HomeMy WebLinkAboutCCRs_091421 f �' �D III��III II I I Page: 1 of 47
2165090
�IIIIIIIIIIIIIIIIII III[II�IIII III�IIII IIII III 00/20l2004 04:63P
MINOR 352 1 " Shelley Vance-Gallatin Co MT MISC 202.00
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
RED MOUNTAIN RETAIL GROUP,INC.
1234 East 17`h Street
Santa Ana,California 92701
Attention: Property Management
(Space Above for Recorder)
DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND
RECIPROCAL EASEMENTS
by
BOZEMAN SHOPPING CENTER,LLC,
a Montana limited liability company
Juneg0 2004
BOZEMAN SHOPPING CENTER
BOZEMAN,MONTANA
DOCSOC/1048541 v3/16567-0030
ir
2165090
IllllillPass: 2 of 47
IIII11111I1111 IIIIIIIIIIIIIilllll 09129/2004 04:53P
Sho11ar Vance-Gallatin Cc MT MISC 292.00
Table of Contents page
ARTICLE I DEFINITIONS...................................................................................... 1
..........
1.1 Building Area; Building Limit Line..............................................................................1
1.2 Common Area...............................................................................................................2
1.3 Common Area Maintenance Costs.............................................................. 2
1.4 Constant Dollars................................................................................... 2
1.5 Exclusive Use Area...........................................................................
1.6 Floor Area..........................:..........................................................................................3
1.7 Occupant.......................................................................................................................3
1.8 Owner............................................................................................................................3
1.9 Parcel.............................................................................................................................3
1.10 Parking Area..................................................................................................................4
1.11 Person............................................................................................................................4
1.12 Permittee.......................................................................................................... 4
1.13 Proportionate Share.......................................................................................................4
1.14 Shopping Center............................................................................................................4
1.15 Site Plan........................................................................................................................4
1.16 Utility Facilities............I................................................................................................
ARTICLE 2 EASEMENTS................................................................... 5
2.1 Ingress and Egress.........................................................................................................5
2.2 Utilities..........................................................................................................................6
2.3 Easements for Construction, Maintenance, and Reconstruction...................................7
2.4 Miscellaneous Common Area Easements.....................................................................8
2.5 Restriction.................................................................................................................. 9
ARTICLE 3 CONSTRUCTION............. 9
3.1 General Requirements...................................................................................................9
3.2 Common Area................................................................................................... 11
3.3 Building Improvements...............................................................................................I I
ARTICLE 4 MAINTENANCE AND REPAIR...........................................................................I... 12
4.1 Utility Facilities.................................................................... ...................................... 12
4.2 Operation and Maintenance of the Common Area......................................................12
4.3 Payment of Common Area Maintenance Costs............................................I............. 15
4.4 Building Improvements...............................................................................................16
4.5 Takeover of Maintenance of Common Area...............................................................17
4.6 Maintenance of Certain Portions of Common Area within an Owner's Parcel.......... 17
ARTICLE 5 OPERATION OF THE SHOPPING CENTER..........................................................18
5.1 Uses.............................................................................................................................18
5.2 Lighting.......................................................................................................................24
5.3 Signs............................................................................................................................25
5.4 Common Area Insurance and Indemnity. ...................................................................25
5.5 Building Area Insurance and Indemnity. ....................................................................26
-i-
DOCSOC/1048541 v3/16567-0030
: II II f I I
(I III III Il�li II�I�II III IIII IIIII�I III IIII IIII IIII 2165090
oh�ll�y Vano�-Gallatin Co Mt MIBC 202.00
Table of Contents page
5.6 Common Area and Building Area Construction Insurance ........................................26
5.7 ISO "Special Form"Property Insurance.....................................................................27
5.8 Waiver of Subrogation................................................................................................27
5.9 Policy Form.................................................................................................................27
5.10 Self Insurance..............................................................................................................28
5.11 Damage or Destruction to Common Area...................................................................28
5.12 Taxes and Assessments...............................................................................................28
5.13 Liens............................................................................................................................29
ARTICLE6 MISCELLANEOUS ...................................................................................................29
6.1 Default.........................................................................................................................29
6.2 Interest.........................................................................................................................31
6.3 Estoppel Certificate.....................................................................................................31
6.4 Notices. .......................................................................................................................32
6.5 Approval Rights..........................................................................................................33
6.6 Condemnation.............................................................................................................33
6.7 Binding Effect.............................................................................................................34
6.8 Singular and Plural......................................................................................................34
6.9 Counterparts and Signature Pages...............................................................................34
6.10 Negation of Partnership...............................................................................................34
6.11 Not a Public Dedication/Intended Beneficiaries.........................................................34
6.12 Excusable Delays........................................................................................................34
6.13 Severability.................................................................................................................35
6.14 Amendments ...............................................................................................................35
6.15 Captions and Capitalized Terms.................................................................................35
6.16 Mitigation of Damages................................................................................................35
6.17 Effect of Breach Upon Purchasers and Mortgagees....................................................35
6.18 Time of the Essence....................................................................................................36
6.19 No Waiver...................................................................................................................36
6.20 Litigation Expenses.....................................................................................................36
6.21 Transfers of Interest, Rights, Powers,and Obligations...............................................37
6.22 Governmental Compliance..........................................................................................38
ARTICLE 7 RECORDATION AND TERM..................................................................................39
7.1 Recordation.................................................................................................................39
7.2 Term of Declaration....................................................................................................39
-ii-
DOCSOC/1048541 v3/16567-0030
- I
I��III�II ffII {I! I Page:165090
I����1 II���l IIIeIe
09/29/2004 04.68P
Shelley Vance-Gallatin Cc MT MISC 202.00
DECLARATION OF COVENANTS,
CONDITIONS,RESTRICTIONS AND
RECIPROCAL EASEMENTS
THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL
EASEMENTS (this "Declaration') is made as of June _, 2004 ("Effective Date,% by BOZEMAN
SLOPPING CENTER,LLC,a Montana limited liability company("Declarant').
RECITALS:
A. Declarant is the fee owner of certain real property located in the County of Gallatin,
State of Montana, as shown on the site plan (the "Site Plan") attached hereto as Exhibit A, and as
more particularly described in Exhibit B attached hereto and incorporated herein by this reference
(the "Shopping Center").
B. In connection with the operation of the Shopping Center, it is necessary that
Declarant create this Declaration to provide for the common use of certain public and common
facilities erected on the Shopping Center as the same may exist from time to time and therefore
Declarant hereby declares that all of the Shopping Center shall be held, sold, conveyed, encumbered,
hypothecated, leased, used, occupied and approved subject to the easements, restrictions,
reservations, rights, covenants, conditions and equitable servitudes set forth in this Declaration for
the purpose of uniformly enhancing and protecting the value and attractiveness of the Shopping
Center and in furtherance of the general plan for the protection, maintenance and improvement of the
Shopping Center.
C. The covenants, conditions, restrictions, rights, reservations, easements and equitable
servitudes set forth herein shall run with and burden the Shopping Center and shall be binding upon
all persons having or acquiring any right, title or interest in the Shopping Center, or any part thereof,
their heirs, successors and assigns, and shall inure to the benefit of every portion of the Shopping
Center or any interest therein, and shall inure to the benefit of, and be binding upon, and may be
enforced by Declarant and each person who acquires a fee interest in the Shopping Center or any
portion thereof and their respective heirs, executors, administrators, successors and assigns.
Now, THEREFORE, in consideration of the forgoing recitals and the mutual covenants and
agreements hereinafter set forth and in furtherance of the parties' understandings and intentions,
Declarant declares as follows:
ARTICLE 1
DEFINITIONS
1.1 Building Area-, Building Limit Line. "Building Area" shall mean the areas of the
Shopping Center within which buildings (which for the purpose of this Declaration shall include any
appurtenant canopies, supports, loading docks, truck ramps and other outward extensions) may be
constructed, placed or located. Building Area shall include all areas shown within the "Building
Limit Lines" on the Site Plan. Buildings may be constructed anywhere within a Building Area
designated by a Building Limit Line and, subject to any "Maximum Building Area" designated on
the Site Plan, may be larger, smaller, or differently configured than as indicated on the Site Plan.
The intended uses indicated for the Building Areas on the Site Plan are for the convenience of the
Owners(as defined below) and are not intended to be binding.
-1-
DOCSOC/1048541 v3/16567-0030
2165090
Pao*: 5 of 47
IIII +
0912912004 04.83A
Bh�Jt�y Vano�-Gallatin Co MT MISC 252.00
1.2 Common Area. "Common Area"shall mean all areas within the exterior boundaries
of the Shopping Center, exclusive of buildings and related building canopies, support columns,
pilasters, overhangs and footings and appurtenant truck loading or delivery docks or areas, truck
tunnels, ramps and wells located within Building Areas or projecting into the Common Area.
Common Area shall include, without limitation, all those facilities within or upon the Parcels (as
defined below) for the non-exclusive use of Owners, Occupants and Permittees (all as hereinafter
defined) in common, including, but not limited to, utility lines and systems, storm drains, sanitary
sewers, Parking Areas (as defined below), Parking Area lighting, storage area for Common Area
equipment, fences, common walls, service areas, access roads, driveways, areas of ingress and
egress, sidewalk and other pedestrian ways adjacent and contiguous to buildings located on Building
Areas, areas within buildings used in connection with the maintenance of the Common Area,
roadways, landscaped areas (including planters and sprinkler systems and areas located between
sidewalks and buildings or adjacent to exterior building walls),areas containing signs or structures or
portions thereof advertising the common name given for the Shopping Center and all Building Areas
prior to construction of buildings thereon. Any enlargement of, or addition to, the Common Area as
provided herein shall be included in the definition of Common Area for purposes of this Declaration.
Notwithstanding the foregoing, Common Area shall not include Exclusive Use Areas, if any.
1.3 Common Area Maintenance Costs. "Common Area Maintenance Costs"shall mean
the total of all monies paid out during a calendar year (or partial calendar year with respect to any
partial calendar year following the initial opening of the Shopping Center) by the Declarant (as
defined below) or any third party manager for costs and expenses actually incurred for the operation,
maintenance, and repair, including replacement of worn-out portions thereof, of the Common Area in
fulfillment of the requirements of this Declaration, including, without limitation, the costs and
expenses actually incurred by the Declarant or any third party manager in fulfilling its duties under
Section 4.2 hereof, together with a fee (the "Management Fee") equal to fifteen percent (15%) of
the total of all such costs and expenses, unless such Management Fee is otherwise excluded or
reduced as set forth in a lease or other agreement. Declarant, at its option, may charge a
Management Fee more or less than the foregoing to an Occupant or Owner pursuant to a separate
agreement with such Occupant or Owner. The Management Fee shall be retained by the Declarant as
reimbursement for administrative, accounting, overhead, legal, and other similar expenses involved
with Common Area maintenance and operation(as set forth in Section 4.2), and as compensation for
its operation and maintenance of the Common Area. In its sole discretion, the Declarant may, at any
time, appoint a third party manager to manage the Common Area.
1.4 Constant Dollars. "Constant Dollars" shall mean the present value of the dollars to
which such phrase refers. Except as otherwise provided in a lease or agreement, an adjustment shall
occur on January 1 of the sixth (6th) calendar year following the date of this Declaration, and
thereafter at five (5)-year intervals. Constant Dollars shall be determined by multiplying the dollar
amount to be adjusted by a fraction, the numerator of which is the Current Index Number and the
denominator of which is the Base Index Number. The "Base Index Number" shall be the level of
the Index for the month during which this Declaration is dated; the "Current Index Number" shall
be the level of the Index for the month of September of the year preceding the adjustment year; the
"Index"shall be the Consumer Price Index for Urban Wage Earners and Clerical Workers, U.S. City
Average, Subgroup "All Items" (Base Year 1982-84 = 100), published by the United States
Department of Labor, Bureau of Labor Statistics, or any successor index thereto as hereinafter
provided. If publication of the Index is discontinued, or if the basis of calculating the Index is
materially changed, then the Declarant shall substitute for the Index comparable statistics as
computed by an agency of the United States Government or, if none,by a substantial and responsible
-2-
DOCSOC/1048541 v3/16567-0030
!I
2165 47I11IN 11111111111111111111111 Page:
IIII I
Shelley Vance-Gallatin Cc MT MtSC 2B2.00
periodical or publication of recognized authority most closely approximating the result which would
have been achieved by the Index.
1.5 Exclusive Use Area. "Exclusive Use Area", if any, shall mean that area in the
Shopping Center outside of any building (that would otherwise be considered Common Area), that
Declarant has agreed shall be set aside for the sole and exclusive use of an Occupant or Owner and
its customers.
1.6 Floor Area. "Floor Area" shall mean the actual number of square feet of space
contained on each floor within a building, including, without limitation, any mezzanine or basement
space, as measured from the exterior faces of the exterior walls or store front and/or the center line of
any common walls; provided, however, that any mezzanine storage areas not open or accessible to
the general public shall not be included in Floor Area. Within thirty (30) days after written request
from another Owner, an Owner shall certify to the requesting Owner the amount of Floor Area of
each building on its Parcel. If any Owner causes an as-built survey to be prepared with respect to
any portion of the Shopping Center, such Owner shall, upon written request, furnish a copy of the
survey to the requesting Owner for informational purposes only. During any period of rebuilding,
repairing, replacement, or reconstruction of a building, the Floor Area of such building shall be
deemed to be the same as the Floor Area of such building immediately prior to such period. Upon
completion of such rebuilding, repairing, replacement, or reconstruction, the Owner upon whose
Parcel such building is located shall cause a new determination of the Floor Area for such building to
be made in the manner described above, and such determination shall be furnished to any Owner
requesting the same. Declarant shall have the right, at no cost to Declarant and at the sole cost of the
applicable Owner, to verify or confirm the Floor Area of any building on another Owner's Parcel
from time to time after business hours and upon reasonable advance notice to such Owner for the
purpose of determining the Proportionate Share(as defined below)of such. Owner.
1.7 Occupant. "Occupant" shall mean each party and any Person (as defined below)
from time to time entitled to the use and occupancy of any portion of a Building Area in the
Shopping Center under an ownership right or any lease, sublease, license, concession, or other
similar agreement.
1.8 Owner. "Owner" shall mean any Person having or acquiring a fee title ownership in
any Parcel, or its successors in interest, as shown by the Official Records of the County Recorder of
the County in which the Shopping Center is located. Owner shall also include any Person designated
in writing by an Owner to act on behalf of such Owner in the exercise of the powers granted to such
Owner under this Declaration. Each Owner shall be liable for the performance of all covenants,
obligations, and undertakings herein set forth with respect to the portion of the Shopping Center
owned by such Owner that accrue during the period of such ownership. If a Parcel is owned by more
than one Person, the Person or Persons holding at least 5 1% of the ownership interest in the Parcel
shall designate one of their number to represent all owners of the Parcel and such designated Person
shall be deemed the Owner for such Parcel. If a Parcel is owned by more than one Person and the
Persons fail to designate a representative, then such Persons' right to vote under this Declaration
shall be suspended until such representative is designated.
1.9 Parcel. "Parcel" shall mean a separate legal lot or parcel within the Shopping Center
as shown on any recorded final map or map.
-3-
DOCSOC/1048541 v3/16567-0030
i
I II�II�IIIIIIIII�Il�l III� I Page: 7 of 47
2165090
111111111111111111111111 IN
09/29/2004 04:53P
Shall�v Vano�-Gallatin Co MT M18C 202.00
1.10 Parking Area. "Parking Area" shall mean that portion of the Common Area
designated for parking of motor vehicles, including, without limitation, incidental and interior
roadways, walkways, curbs, gutters, and landscaping within the areas used for such parking, together
with all improvements which at any time are erected thereon, but excluding Building Area truck
ramps, tunnels, and wells and truck loading or delivery areas located in the Common Area. Any
enlargement of, or addition to, the Parking Area shall be included in the definition of Parking Area
for purposes of this Declaration.
1.11 Person. "Person" shall mean and include any individual, partnership, firm,
association, joint venture, corporation, trust, limited liability company, other form of business or
government entity, or any other legal entities and trustees, heirs, executors, administrators, and other
personal representatives.
1.12 Permittee. "Permittee 11 shall mean all Occupants and any owners or occupants of the
Shopping Center granted any license, permission, easement, or other rights in or to the Shopping
Center, and the officers, directors, shareholders, partners, members, employees, agents, contractors,
customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and concessionaires of such
parties insofar as their activities relate to the intended use of the Shopping Center. The following
activities in the Common Area will not be considered to be intended uses of the Shopping Center,
and no Permittee shall be entitled to engage in the following activities: (a) exhibiting any placard,
sign, or notice; (b) distributing any circular, handbill, placard, or booklet; (c)soliciting memberships
or contributions; (d)parading, picketing, or demonstrating; or (e) failing to follow regulations
relating to the use of the Shopping Center.
1.13 Proportionate Share. Whenever an Occupant or Owner is required to pay a
"Proportionate Share" hereunder, that Proportionate Share shall be determined according to either
(i) the Building to Building Formula (as defined below), or(ii)the Land to Land Formula (as defined
below) as determined by Declarant. The building to building formula (the "Building to Building
Formula") shall be computed by multiplying the amount in question by a fraction, the numerator of
which shall be the amount of Floor Area of all buildings within the Occupant's Parcel(s) whose
Proportionate Share is to be determined, and the denominator of which shall be the Floor Area of all
buildings constructed within the Shopping Center from time to time. The land to land formula (the
"Land to Land Formula") shall be computed by multiplying the amount in question by a fraction,
the numerator of which shall be the amount of land area of the applicable Parcel for which
Proportionate Share is to be determined, and the denominator of which shall be the total land area of
the Shopping Center from time to time.
1.14 Shopping Center. "Shopping Center" shall mean the neighborhood commercial
shopping center located in the County of Gallatin, State of Montana, as depicted on the Site Plan, and
as more particularly described in Exhibit B attached hereto.
1.15 Site Plan. "Site Plan" shall mean and refer to the Site Plan attached hereto as
Exhibit A depicting the Shopping Center,
1.16 Utility Facilities. "Utility Facilities" shall mean those facilities and systems for the
transmission of utility services, including drainage and storage of surface water, relating to or
affecting the Shopping Center. "Common Utility Facilities" shall mean those facilities and systems
that are installed to provide the applicable service to the Common Areas or Building Areas on more
than one Parcel. `Separate Utility Facilities" shall mean those facilities and systems that are
-4-
DOCSOC/1048541 v3/16567-0030
II
I��III IIIII�IIII IIIII IIIII)(�II II�II�I III IIIII IIII IIII W29/2904 650953P
Shelley Vane*-Gallatin Co MT MISC 202,00
installed to provide the applicable service to Building Areas solely on a Parcel. For the purpose of
this Declaration, the portion of a Utility Facility extending between a Common Utility Facility and a
building shall be considered a Separate Utility Facility,
ARTICLE 2
EASEMENTS
2.1 Ingress and Egress. Declarant reserves and hereby establishes for the benefit of each
Owner, for its use and for the use of its Permittees, in common with others entitled to use the same, a
non-exclusive perpetual easement for the passage and parking of vehicles over and across the parking
and driveway areas of the Shopping Center, as the same may from time to time be constructed and
maintained for such use, and for the passage and accommodation of pedestrians over and across the
parking, driveways, and sidewalk areas of the Shopping Center, as the same may from time to time
be constructed and maintained for such use. Except in the event of emergency repairs, there shall be
unimpeded access between the parking and driveway areas of the Shopping Center and the buildings
in the Shopping Center. No fence, wall, or other partition shall be constructed between the Parcels
comprising the Shopping Center, except as set forth on the Site Plan. Such easement rights shall be
subject to the following reservations as well as other provisions contained in this Declaration:
(a) Temporary Closure. Declarant, for itself and each Owner, reserves the right
to limit or prohibit access to the Common Area for such reasonable period of time as may be legally
necessary, in the opinion of Declarant's counsel, to prevent the acquisition of prescriptive rights by
any Person; provided, however, that prior to restricting or prohibiting access to any portion of the
Common Area, as herein provided, Declarant shall deliver prior written notice to the Owner(s) of its
intention to do so, and shall use commercially reasonable and diligent efforts to coordinate such
closing with the Owners so that no unreasonable interference in the passage of pedestrians or
vehicles shall occur.
(b) Exclusion of Non-Penmittees. Declarant, for itself and each Owner, reserves
the right at any time, and from time to time, to exclude, eject, or restrain any Person who is not a
Permittee from using its portion of the Common Area.
(c) Maintenance and Repairs. Notwithstanding any provisions to the contrary
contained in this Declaration, Declarant reserves the right to restrict or prohibit access to such
portions of the Common Area, including drive aisles, for such period of time as may be reasonably
necessary in order to maintain or repair such areas in the event of emergency or otherwise. Where
possible, Declarant shall cause such maintenance or repairs to be made so that the disruption to the
business of adjacent Owners and Occupants is minimized, including, without limitation, performing
such work where commercially reasonable to do so, after normal business hours. Declarant and all
Owners and Occupants shall abide by all governmental directives, orders and mandates, including,
without limitation, any repair or closure order. Declarant shall not close any driveways nor shall
Declarant prevent access to the Shopping Center through any driveway, except to the extent
reasonably required by an emergency or by the necessity for repairs, and in such event, the affected
driveway(s) shall only be closed or partially restricted to the extent, and for the time required, to
repair or resurface such driveways in a good and workmanlike manner.
-5-
D OCSOC/10485410/16567-0030
t
21,65090
I�I�I
llllllljj !
004 04.63P
2.2 Utilities. Gallatin Cc MT MISC 282.00
(a) Utility Facilities. Declarant reserves and hereby establishes for the benefit of
each Owner and/or Occupant non-exclusive perpetual easements in,to, over, under, along, and across
those portions of the Common Area (exclusive of any portion located within a Building Area)located
in the Shopping Center necessary for the installation, operation, flow, passage, use, maintenance,
connection, repair, replacement, relocation, and removal of utilities serving the Shopping Center,
including, but not limited to, sanitary sewers, storm drains, water(fire and domestic), gas, electrical,
telephone, and communication lines, vaults, meters, transformers, pipelines, hydrants, sprinkler
controls, and conduits. Whenever feasible, Utility Facilities shall be located below the surface of the
Common Area, or below the surface of any other above-ground improvements located thereon;
provided, however, that in any event, (i)all Utility Facilities that are located above the surface of the
Common Area shall be placed so as not to interfere with, restrict, or impede other uses of Common
Area provided for herein; and (ii)no Utility Facilities that must be located above the surface of the
Common Area shall be installed upon any Parcel without the prior written consent of the Owner of
such Parcel. Whenever feasible, and subject to the approval of all applicable governmental
authorities, any Utility Facility that is located above the surface of the Common Area and that is
visible from the front entrance of any building shall be screened and/or landscaped. A grantee
Owner shall be entitled to request from a grantor Owner the right to install a Utility Facility across
the Common Area of the grantor Owner's Parcel. Prior to exercising the rights granted herein, the
grantee Owner shall first provide the grantor Owner with a written statement describing the need for
such easement, shall identify the proposed location of the Utility Facility, and shall furnish a
certificate of insurance showing that its contractor has obtained the minimum insurance coverage
required by this Declaration. Any Owner installing Separate Utility Facilities pursuant to the
provisions of this subparagraph shall pay all costs and expenses with respect thereto (including all
maintenance and repair costs and expenses in connection therewith), and shall cause all work in
connection therewith (including general clean-up and proper surface and/or subsurface restoration) to
be completed as quickly as possible (and in any event within a commercially reasonable time) and in
a manner so as to minimize interference with the use of the Common Area. If the Owners elect to
install Common Utility Facilities, all repair, maintenance, replacement, and other work thereon shall
be performed by the Declarant as part of Common Area maintenance.
(b) Location and Relocation. The initial location of any Utility Facility shall be
subject to the prior written approval of Declarant. The easement area shall be no wider than
necessary to reasonably satisfy the requirements of the utility-providing agency, or five (5) feet on
each side of the centerline if the easement is granted to an Owner. Upon request from the grantor(s),
the grantee shall provide to the grantor(s) a copy of an as-built survey showing the location of such
Utility Facility. The grantor(s) shall have the right at any time to relocate a Utility Facility upon
thirty (30) days' prior written notice, provided that such relocation. (i) shall not interfere with or
diminish the utility service to the grantee; (ii) shall not reduce or unreasonably impair the usefulness
or function of such Utility Facility; (iii) shall be performed without cost or expense to the grantee;
(iv) shall be completed using materials and design standards that equal or exceed those originally
used; (v) shall be performed so as to cause the least disruption reasonably possible under the
circumstances to the business of any Owner or Occupant; and (vi)shall have been approved by the
provider of such service and the appropriate governmental or quasi-governmental agencies having
jurisdiction thereof. Documentation of the relocated easement area, including the furnishing of an
"as-built" survey, shall be at the grantor's expense and shall be accomplished promptly upon the
completion of the relocation.
-6-
DOCSOC/10485410/16567-0030
II
1
ll!llll!!II!Illl!II!!!!!!!!I!!I!I!!IIlllll!llllll!I I!!I ?i
sg�47
0
O9,28/200 04.63P
Shelley Vance-Gallatin Cc MT MISC 292.00
(c) Surface Drainage. Declarant, for the benefit of itself and each Owner and/or
Occupant, reserves and. hereby establishes the perpetual right and easement to discharge surface
storm drainage and/or runoff from each Parcel over, upon and across the Common Area upon the
following conditions and terms:
(i) The Common Area grades and the surface water drainage/retention
system for the Shopping Center shall be constructed in conformance with the plans and specifications
approved by Declarant;and
(ii) No Owner or Occupant shall alter or permit to be altered the surface
of the Common Area or the drainage or retention system constructed on its Parcel if such alteration
would materially increase the flow of surface water onto an adjacent Parcel either in the aggregate or
by directing the flow of surface water to a Iimited area. In such event, the offending party shall, at its
sole cost and expense, restore the Common Area and repair any damage to the adjacent Parcel(s)
caused thereby.
The surface water collection, retention and distribution facilities within the Common Area
shall be deemed Common Utility Facilities.
2.3 Easements for Construction Maintenance and Reconstruction.
(a) Foundations and Footings, In order to accommodate any footings,
foundations, columns, or walls which may be constructed or reconstructed immediately adjacent to a
common boundary line and which may overlap such common boundary line, Declarant, for itself and
each Owner, reserves and hereby establishes non-exclusive easements in, to, over, under, and across
that portion of each Parcel adjacent to its common boundary line in space not occupied by any
then-existing structure for the construction, maintenance, and replacement of underground footings to
a maximum lateral distance of two feet (2'), and for the construction, replacement, and maintenance
of foundations, columns, or walls to a maximum lateral distance of six inches (6") (collectively, the
"Common Boundary Line Easement Area"). This easement shall: (i) continue in effect for the
term of this Declaration and thereafter for so long as the building utilizing the Common Boundary
Line Easement Area exists (including a reasonable period to permit reconstruction or replacement of
such building if the same shall be destroyed, damaged, or demolished); (ii)include the reasonable
tight of access necessary to exercise and enjoy such grant upon terms and with the limitations
described in this Declaration; and(iii) shall not unreasonably interfere with or impair grantor's use or
development of its Parcel.
(b) Subterranean Construction. Prior to utilizing any easement set forth in
Section 2.3fa) above, the grantee Owner shall notify the grantor Owner of its intention to use such
easement, and shall furnish plans and specifications and proposed construction techniques for the
improvements to be located within the Common Boundary Line Easement Area, and shall provide
the grantor Owner an opportunity to commence any construction activities that it contemplates
undertaking to the end that each Owner involved can utilize subterranean construction techniques to
permit the placement above ground of a building on each Parcel immediately adjacent to the common
boundary line. If a common subterranean construction element is used, it is specifically understood
that the grantor and the grantee shall each assume and pay its reasonable share of the cost and
expense of the initial construction and, so long as both Owners are benefiting therefrom, subsequent
maintenance thereof. In the event any building utilizing a common subterranean construction
element is destroyed and not replaced or is removed, the common subterranean construction element
-7-
DOCSOC/10485410/16567-0030
IIIIII IIIII IIII�IIII IIIII! III II�IIII III IIIIII ICI III 21�65090
Shelley Vance-Gallatin Cc MT MISC 202.00
shall remain in place for the benefit of any building utilizing the same located on the adjoining
Parcel.
(c) No Common Walls. Nothing herein shall be deemed to create or establish a
"common" or "party" wall to be shared by buildings constructed along the common boundary line
between the Parcels.
2.4 Miscellaneous Common Area Easements. The Common Area on each Parcel may
also be used only for the following purposes related to the business and activities conducted in the
Shopping Center:
(a) Parking. Parking of motor vehicles in Parking Areas; however, in no event
shall overnight parking of motor vehicles in the Parking Areas be allowed, except that late-shift
employees of Owners and Occupants may park their motor vehicles overnight in the permitted
employee parking areas (as described in Section 5.1(e) below) if reasonably necessary in connection
with their employment responsibilities.
(b) Ingress and Egress. Ingress and egress by any of the Owners and their
Permittees and any motor vehicles of the Owners and their Permittees to and from any portion of the
Common Area and access to and from the public streets adjacent to the Common Area.
(c) Pedestrian Traffic. Pedestrian traffic by the Owners and their Permittees
between business establishments in the Building Areas, between the Building Areas and Common
Area, and Shopping Center pedestrian access to and from the public streets adjacent to the Common
Area.
(d) Temporary Construction Activity. Construction, maintenance, repair,
replacement, rearrangement, remodeling of buildings and improvements within Building Areas and
Common Area, landscaping, pedestrian walkways, and other improvements in the Common Area,
not affecting or changing the Common Area, except as permitted or required herein are permitted
under this Declaration. All such work shall be conducted in a manner to minimize interference with
use of the Common Area and the conduct of business by the Owners and Permittees, shall be
diligently prosecuted to completion, and shall otherwise be performed in compliance with the
provisions of Article 3. In connection with a work of construction performed within Building Areas,
incidental encroachment upon Common Area may occur as a result of the use of ladders, scaffolding,
storefront barricades, temporary staging and/or storage areas, and similar facilities resulting in
temporary obstruction of portions of the Common Area, all of which shall be permitted hereunder if
prior written consent of the Declarant for the use of a Staging Area (as defined in Section 3.1(c)
below) is obtained and if the use is limited to the reasonable requirements of construction work
expeditiously pursued. Common Areas may be utilized (i) for ingress and egress of vehicles
transporting construction materials and equipment and persons employed in connection with any
work provided for herein, and (ii) for temporary storage of materials and vehicles being utilized in
connection with such construction, in each case in areas designated and approved by Declarant,
subject to all of the other terms and conditions of this Declaration.
(e) Doors and Exits. The opening onto the Common Area of doors and other
exits of buildings located in the Building Areas contiguous to the Common Area.
-8-
DOCSOC/104854 10/16567-0030
IIIIIIII�IIIII�IIIiI�III 2165090
�I�Ifl IIIIIII III�IIII� 09129/2004 04:IIIIII s3P
Shelley Vance-Gallatin Cc MT MISC 2112.00
(� Foundations, Overhangs, and Canopies. Installation, repair,
replacement, and maintenance of building foundations, footings, columns, overhangs and canopies
extending from any portion of the Building Area of any Parcel, over, onto, under, and into the
Common Area; provided, however, that the same shall be subject to the approval of Declarant; and
such building foundations, footings and columns shall not extend beyond a lateral distance of two
feet(2') from the applicable Building Limit Line.
(g) Encroachments. Minor encroachments of building overhangs, canopies,
support columns, eaves, signs, pilasters, and other building columns or pillars extending from a
Building Area over, into, and onto the Common Area;provided,however, that no such encroachment
may in any event extend beyond the vertical plane of the outside edge of a sidewalk in the Common
Area adjoining a Building Area perimeter and shall not unreasonably restrict the visibility of, or
accessibility to, any building constructed or to be constructed in a Building Area. If necessary, the
Owners agree to cooperate in obtaining any lot line adjustment necessary to correct the effect of any
such minor encroachments at the cost and expense of the party causing the encroachment. All other
costs of any encroachment shall be paid by the encroaching party.
(h) Repairs, Maintenance and Replacement. Ingress, egress, and access over,
along, and under each Owner's Parcel (other than in buildings) for the purpose of effectuating any
necessary repairs, maintenance, or replacements with respect to the common non-exclusive
easements and other rights granted in this Declaration with respect to each Parcel, as permitted in this
Declaration. In such event, the party performing the work shall minimize any interference with the
other Owners and Occupants and, except in the event of emergency, shall provide reasonable
advance notice of such work.
2.5 Restriction. No Owner shall grant any easement for the purpose set forth in this
Article 2 for the benefit of any property not within the Shopping Center; provided, however, that the
foregoing shall not prohibit the granting or dedicating of easements by an Owner on its Parcel to
governmental or quasi-governmental authorities or to public utilities.
ARTICLE 3
CONSTRUCTION
3.1 General Requirements.
(a) Compliance with Laws. Each Owner agrees that(i) all construction activities
performed within the Shopping Center, (ii) any use by such Owner in the Shopping Center, and
(iii) all operations by such Owner in the Shopping Center, shall be performed in compliance with all
applicable laws, rules, regulations, orders, and ordinances of the city, county, state, and federal
government, or any department or agency thereof, including, without limitation, those relating to
zoning and Hazardous Materials (as defined in Section 5.1 i ). Each Owner shall use
commercially reasonable efforts to cause its Permittees to comply with the requirements of this
Section 3.1(a). Every building constructed in the Shopping Center shall be equipped with automatic
sprinkler systems if not considered a free standing building pursuant to local building codes or if
required to do so by applicable governmental laws and regulations. Each Owner further agrees that
its construction activities shall not: (i) cause any unreasonable increase in the cost of constructing
improvements upon another Owner's Parcel; (ii) unreasonably interfere with construction work being
performed on any other part of the Shopping Center; (iii)unreasonably interfere with the use,
occupancy, or enjoyment of any part of the remainder of the Shopping Center by any other Owner or
_g-
DOCSOC/104854 I v3/15557-0030
� 1
oilI P&G*:1�0 @
,
08129/2004 04,68P
ShS11�' V-"-- 0411SUM Cc MT MISC 202.00
its Permittees; or(iv)cause any building located on another Parcel to be in violation of any law, rule,
regulation, order, or ordinance authorized by any city, county, state, federal government, or any
department or agency thereof.
(b) Indemnification. Each Owner shall indemnify, defend, and hold the other
Owners and their respective Permittees harmless of and from any and all liability, Ioss, costs,
damage, injury, expense, allegation, or claim, including, without limitation, reasonable attorneys'
fees (collectively, "Liabilities") arising by reason of injury to or death of Persons, damage to
property or claims of lien for work or labor performed,materials or supplies furnished, arising out of,
or in connection with, use by the indemnifying Owner of the easements granted hereunder or the
exercise by such Owner of the rights granted in this Declaration, or any breach of the terms of this
Declaration or violation of applicable law, provided that such Liabilities are not due to the negligence
or intentional act or omission of the indemnitee. Any Owner may contest any lien or claim of lien
asserted against such Owner, such Owner's Parcel, or any Parcel affected by such Owner's use of
any of the easements granted hereunder or the exercise by such Owner of the rights granted in this
Declaration; provided, however, that such Owner shall pay and fully discharge any such claim of lien
within five (5) days after entry of final judgment adverse to such Owner in any action to enforce or
foreclose the same, which judgment shall be deemed final when the judgment can be enforced by
execution or judicial sale, and no such judgment shall be considered final for the purposes hereof
during the pendency of a stay of execution in connection with an appeal. If any Owner contests any
claim of lien, such Owner shall, as a condition to such Owner's right so to contest, (i)procure and
record a bond of a responsible corporate surety in such amount as may be required to release the lien
from the Parcel of any other Owner upon which such lien has been imposed, or (ii)provide such
indemnities or adequate assurances to the Owner whose Parcel is affected as may be required to
induce the title insurance company insuring the affected Parcel with respect to the proposed
transaction to issue its policy of title insurance not showing the lien claim as an exception to title to
the affected Parcel.
(c) Staging and Storage Areas. In connection with any construction,
reconstruction, repair, or maintenance on its Parcel, subject to the restrictions set forth in this
Section 3.1(c), each Owner reserves the right to create a temporary staging and/or storage area in the
Common Area on its Parcel ("Staging Area") at such location as will not unreasonably interfere
with access between such Parcel and the other areas of the Shopping Center. Prior to the
commencement of any work requiring the establishment of a Staging Area in the Common Area on
its Parcel, an Owner shall furnish the Declarant at least thirty (30) days' prior notice of its intent to
utilize the Staging Area. All storage of materials and the parking of construction vehicles, including
vehicles of workers, shall occur only in the applicable Staging Area. The applicable Staging Area
shall be located as set forth on the Site Plan, or if no Staging Area is set forth thereon for a particular
building, the applicable Staging Area shall be determined by Declarant in its sole, but good faith
discretion. Upon completion of such work, the constructing Owner shall restore the affected
Common Area to a condition equal to or better than that existing prior to the commencement of such
work.
(d) TemporM License. Each Owner hereby grants and conveys to each other
Owner and to its respective contractors, subcontractors, materialmen, and laborers a temporary
license for access and passage over and across the Common Area of the grantor's Parcel as shall be
reasonably necessary for the grantee to construct and/or maintain improvements upon the grantee's
Parcel; provided, however, that such license shall be in effect only during periods when actual
construction and/or maintenance is being performed, and provided further that the use of such license
-10-
DOCSOC/1048541 v3/16567-0030
2165090
Pao*: 14 of 47
e9/29 i2o0a ma.b3P
Shelley Vance-Gallatin Co MT MISC 282.00
shall not unreasonably interfere with the use and operation of the Common Area by other Owners or
Permittees that are operating in the Shopping Center. Prior to exercising the rights granted herein,
the grantee shall first provide the grantor with a written statement describing the need for such
license, and shall furnish a certificate of insurance showing that its contractor has obtained at least
the minimum insurance coverage required by this Declaration. Any Owner availing itself of the
temporary license shall promptly pay all costs and expenses associated with such work, shall
diligently complete such work as quickly as possible, and shall promptly clean the area and restore
the affected portion of the Common Area to a condition which is equal to or better than the condition
that existed prior to the commencement of such work. Notwithstanding the foregoing, in the event a
dispute exists between the contractors, subcontractors,materialmen, laborers, suppliers, and/or others
connected with construction activities, each Owner shall have the right to prohibit the contractors,
subcontractors, materialmen, laborers, suppliers, and/or others performing work for another Owner
from using the Common Area on the prohibiting Owner's Parcel.
3.2 Common Area. The Common Area of the Shopping Center shall be initially
configured as shown on the Site Plan. Except as otherwise set forth in this Declaration, Declarant
shall have the right to make changes to the Site Plan so long as the changes do not materially and
adversely affect any Owner or Occupant.
(a) Lighting. The Common Area lighting shall be controlled by Declarant. The
type and design of the Common Area light standards shall be approved by Declarant. Outside
metered controls shall be provided for landscape irrigation systems, electrical service to Shopping
Center signs and Parking Area lighting. Occupants with lighting requirements that exceed those of
other Occupants (such as 24-hour lighting or brighter lights) shall bear such costs of excess lighting,
including, without limitation, the cost of separate meters, as more fully set forth in Section 4.2 d
below. Except as otherwise set forth in this Declaration, Declarant shall make a reasonable and
equitable allocation among the Occupants and Owners of all lighting charges relating to the Common
Area.
(b) Materials. All sidewalks and pedestrian aisles shall be concrete or other
materials approved by Declarant; the Parking Area, drives, and access roads shall be designed in
conformity with the recommendations of a registered soils engineer approved by Declarant which
shall require the installation of a suitable base and the surfacing with an asphaltic concrete or
concrete wearing material.
(c) _Underground Utility Facilities. Utility Facilities that are placed underground
shall be at depths designated by consultants approved by Declarant. Outside metered controls shall
be provided for landscape irrigation systems and electrical service to Shopping Center signs.
3.3 Building Improvements.
(a) Limited to Building Areas. Subject to the provisions regarding
"Encroachments" and "Foundations, Footings, Overhangs, and Canopies" contained Section 2.4(f)
and Section 2.4 above, all buildings shall be located only within the Building Areas and Building
Limit Lines designated on the Site Plan, and the Maximum Building Area designated for any
Building Area shown on the Site Plan shall not be exceeded.
(b) Architectural Theme. Declarant has established an architecturally compatible
theme for the exterior of all buildings to be constructed, placed, or located within the Shopping
-11-
DOCSOC/1048541 v3/16567-0030
ll�lll I III II�II Il�li�IIIII I�1 IIII II III I�IIII III I��I Paso: 15 of 47
21650953
ShalLay Vance-Gallatin Ca MT M1SC 282.00
Center. In order to ensure compliance with such theme, each Owner shall submit to Declarant
detailed plans ("Plans') covering the construction of each building and any additions, remodeling,
reconstruction or other alteration that changes the exterior thereof for approval prior to the
commencement of any such work. Upon the issuance of any disapproval or recommendation for
change, the submitting Owner and Declarant shall mutually consult to establish approved Plans for
the proposed work. Declarant may, in its reasonable discretion, withhold approval of the Plans or
recommend changes in the Plans. Declarant may withhold approval of exterior remodeling or
exterior reconstruction in its sole discretion if the result would be to enlarge or change an existing
structure or affect the architectural theme of the structure. From time to time, Declarant may
establish design criteria for the exterior of all buildings to be constructed on the Shopping Center. In
no event shall Declarant require any other Owner to utilize design standards superior to those utilized
by the Declarant in the construction of buildings on its Parcel. Approval of Plans by the Declarant
shall not constitute assumption of responsibility for the accuracy, sufficiency, or propriety thereof,
nor shall such approval constitute a representation or warranty that the Plans comply with applicable
laws.
ARTICLE 4
MAINTENANCE AND REPAIR
4.1 Utility Facilities.
(a) Maintenance of Separate Utility Facilities. Each Owner shall maintain and
repair, or cause to be maintained and repaired, in a good and safe condition, all Separate Utility
Facilities utilized by such Owner regardless of where located. Any maintenance and repair of
non-dedicated utilities located on another Owner's Parcel shall be performed only after thirty (30)
days' notice to the Owner of the Parcel (except in an emergency the work may be initiated with
reasonable notice) and shall be performed after normal business hours whenever possible and shall
otherwise be performed in such a manner as to cause as little disturbance in the use of the grantor
Owner's Parcel as is practicable under the circumstances. Any Owner performing or causing to be
performed maintenance or repair work agrees to promptly pay all costs and expenses associated
therewith, to diligently complete such work as quickly as possible and to promptly clean the area and
restore the affected portion of the Common Area to a condition equal to or better than the condition
that existed prior to the commencement of such work.
(b) Maintenance of Common Utility Facilities. Common Utility Facilities shall
be maintained and replaced as part of the Common Area pursuant to Section 4.2 below.
4.2 Oyeration and Maintenance of the Common Area. Declarant shall manage, maintain
and operate the Common Area, including, but not limited to, Parking Area, roads, sidewalks,
landscaping, drainage, Common Utility Facilities, and lighting facilities, in good order, repair and
condition, in compliance with all laws, rules and regulations, orders and ordinances of governmental
agencies having jurisdiction thereof, and to a level consistent with other retail shopping centers of
similar size, quality, and nature within the metropolitan area where the Shopping Center is located.
Declarant's obligation to maintain and operate the Common Area shall include, but not be limited to,
the following:
(a) Paved Areas. Maintaining all paved surfaces and curbs of the Common Area
in a smooth and evenly covered condition, which maintenance work shall include,without limitation,
-12-
DOCSOC/1048541 v3/16567-0030
II !! 2165090
I �III��111
11111111111IN
0912: 16 of 4:
1111111111111111111111111 09l29!
2004 04,63P
Shelley Vance-6a1LatLn Cc MT MISC 292,00
cleaning, sweeping, restriping, repairing, and resurfacing of the Parking Area and curbs, using
surfacing material of a quality equal or superior to the original surfacing material ""
(b) Debris and Refuse. Removal of all papers,debris, filth, refuse, and sweeping
the Common Area to the extent necessary to keep the Common Area in "a first-class, clean, and
orderly condition (unless otherwise set forth in an applicable lease); provided, however,�that'each
Owner shall install, operate, and properly maintain, or cause to be so installed, operated, and
maintained, on its Parcel, without cost or expense to the other Owners and so as not to be visible to
the general public shopping at the Shopping Center, only in areas shown on the Site Plan or
otherwise approved by the Declarant, sufficient trash compactors, bailers, and enclosed trash bins,
and shall purchase trash receptacles as required for use in connection with storage of all trash,refuse,
and waste materials of the Occupants of such Owner's Parcel, unless otherwise set forth in an
applicable lease. Each Owner shall take, or cause to be taken, without cost or expense to the other
Owners, all necessary measures to keep its respective Parcel(s) free from all debris and rubbish
caused by or emanating from such trash compactors, bailers, and enclosed trash bins. All sweeping
shall be performed at appropriate intervals during such times as no stores in the Shopping Center are
open for business to the public, except for those stores that are open for more than eighteen (18)
hours in any one day.
(c) Signals and Markers. Placing, keeping in repair, painting, replacing, and
repainting any appropriate directional/traffic signs, markers, curbs, and lines.
(d) Parking Area Lighting. Except to the extent otherwise set forth in
Section 3.2 a , operating, keeping in repair, cleaning, and replacing when necessary such Common
Area lighting facilities as may be reasonably required, including all lighting necessary or appropriate
for Common Area security and exterior lights attached to buildings located on Building Areas that
are intended to illuminate only the Common Area. Declarant reserves the right to charge any Owner
or other Occupant for any excess lighting usage, including,without limitation, for the cost of separate
meters and for lighting used during any period beyond the normal hours of operation of a majority of
Occupants of the Shopping Center, through the installation of separate meters or other equitable
means selected by Declarant.
(e) Landscaped Areas. Maintaining, cleaning and replacing as necessary all
landscaped areas and materials (including landscaping and planters adjacent to exterior walls of
buildings and irrigation facilities pertaining thereto) within the Shopping Center, all of which for
purposes of maintenance only (and inclusion in Common Area Maintenance Costs) shall be treated
as Common Area landscaping for purposes of this Declaration, and the repairing of automatic
sprinkler systems or water lines in the Common Area, weeding, pruning, fertilizing, or making
replacement of shrubs and other landscaping as necessary. If any Owner or Occupant requires or
installs "special" landscaping other than that normal and consistent with the landscaping
requirements of the remainder of the Shopping Center, all Owners and Occupants shall contribute
their Proportionate Share for the maintenance and cost thereof, provided that such Owners and
Occupants agree in writing to the installation and maintenance of such "special" landscaping. If the
other Owners and/or Occupants do not agree to contribute to the installation and maintenance of such
"special" landscaping, such costs shall be borne solely by such Owner or Occupant installing the
"special" landscaping (or agreeing to contribute to such costs) without cost or expense to the other
Owners and shall not be included in Common Area Maintenance Costs. All Common Area
landscaping shall be properly maintained by licensed landscape contractors. All turf areas shall be
maintained such that they are evenly cut, evenly edged, free of bare or brown spots, free of debris
-13-
DOCSOC/1048541 v3/16567-003Q
lrw u-Y_-
-7777-
IIllllfIlillOfllIIIIIIIIIIIIlilI Pa�:i50
09/29/2004of 47
04:53P
Shelley Vance-Gallatin Co M7 MISC 292.00
and free of weeds above the Ievel of all turf areas. All planted areas other than turf shall be free of
weeds and debris., All trees and shrubs shall be trimmed so"that they do not impede pedestrian
traffic. Trees shall be pruned and maintained to minimize droppings, exposed surface roots, and
damage to sidewalks,paved areas,and structures. Reasonable efforts shall be made to trim trees and
shrubs so as not to obstruct visibility of monument and pylon signs while maintaining attractive
landscaping in accordance with good shopping center practice.
(fl Common U till _ Facilities. Maintaining, cleaning, replacing and repairing
any and all Common Utility Facilities, including all common storm drains, utility lines, sewer, and
other utility systems and services located in the Common Area that are necessary for the operation of
the Common Area and the Building Areas, and any buildings and improvements therein within the
Shopping Center.
(g) Obstructions. Use commercially reasonable and diligent efforts to keep the
Common Area free from obstructions not required or permitted hereunder, including, but not limited
to, keeping the Common Area free from obstructions caused by sale or display of merchandise
outside the exterior walls of buildings within the Building Areas.
(h) Shopping Center Signs. The maintenance and repair of the monument sign in
the Shopping Center, including, without limitation, the cost of installing, maintaining, and operating
(including power) any monument sign(s). All signage for the Shopping Center shall comply with
applicable law and with the sign criteria established pursuant to Section 5.3(a)of this Declaration.
(i) Common Use Facilities. Maintaining and keeping in good condition any
common use facilities. .;,.w• -
(j) Sidewalks. Cleaning (including washing and/or steam cleaning),
maintenance, and repair of all sidewalks (collectively, `Sidewalk Maintenance"), including
sidewalks adjacent and contiguous to buildings located on Building Areas and those situated on the
perimeter boundaries of the Shopping Center. Sidewalks shall be cleaned at appropriate intervals
during such time as no stores in the Shopping Center are open for business to the public, except for
those stores that are open for more than eighteen (18) hours in any one day. Any Occupant who has
the right to use an Exclusive Use Area shall clean, maintain and repair any sidewalk within such
Exclusive Use Area. In the event any of the foregoing Owners or Occupants shall fail to perform
their Sidewalk Maintenance obligations, Declarant shall be entitled, but not obligated, to perform or
cause to be performed such obligations on behalf of the Owner or Occupant and to bill the Owner or
Occupant for the cost of such services.
(k) Governmental Requirements. Making commercially reasonable and diligent
efforts to comply with all applicable requirements of governmental agencies pertaining to the
Common Area, including, without limitation, any alterations or additions required to be made to, or
safety appliances and devices required to be maintained in or about the Common Area under any
laws, ordinances, rules, regulations or orders now or hereafter adopted, enacted or made and
applicable to the Common Area.
(1) Rules. Making reasonable efforts to enforce rules and regulations established
pursuant to this Declaration,which rules and regulations Declarant may establish from time to time.
-14-
DOCSOC/1048541 v3/16567-0030
.�_._ .. , -. .._�yy�.. �i-.. � ;' .... ...'•'`'Y °� �`'�' '�.T.` !' •w� ,ye,"; {`� �� i r,. 13t t '-T 5 3�r�:i.°.�... .. 'P."` '"�,,,,. �'R%'i-
. 'ir��w�• r9h'{xkiP�W''1�� ;.d�f�,r�".- a
II IIII11 Iff 1IIIII III JIIIII 11II 2 t 65090
��II���II���� 9 29l2004 04.63P
Shelley Vanoe-6allalin Co MT 1I6C 292.00
(m) Oversight of Hazardous Waste Remediation. Management or oversight of
any hazardous waste remediation or clean-up undertaken in connection with the Shopping Center, in
the sole discretion of Declarant, but without any obligation to do so (unless Declarant shall be under
a legal obligation to do so).
(n) Securi1y. If Declarant deems it necessary, provision of security services in
the Common Area on a daily basis during hours determined by Declarant. In the event Declarant
elects to provide security services, neither Declarant nor its members, partners, managers, officers,
shareholders, agents, servants, employees, successors or assigns shall be liable for criminal conduct,
intentional misconduct or other acts of third parties not under the control of Declarant or for the
failure of any security personnel to prevent any such act.
(o) SupervisoEy Personnel. Providing of professional supervisory personnel for
the Common Area.
(p) Traffic. Supervision of traffic at entrances and exits to the Shopping Center
and within the Shopping Center as conditions reasonably require in order to maintain an orderly and
proper traffic flow.
(q) Transportation Management. Supervision and costs of any
governmentally-mandated transportation management program.
(r) Equipment and Supplies. Rental or purchase of equipment and supplies.
(s) De r_p eciation. Depreciation or trade-in allowance applicable to items
purchased for Common Area purposes.
(t) Real PropeM Taxes. Real property taxes and assessments on the Common
Area.
(u) Other Duties. Performance of other duties required pursuant to any other
provisions of this Declaration that obligate Declarant to perform such duties as part of Declarant's
obligations for operation and maintenance of the Common Area, and performance of all other duties
that are necessary to operate and maintain the Common Area in a first-class manner and condition.
Notwithstanding anything to the contrary contained herein, each Owner or
Occupant shall maintain and repair, at its sole cost, in a clean, sightly and safe condition any exterior
shipping/receiving dock area, any truck ramp or truck parking area, any drive through area, any
"Recycling Center" (i.e., a recycling center for collection of items intended for recycling, such as,but
not limited to, newspapers, bottles and aluminum cans) located on its Parcel, any exterior vending
machines located on its Parcel or to be used in connection with its Parcel, and any refuse, compactor,
or dumpster area and any Exclusive Use Area located on its Parcel. Recycling Centers shall be in
locations approved by the Declarant, such approval not to be unreasonably withheld.
4.3 Payment of Common Area Maintenance Costs. Subject to the terms and conditions
set forth in an applicable lease or agreement, each Owner or Occupant shall pay to the Declarant in
equal monthly payments, in advance, its Proportionate Share of the Common Area Maintenance
Costs. Declarant shall reasonably estimate such costs each year(and,Declarant may make mid-year
adjustments), and each Owner or Occupant shall make its first payment in the month in which
-15-
DOCSOC/104854d v3/16567-0030 .
�_ ._... . ,!•. - --- Tr'��..�� ._C1. - .. _ - -_r �aL. +a�.d''".' ,F17. ;r••r, c a �.'�i 1 �`i:x .. •. .....?at'. ':.�_
-
2165@90 t-.
09/29/2004 r 04:53P11111Illlll IIII 111111111111111111111111 .. � � .
Shelley Vance-Gallatin Cc MT MSSC 292.00 " f,t `
Declarant's undertaking of such maintenance and repair of the Common Area begins, in the month ; •;;
each Owner acquires the applicable Parcel, or in the month each Occupant's applicable' lease"oi
occupancy agreement commences. Within a reasonable period of time after the end of each calendar
year, Declarant shall provide each Owner or Occupant with a statement setting forth the actual
Common Area Maintenance Costs for the prior year and such Owner's or Occupant's Proportionate
Share (the "Statement'). If the amount paid by an Owner or Occupant for such calendar year shall u
have exceeded its Proportionate Share, Declarant shall refund the excess to such Owner or Occupant
at the time such Statement is delivered, or if the amount paid by an Owner or Occupant for such
calendar year shall be less than its Proportionate Share, such Owner or Occupant shall pay the
balance of its Proportionate Share to Declarant within thirty(30)days after receipt of such Statement.
In any event, Declarant, in its reasonable discretion, shall be entitled to change the estimate for
Common Area Maintenance Costs by providing thirty (30) days' advance notice to all affected
Owners or Occupants. Until a new budget is submitted, all Owners and/or Occupants shall continue
to pay their Proportionate Share of the Common Area Maintenance Costs based upon the most recent
estimate submitted by Declarant. Within two (2) years after receipt of any Statement, each Owner
shall have the right to audit Declarant's books and records pertaining to the operation and
maintenance of the Common Area for the calendar year covered by such Statement(which books and
records shall be retained at Declarant's principal office or at the principal office of the company hired
to perform the maintenance and operation of the Common Area to the extent permitted herein),
provided that in no event shall any Owner exercise such audit right more than once per calendar year
and in no event shall any Owner use contingency fee auditors, and the Owner shall notify Declarant
of its intent to audit at least thirty(30)days prior to the designated audit date. In the event such audit
shall disclose any error in the determination of the Common Area Maintenance Costs, Management
Fee or in the allocation thereof to a Parcel, an appropriate adjustment shall be made. Except as
otherwise provided in an applicable lease or agreement, the cost of any audit shall be assumed by the
auditing Owner unless such Owner shall be entitled to a refund in excess of ten percent (10%) of the
amount calculated by Declarant as its Proportionate Share for the applicable calendar year, in which
case Declarant shall pay the reasonable costs and expenses of such audit.
4.4 Building Improvements.
(a) Each Owner covenants and agrees to maintain and keep, or cause to be
maintained and kept,the building improvements located on its Parcel in first-class condition and state
of repair,and use and conduct its operations in the Shopping Center in compliance with all applicable
governmental laws, rules, regulations, orders, and ordinances, and in compliance with the provisions
of this Declaration. Each Owner further agrees to store all trash and garbage in adequate containers,
to locate such containers so that they are not readily visible from the Parking Area, and to arrange for
regular removal of such trash or garbage to maintain the required first-class condition.
(b) In the event any of the building improvements are damaged by fire or other
casualty (whether insured or not), the Owner upon whose Parcel such building improvements are
located shall immediately remove the debris resulting from such event and provide a sightly barrier,
and within a reasonable time thereafter shall either(i)repair or restore the building improvements so
damaged to a complete unit, such repair or restoration to be performed in accordance with all
provisions of this Declaration; or (ii) erect other similarly sized building improvements in such
location, such construction to be performed in accordance with all provisions of this Declaration; or
(iii)in the sole discretion of Declarant, the Owner may be required to pave and/or landscape over the
Building Area on its Parcel, which Building Area shall then become part of the Common Area until
the Owner later rebuilds on its Parcel in accordance with the provisions of this Declaration. Such
-16-
DOC SOC/10485410/16567-0030
f IIIII�IIII IIIII IIIII I���I I IIIII II III�IIII��II II � 02 1 6509W�
9�/29MG4f 47
04:53P
Shelley Vance-Gallatin Cc MT MISC 292.00
Owner shall give notice to each other Owner(s) within ninety (90) days from the date of such
casualty of which alternative it elects. During the period of any such repair or restoration, including
the period while such area-is paved and/or landscaped prior to reconstruction,the Owner upon whose
Parcel(s) the damaged building is situated shall maintain and operate the Common Area on its Parcel
unless Declarant elects to maintain and operate the Common Area on such Owner's Parcel, in the
sole discretion of Declarant, in which event, any additional costs of maintaining and operating the
Common Area on such Owner's Parcel shall be paid for by such Owner.
4.5 Takeover of Maintenance of Common Area. Declarant may elect by delivery of
written notice to the Occupants and Owners, from time to time, to have other Occupants or Owners
("Take Over Tenant/Owner') of a portion of the Shopping Center operate and maintain a specific
portion in a first-class manner in coordination with other parties maintaining a portion of the
Common Area, which portion shall be designated by a specific legal description of the Common
Area (which area is in close proximity to such Occupant's premises), provided the Owner or
Occupant of such property maintains such area in a first-class condition consistent with other
neighborhood shopping centers in Gallatin County, Montana, in which event the Take Over
Tenant/Owner shall be responsible for the operation and maintenance of such designated portion of
the Common Area("Take Over Area')and/or the payment of all applicable insurance premiums and
taxes for the Take Over Area. The Take Over Tenant/Owner shall comply with the requirements of
Sections 5.4(a) and 5.4(b)below as though it were Declarant with respect to the Take Over Area. In
the event of such takeover, the Proportionate Share of the Owners shall be calculated by
(a) excluding from such costs and expenses all such applicable costs, expenses or premiums incurred
or assumed by the Take Over Tenant/Owner, and (b)including in the denominator of the fraction in
determining the Proportionate Share the number of square feet of Floor Area of all then-constructed
buildings owned or leased by parties other than the Take Over Tenant/Owner.
Alternatively, if at any time Declarant elects to cease operating and maintaining the
Common Area, Declarant may, upon thirty(30)days' notice to the Owners,be relieved of its duty to
operate and maintain the Common Area at the end of such thirty(30)-day period, and thereafter each
Owner shall be responsible for the repair and maintenance of the Common Area on its Parcel unless
(i) the Owners appoint a third party manager, or(ii)the Owners owning a majority of the land area of
the Shopping Center elect a successor manager, to operate and maintain the Common Area on the
terms and conditions provided in this Declaration. Such successor or successors shall have, during
their period of operation and maintenance of the Common Area, all rights of the Declarant hereunder
in connection with the operation and maintenance of the Common Area, including the right to issue
statements and receive a management fee as provided herein. Notwithstanding anything to the
contrary in this Declaration, an Owner or Occupant shall maintain its own Exclusive Use Area
(which Exclusive Use Area, if any, shall not be deemed to be part of the Common Area).
4.6 Maintenance of Certain Portions of Common Area within an Owner's Parcel.
Declarant may, from time to time, enter into similar or other arrangements with other
Owners or Occupants, in Declarant's reasonable discretion, regarding the obligation to maintain
portions of the Common Area and/or pay the costs of such maintenance. Declarant and any Owner
or Occupant may agree that such Owner or Occupant shall be obligated, at its sole cost and expense,
_to maintain all or a portion of the Common Area adjacent to its building. The building or land area
of an Owner or Occupant that maintains such Common Area shall be excluded from the total
building or land area of the Shopping Center (as applicable) for the purpose of calculating the
Proportionate Share of the other Owners or Occupants.
-17-
DOCSOG10485410/16567-0030
• .,.. a ..,. -,sue l.G.'z...^-:; r,r ./:._. ���� r ^: .'F ka���r � d!^ agl:t�`3i y ...—..
Y
IIIIIIIIIIIIII1111117,1771
2165090
Pass: 2t or 47
IN .
0812912
Shelley Vance-Gallatin Co MT MISC 282.00
Any Owner or Occupant whose use of the Common Area adjacent to its building
exceeds normal usage shall pay the cost of additional services, if any, that may be furnished by
Declarant or its agents to repair and maintain such adjacent Common Area, including, without
limitation,the cost of excess steam cleaning,trash removal and sweeping. In the event any Owner or
Occupant shall fail to repair or maintain any portion of the Common Area adjacent to its Building, if
required by the terms of this Declaration or any separate agreement entered into between such Owner
or Occupant and Declarant, Declarant shall have the right, but not the obligation, to repair or
maintain such portion of the Common Area for and on behalf of such Owner or Occupant. In such
event, Declarant shall be entitled to recover from the responsible Owner or Occupant the costs of
such repairs or maintenance plus interest at the Interest Rate (as defined in Section 6.2 below) from
the date of demand.
ARTICLE 5
OPERATION OF THE SHOPPING CENTER
5.1 Uses.
(a) Permitted Uses. `Permitted Uses" shall mean retail sales and services, or
other related commercial uses;provided, however,that no Prohibited Use (as defined below) shall be
a Permitted Use.
(b) Prohibited Uses. "Prohibited Uses"shall mean any of the following uses:
(i) Any use that constitutes a public or private nuisance or that emits an
obnoxious odor, noise, or sound that can be heard or smelled outside of any building on a Parcel
(excluding odors normally associated with the operation of a quality restaurant);
(ii) Any operation primarily used as a distribution facility or for any
warehouse, assembling, manufacturing, distilling, refining, smelting, agricultural, mining,processing
or rendering operation;
(iii) Any pawn shop, junk yard, "second-hand" or surplus store,
liquidation business,used clothing store, flea market or liquidation outlet;
(iv) Any mobile home park, trailer court, labor camp, junkyard, or
stockyard (except that this provision shall not prohibit the temporary use of construction trailers
during periods of construction,reconstruction,or maintenance);
(v) Any dumping, disposing, incineration, recycling or reduction of
garbage(exclusive of garbage compactors located near the rear of any building);
(vi) Any fire sale, bankruptcy sale (unless pursuant to a court order),
liquidation or auction house operation and any going out of business sale;
(vii) Any central laundry or dry cleaning plant, provided, however, this
prohibition shall not be applicable to any on-site plant contained within and operated as part of a
-retail dry cleaning and laundry facility;
(viii) Any automobile, truck,trailer, or recreational vehicle sales,leasing,
display or storage (as opposed to temporary parking of automobiles or equipment), provided,
DOCSOC110485410/16567-003044
- .. s` '? -�c:•a�°,•der"m;�•;�..�•.• � � �•�'•
ds IJ r? sr e s 4. ° •.. J F' ..a "i 1 , i lkia
r.
- '.i `• "'.,.. :.•. d fi .V. rrr1+.L.*�. 3.K3• :: a ,i
•►L,dti.�.._ :o::Yl:.... .e:i:k::.:�..o1K.,'?�'k.r:' 7f_?Y .. ;�" _ t r � rF..,,"sE`"};•
2165090 s
`I a t 7
129/2004 04
09 63P
Shelley Vance-Gallatin Cc MT MISC 202.00
however, this provision shall not prohibit the sale of tires, batteries, accessories, or auto parts or the
conduct of motor vehicle repairs or the sale of vehicles if conducted entirely from the interior of such
Owner's building;
(ix) Any hotel or motor inn, living quarters, sleeping apartments, or
lodging rooms;
(x) Any veterinary hospital or animal raising or storage facilities
(except that this prohibition shall not prohibit pet stores or a veterinary facility); provided further,
that no overnight boarding of any animal or pet shall be permitted unless such overnight stay is
required in connection with a surgical procedure;
(xi) Any mortuary or funeral home;
(xii) Any massage parlor (except a day spa), pornographic book store or
store selling or renting pornographic or obscene films, videos, magazines, books, photographs or
other material or other immoral uses (provided, however, a video store may sell or rent adult videos
as an incidental part of its business, provided (a) such business is not advertised or prominently
displayed; and (b)the display area for such adult videos is separately located from the main display
area and not readily visible from the exterior of the store;
(xiii) Any cocktail lounge,bar or tavern, except as part of the operation of
a restaurant (except for any cocktail lounge, bar or tavern existing as of the Effective Date or its
successors or assigns;
(xiv) Any carnival, amusement park, banquet facility(except as part of a
permitted restaurant), night club, disco, dance hall, pool or billiard parlor (provided, however, the
existence of pool tables as an incidental part of a permitted restaurant shall not be deemed to be a
pool or billiard parlor);
(xv) Any training or educational facility, including, but not limited to,
beauty schools, barber colleges, reading rooms, places of instruction or other operations catering
primarily to students or trainees rather than to customers; provided, however, this prohibition shall
not be applicable to any day care or children's learning center or any on-site employee training by an
Occupant incidental to the conduct of its business at the Shopping Center;
(xvi) A so-called "head shop" or other business devoted to the sale of
articles or merchandise normally used or associated with illegal or unlawful activities, such as, but
not limited to, the sale of paraphernalia used in conjunction with marijuana, cocaine or other
controlled drugs or substances;
(xvii) A game room, arcade, or indoor children's recreational facility
[(except as part of a permitted restaurant or a movie theater use, but subject to a maximum of ten
game machines at any time) provided that the foregoing shall not preclude operation of a casino or
gaming facility existing as of the Effective Date, or its successors or assigns, or, if such casino
vacates the Shopping Center,one (1) similar casino or gaming facility;
(xviii) An off-track betting parlor, gambling or gaming facility provided
that the foregoing shall not preclude operation of a casino or gaming facility existing as of the
-19-
DOCSOC/10485410/16567-0030
X14ay•� y th +'. t 5,"t w 4
r:..;d�_ ... _ ..wT. ,�.'hr•'" k..ti.,.i:fw 1.��� .f. . .i^t^J-r'�`. .. �. �:,
V65090 v '.
0D92912004T 04 53P
Ilt�ll
1�11I
lilt
111�11�lll�1�llll�1�11 111�1
Sha11aY Vanoa-Gallatin Cc MT M1SC 282.00 ;
Effective Date, or its successors or assigns, or, if such casino vacates the Shopping Center, one (1)
similar casino or gaming facility;
(xix) A gallery, meeting hall, auditorium or sports facility or other
entertainment viewing facility DOES NOT INCLUDE HEALTH CLUB OR GYMNASIUM;
(xx) A carnival or church;
(xxi) Emission of microwave, radio wave, or other similar electronic,
light or noise radiation at levels that are dangerous to health or that interfere with the proper
operation of electronic, telephone, computer or other business equipment of Owners or Occupants,
provided that the foregoing shall not preclude the operation of a (i)telephone/cellphone store that
includes a lawfully-operated satellite dish or antenna to demonstrate and facilitate the sale of cellular
phone service, or(ii)at Declarant's sole discretion, a cell site for the transmission and re-transmission
of cellular/pager signals; or
(xxii) Any use in violation of any zoning regulations of applicable
governmental authority.
(c) Exclusive Uses.
0) General Provisions Regarding Exclusive. Except as otherwise set
forth in this Declaration, the following general provisions regarding Exclusive Use rights (as
hereinafter defined) shall apply. The Occupants and Owners described in Exhibit C (individually,
the "Occupant Holding an Exclusive') shall have the right to operate within the Shopping Center,
which right to operate may, or may not, be limited to a specific Parcel as set forth below (an
'Exclusive Use Parcel'), for their respective uses described below on an exclusive basis as against
other Owners and Occupants(the "Exclusive Use'),on the following general terms and conditions:
(A) Except as otherwise provided herein, the Occupant Holding
an Exclusive shall have the exclusive right in the Shopping Center as now or hereafter constituted or
in the Exclusive Use Parcel, as applicable, as against other Owners and Occupants, to operate and
conduct the Exclusive Use (on the Exclusive Use Parcel, if any) on the terms and conditions, and
subject to the limitations, set forth in this Declaration.
(B) The provisions contained in this Section 5.1(c) shall be
deemed to be null and void and of no further force and effect to the extent that these provisions are
prohibited by the Federal Trade Commission or by any federal, state or local law, but the parties
expressly agree that in such event and within thirty(30) days after receipt of notice of any violation
of any federal, state or local law, ordinance or regulation, the parties will in good faith renegotiate
these provisions to bring the same into conformance with applicable law.
(C) Declarant shall be entitled to grant to Owners and Occupants
Exclusive Use rights on an on-going basis, from time to time, so long as such grants do not violate or
conflict with then-existing Exclusive Use provisions. All Owners and Occupants shall be bound by
such grants of Exclusive Use rights to the same extent as if such grants were set forth in full in this
Declaration,provided that Declarant shall have given prior written notice of the Exclusive Use rights
to the Owner or Occupant. Except as otherwise set forth in this Section 5.1(c), the granting by
Declarant of a right of Exclusive Use to an Owner or Occupant does not bar other`,Owners and
-20-
DOCSOC1104854I 0/16567-0030 ?
S TM
' �s - l'�+! tx .y ; r,' - •,i' `a.r.
2165090
1111111 III1I 1111111111111111 IN 111111111111111111111 09�129/2004I0447
:53P
Shelley Vanoo-Gallatin Co MT MISC 292.eo
Occupants from engaging in ancillary uses of the same type in an area within such Owner's or
Occupant's building, provided that no such use may constitute a primary business of such other
Owner or Occupant. As-used in this Declaration, the term "ancillary use" shall have the same
meaning as the term "incidental use;" the two (2) terms shall be deemed to be interchangeable and
synonymous herein.
(D) Except as otherwise provided herein, no Owner or other
Occupant may change its use to a use that violates the applicable Exclusive Use rights of another
Occupant.
(E) The Exclusive Use rights granted herein shall be of no force
or effect in the event the applicable lease or occupancy agreement terminates or in the event the
applicable Exclusive Use is not used for a period of twelve(12)months or Ionger.
(d) General Restrictions. No merchandise, equipment, or services, including, but
not limited to, vending machines, video games, ATM machines, amusement games, children's rides,
vendor carts, promotional devices, or similar items, shall be displayed, offered for sale, leased, or
stored within the Common Area; provided, however, that the foregoing prohibition shall not be
applicable to (i) the storage of shopping carts in areas adjacent to the entrances of the buildings
occupied by Occupants and otherwise approved by Declarant, which areas shall be screened by a
wall approved by Declarant; (ii) sidewalk sales that conform to the requirements of this Declaration;
or (iii)the placement of public telephones and drinking fountains in areas approved by Declarant.
There shall be no distribution of flyers, circulars, or advertisements in, on, or from the Common
Area, nor solicitation therein. There shall be no outdoor loudspeakers used that project amplified
sound from any Building Area, except for speakers commonly used in connection with the operation
of drive-up or drive-through window(s) by an Occupant. Neither inflatable advertising devices, nor
hand-held portable signs, banners, and flags are permitted in the Common Area. All doors and
roll-up doors shall be closed when not in use. No outdoor or overnight storage of any items is
permitted.
(e) Employee Parking and Deliveries. Declarant may from time to time establish
(i)reasonable, uniform and nondiscriminatory employee parking regulations, and (ii) reasonable,
uniform and nondiscriminatory regulations with respect to delivery, service, and Shopping Center
use-related vehicles, times of delivery, and places of delivery. All engines of trucks and other
delivery vehicles must be turned off when not in use. All deliveries to, and pick-up of rubbish and
waste from, Occupants of the Shopping Center shall be accomplished during the hours that such
deliveries are permitted by this Declaration and applicable law (whichever is the most restrictive),
but in no event earlier than 6:00 a.m. or later than 10:00 p.m. No stationary refrigeration trucks shall
operate earlier than 6:00 a.m. or later than 10:00 p.m., or such other hours as may be prescribed by
applicable law. Such regulations shall apply to the entire Shopping Center in order to ensure that the
maximum number of convenient parking spaces in the Parking Area are available for use by
Permittees. Declarant shall enforce the regulations promulgated hereunder against all Occupants of
the Shopping Center in a reasonable and nondiscriminatory manner as part of the operation and
maintenance of the Common Area. Each Owner or Occupant shall require its employees and the
employees of its tenants, agents, contractors, licensees and concessionaires to use only such sections
as are so prescribed for parking on its Parcel or any of the permissible employee parking areas, if
any, shown on the Site Plan or designated from time to time by Declarant. Each Owner or Occupant
agrees to use reasonable efforts to enforce the provisions hereof. Notwithstanding the prohibition on
overnight parking in this Declaration, employees of any Owner or Occupant who are working at
-21-
DOCSOC/10485410/16567-0030
X''
2165090
Pape: 25 of 47
IIIII! lI11lIII IIIII IIII IIIIIII!II
09129/2004 04.S3P
Shelley Vance-Gallatin Cc MT MISC 292.00
night shall be permitted to park in the Shopping Center at night. No employee shall be permitted to
park in the Shopping Center for any continuous period exceeding twenty-four (24) consecutive
hours, _
(f) Parking Area Levies No Parking Areas. No Owner shall impose or attempt
to impose any charge or service fee, or exact any other consideration in exchange for the right of a
Permittee to enter or depart from or park a motor vehicle in the Shopping Center or Parking Area in
connection with the use of the Common Area for purposes contemplated therein,unless such charges
are lawfully ordered by appropriate governmental authority having jurisdiction over the Shopping
Center. If an appropriate governmental authority imposes a surcharge or regulatory fee on customer
or employee parking, or based on the number of parking spaces within the Shopping Center, or any
other similar fee or charge, then all Owners and Occupants of the Shopping Center, by mutual
agreement, shall use their best efforts to institute a uniform fee collection parking system for the
Shopping Center. Declarant shall be entitled to designate "no parking" areas in the Shopping Center
from time to time in such locations as are reasonably necessary to preserve smooth traffic flow. Each
Owner shall use reasonable efforts to enforce no parking areas in the vicinity of its building(s) with
respect to its employees, agents, invitees, customers, guests, contractors, licensees and
concessionaires. Declarant shall use reasonable efforts to enforce all no parking areas. Declarant
reserves the right to tow and impound any vehicle parked in a no parking area. Designated fire lanes
shall be posted with no parking signs. Such restrictions shall be continually enforced by Declarant.
(g) Hazardous Materials.
(i) Definition. "Hazardous Materials" shall mean (a) petroleum or
petroleum products, or any fractions thereof, oil, grease, natural or synthetic gas, (b) any substances
defined as or included in the definition of"hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic
pollutants," "contaminants" or "pollutants," or words of similar import, under any "Hazardous
Materials Laws" (as defined below), and (c) any other substance exposure to which is regulated
under any Hazardous Materials Laws. "Hazardous Materials Laws" shall mean the Resource
Conservation and Recovery Act of 1976, as amended, 42 U.S.C. §§ 6901 et seq.; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. §§ 1801 et seq.; the Federal Water Pollution
Control Act, as amended by the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.; § 9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100
Stat. 1613 (1986) ("CERCLA"); and any other federal, state or local law,regulation or interpretation
thereof, whether currently in force or enacted in the future, which regulates or proscribes the use,
storage, disposal, cleanup, transportation, release or threatened release into the environment or
presence of materials or substances that have been determined to be a nuisance or dangerous, toxic or
hazardous or a pollutant or contaminant. The term includes any licenses,permits,plans or approvals
generated pursuant to any such Hazardous Materials Law.
(ii) QDperation. The operation of the Shopping Center shall be subject to
the following provisions:
(A) Each Owner and Occupant shall at all times in the conduct of
its business in the Shopping Center comply with all applicable Hazardous Materials Laws,including,
without limitation, those pertaining to the use, operation, storage, transportation, release or sale of
any Hazardous Materials on, under, or about the Shopping Center. No Owner or Occupant shall be
-22-
DOCSOC1048541 v3/16567-0030
I
7 ,i HIR
its 4
11111111111 IN 11111111111111111111111 0912912004F 47216509@63P
Shelley Vance—Gallatin Cc MT MISC 292.00
r`h
..:. ,. .:.. .... .fir
permitted to use, store or sell Hazardous Materials in or about the Shopping Center except that the
Owner or Occupant of any Parcel may transport, store and sell Hazardous'Materials,'"reasonable
quantities from its Parcel-of the type typically sold from similar businesses, or typically used in
connection with the operation of similar businesses, provided that at all times, the Owner or
Occupant complies with all Hazardous Materials Laws then in effect. Such obligations of each
Owner and Occupant shall include, without limitation, the obligation to operate in the Shopping
Center at all times in compliance with Hazardous Materials Laws;
(B) Each Occupant shall promptly provide each Owner copies of
any notices to comply, notices of violation, or citations received by the Occupant, and copies of all
reports required to be filed by the Occupant pursuant to Hazardous Materials Laws in connection
with or relating to the transport, storage, disposal, cleanup, release, threatened release, and sale of
Hazardous Materials on, under,or about the Shopping Center. Following the delivery of such notice,
the Occupant shall provide each Owner with such information, reports, proof of compliance, notice
of potential liability or other information pertaining to the matters set forth herein as each Owner
may reasonably request;
(C) In the event that any Hazardous Materials are released or
discharged on, under or about the Shopping Center in violation of the provisions of Hazardous
Materials Laws or this Declaration as a result of an Owner's or Occupant's use or occupancy thereof,
the Occupant and the Owner of such Occupant's Parcel, at its sole cost and expense, shall take such
action as may be required under the Hazardous Materials Laws or any order from any court or other
governmental agency with jurisdiction over such matters to achieve remediation that satisfies
governmental requirements and such that each Owner shall be reasonably satisfied that (i) the
Shopping Center will not be adversely affected by such discharge in any way, and (ii) no Owner
(other than the Owner of the Parcel occupied by the offending Occupant), shall be subject to any
liability for such discharge or contamination. The offending Owner or Occupant shall provide each
Owner with copies of any remediation plan on the earlier of the date of submission to any
governmental agency or court having jurisdiction over the matters addressed in such plan, or at least
twenty (20) days prior to the implementation of such plan, whichever is earlier (except in cases of
emergency, in which event such offending Owner or Occupant shall provide each Owner with copies
of such plan as soon as reasonably possible following the preparation of such plan); and
(D) All remediation and other work performed at the Shopping
Center shall be performed by contractors and/or consultants licensed to perform such work under
Hazardous Materials Laws, and shall be performed at such times and in such a manner as to
minimize, to the extent commercially reasonable, any interference with the normal conduct of
business in the Shopping Center. Any contractor or consultant retained to conduct any remediation
at the Shopping Center shall be experienced and qualified to perform the tasks required by the
remediation, shall be reputable within such industry, and shall be reasonably approved by Declarant
in advance. Any contractors and consultants performing such remediation work at the Shopping
Center shall maintain and provide evidence of insurance coverage that, in the reasonable judgment of
Declarant, is customary for the performance of such work. At least twenty (20) days prior to the
execution of any contract with any consultant or contractor pertaining to the remediation plan, the
Occupant shall provide Declarant with a copy of the proposed contract for review and comment.
(iii) Indemni . Each Owner and Occupant shall indemnify, defend by
counsel reasonably satisfactory to any affected Owner, and hold each Owner and its respective
directors, officers, agents, employees, partners, shareholders, affiliates, independent.contractors,
-23-
DOCSOC/10485410/16567-0030
2165090
11 1111I IIIII 014I Illllllhilllll f 09/29/2004 47
04:53P
Shelley Vance—Gallatin Cc MT MYSC 292.00
consultants, and their respective successors and assigns, and any Occupants of the Shopping Center,
harmless from and against any and all costs, liabilities, claims; actions, demands, directives, suits,
orders,judgments,violations, alleged violations or obligations arising from or relating to:
(A) The generation, processing, use, management, treatment,
storage, disposal, cleanup, transportation, decontamination, or release or threatened release of
Hazardous Materials on, under, or about or emanating from the Shopping Center, as a result of or in
connection with such Owner's or Occupant's use or occupancy of the Shopping Center;
(B) The violation by such Owner or Occupant or its employees,
agents, contractors or servants of any Hazardous Materials Laws pertaining to its activities at the
Shopping Center; and
(C) All costs and expenses relating to or resulting from the
remediation of any Hazardous Materials discharged, deposited, placed, or spilled upon the Shopping
Center by such Owner or Occupant or its employees, agents, contractors or servants.
(iv) Breach of Hazardous Materials Obligations. In the event that any
Owner or Occupant breaches any of its obligations hereunder, any affected Owner shall have the
right, but not the obligation, after giving notice to the breaching Owner or Occupant (and whether or
not the breaching Owner or Occupant consents),to:
(A) Enter the applicable portion of the Shopping Center for the
purpose of inspecting, testing for and monitoring Hazardous Materials, including, but not limited to,
the taking of soil and/or groundwater samples and/or the installation of soil borings;
(B) Perform directly or through agents, contractors, consultants or
others any of the work or obligations of such breaching Owner or Occupant under this Section in
connection with any remediation of Hazardous Materials;
(C) Charge all reasonable costs and expenses of such Owner's
performance under this Section to the breaching Owner or Occupant, who shall pay the same upon
written demand. Such costs and expenses shall include all costs of remediation and any payment,
settlement or compromise made by such Owner in good faith of any claim, demand, loss, liability,
cost, charge, suit, order, judgment or adjudication arising in connection with any remediation,
without the approval or consent of the breaching Owner or Occupant.
The rights of any Owner specified herein are intended to be cumulative with all other rights
that such Owner may have at law or in equity. The election of an Owner to pursue a right granted
herein shall not be deemed an election to waive or forego any other such rights. Any reasonable
non-negligent action taken by an Owner in good faith pursuant to this Section 5.1 W shall be covered
by the indemnity given by the Owner and/or Occupant in this Section. No Owner shall have any
liability to any Owner or Occupant for any reasonable non-negligent actions taken in good faith
pursuant to this Section 5.1(g). In the event that any amount due from an Owner and/or Occupant to
another Owner hereunder is not paid when due,interest shall accrue upon such amount from the date
of demand until paid at the Interest Rate set forth in Section 6.2 below.
5.2 Lighting. After completion of the Common Area lighting system on its Parcel, each
Owner hereby covenants and agrees to keep its Parcel fully illuminated during all non-daylight hours
-24-
DOCSOC/104854 t v3/16567-0030
EA,. . 4 t
2165090
!f llfll liffl IIIfI 11111 111111 11f1 11111111111111111111111Paga: 28of47
09/2912004 04:83P
Shelley Vanon-Gallatin Co MT MISC 292,00
between 6:30 a.m, and 10:30 p.m. Monday through Saturday and during all non daylight hours
between 7:30 a.m. and 7:30 p.m. on Sunday. Each Owner further agrees to keep any exterior
building security lights on.from dusk until dawn. During the term of this Declaration, each Owner
grants an irrevocable license to each other Owner for the purpose of permitting the lighting from one
Parcel to incidentally shine on adjoining Parcels.
5.3 Signs.
(a) Sign Criteria. All signage on the Shopping Center shall conform to
Declarant's sign criteria in all respects, including, without limitation, style of signs, wording, size,
appearance, color, arrangement of the names of Occupants, materials, lighting and location. No
freestanding signs shall be located on the Shopping Center except in the areas designated for the
location of such signs in the plans submitted by each constructing Owner and approved by the
Declarant. No signs that deviate from the requirements of such plans shall be erected without the
prior approval of the Declarant as to all sign characteristics, including, without limitation, size and
appearance, style,priority and arrangement of names,wording and height. All signs on the Shopping
Center shall conform to the requirements of applicable law and the sign criteria. The initial sign
criteria for the Shopping Center shall be that certain Bozeman Shopping Center Signage Package
attached hereto as Exhibit D.
(b) Institutional Si Rage. Notwithstanding anything above to the contrary, each
Owner shall be permitted to place within the Common Area located on its Parcel reasonable
directional signs or informational signs such as "Handicapped Parking," or "Drive-Through" areas,
the temporary display of leasing information and the temporary erection of a sign identifying each
contractor performing a construction job, provided no such sign violates the requirements of
applicable law.
5.4 Common Area Insurance and Indemnity.
(a) Common Area Liability Insurance. In addition to its Common Area
maintenance obligations,Declarant, for so long as it is operating and maintaining the Common Area,
shall maintain or cause to be maintained in full force and effect Commercial General Liability
Insurance covering the Common Area of the Shopping Center with a combined single limit of
liability of not less than Two Million Dollars ($2,000,000.00) for bodily injury to, or personal injury
or death of, any person and consequential damages arising therefrom, and for property damage,
arising out of any one occurrence. Each other Owner shall be a"named insured" under such policy.
Declarant shall adjust and settle all insurance claims relating to the Common Area.
(b) Common Area Indemnity. Declarant, or its successors as Take Over
Tenant/Owner, so long as it is operating and maintaining the Common Area, shall, to the extent of
available insurance proceeds, indemnify, defend, and hold the Owners harmless from and against any
and all claims, expenses, liabilities, losses, damages, and costs, including reasonable attorneys' fees,
and any actions or proceedings in connection therewith, incurred in connection with, arising from,
due to, or as a result of the death of any Person or any accident, injury, Ioss, or damage, arising out of
the gross negligence or willful misconduct of the Declarant or the Take Over Tenant/Owner, its
officers, agents, servants or employees in maintaining the Common Area, except for such claims
released pursuant to Section 5.8 below.
-25-
DOCSOC/10485410/1650-0030
iC _
2165090
I Ililll 1111111111111111 IN 11111111111111111111111 091a29/2004f 24763P
Shelley Vance—Gallatin Cc MT MISC 202.00 rye,'`
5.5 Building Area insurance and Indemnity.
(a) Building Area LiabiIi , Insurance. Except to the extent coverage is provided
by the insurance otherwise required to be maintained under this Declaration or under any lease
covering any portion of the Shopping Center, each Owner or Occupant(as to its Parcel and as to any
Exclusive Use Area or other area under the exclusive control of such Owner or Occupant) shall
maintain or cause to be maintained in full force and effect Commercial General Liability Insurance
with a combined single limit of liability of not less than Two Million Dollars ($2,000,000.00) for
bodily or personal injury or death, and for property damage,arising out of any one occurrence.
(b) Building Area Indemnity. Each Owner shall indemnify, defend, and hold the
other Owners harmless from and against any and all claims, expenses, liabilities, losses, damages,
and costs, including reasonable attorneys' fees, and any actions or proceedings in connection
therewith, incurred in connection with, arising from, due to, or as a result of (i) the death of any
Person or any accident,injury, loss, or damage,howsoever caused, to any Person or property as shall
occur in or about the buildings located on each Owner's Parcel, or in an Owner's Exclusive Use
Area, if any, or caused by the negligence or willful act or omission of such Owner or any Occupant
of any such Owner's Parcel, or the agents, servants, or employees of such Owner or Occupant,
wherever the same may occur, (ii) violation of any laws, rules, regulations or ordinances, including,
without limitation,Hazardous Material Laws,(iii)breach of any of the provisions of this Declaration,
except (a)for such claims released pursuant to Section 5.8 below, but only to the extent of such
release, and (b)claims resulting from the negligence or willful act or omission of the indemnified
Owner or any Occupant of any such Owner's Parcel, or the agents, servants, or employees of such
indemnified Owner,wherever the same may occur, or(iv)construction, use, occupancy or operations
in the Shopping Center.
5.6 Common Area and Building Area Construction.Insurance. Prior to commencing any
construction activities on the Shopping Center, each Owner shall obtain or require its contractor to
obtain and thereafter maintain so long as such construction activity is occurring, at least the
minimum insurance coverages set forth below:
(a) Workers' Compensation-statutory limits;
(b) Employers' Liability-$500,000.00;
(c) Commercial Liability and Business Auto Liability as follows:
0) Bodily Injury- $1,000,000.00 per occurrence
(ii) Property Damage- $1,000,000,00 per occurrence
(iii) Independent Contractors Liability; same coverage as set forth in (a)
and(b)above;
(iv) Products/Completed Operations Coverage which shall be kept in
effect for two (2)years after completion of work;
(v) "XCU"Hazard Endorsement,if applicable;
(vi) "Broad Form"Property Damage Endorsement;
-26-
DOCSOC/1048541 v3/16567-0030
-. �'.. ., .♦ > -. aCrr b9`' ui�u., 4 a '': . f.;.,, ,fay' •r t .*Q
... ,..
-7:R r t�x
2165090 ;T:
�� III IIII II�I�II III lily IIIII IIlI 09�12 {912004 47
04:53P
I IIII IIIII IIIII IIIII �
II
Shelley Vance-Gallatin Cc MT MISC 282.00
(vii) "Personal Injury"Endorsements;and
(viii) `Blanket Contractual Liability"Endorsement.
If the construction activity involves the use of another Owner's Parcel, then such Owner shall
be an additional insured and such insurance shall provide that the same shall not be canceled without
at least thirty (30) days' prior written notice to the named insureds and each additional insured. If
such insurance is canceled or expires, then the constructing Owner shall immediately stop all work
on or use of the other Owner's Parcel until either the required insurance is reinstated or replacement
insurance obtained.
5.7 ISO "Special Form" Prol2eity Insurance. Effective upon the commencement of
construction of improvements on its Parcel,each Owner will carry or cause to be carried with respect
to all buildings and improvements constructed upon its Parcel, ISO "Special Form" Property
Insurance, for ninety percent(90%)of replacement costs, exclusive of foundations and footings,with
such coverage extending to at least the perils identified in the then-current standard ISO "Special
Form"policy.
5.8 Waiver of Subrogation. Each Owner (the "Releasing Owner') hereby releases and
waives, for itself and on behalf of its insurer, any other Owner (the `Released Owner"), from any
liability for any loss or damage to all property of such Releasing Owner located upon any portion of
the Shopping Center, which loss or damage is covered by insurance required to be maintained under
this Declaration, irrespective either of any negligence on the part of the Released Owner which may
have contributed to or caused such loss, or of the amount of such insurance required hereunder or
actually carried, whichever is greater. Each Owner shall obtain appropriate endorsements to its
policies of insurance with respect to the foregoing release. Any lease, license, concession, or other
agreement entered into between any Owner and an Occupant of its Parcel shall contain a provision
releasing and waiving rights of recovery against the Owners to the same extent as the release and
waiver contained in this Section and, if such waiver and release is contained in any such agreement
with an Occupant, then the waiver and release by each Owner under this Section shall extend to and
benefit such Occupant. The provisions of this Section are intended to restrict each Owner and
Occupant (as permitted by law) to recover for loss or damage against insurance carriers to the extent
of such coverage, and waive fully, and for the benefit of each other Owner and Occupant, any rights
and/or claims that might give rise to a right of subrogation in any insurance carrier. Each Owner
shall, to the extent such insurance endorsement is lawfully available, obtain or cause to be obtained,
for the benefit of the other Owners, a waiver of any such right of subrogation that the insurer of such
Owner may acquire against the other Owners by virtue of the payment of any such loss covered by
such insurance. Failure to obtain such waiver from its insurance carrier shall not affect the release
and waiver given by such Owner to the other Owners.
5.9 Policy Form. All insurance required to be maintained by the Owners shall be
procured from companies licensed in the state where the Shopping Center is located and shall be
rated by Best's Insurance Reports not less than A-/X. The limits of such policies shall be reviewed
by the Declarant at least every five (5) years, and adjusted if necessary to reflect changes in limits
adopted by reasonably prudent landlords and managers of similar size and type shopping centers in
Gallatin County, Montana. All insurance may be provided under (i)an individual policy covering
any applicable building(s) or Parcel(s) located in the Shopping Center, or (ii)a blanket policy or
polices that includes other liabilities,properties, and locations of such Owner. Each Owner agrees to
furnish to any Owner requesting the same a certificate(s) of insurance evidencing that the insurance
-27-
DOCSOC/10485410/16567-0030
- w ;i �.yW`*`'M .4. r�l"b.al.t'�T P ri �� .��f!f�', - �� e�.4iror ry •y-� ,,; ,wNa�+:.:
:.aE-v-crrrkrt,—
MON@
111111
IN 11111111111111111111111 09/29/2004 of
04:53P
Shelley Vance-Gallatin Cc M7 MISC 282.00
required to be carried by such Person is in full force and effect. The insurance required pursuant to
Sections 5.4 a and 5.5(a)above shall include the following provisions:
(a) That the policy may not be canceled or materially reduced in amount or
coverage without at least thirty (30) days' prior written notice by the insurer to each insured and to
each additional insured;
(b) Severability of interests;
(c) That an act or omission of one of the insureds or additional insureds which
would void or otherwise reduce coverage shall not reduce or void the coverage as to the other named
insureds; and
(d) Contractual liability coverage with respect to the indemnity obligations set
forth herein.
5.10 Self Insurance. Subject to the terms and conditions of any applicable lease or
agreement, if any Owner or Occupant has in effect for all of its stores at any time during the term of
this Declaration a program of self-insurance with regard to risks covered by insurance stated in
Sections 5.5(a), 5.6 and 5.7, and the Owner's or Occupant's tangible net worth is at least One
Hundred Million Dollars ($100,000,000.00) in Constant Dollars (the "Minimum Net Worth
Amount'),the Owner or Occupant shall not be required to carry insurance in independent companies
as aforesaid, except for the respective amounts by which the limits set forth above exceed the
respective amounts for which the Owner or Occupant shall be self-insured under such program. The
Owner or Occupant agrees that if the Owner or Occupant shall self-insure any portion of the
insurance that the Owner or Occupant is required to carry hereunder, the Owner or Occupant shall
release all proceeds of self-insurance in the same manner as a reputable third-party insurance
company would if such third-party insurance were obtained instead of self-insurance.
5.11 Dama a or Destruction to Common Area, In the event of any damage or destruction
to the Common Area on any Owner's Parcel during the term of this Declaration from any cause
(whether or not covered under insurance required to be carried hereunder), such Owner shall,
promptly after the occurrence of the event of damage or destruction, proceed to restore, repair, or
rebuild such damaged or destroyed Common Area to a condition equal to or better than the condition
existing prior to the event of such damage or destruction, to the same general appearance as existed
immediately prior to such damage or destruction, and in accordance with the applicable standards of
this Declaration for an integrated shopping center pursuant to a uniform general plan. Unless such
work is carried out pursuant to the original plans and specifications for the Common Area, any plans
or specifications for such work or repair and restoration and the cost of the work pursuant thereto
shall be subject to the prior approval of the Declarant. Such Owner shall undertake such work in a
manner that will cause as little disruption of, and interference with, the use of the remainder of the
Common Area and Building Areas as reasonably possible in accordance with the applicable
requirements of this Declaration. Such Owner shall use all due diligence to complete restoration and
repair of the Common Area hereunder as expeditiously as possible so that the same may be available
for use and operating as part of the Shopping Center with as little delay and as little disruption as
circumstances will permit.
5.12 Taxes and Assessments. Each Owner shall pay, or cause to be paid prior to
delinquency, all real and personal property taxes and all other general taxes and assessments levied
-28-
DOCSOC/1049541 v3/16567-0030
-._;.:c'*' ♦-.-i,.: _..-:: `et emu.f :..�'.:.��,F`^'.'+. L - F,y :r+ x'S" '%*`.. .- q..F) ``� �� ,` C
2165090
I flllll IIIII IIIII IIIII 11111 IN 111111111111111111111 00/2912004r04:53P
Shelley Vance-Gallatin Cc MT MCSC 262.00
or assessed against its Parcel, the buildings, and improvements located thereon and any personal '
property owned or leased by such Owner on the Shopping Center; provided, that if the taxes or
assessments or any part thereof may be paid in installments, the Owner may pay each such
installment as and when the same becomes due and payable. Nothing contained in this Section'shall
prevent any Owner from contesting at its cost and expense any such taxes and assessments with
respect to its Parcel in any manner such Owner elects, so long as such contest is maintained with
reasonable diligence and in good faith. At the time as such contest is concluded (allowing for appeal
to the highest appellate court), the contesting Owner shall promptly pay all such taxes and
assessments determined to be owing,together with all interest,penalties and costs thereon.
5.13 Liens. Declarant shall keep the respective Parcels free from any and all liens arising
out of any work performed, materials furnished to, or obligations incurred by Declarant in connection
with the maintenance and operation of the Common Area under Article 4. Declarant shall, within
thirty(30) days after the date of the imposition of any such lien on a Parcel,pay the lien claim in full,
unless it desires to contest any such lien claim, in which case Declarant shall, within such thirty
(30)-day period and as a condition precedent to Declarant's right so to contest, record a bond of a
responsible corporate surety in such amount as may be required to release the lien from the affected
Parcel or Parcels.
ARTICLE 6
MISCELLANEOUS
6.1 Default.
(a) Events of Default. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Declaration by the non-performing Owner
(the "Defaulting Owner'):
W The failure to make any payment required to be made hereunder
within ten(10) days after written notice by Declarant,the third party manager of the Shopping Center
or another Owner (a "Non-Defaulting Owner") that a payment required to be made by such
Defaulting Owner has not been made;or
(ii) The failure to observe or perform any of the covenants, conditions, or
obligations of this Declaration, other than as described in paragraph (i)above,within thirty(30) days
after notice by a Non-Defaulting Owner specifying the nature of the default claimed, provided, if the
nature of the failure is such that it cannot reasonably be cured within such thirty (30)-day period,no
default shall be deemed to have occurred if the Owner receiving such notice commences to cure the
failure described in the notice within such thirty (30)-day period, and thereafter diligently prosecutes
such cure to completion.
(b) Right to Cure. After the giving of written notice as provided above and the
failure of the Owner receiving such notice to cure the failure, which failure constitutes or creates an
emergency condition or which materially affects the Non-Defaulting Owner's use and enjoyment of
its Parcel or the Shopping Center, the Non-Defaulting 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; provided, however,that in the event the
default shall constitute an emergency condition, the Non-Defaulting Owner, acting in good faith,
shall have the right to cure such default upon such advance notice as is reasonably possible under the
-29-
DOCSOC/1048541006567-0030 ,
,I
0 Sk#o �' "'fR '? 2. -4 i ° a3t�` '' -�• ,A$r�,#5'�4Y A$ S.n�`t
r
IIf II I 2165090
33 of 47
09/2 09/29/2004 04.63P
Shelley Vance-Gallatin Co MT MI6C 282.00 � ,>
circumstance, or, if necessary, without advance'notice, so long as notice is given as soon as
practicable thereafter. Any notice of default hereunder shall state in reasonable detail the action the
Non-Defaulting Owner proposes to take in order to cure the claimed default. To effectuate any such
cure,the Non-Defaulting 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 default
of its Occupants. In the event any Non-Defaulting Owner shall cure a default, the Defaulting Owner
shall reimburse the Non-Defaulting Owner for all costs and expenses incurred in connection with
such curative action, plus interest as provided herein, within thirty (30) days after receipt of written
demand therefor,together with reasonable documentation supporting the expenditures made.
(c) Lien. Costs and expenses accruing and/or assessed pursuant to this
Declaration, together with interest at the "Interest Rate" (as specified hereinafter) and all costs and
expenses of any proceedings at law or in equity, including reasonable attorneys' fees pursuant to this
Declaration, shall be assessed against and paid by the Defaulting Owner, and to secure such payment,
the total of such amounts shall constitute a lien against the Defaulting Owner's Parcel. The lien shall
attach and take effect only upon recordation of a claim of lien in the appropriate county recorder's
office by the Owner making the claim. The claim of lien shall include the following:
(i) The name of the lien claimant;
(ii) A statement concerning the basis for the claim of lien and identifying
the lien claimant as a curing Owner;
(iii) An identification of the owner or reputed owner of the Parcel or
interest therein against which the lien is claimed;
(iv) A description of the Parcel against which the lien is claimed;
(v) A description of the work performed that has given rise to the claim
of lien and a statement itemizing the amount thereof, together with any other amounts recoverable
under this Section; and
(vi) A statement that the lien is claimed pursuant to the provisions of this
Declaration, reciting the date, book, and page of recordation hereof, The notice shall be duly
verified, acknowledged,and contain a certificate that a copy thereof has been served upon the Owner
against whom the lien is claimed, by personal service or by mailing as provided below. The lien so
claimed shall attach from the date of recordation solely in the amount claimed thereby and may be
enforced in any manner allowed by law, including, without limitation, a suit to foreclose a mortgage
or mechanic's lien under the applicable provisions of the law of the State of Montana. Such lien
shall be subordinate to any mortgage, deed of trust, sale-leaseback transaction, lease or ground lease
now or hereafter covering any portion of the Shopping Center or the improvements thereon, and any
purchaser at any foreclosure or trustee's sale (as well as any grantee by deed in lieu of foreclosure or
trustee's sale) under any such mortgage or deed of trust or lessor or ground lessor upon termination
of the leaseback or ground lease, shall take free and clear of any such then existing lien, but
otherwise subject to the provisions of this Declaration.
(d) Removal of Lien. If the Owner against whom a lien is claimed posts either
(i)a bond executed by an approved corporate surety, or(ii)an irrevocable letter of credit executed by
-30-
DOCSOC/1048541 V3%16567-0030
'k.!`.i,U.9 ,',M'.' .e' �.t _c J.r4v,'.�,,,,•°<�°3 r Y A`*.Ty
2165090
I IIIIIIIIIIIIIIIIIIIIIIIIIIII Page: 34 } 47
09/29/200404:53F
I IIIIII lllll IIIII IIIII III I
Shelley Vance-Gallatin Cc MT M1SC 202.e0
a national banking association, which bond or letter of credit (A)names as the principal or payee the
Owner imposing the lien and is in a form satisfactory to such Owner, (B)is equal to one and one'=Half
(11/2) times the amount of the lien claim, and(C)unconditionally provides that it may be drawn upon
by the Owner claiming the lien in the event of a final judgment entered by a court of competent
jurisdiction in favor of such Owner, then the Owner imposing the lien shall record a notice
extinguishing the lien or take such action as may be reasonably required by a title insurance company
requested to furnish a policy of title insurance on such Parcel deleting the lien as an exception
thereto. The Defaulting Owner shall post the bond or letter of credit by delivery to the Owner
claiming the lien. All costs and expenses to obtain the bond or letter of credit, and all costs and
expenses incurred by the Owner required to extinguish a lien claim hereunder, shall be borne by the
Owner against whom the lien is claimed.
(e) Waivers of Default. No waiver by any Owner of any default under this
Declaration 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 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 of any default under any provision of this Declaration 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 this Declaration.
(f) Further Remedies. Each Non-Defaulting Owner shall have the right to
prosecute any proceedings at law or in equity against any Defaulting Owner hereto, or any other
Person, violating or attempting to violate or defaulting upon any of the provisions contained in this
Declaration, and to recover damages for any such violation or default. Such proceeding shall include
the right to restrain by injunction any violation or threatened violation by another of any of the terms,
covenants, or conditions of this Declaration, or to obtain a decree to compel performance of any such
terms, covenants, or conditions, it being agreed that the remedy at law for a breach of any such term,
covenant, or condition (except those, if any, requiring the payment of a liquidated sum) is not
adequate. All of the remedies permitted or available to an Owner under this Declaration or at law or
in equity shall be cumulative and not alternative, and invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other permitted or available right or
remedy.
6.2 Interest. Any time an Owner shall not pay any sum payable hereunder to another
within ten (10) days after the due date, such delinquent Owner shall pay interest on such amount
from the due date to and including the date such payment is received by the Person entitled thereto, at
the "Interest Rate," which shall be the lesser of (a)ten percent (10%) per annum; or (b)the
maximum legal rate.
6.3 Estoppel Certificate.
Any Owner may,at any time and from time to time, in connection with the sale, lease
or transfer of the Owner's Parcel, or in connection with the financing or refinancing of the Owner's
Parcel by mortgage, deed of trust, or sale-leaseback made in good faith and for value, deliver written
notice to the other Owners requesting such Owners to certify in writing that to the best knowledge of
the certifying Owner, (i) this Declaration is in full force and effect and a binding obligation of the
Owners, (ii)this Declaration has not been amended or modified, either orally or in writing, and if so
amended, identifying the amendments, and (iii)the requesting Owner is not in default in the
-31 ,
DOCSOC/10485410/16567-0030 r
.._.., •.,er:�w.nw;.,. .,1 -:.-T:�'Y%°9qu "!Ri' .e•,3:-`�x.;:`:�'' "=!SiY`�y..;•.-:yY:s.,j,.: �?..
.. .:ai•'.n.....'.�.iir"e kia - .;`:i..svri.`'i•3.��i!`;+•��'"d
2165090
IIIIII IIIII IIIII 11111111111 IN 11111111111111111111111 09a129/2004t0447
:53P
Shelley Vanoa-Gallatin Co MT MISC 292.00
performance of its obligations under this Declaration, or, if in default, describing the nature and
amount of any and all defaults (the `Estoppel Certificate'). Each Owner receiving such request
shall execute and return such Estoppel Certificate within fifteen (15) days following the receipt
thereof In the event an Owner fails to return the Estoppel Certificate within such fifteen (15)-day
period, the requesting Owner shall be entitled to deliver a second request. Failure by an Owner so to
execute and return an Estoppel Certificate within five (5)days of receipt of such second request shall
be deemed an admission on such Owner's part that the Owner requesting the Estoppel Certificate is
current and not in default in the performance of such Owner's obligations under this Declaration.
Such statement shall act as a waiver of any claim by the Person furnishing it to the
extent such claim is based upon facts contrary to those asserted in the statement and to the extent the
claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts
contrary to those contained in the Estoppel Certificate, and who has acted in reasonable reliance
thereon. Notwithstanding anything to the contrary,the issuance of an Estoppel Certificate shall in no
event subject the Person furnishing it to any liability whatsoever, notwithstanding the negligent or
otherwise inadvertent failure of such Person to disclose correct and/or relevant information;
provided, however, such Person shall not have the right to deny the accuracy of the information
contained or omitted therein.
6.4 Notices.
(a) Method of Giving Notice. All notices, demands, and requests (collectively
"Notice") required or permitted to be given under this Declaration must be in writing and shall be
deemed to have been given as of the date such Notice is (i) delivered to the Owner intended,whether
by delivery service or overnight carrier such as Federal Express, (ii)delivered to the then-current
address of the Owner intended, whether by delivery service or overnight carrier such as Federal
Express,or(iii)rejected at the then-current address of the Owner intended,provided such Notice was
sent prepaid. The initial address shall be:
Declarant: BOZEMAN SHOPPING CENTER,LLC
c/o RED MOUNTAIN RETAIL GROUP,INC.
1234 E. 17TH Street
Santa Ana, California 92706
Attention: Property Management
Upon at least ten (10) days' prior written Notice, each Person shall have the right to change
its address to any other address within the United States of America. All Notices under this
Declaration shall be deemed given, received, made or communicated on the date personal delivery is
effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt.
(b) Effect of Notice. In no event shall notice be deemed given nor shall an
Owner's approval of, consent to, or satisfaction with, the subject matter of a notice be deemed given
by such Owner's failure to object or respond thereto if such notice did not fully comply with the
requirements of this Section. No waiver of this Section shall be inferred or implied from any act
(including conditional approvals, if any) of an Owner, unless such waiver shall be in writing,
specifying the nature and extent of the waiver.
(c) Notice to Mortgagees and Right to Cure. Any mortgagee or beneficiary of
any Owner ("Encumbrancer') shall be entitled to receive notice of any default by the Owner upon
-32
DOCSOC/1048541 v3/16567-0030
e ;1 fi i1 t s ,µ
am,rim
e
41
2165090
IIIIII ����1111111111111 IN 11111111111111111111111 09129/2004f 04:53P f
Shelley Vance-Gallatin Co MT MISC 292.00
whose Parcel it holds an interest, provided that such Encumbrancer shall have delivered a copy of a `
notice substantially in the form herein contained to each Owner. The form of such notice shall be as
follows:
"The undersigned, whose address is , does
hereby certify that it is the holder of a first lien upon the tract of land
described in Exhibit A attached hereto and made a part hereof, which land is
the Parcel in -__ , and is the trustee,
beneficiary or mortgagee holding the security interest in said Parcel. In the
event that any notice shall be given of the default of the Owner upon whose
Parcel this lien applies, a copy thereof shall be delivered to the undersigned
who shall have all rights of such Owner, but not the obligation, to cure such
default. Failure to deliver a copy of such notice to the undersigned shall in no
way affect the validity of the notice of default as it respects such Owner, but
shall make the same invalid as it respects the interest of the undersigned and
its lien upon said property."
Any such notice shall be given in the same manner as provided for in this Declaration.
Giving of any notice of default or the failure to deliver a copy to any such Encumbrancer shall in no
event create any liability on the part of the Owner so declaring a default. In the event any notice
shall be given of the default of an Owner, and such defaulting Owner has failed to cure or commence
to cure such default as provided in this Declaration, then any such Encumbrancer that has given
notice as above provided shall be entitled to receive an additional notice given in the manner
provided for in this Declaration, that the defaulting Owner has failed to cure such default, and such
Encumbrancer shall have thirty (30) days after said additional notice ("Additional Cure Period") to
cure any such default. If such cure cannot be affected within the Additional Cure Period, such
Encumbrancer must commence to cure within the Additional Cure Period, and thereafter diligently
prosecute the same to completion as soon as reasonably practicable.
6.5 Approval Rights. Unless otherwise herein provided, whenever a consent or approval
("Approval") is required, such Approval shall be in writing (unless otherwise stated) and shall not be
unreasonably withheld, conditioned or delayed. Unless provision is made for a specific time period,
each response to a request for an Approval shall be given by the Owner to whom directed within
thirty(30) days of receipt. If the notice specifically states that the failure of the Owner to whom the
request for Approval is directed to respond within thirty (30) days after receipt will result in such
Owner being deemed to have given its Approval, then if a response is not given within such thirty
(30)-day period,the requested Owner shall be deemed to have given its Approval. Each disapproval
shall be in writing and the reasons shall be clearly stated.
6.6 Condemnation. In the event any portion of the Shopping Center shall be condemned,
the award shall be paid to the Owner owning the land or the improvement taken, except that (i) if the
taking includes improvements belonging to more than one Owner, such as Utility Facilities or signs,
the portion of the award allocable thereto shall be used to relocate, replace, or restore such jointly
owned improvements to a useful condition, and (ii)if the taking includes easement rights which are
intended to extend beyond the term of this Declaration, the portion of the award allocable to each
such easement right shall be paid to the respective grantee thereof. In addition to the foregoing, if a
separate claim can be filed for the taking of any other property interest existing pursuant to this
Declaration which does not reduce or diminish the amount paid to the Owner owning the land or the
-33-
DOCSOC/1048541 v3/16567*30
�_.._._. n .,a.. M1. .�p ,r.� c h R, ,.a�!1? K� _3 % '�`;fi�/ A L ,9a �h5'•,�7<iM � s �� �A �Ai°' 1k.�'vt� x 4» f
wpm
21 G5@90
Papa: 37 of 47
II�I1�Ill�1111I�1�11
l�llllll
She13BY Vance-Gallatin Cc MT MIBC 282.00 912004 04.83P ;kr .
improvement taken, then the Owner of such other property interest shall have the right to seek an
award for the taking thereof.
6.7 _Binding Effect. The terms of this Declaration and all easements granted hereunder
shall constitute covenants running with the land and shall inure to the benefit of and be binding upon
the signatories hereto and their respective successors and assigns who become Owners hereunder.
This Declaration is not intended to supersede, modify, amend, or otherwise change the provisions of
any prior instrument affecting the land burdened hereby. All of the provisions of this Declaration
shall be enforceable as equitable servitudes and constitute covenants running with the Iand pursuant
to applicable law. In the event of any conflict between the terms and provisions of this Declaration
and any leases or other occupancy agreement affecting the Shopping Center, this Declaration shall
control. It is expressly acknowledged that each covenant to do or refrain from doing some act on
each Parcel hereunder (i) is for the benefit of each other Parcel and is a burden upon each other
Parcel, (ii)runs with each Parcel, and (iii)shall be binding upon each successive Owner during its
ownership of each Parcel, or any portion thereof, and each Person having any interest therein derived
in any manner through any owner of any Parcel,or any portion thereof, and shall benefit each Owner
and its Parcel and each other Person becoming an Owner (or member of an Owner), as specified in
Section 6.21,and its interest in its Parcel.
6.8 Singular and Plural. Whenever required by the context of this Declaration,use of the
singular shall include the plural, and vice versa, and the masculine shall include the feminine and
neuter genders.
6.9 Counterparts and Signature Pages. This Declaration may be executed in several
counterparts, each of which shall be deemed an original. The signatures to this Declaration may be
executed and notarized on separate pages, and when attached to this Declaration shall constitute one
complete document.
6.10 Negation of Partnership. None of the terms or provisions of this Declaration shall be
deemed to create a partnership between or among the Owners in their respective businesses or
otherwise,nor shall it cause them to be considered joint venturers or members of any joint enterprise.
Each Owner shall be considered a separate owner, and no Owner shall have the right to act as an
agent for another Owner, unless expressly authorized to do so herein or by separate written
instrument signed by the Owner to be charged.
6.11 Not a Public Dedication/Intended Beneficiaries. Nothing herein contained shall be
deemed to be a gift or dedication of any portion of the Shopping Center or of any Parcel or portion
thereof to the general public or for any public use or purpose whatsoever. Except as herein
specifically provided, no rights, privileges, or immunities of any Owner shall inure to the benefit of
any third-party Person, nor shall any third-party Person be deemed to be a beneficiary of any of the
provisions contained herein.
6.12 Excusable Delays. Whenever performance is required of any Person hereunder, such
Person shall use all due diligence to perform and take all necessary measures in good faith to
perform; provided, however, that if completion of performance shall be delayed at any time by
.reason of acts of God,war, terrorism, inclement weather, civil commotion, riots, strikes,picketing or
other labor disputes, unavailability of labor or materials, damage to work in progress by reason of
fire or other casualty, or any cause beyond the reasonable control of such Person (collectively,
"Excusable Delays'), then the time for performance as herein specified shall be appropriately
-34-
DOCSOC/1048541v3/16567-0030 ¢ -`
M, 1',
i.-
2165090
lll�ll Illll Illll llhl 111111 IN 1111111 09e1 912:04f 47
04:53P
Shelley Vance-Gallatin Go MT MISC 292.00 � `
extended by the amount of the delay actually so caused. The provisions of this Section shall not
operate to excuse any Person from the prompt payment of any monies required by this Declaration.
6.13 Severabili . Invalidation of any of the provisions contained in this Declaration, or of
the application thereof to any Person by judgment or court order, shall in no way affect any of the
other provisions hereof or the application thereof to any other Person and the same shall remain in
full force and effect.
6.14 Amendments. Subject to the further provisions of this Section 6.14, this Declaration
may be amended by, and only by, a written agreement signed by Declarant, and shall be effective
only when recorded in the county and state where the Shopping Center is located. No consent to the
amendment of this Declaration shall ever be required of any Occupant or Person other than the
Declarant, nor shall any Occupant or Person other than the Owners have any right to enforce any of
the provisions hereof, except as expressly set forth herein. In the event a new parcel map shall be
necessary or desirable, in the sole discretion of Declarant, including, without limitation, in the event
of the expansion or renovation of the Shopping Center, the Owners shall be obligated, at no cost to
the Owners, to execute all necessary documents to effectuate the new parcel map upon request by
Declarant. Notwithstanding the foregoing, if Declarant sells a portion of its interest in the Shopping
Center, so long as Declarant owns any portion of the Shopping Center, no amendment shall be
effective unless (i)a majority of the Owners other than Declarant, and (ii) Declarant agree to such
amendment in a written agreement which is recorded n the county and state where the Premises is
located.
6.15 Captions and Capitalized Terms. The captions preceding the text of each article and
Section are included only for convenience of reference. Captions shall be disregarded in the
construction and interpretation of this Declaration. Capitalized terms are also selected only for
convenience of reference and do not necessarily have any connection to the meaning that might
otherwise be attached to such term in a context outside of this Declaration.
6.16 Mitigation of Damages. In all situations arising out of this Declaration, all Owners
shall attempt to avoid and mitigate the damages resulting from the conduct of any other Owner.
Each Owner hereto shall take all reasonable measures to effectuate the provisions of this Declaration.
6.17 Effect of Breach Upon Purchasers and Mortgages.
(a) No Termination. The breach of this Declaration shall not entitle any Owner
or Person to cancel, rescind, or otherwise terminate this Declaration, or any conditions, covenants,
easements,or restrictions hereunder.
(b) Mortgagee Protection. This Declaration,and the rights,privileges,covenants,
agreements, and easements hereunder with respect to each Owner and Parcel, shall be superior and
senior to any lien, lease, or other encumbrance placed upon any Parcel, including the lien of any
mortgage or deed of trust, whether made prior to or after the date of recordation hereof,provided that
nothing contained in this Declaration shall be deemed to make the holder thereof liable for the
performance of any term, covenant, or condition under this Declaration to be performed by the
Owner which owns the Parcel in question, but the holder of such mortgage or beneficiary under a
deed of trust shall expressly agree that if and when title to such Parcel becomes vested in any Person
as a result of a default under said mortgage or deed of trust,then such Person shall so become liable
for the performance of any such term, covenant, or condition thereafter to be performed and it shall
-35-
DOCSOC/10485410116567-0030
2165090
I ��Illl���� 0B/2912004r 04763P
` 1111Ill��
lllllllllllll
llllll ..
Ill
Shelley Vance-Gallatin Cc MT MISC 262.00 ,
remain so liable so long as such title is vested in it. Neither the making of such mortgage or deed'of
trust nor its foreclosure shall release the maker thereof from any liability it would have had under this
Declaration had such mortgage or deed of trust not been made.
No breach of this Declaration shall defeat, render invalid, diminish,or impair the lien
of any mortgage or deed of trust made in good faith and for value, but all of the covenants and
restrictions, easements, and conditions and other provisions, terms and conditions contained in this
Declaration shall be binding upon and effective against any Person (including any mortgagee or
beneficiary under a deed of trust) who acquires title to any Parcel or any portion thereof by
foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.
6.18 Time of the Essence. Time is of the essence of this Declaration.
6.19 No Waiver. The failure of any Owner to insist upon strict performance of any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of any rights or remedies which
that Owner may have hereunder, at law or in equity, and shall not be deemed a waiver of any
subsequent breach or default in any of such terms,covenants,or conditions.
6.20 Liti ation_Expenses.
(a) Payment to Prevailing Owner. If any Owner or the Declarant or third party
manager of the Shopping Center shall bring an action or proceeding (including, without limitation,
any cross-complaint, counterclaim, or third-party claim) against any other Owner by reason of the
breach or alleged violation of any covenant, term,or obligation hereof, or for the enforcement of any
provision hereof,or to interpret, or otherwise arising out of, this Declaration, the prevailing Owner or
the Declarant or third party manager of the Shopping Center in such action or proceeding shall be
entitled to its costs and expenses of suit, including, but not limited to, reasonable attorneys' fees
which shall be payable whether or not such action is prosecuted to judgment. "Prevailing Owner"
within the meaning of this Section shall include, without limitation, an Owner or the Declarant or
third party manager of the Shopping Center who dismisses an action for recovery hereunder in
exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or
consideration substantially equal to the relief sought in the action.
(b) Attorneys' Fees in Third-Pady Litigation. If any Owner or the Declarant or
third party manager of the Shopping Center is required to initiate or defend any action or proceeding
with a third party (including, without limitation, any cross-complaint, counterclaim, or third-party
claim) because of any other Owner's breach of this Declaration, and such Owner or the Declarant or
third party manager of the Shopping Center is the prevailing party in such action or proceeding, then
the Owner or the Declarant or third party manager of the Shopping Center so initiating or defending
shall be entitled to reasonable attorneys' fees, costs and expenses from such other Owner.
(c) Scope of Fees. Attorneys' fees under this Section shall include attorneys'
fees on any appeal, and, in addition, a party entitled to attorneys' fees shall be entitled to all other
reasonable costs and expenses incurred in connection with such action (including,without limitation,
any post-petition proceedings and expert witness fees).
-36- :. -
DOCS OC/10485410/16567-0030
jai u
- - aL nG.fa �t.►,y�il� ....
Own
r
2165090
Illlilllllll 11111111111 IN 111111111111111111111111 09q/2912004t0447
:53P ; <
Shelley Vanoe-Oallalln Co MT M36C 292.00 wo .
6.21 Transfers of Interest Rights, Powers and Obligations,
(a) Limitations on Transfer or Assignment. In no event shall the rights, powers
and obligations conferred upon any Owner pursuant to this Declaration be at any time transferred or
assigned by any such Owner except through a transfer of its interest in its Parcel, and then only to the
extent and in the manner hereinafter provided.
(b) Transfer of Entire Interest. In the event of the transfer, conveyance, or
termination of the whole of the interest of an Owner in its Parcel(s) (or any leasehold interest in any
Parcel)without retaining any beneficial interest therein, other than as beneficiary under the terms of a
deed of trust or mortgage or without simultaneously acquiring a new interest by way of leasehold,
life estate, or any other similar interest, then the rights and powers conferred upon, and the
obligations under this Declaration of, the transferring Owner shall be transferred and assigned with
its interest or termination thereof. Upon consummation of any transfer as described above and
compliance by the transferee with the requirements of Section 6.21(g), the transferring Owner shall
be released from any and all liability which would thereafter arise from or in connection with any
term, covenant, or condition under this Declaration to be performed by the transferring Owner, but
such Owner shall remain liable for all such liability in respect of events theretofore occurring.
(c) Retention of Interest. In the event that (i)the whole of the interest of an
Owner in its Parcel is transferred or conveyed,but a new interest is created in the transferring Owner
simultaneously with the conveyance of its previous interest, by way of leasehold, life estate, or any
other similar interest, or(ii) the transferring Owner shall convey its interest in its Parcel, or a portion
thereof, by deed of trust, mortgage, or other security instrument as security for any obligation or
indebtedness of such Owner,then none of the rights and powers conferred upon, or obligations under
this Declaration of, the transferring Owner shall be transferred or assigned with the transfer or
conveyance of its interest, but all of the rights and powers conferred upon, and obligations under this
Declaration of, the transferring Owner shall remain in such Owner so long as such Owner retains,
under clause (i)above, the new interest in and to its Parcel (other than as beneficiary under the terms
of a deed of trust or mortgage), or so long as such Owner remains, under clause (ii)above, the
beneficial owner of its Parcel. Upon the termination of the new interest created in the transferring
Owner as specified in this Section 6.21(c), the rights and powers conferred upon, or the obligations
of, such Owner shall vest in accordance with Section 6.21(b) or 6.21(d) hereof, whichever is
applicable, as if the new interest created in such Owner had never existed, subject only to the
provisions of Section 6.21M.of this Declaration.
(d) Multiple Ownership. In the event that an Owner transfers or conveys its
interest in its Parcel, or any portion of its Parcel or interest in its Parcel, in such manner as to vest
ownership of the Parcel or interest therein in more than one Person, then the Persons owning all of
such interest in such Parcel shall be jointly considered a single Owner and such Persons shall
designate one of their number to act on behalf of all such Persons in the performance of the
provisions of this Declaration. Any such designation shall be in writing, duly executed,verified,and
acknowledged by each such Person, shall be served upon all the other Owners in accordance with the
notice provisions of this Declaration, shall contain a certificate that a copy thereof has been so
served, and shall be recorded in the appropriate county recorder's office. In the event the Persons
owning an interest in a Parcel shall fail to designate one among them to represent them as the Owner
of the Parcel, the Declarant shall be entitled to appoint one of the Persons as the Parcel's
representative. Until the Declarant receives notice of a transfer of an Owner's interest, Declarant
shall be entitled to deal with the previous Owner as the representative.
-37-
DOCSOC/1048541v3/16567-0030 n ,
I
2165090
papa, 41 of 47
llllll lllll llili lllli 11 Illl llll llllill 111 lllll IIII IIII 28/2004 04.53P
Shelley Vance—Gallatin Cc MT MISC 282.00
(e) Release Upon Sale of Interest. Upon the assignment, conveyance, sale, or
other transfer by any Owner of its entire right and interest in its Parcel and compliance by the
transferee with the requirements of Section 6.21(g),that Owner shall be released from the obligations
of this Declaration as an Owner arising subsequent to the effective date of such sale or transfer(other
than those obligations arising from any default by such Owner in the performance of any provision of
this Declaration prior to such sale or transfer, including payment of any amounts which may then be
due and owing under this Declaration).
(f) Liabilily of Transferee. In no event shall any transferee of any Owner be
liable for any default under this Declaration of the transferring Owner which occurred prior to the
effective date of the transfer of any right, title, and interest in the affected Parcel to the transferee
unless such default is continuing and remains uncured after the date of the transfer, and then, only as
to that portion of the default accruing after the date of transfer.
(g) Assumption Statement. Concurrently with the transfer of any right, title and
interest in any Parcel by any Owner so that the transferee becomes an Owner or member of an Owner
pursuant to this Section 6.21, the transferee shall execute and deliver to the other Owners a written
statement in which (i)the name and address of the transferee shall be disclosed, and (ii)the
transferee shall acknowledge its obligations to be bound by this Declaration and perform all
obligations hereunder in accordance with the provisions of this Declaration. Until the transferee
complies with the requirements of this Section, neither Declarant, nor other Owners, shall be
obligated to afford the transferee the rights and privileges of an Owner under this Declaration,
however, such transferee shall, in the sole discretion of Declarant or third party manager of the
Shopping Center, be bound by one or more of the obligations of Owner hereunder upon written
notice of the transferee by the Declarant or third party manager of the Shopping Center.
(h) Successors of Declarant,° Third PaM Managers. Notwithstanding anything to
the contrary in this Declaration, subject to the amendment provisions of Section 6.14 above
Declarant shall be entitled, at any time after delivery of written notice to the Owners,to(i)transfer or
assign its interest as Declarant hereunder ("Assignment') to any successor or assignee of Declarant
("Declarant's Successor") that purchases or otherwise gains possession (through foreclosure or
otherwise) of the Shopping Center, or (ii)to delegate its duties to manage the Common Area to any
third party manager, provided that such manager shall have not less than two (2) years experience in
managing similar center(s) of approximately the same or larger size and general tenant mix as the
Shopping Center and shall assume the obligations of Declarant in writing. Following any such
Assignment or delegation of its duties to such third party manager (and the assumption by such
party), Declarant shall be released of all further obligations hereunder and shall have no further
liability hereunder, including, without limitation, no further liability under Section 5.4(b). In no
event shall Declarant's Successor or any third party manager be deemed to be the agent of Declarant.
6.22 Governmental Compliance. The parties acknowledge that this Declaration shall at all
times be subject to any and all applicable governmental laws and regulations. To the extent that such
applicable governmental laws and regulations are more restrictive than the provisions of this
Declaration,the parties shall comply with such more restrictive governmental laws and regulations.
-38-
DOCSOC/1048541 v3/16567-0030
" S
*!', .f.fi; •' :tf``'! ^Fa ?F.p�'! , k?
2165090
11111111111111 IN 11111111111111111111111 091129/2004t04:53P
..ter.;.:.
Shelley Vanoo-Gallatin Cc MT MISC 292.00 1
ARTICLE 7
RECORDATION AND TERM
7.1 Recordation. This Declaration shall become effective and binding upon the Owners
and their respective successors in interest upon recordation of this Declaration in the Official Records
of Gallatin County, Montana.
7.2 Term of Declaration. This Declaration shall be effective as of the date of recordation
as provided above and shall continue in full force and effect until 11.59 p.m. on the date which is
sixty (60) years thereafter, unless extended or terminated; provided, however, that the easements
referred to in Article 2 hereof which are specified as being perpetual or as continuing beyond the
term of this Declaration shall continue in force and effect as provided therein. Upon termination of
this Declaration, all rights and privileges derived from, and all duties and obligations created and
imposed by, the provisions of this Declaration, except as relates to the easements mentioned above,
shall terminate and have no further force or effect; provided, however, that the termination of this
Declaration shall not limit or affect any remedy at law or in equity that an Owner or Occupant may
have against any other Owner or Occupant with respect to any liability or obligation arising or to be
performed under this Declaration prior to the date of such termination.
[Signature on following page]
-39-
DOCSOC/104854Iv3/16567-0030
2165090 t . '.
IIIIII IIIII IIIII IIIII IIIIII IIII iilllll III IIIIII 111 Ills of
47
091291200404:63P L
Shelley Vance-Gallatin Co MT MISC 282.00
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed as of the day and'
year first above written.
BOZEMAN SHOPPING CENTER,LLC,
a Montana limited liability com any
Y.
�HMuvel_cha its managing member
State of
County of V__J
This instrument was acknowledged before me on v w ZZ,�by M ha f-t 14 Moje/
as_ xAnag1 MLmb--c ._ Of SqaG,xl2w LCC
Si ature of notarial officer
�* SEAL �'
P .
OF 00'
Title(and Rank)
QU r\
(Residing at)
[My commission expires: A c,\ a'I .�_oo5 ]
-40-
DOCSOC/104854lv3/16567-0030
"iP .cia
�.1'1.• : ' '�JF+��'3x• �" _p I ,��;`Y� r�-1 SY'i H3 9
.�.. ... .... .. _ _ .. .;f:P_ 'fir=ri,;..r'r� 'a. �.�'�`�':`"`9��•7'-...•R•.�:..o�.. �5..�' � , 5'"'? d` +v �:�,.r �� �:: w•M'�',�.-
n .. ... .. .,..a m ....
ML
2165090
1111111 Hi
illill 1111111111111 ill 11111111 ill ill 19129/2004r04:S3P
.1.e
Shelley Vance-Gallatin Cc MT MISC 202.20
EXHIBIT A
SITE PLAN
[ATTACHED]
• n � 1
;Y
Q• 6ti . I'I
± ' i
f;
1'
CGRR6L WESTIm
•I � rig � I
lid
GOLDS GTN
Cz
OWNERENT
:
S
GAS.ND y w•x ;fx:w ww—''I`i.s - tw- .. 1
�r
BIG 014EESE PIZZA ^, , • �.a;r�l r
_ u
i VERIZON1.4
Hi M Ida... ervcwuar .ua, !
------------------
ExxiBiT.A-.1. :.
DOCSOC/1048541v3/16567-0030
.w .... e.w.. r .. �:' Ja �'F:1T ♦ .. .. ..�:�•i-'.� +$•n1ii:,%�i.+.�E.� . .. R.
— ° 3i! 'i4j^r z `..xµ'"I,•'�R�y,. Y xr,J.". _ .i. a.::. �H', v : -. ��"'h�r v. :•.,ncr_` .•.,'L' f! 7A1
2165090
��IIII III II I II I IIIIII II�II�III II�IIIIII�I) ��I Paso: 45 f 47
09/291 200404:53P
6hallay Vanea-Gallatin Cc Mt MIBC 262.00
EXHIBIT B
LEGAL DESCRIPTION OF SHOPPING CENTER
A tract of land lying in the W 1/2 of the NW 1/4 of Section 12, Township 2 South, Range 5 East,
M.P.M., enclosed within the following metes and bounds, to-wit: Beginning at a point on the
North line of the S1/2 of the W 1/2 of the NW 1/4 of Section 12, Township 2 South, Range 5
East, said point being 30.0 feet West of the Northeast corner of said S 1/2W 1/2NW 1/4, said point
also being the West line of North Fifteenth Avenue as platted and of record as Cleveland
Subdivision, Gallatin County, Montana, thence from said point of beginning and in a Southerly
direction along the West line of said North Fifteenth Avenue, a distance of 951.95 feet, more or
less, to a point of intersection with the Northerly right of way line of U.S. Highway 9191; thence
in a Westerly direction along the Northerly right of way line of said U.S. Highway 9191, a
distance of 700.0 feet; thence in a Northerly direction, 700 feet West of and parallel to the West
line of North Fifteenth Avenue, a distance of 667.60 feet; thence in a Northeasterly direction and
at a bearing of N 67 degrees 51 minutes East, a distance of 764.15 feet, more or less, to the point
of beginning. Situate in Gallatin County, Montana, according to Deed recorded in Book 134 of
Deeds, page 285, EXCEPTING THEREFROM:
A parcel of land in the NW 1/4 of Section 12, Township 2 South, Range 5 East, P.M.M., in the
City of Bozeman, Gallatin County, Montana, and being more particularly described as follows:
Beginning at Corner No. 1 of said parcel,.which is identical with the SE corner of said tract.
Thence, from Comer No. 1, South 88 degrees 12 minutes 00 seconds West along the South line
of said tract, which is identical with the North right of way line of the existing highway, a
distance of 190.00 feet to Corner No. 2;
Thence, from Comer No. 2, North 00 degrees 00 minutes 00 seconds East a distance of 165.00
feet to Corner No. 3, which is marked with a steel rod;
Thence, from Comer No. 3, North 88 degrees 12 minutes 00 seconds East a distance of 190.00
feet to Corner No. 4, which is on the West line of North Fifteenth Avenue, and is marked with a
steel rod;
Thence, from Comer No. 4, South 00 degrees 00 minutes 00 seconds West along the West line
of North Fifteenth Avenue, which is identical with the East line of said tract, a distance of
165.00 feet to Comer No. 1, according to Survey recorded in Film 21, page 50, AND
FURTHER EXCEPTING THEREFROM:
A parcel of land located in the Northwest quarter of Section 12, Township 2 South, Range Five
East, Principal Meridian of Montana, in the City of Bozeman, Gallatin County,Montana, and
lying wholly within that tract conveyed by deed recorded on pages 285 and 286 of Book of
Deeds 134, in the office of the County Clerk and Recorder of said County and being more
particularly described as follows, to-wit:
Beginning at a point on the East line of said tract, which is marked with a steel rod, and is
r identical with the Northeast corner of that 0.719 acre parcel'identified as Lot 2 on that map
4 recorded on Film 21, Page 50.of the Deed Records of said County.
A. EXHIBIT B I
DOCSOG104954M/16567-W30 .,:M,+
s 1Y '^? 'fl 91 rr e4x �) aiv a
:�` lli 1,9_ ,F T�;;1 ,ryV rc�..ir..� �".a.... ' r"#•5!_ 2'" ._
::.IG.��.�.MfAb'�WFYIrY:ut3w.v lYniw..�iY,:Y11V0Y:Www�d'ri1:11iOslFµ
21 5090
111111 IIIII 11111111111 IN IIIIIII111111111 III 1111 09�/29 004f 0447
:53P
Shelley Vance-Gallatin Cc MT MISC 2S2.00
Thence South 88 degrees 12 minutes 00 seconds West along the North line of said Lo tIP
a
distance of 190.00 feet to the Southwest corner of this 0.218 acre parcel, which is mark! c with a
steel rod, and is identical with the Northwest corner of said Lot 2.
Thence North 00 degrees 00 minutes 00 seconds East a distance of 50.00 feet to the Noi hwest
corner of this 0.218 acre parcel, which is marked with a steel rod.
Thence North 88 degrees 12 minutes 00 seconds East a distance of 190.00 feet to the Northeast
corner of this 0.218 acre parcel,which is marked with a steel rod on the East line of said tract.
Thence South 00 degrees 00 minutes 00 seconds West along the said East line a distanc of
50,00 feet to the point of beginning, according to Certificate of Survey No. 345. [Deed
Reference: Book 156 of Deeds, page 58].
• •f y�.'�::: •a� :.N"A•'i} I,u F d"
�.._......__ ..... _. � •t~'. •i}X,.: .w;wec'�,r��pO +ChS•'f'-x;li;'fi�+�"�j'�.'�� �i� A'� 6:�•..�:�:,' � , ,� ' ,,., �i•��. „i
;' ,.,:. .�v'�""°r• ;•'� `o.7'7a,r} ' W�F ' . li 1 .uy
;.
EXHIBIT C
EXCLUSIVE USES
AMERICAN DRUG STORES:
No part of the Bozeman Shopping Center,except the Premises, shall be used as a
supermarket, which shall be defined as any store or department containing more tj
3,000 square feet of Floor Area, including aisle space and storage, primarily devol d to
the retail sale of food for off-premises consumption; as a bakery or delicatessen; a ;a
cigarette or smoke shop or any other store the primary business of which is to sell
tobacco products and/or accessories; for the sale of fresh or frozen meat, fish,you iry or
produce for off-premises consumption; for the sale of alcoholic beverages for off-
premises consumption; or for the sale of any pharmaceutical products requiring th
services of a registered pharmacist.
HASTINGS ENTERTAINMENT
If at any time another Tenant in the Shopping Center occupying more than 600 sq piare
feet which has more than 60% of its sales volume derived from and/or sales area c:voted
to music software, books, video software,or computer software, Basic Rent shall Ile
reduced by 25% so long as such conditions exists.
VERIZON WIRELESS
i
No portion of the Shopping Center other than the Premises shall be leased by Lan ord
for purposes of operating a business primarily engaged in the retail sale or market of
wireless communication products or services.
I
11�IIII III 21650901111111111111111 II 1111111111111111111
Phoney Vanea-Gallatin Cc MT M[SC 282.
:. . .,.. ::. : .EXHIBIT C-1 _
r ..
, •: .�,��•, s' �,i�'.y 4 •,yrh.` -.r}.,.:� r:�i .s'' �: k prs�5 xst�'4:r� s �Y.
r"a'„_
I