffitt's; Yonkers; Nordstroms; Target; Mervyn and Marshall Fields as they are currently operated and merchandised as of the Effective Date. The businesses named in the foregoing sentence shall still be subject to the restrictions set forth in Section 3.4(A) and Section 3.4(B). �.� (B) These restrictions or exclusive rights shall also apply to prohibit a larger business N s having space in its store devoted to selling the merchandise described in subparagraphs {A)(i) S through(A)(v)when such space exceeds the limitations of subparagraphs(A)(i)through(A)(v). (C) Notwithstanding anything to the contrary in Section 3.5, in the event a retail and/or warehouse home improvement center, lumber yard, building materials supply center, hardware store, lawn and garden store, appliance, and/or lighting store, andJor paint, wall paper, S tile, flooring, carpeting and/or decor store or center is not operated in any portion of the Lowe's : Parcel for a period in excess of three (3) consecutive years (excluding temporary closings due to w 1! a alterations, casualty,condemnation,or other unavoidable delays beyond the reasonable control of > the Owner of the Lowe's Parcel), the above stated exclusives shall be of no further force and/or effect until such time as Lowe's or its successors, assigns or tenants shall reopen a store on any portion of the Lowe's Parcel for any one of the foregoing uses, which reopening shall not 25 eacIMio.noC 111111116/271240672 2054 31 OA ih@ilw VamS-4Mllatln Co HT 11I5C 302.00 prohibit uses in violation of such exclusives if such uses were begun during such time as the above exclusive use restrictions were of no force and/or effect. section pM21j ary Riggs of Lowe's: Any owner, occupant or person owning, leasing or otherwise making use of any portion of the Project shall be deemed, by virtue of accepting such ownership, leasehold interest or making such use, to have covenanted and agreed that (i) the trade names, trademarks, service marks (including, without limitation, all logos, emblems, designs or designating words or names) utilized by Lowe's HIW, Inc. or its affiliated companies ("Lowe'e% in connection with the Shopping Center and the Project or the conduct of its business thereat are registered and/or the proprietary property of Lowe's or its affiliates, (ii) except as provided below, no usage of those marks or names will be made in naming or referring to any activity within or without the Shopping Center or Project and (iii) no usage of such marks or names shell be made without the prior written consent of Lowe's and Lowe's legal counsel, which consent Lowe's may withhold in its sole discretion. Lowe's reserves the right to require any person or entity to whom it may grant a written right to use a given name or mark to enter into a formal written license agreement with Lowe's and to charge a fee or royalty therefor. m !6 ARTICLE IV co o g GENERAL CONSTRUCTION&DEVELOPMENT NR� velopm&mt Parameters for the Shaping Center and the Project: Nr (A) Permissible Building Areas: All Buildings within the Shopping Center must be g constructed within a Permissible Building Area. No Building within the Shopping Center can exceed the Maximum Square Footage shown for each Permissible Building Area on the Site s Plan. Within the Shopping Center,no building, structure or improvements (other than Common 3 Area Improvements) shall be erected or maintained outside of a Permissible Building Area. The Permissible Building Areas and Maximum Square Footages as shown on the Site Plan cannot be changed without the prior written consent of the Owner of the Lowe's Parcel and the Owner of Lot 2, which may be withheld in their sole discretion, and which changes shall be reflected in an t amendment to these ECC&Rs. (B) Parking Rgguirements. Each parcel within the Seller Commercial Parcel and Lot 2 shall be self-supporting with respect to parking and shall each contain the lesser of(i) not less 26 ECCR'cV 10 DOC IIIIIIHIIIIIII III II III 2207231 Shelley vance4allatln Ce IR ►RISC 392 W than fifteen (15.0) paved full size automobile parking spaces per each 1,000 square feet of building floor area for restaurant use(including fast food restaurant use)and five(5.0)paved full size automobile parking spaces for each 1,000 square feet of building floor area for any other permitted use constructed thereon, or(ii)the maximum amount of parking spaces allowed by the City of Bozeman. To be self-supporting,the parking spaces must be located on each such Parcel so that parking spaces available on other Parcels or available through easements with other Parcels cannot be counted in meeting the requirements of this Section. (C) Fire Protection: All improvements within the Project shall be constructed in compliance with all applicable federal, state, and local building codes and particularly all improvements within sixty(60) feet of the Building on the Lowe's Parcel shall be sprinklered for fire protection or a fire wall built such that the sprinklered rate for such Buildings will be preserved. There shall be sixty(60) feet of open space on which no buildings or improvements may be constructed around the Building on the Lowe's Parcel such that the Building on the Lowe's Parcel maintains an unlimited area classification for fire protection purposes. Notwithstanding anything else to the contrary in these ECC&Rs, no Owner in the Project shall t10 seek a building permit for a Building within sixty (60) feet of the Permissible Building Area on o the Lowe's Parcel without the prior written consent of the Owner of the Lowe's Parcel,which the Owner of the Lowe's Parcel may withhold in its sole discretion. Each Owner agrees to execute N any separate legal instrument memorializing this sixty (60) foot side yard or no build area ;lC S reasonably required by any governmental entity. (D) Condition Prior to Construction: After the Building on the Lowe's Parcel has initially opened for business, each Parcel in the Project shall be kept neat, orderly, and if graded IE planted in grass and trimmed(or otherwise treated for dust and weed control)until improved and constructed. Section 4.2 Building Design for the Shoflying Center: (A) Harmony. All structures (including Common Area Improvements such as lighting) erected within the Shopping Center shall be architecturally harmonious (including, s: without limitation, harmonious colors, materials and designs). The Owner of the Lowe's Parcel and the Owner of Lot 2 shall cooperate in creating a reasonably harmonious exterior appearance for the Buildings and Improvements to be constructed by them within the Shopping Center, 27 ECCR'tV 101" IIIII III III III �)III��II I II 22OM 107A 0hells+r Yams-Otllstln Co PIT MIN 302-00 acknowledging however that the Owner of the Lowe's Parcel may construct improvements similar to its current prototypical store building and improvements. Specifically, the initial design and appearance of the Buildings and Improvements on the Lowe's Parcel and any changes to the Buildings and Improvements on the Lowe's Parcel that the Owner of the Lowe's Parcel may deem appropriate for consistency with changes in the design and appearance of its then current prototypical stores do not require the consent of any other Owner. All Buildings within the Shopping Center shall be single story. A bona fide National or Retail Tenant is permitted to construct its standard,prototypical building subject to the restrictions in these ECC&Rs. For the purposes hereof, a "National or Regional Tenant" means a tenant which (i) operates in at least two (2) states under the same name, or (ii) operates ten (10) or more stores in one (1) of more states under the same name. (B) Construction Timing. Weather permitting, all paving and landscaping will be finished upon completion of the Building in the Shopping Center and the Seller Commercial Parcel, but in no event shall it be installed later than ninety (40) days after the Building is occupied. Subject to force majeure, total construction time from pouring footings to the completion of the Building within the Shopping Center and the Seller Commercial Parcel ready tiD � for occupancy shall not exceed one(1)year. ° Section 4.3 1)Llon or Monument SiSMU for the Shopping Center: Nle (A) With respect to any Shopping Center the Center Sign in the location depicted on H the Site Plan (the"Center Sign") which shall be erected or used for the advertising of the Owner, s g tenants or occupants of the Lowe's Parcel, Lot 2, the Seller Commercial Parcel and the Seller g Adjacent Parcel, the Owner of the Lowe's Parcel shall be entitled to have and maintain a sign panel thereon in the top and most prominent position on both sides of each such Center Sign �a d ("Lowe's Sign Panel(s)'}. The Owner of Lot 2,the Owner of the Seller Commercial Parcel and tlttttllc the Owner of the Seller Adjacent Parcel shall be entitled to a total combined between such y Owners four (4) sign panels beneath the Lowe's Sign Panel. For clarification purposes, there > shall be no greater than a total of four(4) sign panels beneath the Lowe's Sign Panel. No other r: sign panel on any such Center Sign shall be of a size or have dimensions which are greater than seventy-five percent (75%) of the size and dimensions of a Lowe's Sign Panel on the same 28 BDCR'sV i0.DOC 11111111111111111111 220'?31IiiNIMaIIMIN III lllwllw VW66"B119tin Co NT RISC 392." Center Sign. Lowe's Sign Panels shall be of colors, design and content as required by the Owner of the Lowe's Parcel's own visual sign standards. (B) The cost of constructing the Center Sign shall be prorated in accordance with the number of occupants having panels thereon. The Owner of Lot 2, the Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent Parcel shall pay their pro rats shares of the cost of construction, maintenance and operation of the Center Sign the obligation of which shall commence upon its installation of a panel on the Center Sign. Such pro rats share shall be calculated by dividing the square footage of the Lot 2, or the Seller Commercial Parcel or the Seller Adjacent Parcel sign panel as the numerator by the total combined square footage of all of the sign panels on the Center Sign as the denominator. The Owner of the Lowe's Parcel, the Owner of Lot 2, the Owner of Seller Commercial Parcel and the Owner of the Seller Adjacent Parcel shall each maintain their sign panels on the Center Pylon in good condition. (C) With respect to monument signs shown on the Site Plan("Monument Signs'),the Owner of the Lowe's Parcel shall construct the Monument Sign shown on the Site Plan at the intersection of Baxter Road and the Private Road (the "Lowe's Monument Sign") and which shall be located as shown on the Site Plan and which shall be erected or used for the advertising Fa A of multiple Owners, tenants or occupants of the Lowe's Parcel, Lot 2, the Seller Commercial NNE Parcel and the Seller Adjacent Parcel, the Owner of the Uwe's Parcel shall be entitled to have Nd z and maintain a sign panel thereon in the top and most prominent position on both sides of the N ;- g Lowe's Monument Sign. The Owners of Lot 2, the Seller Commercial Parcel and the Seller Adjacent Parcel shall be entitled to no more than a combined total of six (6) sign panels beneath T the Lowe's signpanel. No other sign panel on the Lowe's Monument Si shall be of a size or a� g P gn Pa Sign have dimensions which are greater than seventy-five percent(?S%)of the size and dimensions of MS a Lowe's sign panel on such Monument Sign. Lowe's sign panels shall be of colors, design and l� ; content as required by the Owner of the Lowe's Parcel's own visual sign standards. A National g or Regional Tenant's signpanels shall be of colors, design and content as required b such l� $n �1 Y National or Regional Tenant. (D) The cost of constructing the Lowe's Monument Sign shall be prorated in accordance with the number of occupants having panels thereon. The Owners placing a sign panel on the Lowe's Monument Sign shall each pay their pro rata shares of the cost of 29 ECCIViV 1 O.DOC 1111111111 �I I� �I�II 2207231q shellev Vam"Allatln cc MT mtsc W2 00 construction, maintenance and operation of the Lowe's Monument Sign to the Owner of the Lowe's Parcel commencing at the time of its installation of a panel on the Lowe's Monument Sign. Such pro rata share shall be calculated by dividing the square footage of the Owner's sign panel as the numerator by the total combined square footage of all of the sign panels on the Lowe's Monument Sign as the denominator. The Owners having a sign panel on the Lowe's Monument Sign shall maintain their sign panels in good condition. (E) The Owner of the Seller Commercial Parcel grants the Owner of the Lowe's Parcel an easement for construction,maintenance,operation and repair of the Lowe's Monument Sign shown on the Site Plan located on the Seller Commercial Parcel. (F) The Owner of the Seller Commercial Parcel or the Owner of the Seller Adjacent Parcel may construct, at no cost or expense to the Owner of the Lowe's Parcel, the Monument Sign shown on the Site Plan at the intersection of Tschache Road and the Private Road (the "Tschache Monument Sign") and which shall be located as shown on the Site Plan and which shall be erected or used for the advertising of multiple Owners,tenants or occupants of Lot 2,the Seller Commercial Parcel and the Seller Adjacent Parcel. The Owners of Lot 2, the Seller Commercial Parcel and the Seller Adjacent Parcel shall be entitled to no more than a combined total of six (b) sign panels on the Tschache Monument Sign. A National or Regional Tenant's sign panels shall be of colors, design and content as required by such National or Regional Tenant. Na (G) The cost of constructing the Tschache Monument Sign shall be prorated in N4= a accordance with the number of occupants having panels thereon. The Owners placing a sign i panel on the Tschache Monument Sign shall each pay their pro rata shares of the cost of >� g construction, maintenance and operation of the Tschache Monument Sign to the Owner of the Seller Commercial Parcel or the Owner of the Seller Adjacent Parcel, whichever Owner 3 constructs the Tschache Monument Sign and maintains and operates such, commencing at the time of its installation of a panel on the Tschache Monument Sign. Such pro rasa share shall be ~ calculated by dividing the square footage of the Owner's sign panel as the numerator by the total > combined square footage of all of the sign panels on the Tschache Monument Sign as the denominator. The Owners having a sign panel on the Tschache Monument Sign shall maintain their sign panels in good condition. 30 ECMV!0.DOC 1111N111111111111111111111111220'?31p Molloy Varat4Wllatln CO RT R18C 392-M (H) The Owner of the Lowe's Parcel grants the Owner of the Seller Commercial Parcel or the Owner of the Seller Adjacent Parcel, whichever Owner constructs the Tschache Monument Sign and maintains and operates such, an easement for construction, maintenance, operation and repair of the Tschache Monument Sign shown on the Site Plan located on the Lowe's Parcel. (1) The location of any Center Sign or Monument Sign and the design of any Center Sign Structure, sign panel, or Monument Sign(other than Lowe's sign panels) shall be subject to the prior written consent of the Consenting Owners, which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30)days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s)of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented If an Owner desires to display a !� sign panel on a Monument Sign or erect a Monument Sign, it shall make its request in writing to co! the Consenting Owners with a copy of the sign plans. Notwithstanding the foregoing,an Owner a ®x I does not need the consent of the Consenting Owners for the design of its sign panel on the Center N N Sign and the Monument Signs so long as it is a bona fide national or regional retail or restaurant gchain having ten (10)or more locations with the same name within one(1)or more states and the w design of such sign panel is substantially the same as the prototype sign panels used for such 8 chain's facilities. (J) Notwithstanding the foregoing, there may be erected entrance-exit signs to = 8 facilitate the free flow of traffic, which entrance-exit signs shall be of a monument type, not to exceed 3'3" in height. (K) There shall be no other free standing signs allowed in the Shopping Center. If there are any other freestanding signs in the Project, the height of such signs shall not exceed eleven(11) feet in height and shall not block any view of the Lowe's Monument Sign. Section 4.4 Q=arcel Development for the Shopping Cam: Any Outparcel sold or developed within Shopping Center will only be developed under the following guidelines: 31 111111111101111 �2207231 20N „:VA Snell" Vw off-Gallatin CO RT RISC 392.SS (A) Any Building constructed on Lot 2 shall not exceed twenty-seven (27) feet in height including any architectural features, towers and parapets, as measured from the finished elevation of the parking area of the Shopping Center. (B) Any rooftop equipment installed on any Outparcel shall be screened as required by the City of Bozeman; (C) No rooftop signs shall be erected on any building constructed on any Outparcel. (D) A Monument Sign may be erected on any Outparcel, but in no event shall such Monument Sign(other than Lowe's Monument Sign) exceed eight(8) feet in height or block the visibility of any signage on any Building located on the Lowe's Parcel or the visibility of any Lowe's Monument Sign or any Center Sign. (E) Any Owner or other party purchasing or leasing from an Owner and having an ownership or leasehold interest in an Outparcel shall repair any damage caused to any of the Utility Facilities, as described in Section 2.3 of these ECC&Rs, serving the Parcels and the Outparcel which is caused by such Owner or party, to the extent the Outparcel benefits from any of the Utility Facilities serving the Shopping Center and the Outparcel. g (F) The foregoing restrictions and agreements are imposed on each of the Outparcels 40r for the benefit of the entire Shopping Center. The agreements, restrictions and covenants herein aD;g ��l6 made shall be deemed restrictive covenants running with the land and shall be binding upon each NPof the Outparcels and any person who may from time to time own, lease, or otherwise have an �i interest in any of the Outparcels. (G) The Owner of Lot 2 shall have the right to one(1)curb cut along Access Road on li g the eastern boundary of Lot 2 and such shall be right turn from Lot 2 and exit only from Lot 2. (H) The Owner of Lot 2 shall have the right to one (1) curb cut on the western most IL 1� C Access Road along the western boundary of Lot 2 for full ingress and egress. 3; (n The Owner of Lot 2 shall be locate any drive up or drive through lane or aisle j configuration on Lot 2 such that the design will accommodate a minimum of nine(9)cars within Lot 2. No queuing or stacking of any vehicles in connection with such drive through or drive up lane,aisle or window shall be located on the Lowe's Parcel. p 32 ECCR'sV 10 DOC 11111111111111111111111 �207231 *"110r Venob-"Hatln Co MT RISC 392 0E (J) The configuration and design of Lot 2 shall not permit the backing up or turning in by any vehicle directly into parking spaces on Lot 2 from or to any driveway or drive aisle on the Lowe's Parcel. Sectioll 4.5 Parking on the Seller Commercial Parcel and the Seller Adjacent Parcel. The Seller Commercial Parcel and the Seller Adjacent Parcel shall contain sufficient parking to meet the parking requirements of the City of Bozeman, and without relying on parking available, by easement or otherwise,on any other Parcel. Section 4.6 Performance of Construction Work Generally. All construction, alteration or repair work("Work") undertaken by an Owner in the Project after the Building on the Lowe's Parcel has opened for business shall be accomplished in an expeditious, diligent and speedy manner, The Owner undertaking such Work 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 the Owners and their Permittees; (iv)control dust, noise and other 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 10 any Parcel to a condition equal to or better than the condition existing prior to beginning such 1^D o Work; (vii) indemnify and hold harmless all other Owners in the Project against any mechanics Nliens for such Work, particularly as to Common Areas; and (viii) obtain all necessary Ne^ governmental approvals. Such Work shall not unreasonably interfere with the business i operations on any other Parcel and shall not block or impede the Shopping Center ingress or egress from public streets or ingress and egress from or to the Shopping Center. The party zperforming such Work shall limit all construction work and staging areas to its own Parcel and $ not encroach on any Common Areas on any other Parcel and shall not utilize parking areas of any other Parcel. In connection with Work performed within the Permissible Building Areas of the constructing Owner, incidental encroachment upon the common area of the party performing such work may occur in the use of ladders, scaffolding, store-front barricades and similar facilities resulting in temporary obstruction of portions of such common area, if such encroachment is kept within reasonable requirements of such Work expeditiously pursued. All 33 ECCR'sv10.DOC !!pill 2207231 IN!111 10 2i17M 11so :e m such Work for which a license is granted above (i) which will be performed by an Owner on another Owner's Parcel (subject to Section 2.3(D)(5)), or (ii) which would adversely affect the ingress and egress to the Shopping Center, the availability of parking and/or circulation of traffic in the Shopping Center, or the operation and supply of common utility facilities to or in the Shopping Center shall be undertaken only after giving the other Owners in the Shopping Center thirty (30) days prior written notice of the Work to be undertaken, and the scope, nature, duration, location and extent of the Work. Such notice shall include any plans and specifications for the Work ('Plans'}. In the event of any emergency involving an immediate and imminent threat of substantial harm or injury to persons or property, only such notice as may be reasonable under the circumstance shall be required. Section 4.7 Compliance in Construction: All Work which an Owner undertakes pursuant to these ECC&Rs shall comply with the Plans(to the extent approved Plans are required under these ECC&Rs), the requirements of all applicable m g governmental authorities, public bodies and other entities (such as public utilities) having 00; jurisdiction, and all applicable laws, ordinances, rules and regulations, including procurement of all license and permits required for such Work. The consent by the Owner of the Lowe's Parcel Nof any such Work or Plans, under any provisions of these ECC&Rs, shall not constitute any assumption of responsibility for the accuracy, sufficiency or propriety of such Work or Plans,nor shall such consent constitute a representation or warranty that such Work or Plans will be g economic to construct or will comply with law. It Section 4•8 Damaee and Destruction: In the event of the destruction or damage to any extent to any Buildings or Improvements in the Project, the affected Owner shall either: (1) diligently commence and pursue completion of the repair or restoration of such Building or Improvement, or (2) within ninety (90) days after the destruction or damage, level such Building or Improvement, remove the debris and keep the ! Parcel neat,orderly, planted in grass and mowed/trimmed(or otherwise treated for dust and weed q control)until subsequently improved, constructed upon and operated and so that the Parcel is in a clean, orderly, sightly and safe condition. 34 F.CCR'sV IO.DOC 71 220M2307A N,.tt.v vane.-a.ii.ttn co rn Mtsc as H ARTICLE V MAINTENANCE,TAXES AND INSURANCE section 5.1 Maintenance: (A) Maintenance in the Proierx, Each Owner in the Project shall maintain the Building(s), the Common Areas and the roads, access drives and parking areas on its Parcel in good order and condition and state of repair in accordance with the standards of first class shopping center operation including(but not limited to) sweeping and removal of trash, litter and refuse, painting and striping of parking areas, repair and replacement of paving as necessary(but in no event more often than once every seven (7) years), maintenance of landscaped areas (including replacement and replanting), removal of ice and snow from driveways and parking areas, and maintenance and repair of lighting standards and signs. Each Owner in the Project covenants that it, in addition to other requirements of this Section, will keep the inside and outside of all glass in the doors and windows of its Buildings clean; will maintain its Buildings at its own expense in a clean,orderly and sanitary condition and free of insects,rodents,vermin and Other pests; will not permit accumulation of garbage, trash, rubbish and other refuse, and will d' a remove same at its own expense,and will keep such refuse in proper containers or compactors in Nplaces designated therefore until called for to be removed; and will keep the Common Areas on N=s � its Parcel clear of accumulations of ice and snow. The maintenance and repair of the Buildings ar g and Improvements on each Parcel in the Project shall be of such a character that their appearance will be in a neat and orderly appearance, and, accordingly, the Owners agree to cooperate with tllll! g each other in good faith with respect to said maintenance and repair and,to the extent reasonably possible,coordinate such repair and maintenance. 5 (B) : Each Owner in the Shopping Center shall cause the Common Area on S its Parcel to be adequately lit for at least the hours during which the business on the Lowe's Parcel is open for business and for one(1)hour after the business on the Lowe's Parcel closes, (C) Center Sips: The Owner of the Lowe's Parcel shall be responsible for maintenance, repair and replacement of the sign structure for the Center Signs, subject to reimbursement by each Owner entitled pursuant to Section 4.3 to display a sign panel thereon. Each such Owner's share shall be calculated as a fraction, the numerator of which is the total 35 ECclVsvco.00c 11111111111111pill1111 �2072�1 Sheller Vanoe4allatin Co Ri MISC M." square footage of such Owner's sign panel and the denominator of which is to the total square footage of all sign panels on the Center Sign. Section 5.2 Maintenance Director: Subject to the mutual agreement between the Owner of the Lowe's Parcel and the Owner of Lot 2, a third party may be appointed to maintain and repair the Common Area in the Shopping Center in the manner as above outlined(the"Maintenance Director"). The Maintenance Director may receive for such agency a fee that is mutually acceptable to the Consenting Owners to cover supervision, management, accounting and similar fees. The cost of all maintenance and repair activities undertaken by the Maintenance Director,together with the agency fee,shall be prorated between all Owners based upon acreage owned. Each Owner shall pay its proportional share of all such costs and fees within thirty(30)days following its receipt of a detailed invoice thereafter. Section 5.3 Failure in Performing Maintenance Responsibilities: In the event that an Owner fails or defaults in its maintenance obligations as set forth in Section n 5.1,which failure continues for a period of thirty(30)days(ten[10] business days in the evert of c0`^ a failure to a money) after receipt of written notice thereof specifying the particulars of such pay ey} p P�� B Nfailure, such failure shall constitute a breach under the ECC&RS and either Consenting Owner tN�a g (the "Curing Party) may thereafter perform such maintenance obligations, in addition to such Owner's other remedies. The Curing Party shall then invoice the defaulting Owner for the � g expenses incurred. The defaulting Owner shall have fifteen (15) days to pay the Curing Party s after receipt of the invoice. If the defaulting Owner does not so pay, the Curing Party shall be k Ma entitled to obtain a judgment lien on the Parcel of the defaulting Owner for the amount of the invoice, which amount shall bear interest at the Default Rate from the date of expiration of said fifteen(IS)day period until paid. secion 5.4 Taxes ., The Owner of each Parcel in the Project shall pay or cause to be paid, prior to delinquency, direct] the y to appropriate taxing authorities all real property taxes and assessments which are levied against such Owner's Parcel. In the event an Owner Fails to pay when due all taxes and assessments described herein, which failure continues for a period of ten (10) days after written notice thereof, such failure shall constitute a breach under these ECC&Rs and either Consenting Owner(the"Curing Party') may, in addition to such Owners' other remedies, thereafter pay such 36 ECCRW 10MOC MN 11111112207 231 shellw VWWs-Ytilattn Co WT ntsc 222.00 taxes if such taxes are delinquent and the owing Owner has not commenced and is not duly prosecuting any contest of such taxes. The Curing Party shall there invoice the defaulting Owner for the expenses incurred. The defaulting Owner shall have ten (10) business days after receipt of the invoice to pay the Curing Party. If the defaulting Owner does not so pay, the Curing Party shall have a lien on the Parcel of the defaulting Owner for the amount of the invoice, which amount shall bear interest at the Default Rate from the date of expiration of said ten(10)business day period until paid. Section 5.5 Insurance: (A) Insurance Coy=g: Each Owner in the Project shall at all times maintain or cause to be maintained with respect to its Parcel and all Buildings and Improvements thereon and by any contractor during any construction activity on such Owners Parcel, at least the minimum insurance coverage set forth below: (i) Workefs Compensation and Employer's Liability Insurance. (a) Worker's compensation insurance as required by any applicable law or regulation. (b) Employer's liability insurance in the amount of S2,000,000 each accident N for bodily injury, $2,000,000 policy limit for bodily injury by disease and $2,000,000 each Ns a employee for bodily injury by disease. (h) Commercial General Liability insurance with the following minimum � x limits of liability and coverages: (a) Premises and Operations; d (b) Products and Completed Operations; (c) Contractual Liability (insuring the indemnity obligations assumed by any ~ contractor working on an Owner's Parcel under contract documents); > (d) Broad Form or Special Form Property Damage, including Explosion, Collapse and Underground Hazards or Earthquake, for the full replacement cost of Buildings and Improvements on an Owner's Parcel (including Completed Operations): (1) $2,000,000 for Bodily Injury and Property Damage each occurrence; (2) $3,000,000 for Personal and Advertising Injury Liability, (3) $5,000,000 aggregate for Products and Completed Operations; 37 ECCW%V 10.D0C 2207231 110 2 40 of ; 111111111101 101 =7/2006 1 10 Shelley Vanoe-hlallatln Ce R1 RISC 392.00 (4) $5,000,000 general aggregate. (e) Automobile Liability Insurance. Automobile liability insurance (bodily injury and property damage liability) including coverage for owned, hired, and non-owned automobiles, shall have limits of liability of not less than S 1,000,000 combined single limit each accident for bodily injury and property damage combined. (f) Umbrella/Excess Liability Insurance. Each Owner shall also carry umbrella/excess liability insurance in the amount of$5,000,000. (B) Insurance Coverage: The policies of insurance as required in Section 5.5(A) shall be provided by insurance companies rated at least B+NII and licensed in the State of Montana, shall name every other Owner in the Project as an additional insured, and shall provide that such insurance shall not be canceled or reduced in an amount or coverage below the requirements of these ECC&Rs without at least thirty (30) days prior written notice to the additional insureds. All insurance may be provided under(i)an individual policy covering this location, (ii)a blanket policy or policies which includes other liabilities, properties and locations of such Owner, provided, however, that if such blanket commercial general liability insurance policy or policies tl0 contain a general policy aggregate of less than $10,000,000.00, then such insuring Owner shall n^ also maintain excess liability coverage necessary to establish a total liability insurance limit of $10,000,000.00, (iii) a plan of self-insurance, provided that such Owner or its parent has $ S 100,000,000.00 or more of net current assets, or (iv) a combination of any of the foregoing insurance programs. To the extent of any deductible carried by an Owner, such Owner shall be deemed to be covering the amount thereof under an informal plan of self-insurance; provided, s however, that in no event shall any deductible exceed $250,000.00 unless (a) such Owner MrE t� 3 complies with the requirements regarding self-insurance pursuant to (iii) above or (b) such Owner or its parent maintains net current assets in excess of$100,000,000.00. Each Owner 1� agrees to furnish to any party requesting in writing the same, a certificate(s) of insurance : evidencing that the insurance red to be carried b such is in full > y party foroe and effect. t S: on 5.6 Fadur to CAm Insurance: In the event an Owner in the Project fails to maintain the insurance described above, which failure continues for a period of ten (10) days after written notice thereof, such failure shall constitute a breach under these ECC&Rs and either Consenting Owner(they"Curing Party")may, 38 ECCRkV 10 DOC 11111110 2207231 1111 1912712M 11;Y7A 040110y Vav*41allatin Cc Mt HISe U2.N in addition to such Owners' other remedies, thereafter obtain and pay for such insurance. The Curing Party shall then invoice the defaulting Owner for the expenses incurred. The defaulting Owner shall have fifteen (15) days after receipt of the invoice to pay the Curing Party. If the defaulting Owner does not so pay, the Curing Party shall have a lien on the Parcel of the defaulting Owner for the amount of the invoice, which amount shall bear interest at the Default Rate from the date of expiration of said fifteen(15)days period until paid. Section 5.7 Cross indemnity: To the extent not covered by the insurance policies described above, each Owner (the "Indemnitoe) will pay, and indemnify and save harmless the other Owner (the "Indemnitoe") from and against, all liabilities, losses, damages, costs, expenses (including attorneys' fees and expenses and excluding punitive damages),causes of action,suits,claims,demands or judgments of any nature arising from: (i) any injury to or death of a person or loss of or damage to property occurring on the Indemnitor's Parcel; (ii) any use or condition of the Indemnitor's Parcel; and (iii) any gross negligence or intentional tortious acts of the Indemnitor or any of his tenants, g licensees, invitees, customers, agents or employees, except to the extent that such causes of �+ action, suits, claims,demands or judgments arise out of the negligence or intentional misconduct of the Indemnitee. N=s Selajon 5.8 Waiver of Subrogation: 8 Each Owner in the Project (the "Releasor") hereby releases the other Owner (the "Releasee") lttttttttt: from any and all liability or responsibility to the Releasor or anyone claiming through or under >w� g the Releasor by way of subrogation or otherwise for any incurred loss or damage to any person or r, property caused by fire or other peril or other such loss da mages, or other insured event or 8 negligence of the Releasee, or anyone for whom such Releasee may be responsible; provided, s however, that this release shall be applicable and in force and effect only with respect to loss or � g o damage occurring during such time as the Releasor's policy or policies of insurance shall contain _ a waiver of subrogation endorsement, to the effect that any such release shall not adversely affect or impair said policy or policies or prejudice the right of the Releasor to recover thereunder. 39 ECCR'sV10 DOC 111111 2207231 Be 1101111111 21 2000 11:870 lM11�1r Yaneo-14116tln Co Rr M20C M.00 ARTICLE VI DEFAULT.REMEDIES R THE PROJECT Section 6.1 Default: The occurrence of any one or more of the following events shall constitute a breach of these ECC&Rs by the non-performing party(the"defaulting Owns"); (A) The failure to perform any obligation of Article V hereof and to cure such failure within the time requirements cited therein which shall be a breach under these ECC&Rs without necessity of any further notice to the defaulting party other than as provided for in Article V; (B) The failure to make any payment required to be made hereunder within ten (10) business days of the due date which shall be a breach under these ECC&Rs which shall be a breach under these ECC&Rs, or (C) The failure to observe or perform any other of the covenants, conditions or obligations of these ECC&Rs or to abide by the restrictions and requirements herein provided, other than as described in (A) above, which shall be a breach under these ECC&Rs after expiration of thirty (30) days after the issuance of a notice by a non-defaulting Owner ("Non- Defaulting Owner")specifying the nature of the default claimed. Section 6•2 Remedies for all Off: Each non-defaulting Owner shall have the right to prosecute any proceedings at law or in equity against any Owner or any other person for breach of any easement or restriction benefiting such Nd s non-defaulting Owner. Such proceeding shall include the right to restrain by injunction any such violation or threatened violation and to obtain a decree to compel performance of any such easements or restrictions but shall not include an remedy for punitive damages.i g Y Y >?u � No Permittee shall have the right to bring any action to enforce any provision of these ECC&Rs and no enforcing Owner shall have the obligation to join any Permittee in any action to enforce these ECC&Rs. a Section 6.3 Right to Cure: > With respect to any default under Section 6.1, any Non-Defaulting Owner who is a Consenting r Owner(the"Curing Owner") shall have the right, but not the obligation, to cure such default by the payment of money or the performance of some other action for the account of and at the expense of the defaulting Owner (except as otherwise limited in Article V); provided, however, 40 FCCR'sV 10.DOC 31 2203 o of Paso:4/22 of 64 8l27/2006 t L 07A !!will!!!! M." that in the event the default shall constitute an emergency condition involving an immediate and imminent threat of substantial injury or harm to persons or property, the Curing Owner,acting in good faith, shall have the right to cure such default upon such advance notice as is reasonably possible under the circumstances or, if necessary, due to such emergency, without advance notice, so long as notice is given as soon as possible thereafter. To effectuate any such cure, the Curing Owner shall have the right to enter upon the Parcel of the defaulting Owner(but not into any Building) to perform any necessary work or furnish any necessary materials or services to cure the default of the defaulting Owner. Each Owner shall be responsible for the non- performance or default of its Occupants and lessees. In the event any Curing Owner shall cure a default, the defaulting Owner shall reimburse the Curing Owner for all costs and expenses incurred in connection with such curative action, plus interest at the Default Rate, within ten(10) business days of receipt of demand, together with reasonable documentation supporting the expenditures made. m g Section 6.4 Cure Right Easements. Each Owner in the Project hereby grants to the other Owners an easement and license to enter woe upon its Parcel for the purpose of exercising the cure rights provided under Article V of these ECC&Rs. Each Grantoe of the easements granted under this Section 6.4 shall defend, indemnify CL s and hold Grantor harmless from and against all liens, losses, liabilities, costs 'or expenses (including reasonable attorney's fees and excluding punitive damages) incurred in connection l� x with or arising out of Grantee's use of said easements, except to the extent occasioned by the Grantor's grossly negligent or intentional wrongful act or omission to act. The duration of the tllr easements granted under this Section shall be coterminous with the respective provisions of the ECC&Rs which give the Grantee the right or the obligation to perform the work described in this �s Section 6.4. C Section 6.5 Ll=: Costs and expenses accruing and/or assessed pursuant to Section 6.3 above and the amounts described in Section 6.1 shall constitute a lien against the defaulting Owner's Parcel. A lien under this Section 6.5 or under Article V shall attach and take of ect only upon recordation of a claim of lien in the applicable real estate records office of the county in which the said Parcel is located, by the Curing Owner or Curing Party making the claim. A lien may attach only after a 41 I � 2207231 M 11111I11111101111M 2M 1.07P 8h@11WV UMee.Oell6tln Ce MT MISC 292.00 final and non appealable judgment has been granted awarding a lien. The claim of lien shall include the following: (A) The name and address of the lien claimant; (B) A statement concerning the basis for the claim of lien and identifying the lien claimant as a Curing Owner and/or Curing Party, (C) An identification by name and address(if known) of the Owner or reputed Owner of the Parcel or interest therein against which the lien is claimed; (D) A description of the Parcel against which the lien is claimed; (E) A description of the work performed which has given rise to the claim of lien; (F) A statement itemizing the total amount due, including interest; (G) A statement that the lien is claimed pursuant to the provisions of these ECC&Rs, reciting the date,book and page of recordation hereof. The notice shall be duly acknowledged and contain a certificate that a copy thereof has been g served upon the Owner against whom the lien is claimed, by personal service or by mailing �o pursuant to Section 7.4 below. 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 N � law, including without limitation, suit in the nature of a suit to foreclose a mortgage or mechanic's lien under the applicable provisions of the law of the State in which the Shopping Center is located. 1� X Section 6.6 Cumulative Remedies: E All of the remedies permitted or available to a Consenting Owner under these ECC&Rs 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 6.7 No Waiver: No delay or omission of any Owner in the exercise of any right accruing upon any default of any other Owner shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. No waiver by any Owner of any default under these ECC&Rs shall be effective or binding on such Owner unless made in writing by such Owner and no such waiver shall be implied from any omission by an 42 Bacn'ovlo.00C 2207231 1111111M1111 1012 20 01 156 :10127/2m06 /1:07A Shelley V—"4118tln CO MT MIOC 302.00 Owner to take action in respect to such default. No express written waiver of any default shall affect any other default or cover any other period of time other than any default and/or period of time specified in such express waiver. One or more written waivers or any default under any provision of these ECC&Rs shall not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other term or provision contained in these ECC&Rs. Section 6.8 No Termination for Breach: No breach, whether or not material, of the provisions of these ECC&Rs shall entitle any Owner to cancel, rescind or otherwise terminate these ECC&Rs, but such limitation shall not affect, in any manner, any other rights or remedies which any Party may have hereunder by reason of any breach of the provisions of these ECC&Rs. Section 6.9 L.itnitation of Liabilityon Transfer,of Title: Notwithstanding the foregoing, any person acquiring fee or leasehold title to a Parcel, or any portion thereof, shall be bound by these ECC&Rs only as to the Parcel or portion of the Parcel acquired or possessed by such person. In addition, such person shall be bound by these ECC&Rs only during the period such person is the fee leasehold Owner or occupant of such Parcel or !r portion of the Parcel; and, upon conveyance or transfer of the fee or leasehold interest shall be F -• o= released from liability hereunder, except as to the obligations, liabilities or responsibilities that accrue� prior to such conveyance or transfer. Althoughj P � persons may be released under this N Section 6.9, the easements, covenants and restrictions in these ECC&Rs shall continue to be benefits to and servitudes upon said Parcels running with the land. Section 6.10 AttornM Fees: as S In the event of a breach hereof,the non-prevailing Owner shall pay the reasonable attorney's fees !< of the prevailing Owner. 3 ARTICLE VII l� MISCELLANEOUS Section 7.1 Estgpnel Certificates: Each Owner in the Project shall upon not less than thirty(30) days from receipt of written notice from the requesting Owner execute and deliver to the requesting Owner a certificate in recordable form stating that (i) either these ECC&Rs are unmodified and in full force and effect 43 ECMV IO.DOC 2207231 111111 IN1111 2 ei2 �2eoe 11:ern $Miley Y&MM-4e1lath Ce MT N1eC 392 M or are modified (and stating the modification); and (ii) whether or not such Owner has sent any notice of any default to any other Owner under these ECC&Rs. Section 7.2 Term and PernetW : The agreements, conditions, covenants, and restrictions created and imposed herein shall be effective upon the date hereof and shall continue in full force and effect, to the benefit of and being binding upon all Owners, their heirs, executors, administrators, successors, successors-in- title, and assigns until the expiration of sixty (60) years from the date hereof, unless terminated by the consent of all the Owners pursuant to a writing recorded in the real property records of the county and state in which the Project is located. Said agreements and restrictions shall be unaffected by any change in the ownership of any real property covered by these ECC&Rs or by any change of use, demolition, reconstruction, expansion or other circumstances, except as specified herein. Notwithstanding the foregoing, the easements contained herein binding and benefiting the Parcels shall be perpetual and shall run with the land. Upon termination of the agreements, conditions, covenants and restrictions of these ECC&Rs, all rights and privileges g derived from and all duties and obligations created and imposed by the provisions of these co r:: ECC&Rs, except as related to the easements cited and mentioned herein, shall terminate and I: have no further force or effect. N d Section 7.3 Amendment: These ECC&Rs may not be amended except by agreement of the Consenting Owners in writing. Any amendment that would materially and substantially change the easements granted under x Article 2, the uses permitted under Article 3, or the development requirements of Article 4 shall r, require the prior written consent of any Owner reasonably likely to be materially adversely 8 impacted by such amendment, which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30 day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten(10)days, such Owner will be deemed to have consented to the request(s)of the requesting Owner. If such Owner does not respond to the second notice within ten(10)days of receipt thereof, such Owner is deemed to have consented. 44 EOCR'IV IO,DOC 1111 2207231 Pagel 47 of 54 121271Z 11:87Section 7.4 Nook&$ Shelly Y*ra*-psllatln ce MT Fu Any notice or invoice required or permitted to be given under these ECC&Rs shall be in writing and shall be deemed to have boar given upon deposit in the United States Mail as Certified Mail, Return Receipt Requested, postage prepaid or deposit with a nationally recognized overnight delivery service, and addressed to the Party being notified at the address given below (or such other address which any party may designate for itself from time to time hereafter by written notice to the other Party). Upon change of ownership of any Parcel,the new owner shall provide notice to the Consenting Owners of such change. Saccoccia II: Saccoccia II, LLC Philip Saccocia,Jr. 1234 Springhill School Road Belgrade,MT 59714 With a copy to: Donald E.Theriot Bordelon, Hamlin and Theriot 701 South Peters St. New Orleans, LA 70130 Saccoccia III: Saccoccia III, LLC e4 o Philip Sac cocia,Jr. 1234 Springhill School Road No Belgrade, MT 59714 With a copy to: Donald E. Theriot Bordelon,Hamlin and Theriot t� g 701 South Peters St. New Orleans, LA 0130 Lowe's: Lowe's HIW, Inc. Box 1111 r (Highway 268 East,North Wilkesboro,North Carolina 28659) North Wilkesboro,North Carolina 28656-0001 Attention: Property Management Dept.(REO) i 45 ECCR'sv 10 DOC 22072312 A Dwllw Vanon-Gallatin Co MT NS/C U2 N Copy to: Lowe's H1W, Inc. Box 1111 (Highway 268 East,North Wilkesboro,North Carolina 28659) North Wilkesboro,North Carolina 28656-0O0I Attention: Legal Department(REO) SectiQ�.5 Ground Lessee Assignment: The rights and obligations of any Owner hereunder may be assigned in whole or in part to one or more ground lessees which rights and obligations shall be expressly assumed by such ground lessee or lessees for the term of the ground lease or leases between such Owner and such ground lessee or lessees. Section 7.6 No CQv_ =t to Continuouslyperate The Owner of the Lowe's Parcel is not obligated to continuously operate a business on the Lowe's Parcel and, specifically, is not obligated to continuously operate or operate for any specific period of time a Lowe's building supply or home improvement retail warehouse or any store on the Lowe's Parcel. Nothing contained in these ECC&Rs shall be construed, interpreted or otherwise read to require the Owner of the Lowe's Parcel to operate a business on the Lowe's Parcel or to prevent the Owner of the Lowe's Parcel from closing its business on the Lowe's Parcel. c g� Section 7.7 Severabili !6ty: F � In the event any provision or portion of these ECC&Rs is held by any court of competent Ns k jurisdiction to be invalid or unenforceable, such holding will not affect the remainder hereof and gthe remaining provisions shall continue in full force and effect to the same extent as would have w been the case had such invalid or unenforceable provision or portion never been a part hereof Section 7.8 No Public Dedication: u� Nothing contained herein shall be deemed or implied to be agift,! � g p grant or dedication of the Project, the Shopping Center, or any portions thereof, to the general public, or for any public use i or purpose whatsoever. Except as may be specifically provided herein, no right, privileges or i immunities of any Owner hereto shall inure to the benefit of any third-party, nor shall any third- = party be deemed or considered to he a beneficiary of any of the provisions herein contained. 46 BOCRIV IOAOC III III YID III 1u III 1IN III 111 Ill 1M 2207 of Be 231A Section 7.9 Count arts: Bhellw Yews a.i►.t►n co err n19c ate.M These ECC&Rs may be executed in one or more counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same instrument. Section 7.10 Relationshig of the Parties: Nothing contained herein shall be construed or interpreted as creating a partnership, joint enterprise or joint venture between or among the Parties hereto or the Owners. It is understood that the relationship between the Parties hereto and Owners is an arms length one that shall at all times be and remain that of separate owners of real property. No Party hereto nor any Owner shall have the right to act for or on behalf of another Party or Owner, as agent or otherwise, unless expressly authorized to do so by separate written instrument signed by the Party or Owner to be charged or bound,except as otherwise specifically provided herein. IN WrMESS WHEREOF, the Parties hereto have executed and delivered these ECC&Rs as of the day and year first written above. [Remainder of Page Left Intentionally Blank; Signatures on Following Pages] rc ms� s rc 47 60CR'sV 10AOC 0007MM'Eas.msnK covenant&CondtmDns ara RmanKws I 2207231 ImillI1pN2'1 of 20� 11:17A aMllw Varwe-9alletin CD MT MIfC yyz,p. Signature Page for Lowe's(ECC&Rs): LOW E'S: Lowe's HIW, Inc., a Washington corporation Attest: t'00- 'J- By: =4 By: 0 7l►�K.t4b"f Name: n D. Bennett Name: Title: stant Sec""r Title: �d E. Shdtm W5 Senor We President io STATE OF NORTH CAROLINA ) )ss. COUNTY OF WILKES ) ON THIS pn day of A10 bet^ 2005, before me, the undersigned, a Notary Public in and for said County and State, personally appeared v,J L Shp Il-ni , to me personally known to be the person described in and who executed the foregoing instrument, who, being by me first duly sworn, stated that he/she is the 40 of LOWE'S HIW, INC., a Washington corporation, and that he/she executed such instrument on o behalf of said corporation by authority of its board of directors,and said person acknowledged to m�I me that he/she executed such instrument as the act and deed of said corporation. N � 1N WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the is day and year last above written. ' Notary P c i� Si Printed Name: OF1WtsEU Mac SHEM H.VMWY IF My Commission Expires: � A AM R&C-10 CAROLM d oaW OF WMs ` -Ia-08 Ca+..ra � r 48 ECCR'sV 10.IDW 11�N�INI II I�NI IN 11111122027231 Signature Page for Saccoccia II it satin Co MT MIx an a SACCOCCIA II: By: N Title: STATE OF _ ) )ss. COUNTY OFr it l ) ON THIS Z&day of _ , 2005befor me, the undersigned, a Notary Public in and for said County and State, personally appeared ��. C; �C✓ to me personally known to be the person described in and who executed the foregoing instrument, who, being by me first duly sworn, stated that he/she is the of5�a_dcclo.I,qpk`5 M, a d'VVrtd[*, I I f. _ and that he/she executed Instrument on behalf of said corporation by authority of its board of directors, and said person acknowledged to me that he/she executed such instrument as the act and deed of said corporation. �� co a IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. N . Notary Public kt"\ gas Printed Name: .mom a IV My Commission Expires:(X•�? j(.1Uvi Krrs Harriman Notary Public for the Stale of Mont&ne 9es:oing at Bozeman Montana Q`5 NARR/�� MY COm rn'941On Expire,,Auvuer 12,;?r*fi SEAL OF tAo�4 49 ECCR•sv to.Doc 2207231 ONO 62 IN11 10 271"06r156 p7A Signature Page for Saccoccia III(ECC&Rs): iMllw Vanoe- 01181ln CO MT RISC ss: eo SACCOCCIA AI: By: Name" n.u.C>C• Title: M yaw Isc�• c� t.n .. R— STATE OF _ } ss. COUNTY OFn ) ON THIS 1±day of GE)JkV , 200irbefore me, the undersigned, a Notary Public in and for said County and State, personally appeared� '�ptLAq&.Z✓_ to me personally known to be the person described in and who executed the foregoing N instrument, who, being by me first duly sworn, stated that he/she is the of COCC a to2nAI & 11.4 _ . and that he/she executed c instrument on g behalf of said corporation by authority of its board of directors, and said person acknowledged to me that he/she executed such instrument as the act and deed of said corporation. N4 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the != s day and year last above written. Notary Public g Printed Nance: Y-t\54f WV My Commission Expires:0fi?,.�-Ouj Kris Harriman VlotarV Pubur,for the state of Montana I;esillm7 it Montana .\5 t1 A R R. i� My CiORII11If-wi Fxpims..August 12,2006 * SEAL ., *: � N ;. OF t-AOt' so WCR'sV 10.u0C &JEJ 1I111 JIJJ]JI JJJ jjfj[J[ ]J[j II jjJ 220�256 31A Schgdu ONll*y VOnoO-40110t1n CO PIT RISC 392.D0 Legal Description Lowe's Parcel Lot 2B1 of Certificate of Survey 121 S G located in Section 1,Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana. Q LO mom o � o IN Na� _ � U rrrir �, m I Illfl�I�III'lfll I�IIII 11�II�I�II��I�II I� I�rlf l i�ll�� 22.07231 SPSCIBy VA1bq-G&.1Lt11 Co I- '11EC 392 0C Schedule 11 Legal Descriptions Seller Commercial Parcel and Seller Adjacent Parcel Lot 2132 of Certificate of Survey 1215 G, located in Section 1, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana divided and referred to as follows: SELLER COMMERCIAL PARCEL LEGAL DESCRIPTION Beginning at the Northwest corner of Section 1, Township 2 South, Range 5 East, P.M.M.; thence S86°5922"E along the North line of said Section 1, a distance of 796.36 feet; thence leaving said section line, SO1°49'03"W a distance of 377.60 feet; thence N88°10'57"W a distance of 796.18 feet a point on the West line of said Section 1; thence N01149'03"E along said West line a distance of 394.18 feet to the Point of Beginning. Said tract contains 7.05 acres, more or less, and is subject to all easements and/or reservations and/or dedications existing, shown, or of record. SELLER ADJACENT PARCEL LEGAL DESCRIPTION Commencing at the Northwest comer of Section 1, Township 2 South, Range 5 East, P.M.M.; thence S86°5922"E along the north line of said Section 1 a distance of 796.36 feet to the Point of Beginning, thence S86°59'22"E continuing along the north line of said Section l a distance of 84.41 feet; thence leaving said Section line. S02°4453"W a distance of 60.47 feet to a point on co the southerly right of way of Baxter Lane; thence along said southerly right of way of Baxter w n 10 11"- h Lane the following two (2) courses; S86°39'20"E a distance of 197.82 feet to the beginning of a N a; 752.42 foot radius tangential curve concave to the southwest; thence along said curve a distance r4 of 296.36 feet to the NW corner of Tract 2A of Certificate of Survey (COS) 1215F, said point also being the NE corner of TRACT 1 B2 of COS 1215F; thence SO I'I 4'12"W along the westerly line of said Tract 2A of C.O.S. 1215F a distance of 1151.87 feet to the NE corner of Lot 5 of BRIDGER PEAKS VILLAGE. SL;BDIVISION, said point also being the SE corner of said Z TRACT 1 B2; thence N89°03'24"W along the northerly line of said Lot 5 a distance of 602.68 feet; thence NO1°49'07"E leaving said northerly line a distance of 83.86 feet to the beginning of a 290.00 foot radius tangential curve concave to the southeast; thence along said curve an arc 3 length of 75.92 feet; thence N 16°49'03"E a distance of 7.90 feet to the beginning of a 315.00 foot radius tangential curve concave to the northwest; thence along said curve an arc length of 82.47 feet, thence NO1°49'03"E a distance of 1045.71 to the Point of Beginning. Said tract contains 16 .17 acres, more or less, and is subject to all easements and/or reservations andd'or dedications existing, shown, or of record. iilliil!!ill1�!!lilli! ►'� ; � ; �, ; 2207231 !11! i�li�lJ!!lll�1�l1� C.2712065 •1. 5 •l.*y J�rc�-G�ll�t:n Co •T I'16C a f7R _92 0¢ Schedule Ill Legal Description Lot 2 Lot 2B3 of Certificate of Survev 1215_ located in Section 1, Township 2 South, Range 5 East, P.M.M., Gallatin County, montana, L N .P'- N 4-- rO� •N u 0 o a r � l L 1 O N L o I C � IlIIII�I II III I I IIIII I IIIIII� ��IIII II I IIII 2207231� Shelley Vanoa-Ga-atf- Co MT 4I6C 3512 20 x irnuruua _ �_ _ rn c.J a - _ 1 ; m � LO , J qt Boa i N N ' ir,rr � tc- _ pM 9 ,= 8 � � FF oa�ra `` 1 woMrwa. LoWE'S E Ij � ,EPIf . _ _ ! xlj3rr'