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HomeMy WebLinkAboutOV121506Hayes, Patty From: Kevin Hall <kmhall@cypresscivil.com> Sent: Wednesday, September 09, 2015 10:35 AM To: Hayes, Patty Subject: RE: El Corredor OV1215-06 Thank you Patty! The developer is well aware about the Plat requirement and most likely will be doing that in the future. However, as he only has one user (Kneaders) for the commercial area right now it was decided the MLD was the best way to handle it. Kevin CYPR� � - ESS CIVIL DEVLOPMEUT Kevin M. Hall, PE Principal 2102 North Country Club Road, #9 Tucson, AZ 85716 Ph: 520.991.5213 www.cypresscivil.com From: Hayes, Patty [mailto:phaves@orovallevaz.gov] Sent: Wednesday, September 09, 2015 9:33 AM To: Kevin Hall <kmhall@cvpresscivil.com> Subject: El Corredor OV1215-06 Kevin, Attached are the plan review comments for the minor land division for the El Corredor project. Basically just a few clean up items. The biggest issue with this third submittal, is that a new lot was included for Kneaders. That's fine but it shows that you might intend to break up the property into more parcels. Any additional lot splits would require this project to have a final plat. You may consider pulling back from the minor land division and look at the bigger picture of the project and go into a platting process instead. If you would like to meet about this issue, we could set something up with the Planning department to go over the process. Thank you, Patty Hayes Senior Planning Technician Town of Oro Valley (520) 229-4819 or phayesc@-orovalleyaz.gov Y OQOVP� g9/2�2 7; s�; s Town of Oro Valley Development and Infrastructure Services October 29, 2015 Cypress Civil Development Kevin Hall 2102 N. County Club Rd #9 Tucson, AZ 85716 kmhall@cvpresscivil.com Dear Kevin, The minor land division for the El Corredor project has been approved. Attached is the Town's approval letter, Article 7 of the CCRs, legal description of the three lots and conveyance deed. In order to expedite the finalization of the documents we suggest that you personally deliver the approval letter and attachments to the Pima County recorder's office. Once the recorded documents are returned to you or the Town, they will need to be delivered to Pima County Addressing. Thank you, Patty Hayes Senior Planning Technician Town of Oro Valley Cc: Ross Rulney Oro Valley, it's in our nature. 11000 N. La Canada Drive, Oro Valley, Arizona 85737 www.orovalleyaz.gov I phone: (520) 229-4800 1 fax: (520) 742-1022 Y 9 s"^ a s�pQNDED A91a, Town of Oro Valley Development and Infrastructure Services MINOR LAND DIVISION The Town of Oro Valley hereby approves the Minor Land Division for the El Corredor development, original file number OV1213-14, now file OV1215-06, on the condition that any amendment to the Covenants Conditions and Restrictions Article 7 recorded at Sequence 20152960272, Pages 62, on October 23, 2015 and beginning on Page 28 and ending on Page 32 of said sequence shall result in a zoning violation under Oro Valley Zoning Code. This condition shall be null and void upon recordation of an Oro Valley approved Final Plat memorializing all requirements of Platting in the Town of Oro Valley. Bayer Vella, AICP Planning Manager 4 /�o L'I DaA Laws, P.E. Permitting Manager Date Date Oro Valley, it's in our nature. 11000 N. La Canada Drive, Oro Valley, Arizona 85737 www.orovalleyaz.gov I phone: (520) 229-4800 1 fax: (520) 742-1022 1RECORDING ii 1i111i l1111111111111Il11111 11111111111111111111111111 IN SEQUENCE: 20152960271 No. Pages: 2 10/23/2015 12:22 PM �Y ounty F. ANN RODRIGUEZ, RECORDER , P Recorded By: JCC (e-recordin Zzo`� o v I -Z -Is -,-0-G We Agency. LLC When recorded return to: Traci L. Riccitello Lewis Roca Rothgerber LLP One South Church, Suite 700 Tucson, Arizona 85711 S 7 �/�5�� 4 z" s'.s TERMINATION OF AMENDED AND RESTATED RECIPROCAL EASEMENT AND OPERATION AGREEMENT This Termination of Amended and Restated Reciprocal Easement and Operation Agreement (the "Termination") is made effective as of this 6R-3_ day of October, 2015, by Boulder Oro Valley, LLC, an Arizona limited liability company ("Owner"). RECITALS A. Owner is the fee title owner of all the property currently subject to that certain Amended and Restated Reciprocal Easement and Operation Agreement, originally between Oracle Linda Vista Investors, LLC, an Arizona limited liability company, and Oro Valley Sunway, LLC, a Kansas limited liability company, recorded February 26, 2009, at Docket 13503, Page 3519, Sequence No. 20090380941, in the Official Records of Pima County, Arizona, which replaced and superseded that certain Reciprocal Easement and Operation Agreement, recorded September 14, 2007, at Docket 13140, Page 4582, in the Official Records of Pima County, Arizona (collectively, the "REO Agreement"). B. Owner desires to terminate the REO Agreement. AGREEMENT NOW, THEREFORE, Owner declares as follows: 1. Termination. As the sole fee title owner of all the property currently subject to the REO Agreement, Owner hereby declares the REO Agreement to be rescinded and terminated and of no further force or effect. Recitals. The recitals set forth above are incorporated herein by this reference. [Signature on following page.] 6634725_2 * E RECORDING * Page 2 of 2 Sequence No. 20152960271 IN WITNESS WHEREOF, Owner has executed this Termination as of the date written above. OWNER: Boulder Oro Valley, LLC, an Arizona limited liabi#ty co&Any Nam( Title: STATE OF ZJXLOI n . ) ss. County of On J' D-3 D__015' , before me, %P t 'K j personally appeared u personally known to me (orproved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity on behalf of which the person(s) acted, executed the instrument. Witnessed my hand and offimi seal. ' dl� NOTARY PUBLIC STATE OF ARIZO A Pima County JANICE A. SAUNDERS My Commission Expires November 29, 201 a Description of document this notarial certificate is being attached to: Type/Title Termination of Amended and Restated Reciprocal Easement and Operation Agreement Date of Doc. October?, 2015 Number of Pages 2 Add'l Signatures None. (other than those named in the notarial certificate. 6634725_2 III II11111111111111I III1111111111I (11111111111111111111111IN SEQUENCE: 20152960272 No. Pages: 62 10/23/2015 12:22 PM ty D F. ANN RODRIGUEZ, RECORDER Recorded By: JCC(e-recordin rzo+ C" v, -z_ 1 S 0 (0 W "ONi 'tc "Traci L. Riccitello, Esq. Lewis Roca Rothgerber LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701 S 7_ � �S 3 &,;Zh 'i s DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE CANYONS AT LINDA VISTA TRAIL 0 5877534_9 u * E RECORDING * Page 2 of 62 Sequence No. 20152960272 TABLE OF CONTENTS ARTICLE1 DEFINITIONS............................................................................................................2 1.1 "Accounting Period"............................................................................................... 2 1.2 "Affiliate"............................................................................................................... 2 1.3 "Annexable Property,'............................................................................................. 2 1.4 "Architectural Documents"..................................................................................... 2 1.5 "Articles"............................................................................. .............................. 2 1.6 "Association".......................................................................................................... 2 1.7 "Board"..............................................:.................................................................... 2 1.8 "Boulder Oro Valley"............................................................................................. 2 1.9 `Buildings"............................................................................................................. 2 1.10 "Building Areas"..................................................................................................... 2 1.11 "Bylaws"..................................................................................:..............................2 1.12 "Committee"........................................................................................................... 3 1.13 "Common Area"...........................................:......................................................... 3 1.14 "Common Expenses".............................................................................................. 4 1.15 "County"................................................................................................................... 5 1.16 "Developer"............................................................................................................ 5 1.17 "Driveway».....................:....................................................................................... 5 1.18 "Future Building Areas"......................................................................................... 5 1.19 "Gross Floor Area"................................................................................................. 6 1.20 "Improvements"...................................................................................................... 6 1.21 "Member"............................................................................................................... 6 1.22 "Occupant"...............................................:.................................................._...........6 1.23 "Owner" ............................................. :.................................................................... 7 1.24 "Parcel"................................................................................................................... 7 1.25 "Parking Area"........................................................................................................ 7 1.26 "Person".................................................................................................................. 7 1.27"Plat"................................................................................................................. .7 1.28 "Prime Rate"........................................................................................................... 8 1.29 "Property" ...... :........................................................................................................ 8 1.30 "Proportionate Share"............................................................................................. 8 1.31 . "Record," "Recorded" or "Recordation"................................................................ 8 1.32 "Recorder".............................................................................................................. 8 1.33 "Residential Tract".................................................................................................. 8 1.34 "Shopping Center".................................................................................................. 8 1.35 "Shopping Center Signs"........................................................................................ 9 1.36 "Site Plan"............................................................................................................... 9 1.37 "Town"....................................................................................................................9 1.38 "User"..................................................................................................................... 9 ARTICLE2 THE ASSOCIATION.................................................................................................9 2.1 Formation................................................................................................................9 2.2 Board of Directors and Officers.............................................................................. 9 2.3 Powers................................................................................:....................................9 2.4 Articles and Bylaws.............................................................................................. 10 ARTICLE 3 ASSOCIATION MEMBERSHIP AND VOTING RIGHTS....................................10 58775349 * E RECORDING * Page 3 of 62 Sequence No. 20152960272 3.1 Membership Votes................................................................................................ 10 3.2 Transfer of Memberships...................................................................................... 10 3.3 Voting; Multiple Owners; Appointment of Agent ................................................ 10 3.4 Board of Directors................................................................................................. I 1 ARTICLE 4 USES AND RESTRICTIVE COVENANTS...........................................................11 4.1 Commercial Purposes........................................................................................... 11 4.2 Uniform General Plan for Shopping Center......................................................... I 1 4.3 Building Area..................................................................................:.....................11 4.4 Remodeling and Replacement.....:........................................................................ 11 4.5 Nuisances..............................................................................................................11 4.6 Special Maintenance by Restaurant Operators..................................................... 12 4.7 Compliance with Laws......................................................................................... 12 4.8 Employee Parking and Deliveries......................................................................... 12 4.9 Parking Area Levies.............................................................................................. 13 4.10 No Walls, Fences or Barriers................................................................................ 13 4.11 Signs......................................................................................................................13 4.12 Prohibited Uses..................................................................................................... 13 ARTICLE 5 ARCHITECTURAL AND DESIGN REVIEW.......................................................13 5.1 Committee Structure............................................................................................. 13 5.2 Function of the Committee................................................................................... 14 5.3 Submission of Architectural Documents.............................................................. 14 5.4 Committee Approval............................................................................................. 16 5.5 Changes and Modifications................................................................................... 16 5.6 Limitation of Liability........................................................................................... 17 5.7 Enforcement by Committee................................................................................... 17 5.8 Approvals, Waivers and Variances....................................................................... 17 5.9 Governmental and Utilities Fees and Expenses....................................................18 5.10 Dispute Resolution/Arbitration Procedures.......................................................... 18 ARTICLE 6 CONSTRUCTION AND INSTALLATION............................................................19 6.1 Construction Work Generally............................................................................... 19 6.2 Utility Connections............................................................................. :................. 20 6.3 Plans and Law....................................................................................................... 21 6.4 Timing Restriction on Construction...................................................................... 21 6.5 Emergency Work.................................................................................................. 21 6.6 Fencing Off Construction..................................................................................... 22 6.7 Maintenance of Utility Facilities.......................................................................... 22 6.8 Dust.......................................................................................................................22 6.9 Indemnification by Owners................................................................................... 22 ARTICLE7 EASEMENTS...........................................................................................................23 7.1 Grant of Easements...............................................................................................23 7.2 Common Area Easements..................................................................................... 23 7.3 Building Area Easements........................................................ .......................... 25 7.4 Relocation of Access and Utility Easements........................................................ 26 7.5 Residential Tract Easement................................................................................... 26 ARTICLE 8 COMMON AREA MAINTENANCE AND OPERATION AND BUILDING MAINTENANCE..............................................................................27 it 5977534_9 * E RECORDING * Page 4 of 62 Sequence No. 20152960272 8.1 Common Area Maintenance and Operation......................................................... 27 8.2 Insurance............................................................................................................... 30 8.3 Building Maintenance........................................................................................... 30 ARTICLE 9 COMMON EXPENSES....................................................................................:......30 9.1 Payment by Association........................................................................................ 30 9.2 Payment of Proportionate Shares: Statements...................................................... 31 9.3 Extraordinary Expenses........................................................................................ 31 9.4 Covenant to Pay; Liens for Common Expenses ................................................... 31 9.5 Enforcement..........................................................................................................32 9.6 Books and Records............................................................................................... 32 9.7 Rights With Respect to Statements....................................................................... 32 9.8 Designation of Managing Agent........................................................................... 32 ARTICLE 10 DAMAGE OR DESTRUCTION TO COMMON AREA......................................33 10.1 Repair of Damage................................................................................................. 33 10.2 Payment of Costs.................................................................................................. 33 ARTICLE11 LIENS.....................................................................................................................33 ARTICLE 12 ADDITIONAL MAINTENANCE.........................................................................34 12.1 Clear Areas............................................................................................................ 34 12.2 Waste Containers.................................................................................................. 34 12.3 Outdoor Storage.................................................................................................... 34 ARTICLE 13 INDEMNIFICATION, INSURANCE, DAMAGE AND DESTRUCTION..................................................................................................35 13.1 Common Area Indemnity..................................................................................... 35 13.2 Future Building Area and Building Area Indemnity ............................................ 35 13.3 Commercial General Liability Insurance.............................................................. 35 13.4 Additional Insurance.............................................................................................36 13.5 Fire Insurance and Rebuilding............................................................................. 36 13.6 Obligations On Rebuilding................................................................................... 36 13.7 Blanket Coverage.................................................................. ............................ 36 13.8 Notice of Cancellation to Association.................................................................. 37 13.9 Other Insurance Requirements.............................................................................. 37 13.10 Mutual Release....................................................................................................... 37 ARTICLE 14 AMENDMENTS TO SITE PLAN.........................................................................37 14.1 Amendments......................................................................................................... 37 14.2 Plat........................................................................................................................ 38 ARTICLE15 CONDEMNATION............................................................................................38 15.1 Distribution........................................................................................................... 38 15.2 Condemnation of Common Area.......................................................................... 38 15.3 Interests Affected.................................................................................................. 39 ARTICLE 16 RIGHTS UPON DEFAULT...................................................................................39 16.1 Right to Cure......................................................................................................... 39 16.2 Legal and Equitable Relief.................................................................................... 40 16.3 Costs of Cure......................................................................................................... 40 16.4 Notice of Lien....................................................................................................... 40 16.5 Removal of Lien................................................................................................... 41 16.6 Waiver and Remedies Cumulative........................................................................ 41 iii 5877534_9 * E RECORDING * Page 5 of 62 Sequence No. 20152960272 .ti 16.7 Estoppel Certificate............................................................................................... 41 16.8 No Liability Regarding Enforcement or Performance .......................................... 42 ARTICLE 17 TRANSFERS OF INTEREST, RIGHTS, POWERS AND OBLIGATIONS..............................................:......................................................42 17.1 Method -of Transfer............................................................................................... 42 17.2 Transfer of Entire- Interest..................................................................................... 42 17.3 Interests in Owners and Encumbrances................................................................ 43 ARTICLE 18 EFFECT OF BREACH UPON PURCHASERS AND MORTGAGEES....................................................................................................43 18.1 No Termination..................................................................................................... 43 18.2 Mortgagee Protection............................................................................................ 43 18.3 Subordination as to Encumbrance Prior to Lien Claim ........................................ 43 ARTICLE 19 COVENANTS AND RECORDATION.................................................................44 19.1 Covenants Run With the Land.............................................................................. 44 19.2 Recordation........................................................................................................... 44 ARTICLE 20 PROPERTY TAXES..............................................................................................44 20.1 Property Taxes and Assessments.......................................................................... 44 20.2 Contest of Property Taxes..................................................................................... 44 ARTICLE 21 MISCELLANEOUS...............................................................................................44 21.1 Negation of Partnership........................................................................................ 44 21.2 Termination and Amendment................................................................................ 45 21.3 Approvals ...........................................................................................................45 21.4 No Public Dedication............................................................................................ 46 21.5 Excusable Delays.................................................................................................. 46 21.6 - Severability...........................................................................................................46 21.7 Notices.................................................................................................................. 46 21.8 Construction..........................................................................................................46 21.9 Captions................................................................................................................ 47 21.10 References.............................................................................................................47 21.11 Litigation Expenses............................................................................................... 47 21.12 Time...................................................................................................................... 47 21.13' Annexation............................................................................................................47 21.14 Restriction on Further Subdivision and Rezoning ................................................ 48 iv 58775349 * E RECORDING * Page 6 of 62 Sequence No. 20152960272 DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE CANYONS AT LINDA VISTA TRAIL THIS DECLARATION is made as of this ` -o (— ,13 , 2015, by Boulder Oro Valley, LLC, an Arizona limited liability company ("Developer"). RECITALS: A. As of the date of this Declaration, Developer is the owner of the Property, which is situated generally at the northeast corner of Oracle Road and Linda Vista Boulevard in the Town of Oro Valley, Pima County, Arizona. (Except as otherwise provided in this Declaration, all capitalized terms have the meanings given them in ARTICLE 1 below.) B. Developer intends that the Property be developed and operated as an integrated retail and commercial center, and in connection therewith Developer intends to sell portions of the Property to other Persons. To effectuate the common development, use and operation of the Property as a retail and commercial center, Developer desires to impose upon the Property certain covenants and agreements as part of a general plan for beneficial use of the Property and to establish, for its own benefit and that of all other present and future Owners and Occupants of the Property, certain reciprocal easements in, to, over, under, and across certain portions of the Property, all as set forth in this Declaration. C. Developer intends by this Declaration to establish and impose upon the Property, for the benefit of each Owner and Occupant of the Property and any part thereof, certain mutually beneficial covenants, conditions, restrictions and easements to: (1) promote and preserve the orderly development, administration, maintenance, preservation, use and enjoyment of the Property; (2) protect the owners against the improper development and use of the Property; (3) prevent the erection within the Property of Improvements constructed of improper or unsuitable materials or with improper quality or methods of construction; (4) insure adequate and reasonably consistent development of the Property; (5) encourage and insure the erection of attractively designed permanent Improvements appropriately located within the Property -to achieve harmonious appearance and function; (6) provide for certain rights and easements in order that each Owner, Occupant and User may freely use the Common Areas for vehicle parking and for the ingress and egress of pedestrians and vehicles to and from the Property; and (7) otherwise encourage, promote and assure, development of the Property as a first-class, high - quality retail and commercial center. NOW, THEREFORE, Developer hereby declares that- the Property, and any and all portions thereof and interests therein, shall, be held, sold and conveyed subject to the following covenants, conditions, restrictions and easements, which are for the purpose of protecting the value and desirability of, and which shall run with, the Property, and which shall be binding on all parties now or hereafter having any right, title or interest in the Property or any part thereof, and their heirs, personal representatives, successors and assigns, and shall inure to the benefit of each Owner of all or any portion thereof. 5877534_9 v * E RECORDING * Page 7 of 62 Sequence No. 20152960272 ARTICLE 1 DEFINITIONS Except as otherwise expressly provided in this Declaration, the following terms shall, for purposes of this Declaration, have the meanings set forth below: 1.1 "AccountingPeriod" eriod" shall mean each calendar year commencing January 1 and ending December 31, except that the first Accounting Period shall commence'on the date this Declaration is Recorded, and the last Accounting Period shall end on the termination of this Declaration. 1.2 "Affiliate" shall mean any entity in which Boulder Oro Valley or any member of Boulder Oro Valley has a direct or indirect ownership interest or over which Boulder'Oro Valley or any member of Boulder Oro Valley exercises management control, whether directly or indirectly. 1.3 "Annexable Property" shall mean any real property that shares a common boundary with all or any portion of the Property. 1.4 "Architectural Documents" shall mean the plans, specifications, schedules, renderings, and other documents described in Section 5.3 below. 1.5 "Articles" shall mean the Articles of Incorporation of the Association, as they may from time to time be amended or restated, which are or shall be filed with the Arizona Corporation Commission. 1.6 "Association" shall mean the Arizona nonprofit corporation (and its successors and assigns) organized by Developer to exercise the rights, powers and duties of the Association set forth in this Declaration. Developer currently intends to name the Association "The Canyons At Linda Vista Trail Owners Association." 1.7 "Board" shall mean the Board of Directors of the Association. 1.8 "Boulder Oro Valley" shall mean Boulder Oro Valley, LLC, an Arizona limited liability company. 1.9 `Buildings" shall mean: (a) the structures that are to be constructed on the Future Building Areas in accordance with the Site Plan and this Declaration; or (b) once constructed, the structures actually situated upon .Building Areas, including appurtenant drive-thru lanes and drive-thru facilities, loading docks, truck tunnels, truck ramps and truck wells. 1.10 `Building Areas" shall mean the area ' occupied by a Building, together with appurtenant drive-thru lanes and drive-thru facilities, loading docks, truck tunnels, truck ramps and truck wells, once construction of such Building has been completed upon a Future Building Area, as further described in Section 1.18. 1.11 `Bylaws" shall mean the Bylaws of the Association, as they may from time to time be amended or restated, in a manner consistent with the terms of the Declaration. 2' 5877534 9 + * E RECORDING * Page 8 of 62 Sequence No. 20152960272 41 4. 1.12 "Committee" shall mean the committee. established pursuant to Section 5.1 below. 1.13 "Common Area" shall mean all of the areas within the Shopping Center constructed for use in common for the benefit of the Shopping Center and all Owners, Occupants and Users thereof. Common Areas include all areas constructed within the Shopping Center from time to time that are not improved with Buildings and that lie outside the perimeter walls of Buildings including, but not limited to, the following: 1.13.1 Future Building Areas, but only so long as paved or otherwise improved and made available for use in common for the benefit of the Shopping Center and all Owners, Occupants and Users and designated temporary Common Area by both the Owner thereof and the Association in a written notice given to all other Owners; provided such Future Building Area may be withdrawn at any time as temporary Common Area by a written notice given by the Owner thereof to all other Owners; and vehicles; 1.13.2 the Parking Area, including all parking spaces for passenger 1.13.3 the Driveway; 1.13.4 . sidewalks and walkways, including. those providing pedestrian access to the Parking Area and the Buildings, and including perimeter sidewalks adjacent and contiguous to the Property; . 1.13.5 landscaped and planted areas (including planters and areas located between sidewalks and Buildings or next to exterior Building walls); 1.13.6 all curbs and lighting standards, traffic and directional signs and traffic striping and markings, but excluding drive-thru signage; 1.13.7 utility lines serving the Property (subject to Sections 6.2, 6.7 and Section 7.2.31; 1.13.8 fire lanes as required by any applicable law, regulation, ordinance or code of any governmental authority having jurisdiction over the Property; 1.13.9 areas containing Shopping Center Signs (together with the Shopping Center Signs constructed thereon); and 1.13.10 drainage channels, drainage structures and underground storm water retention systems. Notwithstanding anything to the contrary contained herein, "Common Area" shall not include: (i) Building canopies, support columns, pilasters, overhangs, or footings; (ii) Building truck docks, truck wells or truck tunnels located within Building Areas or projecting from Building Areas into the Common Area; (iii) trash bin enclosures or the area within such enclosures; (iv) drive-thru lanes or drive-thru facilities (including drive-thru signage); (v) 3 58775349 * E RECORDING * Page 9 of 62 Sequence No. 20152960272 outdoor seating areas for the sole use of the Users of the business(es) conducted within one Building; or (vi) any monument sign, pylon sign or other free-standing sign otherwise allowed pursuant to the terms of this Declaration displaying only the name(s) of the Occupant(s) of the Parcel on which such sign is located. 1.14 "Common Expenses" shall mean the total of all monies paid or incurred by the Association for reasonable costs and expenses associated with the operation, maintenance, repair and, if necessary, replacement of the Common Area in fulfillment of the requirements of ARTICLE 8. Common Expenses include, without limitation: 1.14.1, Rental Charges. Rental expenses or reasonable allowances for depreciation of equipment or other personal property used in the maintenance, operation and repair of the Common Area; 1.14.2 Supervision. All costs of policing, supervision and traffic direction control and regulation of the Common Area; 1.14.3 Insurance. All premiums for insurance required to be obtained by the Association pursuant to Section 8.2; 1.14.4 Taxes. All personal property taxes levied or assessed on equipment, fixtures and other personal property which are located on, or used in connection with the maintenance of, the Common Area, and all real property taxes levied or assessed on the Driveway (as defined in Section 1.17); 1.14.5 Landscaping. All costs of landscaping maintenance and supplies (including replacement plants) with respect to the Common Area and, if necessary, areas in the public right-of-way adjacent to the Common Area; 1.14.6 Utilities. All charges for utility services to, the Common Area (subject to Section 8.1.4), together with all costs of maintenance of lighting fixtures and other utility equipment and fixtures within the Common Area; 1.14.7 1Finance Charges. All debt service and carrying costs for capital improvements to the Common Area, but only if all Members have approved of the Association incurring such debt for capital improvements to the Common Area; 1.14.8 Parking Area. All costs associated with cleaning, sweeping, striping, repairing and resurfacing the Parking Area; 1.14.9 Fees. License, permit and inspection fees, and professional fees, including fees for legal and accounting services rendered by independent contractors, incurred in connection with the Association's performance of its duties under this Declaration; 1.14.10 Independent Contractors. contractors retained by the Association to perform operation of the Common Area; 4 Costs of services of independent duties related to the maintenance and 5877534_9 * E RECORDING * Page 10 of 62 Sequence No. 20152960272 1.14.11 Supplies. Costs of supplies for the operation, maintenance and repair of the Common Area; 1.14.12 Compensation. All reasonable costs of compensation (including employment taxes and fringe benefits) of all Persons (including any management company and/or the Developer or an Affiliate as described in Section 9.8) employed to perform regular and recurring duties in connection with the day-to-day operation, maintenance and repair of the Common Area, such costs not to exceed five percent (5%) of the total Common Expenses (exclusive of real estate taxes and insurance). 1.14.13 Other Labor Costs. All labor costs involved in the operation, maintenance and repair of the Common Area not included in Section 1.14.12 above; .1.14.14 Alterations and Improvements. Subject to Section 1.14.15, expenditures for alterations or improvements to the Common Area (including major structural alterations or improvements) if required by or resulting from a change in any law or regulation, or interpretation thereof by any governmental body; 1.14.15 Capital Improvements. Expenditures for capital improvements relating to the Common Area, to the extent the cost of such capital improvements is not covered under contractor warranties or by insurance or condemnation proceeds; provided, however, in no event shall the Association have the right, power or authority to incur costs in excess of $50,000.00 for any such capital improvement that is not so covered unless such expenditure has been approved by Members holding at least 75% of all the votes of Members in the Association; and 1.14.16 Other Obligations Under Section 8.1. All other reasonable and necessary costs required to be incurred in order to fully satisfy the operation, maintenance and repair obligations described in Section 8.1 hereof, including an allocation for reasonable reserves. Common Expenses shall be determined in accordance with generally accepted accounting principles consistently applied. 1.15 "Coun 'shall mean Pima County,. Arizona. 1.16 "Developer"shall mean Boulder Oro Valley, during such period of time that Boulder Oro Valley owns any portion of the Property and shall mean any Affiliate of Boulder Oro Valley to whom Boulder Oro Valley has assigned its rights as Developer in a Recorded instrument, but only so long as such Affiliate owns any portion of the Property. 1.17 "Driveway" shall mean the area identified and depicted as such on the Site Plan, which provides vehicular access from Oracle Road to the Shopping Center and the Residential Tract, and from the Shopping Center and the Residential Tract to Oracle Road. For all purposes under this Declaration, the Driveway shall be considered part of the Common Area. 1.18 "Future Building Areas" shall mean the areas identified as such on the Site Plan, ,on which Buildings and related Improvements may be located at some future time pursuant to 5 58775349 * E RECORDING * Page 11 of 62 Sequence No. 20152960272 4- " this Declaration but upon which areas the construction of any Building(s) or related Improvements has not yet begun. When construction of a Building is completed upon a Future Building Area, the portion thereof actually occupied by such Building (but excluding any portion thereof not so occupied) shall automatically become a Building Area and cease to be a Future Building Area. For all purposes under this Declaration, a Building shall be considered to be "completed" upon issuance by the appropriate governmental authority of a certificate of occupancy or similar evidence of final inspection and approval of such Building. 1.19 "Gross Floor Area" shall mean the total floor area contained within the boundaries of the exterior surface of exterior walls of any Building and within the boundaries of the centerline of party walls, ' including mezzanines used for retail sales purposes and all stories of any multiple story building, but excluding drive-thru lanes, drive-thru facilities, outdoor seating areas, fenced or walled play area appurtenant to day care uses, truck tunnels, truck ramps and truck wells, loading docks, areas for loading and unloading (to the extent such facilities lie outside exterior Building lines) utility and/or mechanical equipment vaults, rooms, penthouses or areas (including without limitation any rooftop areas and vaults, whether located partially or wholly outside of such exterior walls), building canopies, pilasters and overhangs, and recessed openings of Buildings. Whenever and during any period in which a Building or other Improvement is rebuilt, repaired, replaced or razed for any reason whatsoever, the Gross Floor Area of such Building shall be deemed to be the same as the Gross Floor Area of such Building immediately prior to such period. Within thirty (30) days after completion of initial construction, and any reconstruction, remodeling or improvement of any Building, the Owner thereof shall cause its architect to certify in writing to the Association the number of square feet of Gross Floor Area on its Parcel, which shall thereafter constitute the Gross Floor Area for such Parcel for all purposes under this Declaration, unless and until affected by subsequent construction, reconstruction, remodeling or improvement; provided, however, if the Association provides such Owner with a written notice within ninety (90) days after receiving such Owner's architect certification that the Association elects to do so, the Association may, within ninety (90) days of giving such notice to' the Owner (and as a Common Expense) cause an architect retained by the Association to certify the Gross Floor Area of such Owner's Parcel, in which event the higher of the two certifications shall become the Gross Floor Area for such Parcel for. all purposes under this Declaration. 1.20 "Improvements" shall mean all land preparation or excavation, all landscaping, Buildings, structures, Parking Areas, Parking Area striping, fences, walls, hedges, plantings, poles, driveways, signs, utilities installation, glazing or reglazing of exterior windows and all other construction or other work which affects the appearance of a Parcel or the exterior color or appearance of any Building or other structure. The term "Improvements" specifically includes both original Improvements and all later replacements, changes or alterations. 1.21 "Member" shall mean every Person who is a member of the Association pursuant to Section 3.2. 1.22 "Occupant" shall mean any Person (whether or not an Owner) who shall from time to time be entitled to the use and occupancy of any portion of the Building Area on any Parcel (and/or an Improvement located thereon) under this Declaration or under any lease, license, or concession agreement, or other instrument or arrangement under which the Occupant 6 58775349 * E RECORDING * Page 12 of 62 Sequence No. 20152960272 acquires its right to such use and occupancy, and shall also include the officers, directors, employees and agents of such Persons. 1.23 "Owner" shall mean any Person who shall from time to time be the record owner of fee title to any Parcel; provided, however, that in the event that fee title to a Parcel is held by a trustee under a deed of trust governed by the provisions of Arizona Revised Statutes § 33-801 et seq., the Owner of such Parcel, for the purposes of this Declaration, shall be deemed to be the holder of the trustor's interests thereunder. No Person having any interest in a Parcel merely as security for the performance of an obligation shall be deemed to be an Owner. In the event the Owner of any Parcel consists of more than one Person, then all such Persons shall together constitute and be deemed to be a single Owner, provided that all obligations of such Owner hereunder shall nevertheless be joint.and several obligations of all such Persons constituting the Owner, and further, such Persons shall execute and deliver to the Association a written instrument appointing and authorizing one individual or entity as their agent to receive all notices and demands required or permitted to be given under the terms and provisions of this Declaration, to execute any and all documents, consents and instruments required under the terms and provisions of this Declaration and to take any and all actions required or permitted to be taken by them under the terms and conditions of this Declaration. An Owner may change its designated agent by written notice to the Association. In the absence of such designation, the Association may designate any of such Persons constituting an Owner as the agent for such Owner, and the acts of such designated agent shall be binding on all such Persons constituting the Owner for whom the agent is designated until all such Persons themselves designate an agent in accordance with this Section. 1.24 "Parcel" shall mean any area designated as a Parcel on the Site Plan on which one or more Buildings and other Improvements may now or. hereafter be constructed in accordance with this Declaration. Prior to such improvement, each Parcel shall be maintained by and at the expense of the Owner thereof unless and until such time (and so Iong as) such Parcel is paved, landscaped or otherwise improved and designated temporary Common Area by both the Owner of such Parcel and the Association. 1.25 "Parking Area" shall mean that portion of the Common Area used for parking of motor vehicles, including, without limitation, incidental and interior driveways, parking areas, access lanes, roadways, walkways, curbs, entrances, exits, and landscaping within the area used for such parking, together with all Improvements which at any time are erected thereon, but excluding Building Area truck ramps, tunnels and truck wells, loading or delivery areas and drive-thru lanes 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. 1.26 "Person" shall mean any individual, partnership, firm, association, corporation, trust, governmental agency, administrative tribunal, or any other form of business or legal entity. 1.27 "Plat" shall mean the subdivision plat of the Property processed by the Town and Recorded in the Recorder's office, as may be amended or supplemented. Following the Recording of the Plat, this Declaration shall be amended to include the Plat as Exhibit C hereto in replacement of the Site Plan attached as Exhibit C hereto. 7 58775349 * E RECORDING * Page 13 of 62 Sequence No. 20152960272 1.28 "Prime Rate" shall mean the then current prime rate published in the Western Edition of the Wall Street Journal, provided, however, if the Western Edition of the Wall Street Journal no longer publishes a prime rate then the Prime Rate shall mean an equivalent rate established by a financial institution or financial publication reasonably designated by Association. 1.29 "Prope ft' shall mean the real property more particularly described on Exhibit A attached hereto and incorporated herein, together with such additional property, if any, as is hereafter annexed thereto pursuant to Section 21.13. 1.30 "Proportionate Share" shall mean, with respect to any Owner, that Owner's percentage or fractional share of an expense or other amount determined by multiplying the total of such expense or other amount by a fraction, the numerator of which shall be the total square feet of Gross Floor Area within the Building(s) located (or to be located) on such Owner's Parcel and the denominator of which shall be the total square feet of Gross Floor Area within the Building(s) located (or to be located) on all Parcels within the Shopping Center. For the purposes of the preceding sentence, the numerator and denominator of the fraction described therein shall be determined using the actual Gross Floor Area of the included Buildings; provided that the square footage of any Building commenced but not completed or not .yet commenced shall be deemed to be the square footage designated for such Building in the approved Architectural Documents for such Building. For all purposes under this Declaration, a Building shall be considered to be "completed" upon issuance by the appropriate governmental authority of a certificate of occupancy or similar evidence of final inspection and approval of such Building. For all purposes under this Declaration, construction of a Building shall be considered "commenced" at the time any digging or earth moving for the footings of the foundation has begun. Where such certificate of occupancy (or similar evidence) is issued on a day other than the first day of a calendar month or where any digging or earth moving for the footings of the foundations has begun on a day other than the first day of a calendar month, each Owner's Proportionate Share of Common Expenses for such month shall be adjusted and prorated on a proportional basis. 1.31 "Record," "Recorded" or "Recordation" shall mean and include record, file, lodge or any other term signifying the placing of a document or instrument of public record with the Recorder. 1.32 "Recorder" shall mean the Pima County, Arizona Recorder or any successor governmental entity with which documents and instruments affecting title to or the legal condition of real property in and around the location of the Property are required to be recorded, filed, lodged or otherwise placed of public record. 1.33 "Residential Tract" shall mean the real property more particularly described on Exhibit B attached • hereto and incorporated herein. The Residential Tract is not a part of the Shopping Center or the Property and is not subject to the provisions of this Declaration except as otherwise specifically provided herein. 1.34 "Shoppin Center shall mean, collectively, all of the Parcels, as then improved in accordance with the Site Plan, including Buildings, Common Area and related Improvements. 58775349 4 * E RECORDING * Page 14 of 62 Sequence No. 20152960272 1.35 "Shopping Center Signs" shall mean those monument, pylon or other free- standing signs to be constructed at approximately those locations within the Common Area depicted on the Site Plan. Shopping Center Signs shall not include any monument, pylon or other free-standing sign that displays only the name(s) of the occupant(s) of the Parcel upon which such sign is located. 1.36 "Site Plan" shall mean the site plan of the Property attached hereto as Exhibit C and incorporated herein by this reference, as the same may be amended hereafter in accordance with the provisions of this Declaration. ARTICLE, 14 governs the terms and conditions under which the Site Plan may be amended. 1.37 "Town" shall mean the Town of Oro Valley, Arizona. 1.38 "User" shall mean any customer, patron, employee, supplier, licensee, invitee, agent, client, permittee or visitor of each Owner and Occupant. ARTICLE 2 THE ASSOCIATION 2.1 Formation. The Association shall be a nonprofit corporation formed under Arizona laws regarding nonprofit corporations, charged with the duties and vested with the powers and rights prescribed by law and set forth herein and in the Bylaws and in the Articles. 2.2 Board of Directors and Officers. The affairs of the Association shall be, conducted by the Board and such officers as the Board may elect or appoint in accordance with the Articles and the Bylaws. The Board shall adopt Bylaws to govern the affairs of the Board and the Association, which are consistent with the terms of the Declaration. Except as otherwise provided herein or in the Articles or Bylaws, all acts of the Association shall be made'by a majority of the members of the Board. The Board may also appoint various committees at its discretion. 2.3 Powers. The Association shall have all the powers of a nonprofit corporation organized under Arizona laws regarding nonprofit corporations, subject only to such limitations on the exercise of such powers as are set forth in the Articles, the Bylaws and this Declaration. It shall have the power to do any lawful thing that may be authorized, required or permitted to be done by the Association under this Declaration, the Articles and the Bylaws, and to do and perform any act that. may be necessary or proper for or incidental to the exercise of any of the express powers of the Association, including, without limitation, the following: 2.3.1 commence and maintain actions or restrain and enjoin any actual or threatened breach of this Declaration and enforce by mandatory injunction or otherwise (as permitted by this Declaration) any of the provisions of this Declaration; 2.3.2 levy assessments and charges and perfect and enforce liens as hereinafter provided; 2.3.3 enter into contracts to perform the duties set forth herein, including but not limited to maintenance and repair of the Common Area and enforce said contracts; 9 58775349 * E RECORDING * Page 15 of 62 Sequence No. 20152960272 2.3.4 adopt, amend and repeal rules and regulations as provided in Section 8.1.13; 2.3.5 enter onto the Parcels to enforce the provisions of this Declaration; 2.3.6 purchase such liability, casualty, errors and omissions and other types of insurance as the Board deems necessary or appropriate in connection with the operations and duties of the Association; and 2.3.7 borrow funds to pay costs of operation, secured by Association revenues due for succeeding periods or by assignment or pledge of rights against delinquent Owners; provided, however, that a majority of the outstanding votes of the Members, and the vote of Developer while Developer is an Owner, shall be required to borrow in excess of Ten Thousand and No/100 Dollars ($10,000.00). Said borrowing may be from Developer should Developer elect to advance funds, but in such event the amount borrowed must bear interest. at a rate per annum that does not exceed the Prime Rate plus five percent (5%). 2.4 Articles and Bylaws. Neither the Articles nor the Bylaws shall be amended or interpreted in a manner that is inconsistent with this Declaration. In the event the terms of either the Articles or Bylaws conflict with the terms of the Declaration, the terms of the Declaration shall control and prevail. ARTICLE 3 ASSOCIATION MEMBERSHIP AND VOTING RIGHTS 3.1 Membership Votes. Each Owner shall have ten (10) votes as a Member of the Association for each gross acre or portion of a gross acre within such Owner's Parcel, rounded;to the nearest one -tenth (1/10) of a gross acre (e.g., an Owner owning a Parcel consisting of 1.34 gross acres shall have thirteen (13) votes as a Member of the Association; provided, however, while Developer is an Owner, Developer shall have three (3) votes as a Member for every one (1) vote possessed by the other Owners of the Property. 3.2 Transfer of Memberships. Upon becoming the record Owner of a Parcel, each Owner automatically shall become a Member of the Association and shall remain a Member until such time as its ownership ceases for any reason, at which time its membership in the Association automatically shall cease. Such membership shall be appurtenant to and pass with ownership of such Parcel. The membership shall not be transferred, pledged or alienated in any way, except as appurtenant to a transfer of ownership of a Parcel. Any attempt to transfer a membership except as appurtenant to the transfer of ownership of a Parcel shall be void and shall not be reflected upon the Association's books and records. An Owner shall notify the Association of any transfer of the ownership of a Parcel. 3.3 Voting;, Multiple Owners; Appointment of Agent. Unless otherwise provided herein or in the Bylaws, the votes of Members holding a majority of the votes in the Association shall be sufficient to••decide any question submitted to the membership. All voting pursuant to the terms of this Declaration shall be made in accordance with the provisions of this Section 3.3. All votes attributable to the ownership of a Parcel must be cast as a single unit. There shall be only one Person with respect to each Parcel who shall be entitled to cast that Parcel's votes. Such 10 58775349 * E RECORDING * Page 16 of 62 Sequence No. 20152960272 Person shall be the Parcel Owner or the Person designated by such Parcel Owner in writing (e.g., a tenant of a Parcel) to act as proxy on behalf of that Parcel Owner. Such designation. shall be made in writing to the Board and shall be revocable at any time by actual notice to the Board by - the Owner; provided that the Board may establish a number of days (not to exceed 60 days) prior to any meeting of the Members after which changes to the list of voting Members may not be made. No change in the ownership of a Parcel shall be effective for voting purposes until the Board receives written notice of such change together with satisfactory evidence thereof. 3.4 Board of Directors. The Board shall consist of three directors, and the initial Board shall be appointed by the Developer upon the incorporation of the Association. While Developer remains an Owner, Developer shall have the sole right, in its sole and absolute discretion, to appoint and remove any or all directors of the Board. ARTICLE 4 USES AND RESTRICTIVE COVENANTS 4.1 Commercial Purposes. The Shopping Center shall be used solely for commercial purposes. Such purposes shall be limited to the development, construction, leasing, operation and maintenance of mercantile, business, service, financial, retail, restaurant and professional establishments and offices, and related facilities such as the Common Area, all in accordance with the provisions of this Declaration. J 4.2 Uniform General Plan for Shopping Center. Any Building erected, any remodeling or reconstruction work undertaken on any existing Buildings, and any alteration or addition to the Common Area shall at all times be of first quality construction and exterior architectural design. Developer intends by this Declaration to create a uniform general plan for the Shopping Center. 4.3 Building Area. Buildings and other structures shall only be placed or constructed on or within the Future Building Areas (or, in the case of reconstruction, expansion, remodeling or replacement of a Building, in the Building Area occupied or formerly occupied . by the Building being reconstructed, expanded, remodeled or replaced). In no• event shall any Building' or other structure be erected within the Common Area except as specifically permitted herein. 4.4 Remodeling and Replacement. Buildings and other Improvements located in any Building Area may be reconstructed, expanded within the Future Building Area depicted on the Site Plan, remodeled or replaced, and Buildings and other Improvements may be constructed,' upon compliance with the provisions of this Declaration concerning approval of plans, the uniform general plan for the Shopping Center, and construction requirements. Alterations and additions to the Common Area may be made only in accordance with the terms of this Declaration. 4.5 Nuisances. No Owner shall use or permit the use of its Parcel, or any portion thereof, whether by an Occupant or otherwise: (a) for the conduct of any offensive, noisy or dangerous trade, business, manufacturing activity or occupation, including, without limiting.the generality of the foregoing, burning of trash, refuse or waste materials; (b) for the maintenance of any nuisance or the conduct of any activity that violates public policy; (c) for any activity 11 58775349 i * E RECORDING * Page 17 of 62 Sequence No. 20152960272 which physically and substantially interferes with the business of any other Occupant of the Shopping Center; (d) in violation of any law, ordinance, rule or regulation of any governmental authority having jurisdiction over the Shopping Center or any portion thereof; (e) for any "sidewalk sales," sales outside the exterior walls of any Building or display of merchandise in the Common Area or any similar use except in areas specifically approved for such purpose, in writing, by the Association (which approvals may be given or withheld in the sole and absolute discretion of the Association, whether reasonable or unreasonable); or (f) for any other unreasonable use of its Parcel not compatible with the operation of a first-class retail and commercial center including, without limitation, the presence for an unreasonable amount of time of a partially completed or partially destroyed Improvement on a Parcel, or Occupant advertising media which can be heard or experienced from the exterior of any Building or other Improvement from which it emanates, such as search lights, loudspeakers, radios or televisions. Notwithstanding the foregoing or anything to the contrary contained in this Declaration, nothing contained in this Declaration shall be deemed to prohibit outdoor seating areas approved in accordance with the terms of ARTICLE 5, or outdoor seating area or drive-thru speaker boxes that are approved in accordance with the terms of ARTICLE 5 and the sound from which does not unreasonably interfere with the enjoyment and use by Owners or Occupants of other Parcels; provided, however, speaker boxes that are at a moderate level for taking customer orders and playing music for customer enjoyment will not be deemed to unreasonably interfere with the enjoyment and use by Owners or Occupants of other Parcels. 4.6 Special Maintenance by Restaurant Operators. The Association shall maintain the Common Area in accordance with the requirements of ARTICLE. 8, but each Occupant operating a restaurant or other food service establishment (whether full service, fast casual, fast food or otherwise) shall, at its own cost and expense, use commercially reasonable efforts to keep the Common Area clean and free of all debris and rubbish caused by such use and no.part of the cost therefor incurred by such Occupant shall be included in Common Expenses. All leases to any Occupants operating restaurants or other food service establishments shall include appropriate provisions consistent with and implementing the foregoing conditions.. 4.7 Compliance with Laws. Each Owner, without cost or expense to any other Owner, shall promptly comply or cause compliance with all laws,' ordinances, rules and regulations of any governmental authority having jurisdiction that may at any time be applicable to the Buildings and other Improvements contained within the Building Area on its Parcel. 4.8 Employee Parking and Deliveries. All Owners and Occupants shall require their employees to park their vehicles in areas designated from time to time by the Board (in its reasonable discretion) for "Employee Parking". In designating employee parking areas, the Board shall take into account the desirability of having employee parking located in reasonable proximity to the applicable place of business. The Board may from time to time establish: (a) employee parking regulations; and (b) reasonable regulations with respect to delivery, service, Shopping Center use -related vehicles, times of delivery and places of delivery. Such regulations shall be reasonable and 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 Users who are customers of the Shopping Center. The Board shall enforce the regulations promulgated hereunder against all Occupants of the Shopping Center in a reasonable and 12 58775349 * E RECORDING * Page 18 of 62 Sequence No. 20152960272 nondiscriminatory manner as part of the Association's obligation to operate and maintain the Common Area under ARTICLE 8. 4.9 Parking Area Levies. No Owner or Occupant shall impose or attempt to impose any charge or service fee or exact any other consideration in exchange for the right of a User to ` enter or depart from or park a motor vehicle in the Parking Area in connection with use of the Common Area for purposes contemplated herein. 4.10 No Walls, Fences or Barriers. Subject to the provisions contained in ARTICLE 5 and ARTICLE 6 regarding construction activities and Section 12.1 regarding clear areas, no walls,. fences or barriers of any sort or kind shall be constructed or erected in the Common Area by any Person that shall prevent or impair the use or exercise of any of the rights or easements granted herein, or the access and movement of Occupants and Users, including, without limitation, pedestrians and vehicular traffic, between the various Parcels as contemplated by this Declaration; provided, however, that reasonable traffic control signs and devices, directional banners, curbing and parking stops, as may be necessary to guide and control the orderly flow of traffic, may be installed so long as access driveways within and to the Parking Area and the Shopping Center are not closed or blocked and the traffic circulation pattern of the Common Area, -as shown on the Site Plan (as it may be amended from time to time in accordance with the terms of this Declaration), is not changed or affected in any material way. 4.11 Signs. No monument, pylon or other free-standing signs shall be located in the Shopping Center except those - constructed by Developer, or with the Association's or Developer's prior written consent. No such signs or any other type of signs shall be erected without the prior written approval of the Committee as to size and appearance, including, without limitation, style, priority and arrangement of names, wording, and height. All Occupant signs within the Shopping Center shall conform to a nondiscriminatory sign criteria adopted by the Committee and uniformly enforced against the Shopping Center. Deviations from the sign criteria shall be permitted only with the prior written consent of the Committee. No Owner or Occupant shall have the right to display its name or other message on a Shopping Center Sign except as may be set forth in a separate -agreement relating to the same that may be entered into between the Association and certain Owners and/or Occupants. The terms and conditions of any such agreements relating to the Shopping Center Signs shall,be determined by the Association in its sole and absolute discretion. 4.12 Prohibited Uses. The uses described on Exhibit D attached hereto and incorporated herein are prohibited on the Property. ARTICLE 5 ARCHITECTURAL AND DESIGN REVIEW 5.1 Committee Structure. The Committee, which is hereby established, shall act as an architectural and design review committee pursuant to the terms of this Declaration. The Committee shall consist of: 5.1.1 Developer alone, so long as Developer is an Owner of all or any portion of the Property; 13 58775349 * E RECORDING * Page 19 of 62 Sequence No. 20152960272 5.1.2 • At such tithe as Developer ceases to be an Owner, the Committee shall consist of three (3) members who shall be appointed from time to time by the Board, and who shall consist of three Owners (or representatives of Owner(s) if such Owner(s) is an entity). 5.1.3 At such time as Developer ceases to be an Owner, the Board shall appoint the Committee members in writing and shall give written notice thereof to all Owners. No member of the Committee shall receive any compensation for his or her services; provided, however, that members of the Committeb shall be reimbursed by the Owner submitting its Architectural Documents for approval for reasonable expenses and costs incurred in the performance of the Committee's duties. 5.2 Function of the Committee . The Committee shall have the authority and responsibility to approve and regulate the design and construction of all Improvements (including, but not limited to, all Buildings and all Improvements to the Common Area) within the Property so as to assure compliance with the intent and purpose of this Declaration. All Improvements shall be designed and constructed strictly in accordance with the plans and specifications therefor as approved by the Committee and all governmental entities with jurisdiction in accordance with the standards and procedures hereinafter set forth. Approval of plans and specifications by the Committee shall not be unreasonably withheld, conditioned or delayed and shall be based on substantial conformance to the Site Plan and non-discriminatory design guidelines, uniformly enforced, if any, adopted by the Committee, structural design to the extent it bears on exterior architectural style, conformity and harmony of the exterior design with the architectural style established for the Shopping Center; the relation of finished grades and elevations to those for adjacent Parcels, conformity to both the specific and general intent of this Declaration and any then known and relevant Town ordinances and guidelines. The Committee shall not have jurisdiction over work that has no effect on exterior appearance, exterior colors, exterior structure or exterior design. Any decision of the Committee shall be final, conclusive and -binding upon all Owners and Occupants, provided it is made in accordance with the provisions of this Declaration. After Developer is no longer an Owner of any portion of the Property, in the event the Committee does not unanimously concur in an approval or disapproval, the concurrence of two-thirds (2/3) of the Committee members shall be sufficient to render approval or disapproval. The Committee shall have the authority from time to time to adopt design guidelines for all Improvements, including, without limitation, Buildings, landscaping and signs. 5.3 Submission of Architectural Documents. Any Person (whether an Owner or Occupant or other Person acting on their behalf) seeking to construct or erect any Building or other Improvement upon the Property, or to do any other work. specified in this Declaration as being subject to the review and approval of the Committee, shall first submit its Architectural Documents (together with any applicable review fee) for approval by the Committee by delivering such Architectural Documents, in duplicate, to each member of the Committee (or Developer, as applicable). The Committee shall establish review fees, from time to time, in reasonable amounts. All plans shall be prepared by a licensed architect or engineer, as applicable, and shall conform to good and standard architectural or engineering practice. The Architectural Documents shall include: 5.3.1 a statement regarding the use of the proposed Improvements; 14 58775349 * E RECORDING * Page 20 of 62 Sequence No. 20152960272 5.3.2 a preliminary timetable for the commencement and completion of construction of the proposed Improvements (including projected dates for approvals from applicable governmental authorities); 5.3.3 a preliminary grading plan showing existing contour grades (in one -foot contour intervals), finished spot grades, building finished floor elevations and the location of all proposed and existing Improvements. Existing and finished grades shall be shown at Parcel corners and at corners of proposed Improvements. Parcel drainage provisions, including any storm sewer locations and drainage retention areas, shall be indicated, as shall cut and fill details if any changes are to occur in the finished Parcel contour at any exterior boundary of the Parcel. All grading provisions shall fully comply with applicable Town and other governmental ordinances and regulations as may be in effect from time to time. 5.3.4 a preliminary site plan showing the location of all existing and proposed Improvements, including, without limitation, all parking areas with number and size of parking spaces, trash receptacle and trash enclosure locations, required fire lanes, site ingress and egress, and the location of all delivery or pick-up doors, personnel doors, entry doors, exterior glass or windows and any other openings in the Buildings; used; 5.3.5 preliminary Building elevations; 5.3.6 colored rendering of the proposed Building or Buildings; 5.3.7 schedule of proposed exterior Building materials and colors to be 5.3.8 landscaping plan; 5.3.9 composite utility site plan; 5.3.10 signage plan; and 5.3.11 a statement as to any variances to be requested from the Town, and the basis therefor, subject to the provisions of Section 5.4.7 and Section 21.14.4. The Committee shall permit the Architectural Documents to be submitted in scheduled phases consistent with the design and review process; provided, however, that no approval given by the Committee shall in any way obligate the Committee to any subsequent or additional approval, waiver or variance which may subsequently be required pursuant to this Declaration except that in the event of a casualty, the previously existing structure may be rebuilt in substantial conformance with the previously existing structure to the extent permitted under applicable governmental laws and codes; and provided further that no preliminary or working drawings may be submitted until the applicable approvals provided for in Section 5.4 have been obtained. 15 5877534_9 c * E RECORDING * Page 21 of 62 Sequence No. 20152960272 5.4 Committee Approval. 5.4.1 The Committee shall have twenty (20) days from its receipt of the Architectural Documents in which either to deliver its approval of the same with agreed upon stipulations, if any, or to deliver its written and detailed disapproval of or objection to the Architectural Documents. 5.4.2 If and when the Committee grants its approval of submitted Architectural Documents, the Committee's official name, the date of approval, the word "Approved" and the signatures of the approving Committee members (or, as applicable, Developer's representative) shall be affixed to each approved Architectural Document. If the Committee imposes any. stipulations to its approval, the Committee shall specify those stipulations in writing. 5.4.3 In the event the Committee, acting in accordance with this Section 5.4, disapproves of or objects to any matter in a submitted Architectural Document, the Committee shall promptly notify the Person submitting that Architectural Document, and such Person shall make such changes as are reasonably required to overcome the Committee's disapproval or objection and resubmit the affected Architectural Document. Upon receipt of Architectural Documents bearing such changes, the Committee shall have twenty (20) days in which to render its approval or disapproval thereof. Approvals shall be rendered in the form set forth in Section 5.4.2. 5.4.4 The Committee's approval of an Architectural Document shall be final unless subsequent approvals are required pursuant to Section 5.5. 5.4.5 Failure of the Committee to approve or disapprove submitted Architectural Documents within twenty (20) days after receipt thereof shall constitute approval thereof, subject to the terms and conditions of this Declaration. 5.4.6 The Committee's approval of submitted Architectural Documents shall not constitute its assumption of any responsibility for the accuracy, sufficiency or propriety thereof or a representation or warranty that the same call for the construction of Improvements which comply with applicable zoning, building, environmental or similar laws, ordinances or regulations, and the Person who submitted such Architectural Documents shall be solely responsible for such Architectural Documents. 5.4.7 No Owner shall submit any Architectural Documents for approval by the Town or any other governmental authority until they have been approved by the Committee. All submittals to the Town or any other governmental authorities shall be at the sole risk of the Owner. 5.5 Changes and Modifications. In the event an Owner or other Person, either on its own initiative or in response to governmental requirements, amends an Architectural Document previously approved by the Committee, or in the event a requested variance is denied by the Town, which denial results in a material change to one or more Architectural Documents previously approved by the Committee, the amended Architectural Document(s) shall be submitted in duplicate to each member of the Committee and shall be subject to approval or 16 5877534_9 * E RECORDING * Page 22 of 62 Sequence No. 20152960272 disapproval only with respect to the amendments, and then in the manner provided in Section 5.4. 5.6 Limitation of Liability. Neither the Committee nor any of its members or consultants, nor Developer, nor the Association shall be liable in damages to anyone submitting any items for approval or to any Owner, Occupant or User, or by reason of mistake of judgment, negligence, nonfeasance or for any other acts or omissions of any nature whatsoever (except for bad faith acts or intentional misconduct) arising out of or in connection with the approval or disapproval or failure to approve or to disapprove any Architectural Document. Further, the design and construction of any Improvement shall be the sole responsibility of the Owner and any recommendation with respect to any Architectural Documents or the means or method of construction made by the Committee or any member thereof shall not alter that Owner's responsibility for the safe and proper design and construction of said Improvement, nor shall it give rise to any claim by anyone against the Committee or any member thereof or consultant thereto, or Developer, or the Association for any defect in design or construction of any Improvement. Neither the Committee, nor any member thereof, nor any consultant thereto, nor Developer, nor the Association shall be liable in any way for any damage, loss or prejudice suffered or claimed by an Owner, Occupant or any other Person who submits Architectural Documents, except to the extent arising from the bad faith acts or intentional misconduct thereof. Any Person who submits Architectural Documents shall forever defend, indemnify and hold the Committee, any member thereof, consultant thereto, Developer, and the Association each, harmless from all damage, loss or liability (including reasonable attorneys' fees) suffered or claimed by any third party on account of: (i) any defects in any plans, drawings, specifications or other documentation submitted in any Architectural Documents, or revised or approved in accordance with the foregoing provisions, or for any structural or other defects in any work done according to such Architectural Documents; (ii) the construction or performance of any work, whether or not pursuant to approved Architectural Documents; or (iii) the development of any Parcel 'within the Property. 5.7 Enforcement by Committee. No Improvement shall be constructed, erected, placed, altered (by addition or deletion), or permitted to remain on any Parcel except in accordance with Architectural Documents approved by the Committee and the Town. Any Improvement not designed and constructed in accordance with approved Architectural Documents shall be conclusively deemed in violation of this Declaration and shall be removed or corrected by the Owner to the reasonable satisfaction of the Committee. In addition to any other remedy provided for in this Declaration, the Developer, the Association or the Committee may bring suit to enjoin the commencement or continuance of construction of any Improvement for which • the Committee has not approved Architectural Documents and may also bring suit -to ' uit to• enjoin the continuance of construction of any Improvement that is not being constructed in accordance with Architectural Documents previously approved by the Committee and the Town. 5.8 Approvals. Waivers and Variances. It is the intent of this Declaration that the regulations set forth in•this ARTICLE 5 be strictly adhered to. Notwithstanding that intent, it is recognized that particular circumstances may from time to time and on a case -by -case basis necessitate the waiving or varying of certain of the requirements set forth in this ARTICLE 5. Therefore, subject to the provisions of Section 21.14.4, the Committee may, in the exercise of its sole and absolute discretion, on a case -by -case basis, waive or vary one or more of the 17 58775349 * E RECORDING * Page 23 of 62 Sequence No. 20152960272 requirements and standards of this ARTICLE 5 provided that the Committee determines in its sole discretion that such waiver does not materially impair any other Owners' access, visibility, utilities, signage, use rights or drainage. Any waiver or variance, when granted, shall be final and binding upon all Owners and Occupants provided that it is granted in accordance with the provisions of this Section. The granting of a waiver or variance to one Owner or Occupant shall not automatically entitle another Owner or Occupant to the same waiver or variance, it being understood that each request for a waiver or variance shall be treated on its own merits. Further, the granting of a waiver or variance to an Owner or Occupant shall not automatically entitle that Owner or Occupant to any subsequent or additional waiver or variance. All approvals, waivers or variances by the Committee shall be in writing and made by a majority of the members of the Committee (or, as applicable, by Developer) and, if requested by the applicant, shall be in recordable form. Any approval, waiver or variance in any form other than as set forth in the immediately preceding sentence shall not be binding on the Committee (except where an approval is deemed to have been given pursuant to the provisions of Sections 5.4). 5.9 . Governmental and Utilities Fees and Expenses. All owners constructing Improvements pursuant to this ARTICLE 5 shall be solely responsible for all government fees in connection with its construction and all utility connection charges, except those fees and charges that would constitute Common Expenses. 5.10 Dispute Resolution/Arbitration Procedures. 5.10.1 In the event an Owner or Occupant believes the Committee has arbitrarily or unreasonably disapproved any Architectural Documents, or if an Owner disputes any notice of violation issued on behalf of the Committee, or if an Owner or Occupant believes the Committee has improperly granted or denied a waiver or variance of the requirements -set forth in this ARTICLE 5, then such Owner or Occupant will have the right to have the matter in dispute submitted to binding arbitration by sending to each member of the Committee (or, if applicable, to Developer) a notice describing the disputed issue (the "Dispute Notice"); provided, however, the Dispute Notice must be properly sent as described above no more than thirty (30) days after the party sending the same obtains written notice of the decision being challenged or else such shall be forever barred. In the event the issue in dispute is not resolved by mutual agreement within fourteen (14) days after the Dispute Notice is received by each member of the Committee (or Developer, if applicable), then the Owner or Occupant or the Committee may initiate the arbitration procedure by notifying the other party of its intent to submit such dispute to arbitration (an "Arbitration Notice'). On or before the earlier of thirty (30) days after the Committee or Owner or Occupant receives an Arbitration Notice or five (5) days prior to the date of the hearing referred to in Section 5.10.2 below, the parties will deliver to one another their respective statements of position with respect to the matter in dispute. 5.10.2 Within fifteen (15) days after a party receives an Arbitration Notice, the parties will attempt to select a mutually acceptable arbitrator. If the parties cannot agree upon a single arbitrator within said 15-day period, then within thirty (30) days of the date a party receives an Arbitration Notice, each party must select an arbitrator unaffiliated with the selecting party and without any conflict of interest and who has not previously worked for the selecting party. The two arbitrators selected will then have ten (10) business days to select a third arbitrator. If the two (2) original arbitrators are unable to agree upon the appointment of a 18 58775349 * E RECORDING * Page 24 of 62 Sequence No. 20152960212 third arbitrator, then either party may request that the American Arbitration Association ("AAA") appoint a third arbitrator. All arbitrators chosen hereunder (except a single arbitrator agreed upon by the parties) shall be members in good standing of the AAA and chosen from panels or lists designated by the AAA. A hearing shall be held before the arbitrator(s) within fifteen (15) business days after appointment of either the mutually acceptable arbitrator or the third arbitrator. At such hearing, each party shall be entitled to present its position. Such hearing shall be conducted in accordance with the commercial arbitration rules of AAA, shall not exceed one (1) day unless extended by the arbitrators, and the arbitrator or arbitrator(s) must select one of the positions presented to it as reflected in Section 5.10.1 above. Subject to the provisions of Section 5.6, the arbitrator(s) shall have the power to award any equitable remedy as part of such arbitration proceeding. 5.10.3 If a party fails or refuses to act within the time periods above set forth to submit its statement of position or to participate in an effort to select a mutually acceptable arbitrator or, if a single arbitrator is not agreed upon, to select an arbitrator, such party . shall be deemed to have approved the other party's statement of position as to the matter in dispute and/or selection of an arbitrator, as applicable. 5.10.4 The party prevailing in any arbitration proceeding under this Section 5.10 shall be entitled to recover from the other party its reasonable attorneys' fees and reasonable out-of-pocket costs incurred relative thereto. In addition, the expenses of arbitration shall be borne by the party not prevailing in said arbitration proceeding. Any costs charged to the Committee pursuant to this Section 5.10.4 shall be Common Expenses. 5.10.5 Judgment upon any decision rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Within six (6) months following the approval by the Committee of Architectural Documents for the Building to be constructed on any Parcel (unless such six (6) month period is extended on a case -by -case basis by a vote of the majority of the Board in its sole and absolute discretion), the Owner of such Parcel shall cause construction of such Building (and all other Improvements shown on the approved Architectural Documents) to be commenced and thereafter diligently pursued to completion such that completion of all such Improvements shall occur no later than eighteen (18) months following the date upon which the Committee approved the Architectural Documents therefor. ARTICLE 6 CONSTRUCTION AND INSTALLATION 6.1 Construction Work Generally. All construction, alteration or repair work (other than Common Area maintenance in accordance with Section 8.1) undertaken by any Owner or other Person upon any part of the Property pursuant to any easement granted herein, or permitted by any other provision of this Declaration, shall be: (a) accomplished in the most expeditious, diligent and speedy manner reasonably possible and with minimum interference with the use, operation, occupancy or enjoyment of the Shopping Center; (b) performed in a commercially reasonable manner; (c) of sound structural design; (d) in conformity with all applicable requirements of law or duly constituted governmental authority; (e) performed with all safety 19 58775349 * E RECORDING * Page 25 of 62 Sequence No. 20152960272 measures reasonably required to protect the other Owners and the Occupants and Users from injury or damage caused by or resulting from such construction; and (f) performed so as not to cause any unreasonable increase in the cost of construction incurred by any other Owner or Occupant or unreasonably interfere with any construction performed by or for any other Owner - or Occupant. The Owner or Occupant undertaking such work shall repair at its own cost and expense any and all damage caused by such work and shall restore the affected portion of the Property upon which such work is performed to a condition equal to or better than the condition existing prior to beginning such work. In addition, the Owner or Occupant undertaking such work shall pay all costs and expenses associated therewith and shall indemnify, defend and hold the other Owners and Occupants harmless from all damages, losses or claims, including attorneys' fees and costs arising from .or in respect of the death, injury, loss or damage caused to any person or property by reason of such construction, except when caused by the negligence or willful misconduct of the indemnitee, its contractors, agents'or employees. Except with respect to emergency repairs that are referred to in Section 6.5, all such work shall be undertaken only after obtaining approval of the Committee pursuant to ARTICLE 5. Notwithstanding anything herein to the contrary, no construction, alteration or repair work shall be conducted on any Parcel without the prior written consent of the Owner thereof, except as related to Common Area maintenance and repair on the Parcel of an Owner, or except as otherwise expressly allowed under this Declaration. 6.2 Utility Connections. 6.2.1 Subject to Section 7.2.3, the Owners shall reasonably cooperate with one another and permit installation of any necessary utility and service lines, sanitary or storm water drainage sewers, water lines, gas lines, telephone conduits or lines, cable television and all other public utilities required to serve jointly and mutually the Parcels and Building Areas. Such utilities shall not be located under any Building Area or any Future Building Area, as applicable, without the written consent of the Owner thereof, and shall be constructed as promptly as is reasonably possible so as not to interfere unduly with the overall development and operation of each Parcel and shall otherwise conform to the applicable requirements of this Declaration. To the extent permitted by applicable governmental authorities, all such utilities dedicated for the sole use of an individual Owner shall be separately metered or assessed to such Owner. 6.2.2 The Owner or Owners who install, repair, relocate, maintain or connect to any utility service permitted under this Section 6.2: (a) shall perform all work with respect thereto at its or their expense; (b) shall perform all such work promptly and in a good and workmanlike manner so as to minimize interference with the business of the Owner the Parcel upon which such work is being performed and with the provision of such services to any other Owner; (c) shall be responsible for maintaining, repairing and replacing such utility service or services at its or their expense; (d) shall repair, at its or their expense, any damage to the affected Owner's property as a result thereof; and (e) shall be jointly and severally liable to the affected Owner for any breach of this Section 6.2. 6.2.3 Any work performed by an Owner or Occupant to connect to, repair, relocate, maintain or install any storm drainage system, utility line, sewer, water line, gas line, telephone conduits, cable television or any other public utility service shall be accomplished 20 58775349 * E RECORDING * Page 26 of 62 Sequence No. 20152960272 using good faith efforts to minimize interference with the provision of such services to any other Owner or Occupant. No Owner or Occupant shall interfere with any such public utilities and services if such interference would disrupt the orderly development and operation of the businesses conducted by any other Owner or Occupant on any other Parcels unless the Owner or Occupant gives all other Owners not less than thirty (30) days prior written notice of the work to be undertaken, the scope, nature and extent of the work, the duration of the work, and the area in which the work is to be performed. In such notice, the Owner or Occupant shall describe the nature and duration of any such interference and provide an offer to each other affected Owner to permit that Owner to require that such work be- carried on at such times as would minimize or prevent the disruption of the orderly development and operation of any business conducted on the other Owner's Parcel. The Owner or Occupant performing such work shall bear the cost of any overtime or other additional expense necessitated by such request. 6.2.4 Any work of installation, alteration, replacement or repair of utility installations that requires interference with the paving in the Common Area shall be undertaken with particular care so as to minimize the impact upon traffic circulation within *the Common Area and -access of all Owners, Occupants and Users to the various business establishments in the Shopping Center. Any such work shall, to the extent reasonably practical, be conducted between the hours of 5:00 p.m. and 8:00 a.m. 6.3 Plans and Law. All construction work undertaken by any Person pursuant to this Declaration shall comply with all Architectural Documents therefor approved pursuant to this Declaration, and the requirements of all applicable governmental authorities, public bodies or quasi -public agencies. Any Person undertaking any construction work shall secure all licenses and permits necessary for such work. All development and construction work shall be completed in accordance with all requirements of necessary permits including, without limitation, requisite construction permits, temporary and permanent certificates of occupancy, board of fire underwriter certificates and certificates of plumbing and electrical inspections. 6.4 TimingRestriction on Construction. Except for the initial construction of the Buildings and other Improvements comprising the Shopping Center, and except as required in connection with any alteration of the Common Area approved pursuant to the terms of this Declaration, any construction activity, including storage of construction equipment or materials, conducted or permitted in the Common Area shall be conducted in a manner and at such times as will minimize obstruction of any part of the Common Area, or within an enclosed part of the Common Area without obstruction of any of the Parking Area. The foregoing restrictions do not apply to construction activity conducted in connection with emergency repairs or as a result of a casualty. 6.5 Emergency Work. Notwithstanding any other notice provision contained in this ARTICLE 6, in the event of emergency conditions, any Owner may undertake the necessary construction work to remedy the emergency condition, provided that the Owner undertaking such work does so in good faith, gives notice thereof to the other Owners, Developer and Association upon the occurrence of the emergency condition or as soon thereafter as possible, and otherwise conforms to the applicable provisions of this ARTICLE 6 and diligently pursues such construction work to completion. 21 58775349 * E RECORDING * Page 27 of 62 Sequence No. 20152960272 6.6 Fencing Off Construction. From and after the date that any Building opens for business to the public, each Owner and Occupant, at its own cost and expense, shall fence off or cause to be fenced off any development or construction work, or any major exterior repair, alteration or remodeling work, performed by the Owner or Occupant on any Parcel. Fencing shall be chain -link fencing (or other type of fencing approved in writing by the Committee) at least six (6) feet high and otherwise sufficient to protect existing facilities in the Shopping Center from debris and other inconveniences occasioned by such work and to protect Users from safety hazards associated with or resulting from such work. No signs or advertising material shall be placed upon the fence without the prior written approval of the Committee. 6.7 Maintenance of Utility Facilities. All separate utility facilities installed by or for any Owner pursuant to the easements granted under this Declaration and designed to serve exclusively the Building Area on such Owner's Parcel shall be installed, maintained, repaired and removed by such Owner without cost or expense to any other Owners; provided, however, that if any other Owner connects into or utilizes such separate utility facilities pursuant to any easement granted under this Declaration, then each Owner connecting into or utilizing such separate utility facilities shall be responsible for installation, maintenance, repair and removal in connection with its utilization of such separate utility facilities. All other installation, maintenance, repair and removal of utility facilities shall be undertaken by the Association. Notwithstanding the foregoing provisions of this Section, nothing contained herein shall prohibit Developer and any Owner(s) from entering into a site work and construction cost sharing agreement or similar agreement agreeing amongst themselves on the responsibility and cost sharing for required utilities installation. 6.8 Dust. Dust from all construction sites shall be controlled at all times by watering down the construction site. Any sandblasting activities shall be restricted to the water -type application. If trucks entering and leaving the particular site track mud or dust on the Common Area or public streets, the Owner of the Parcel on which or for whose benefit the construction is being performed shall be responsible, at its sole cost, for maintaining the streets or Common Area (or causing the same to be maintained) in a clean condition on a daily basis. 6.9 Indemnification by Owners. Each Owner shall indemnify, defend and hold the other Owners and Occupants harmless from and against any and all loss, cost, damage, injury or expense (including without limitation reasonable attorneys' fees) arising by reason of injury to or death of any Person, 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 (or the indemnifying Owner's Occupants or agents) of the easements granted hereunder or the exercise by such Owner of the rights granted to it in this Declaration. Any Owner may contest any lien or claim of lien asserted against such Owner or the Parcel affected by such Owner's use of any of the easements or rights granted hereunder or the exercise by such Owner of the rights granted to it 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 it can be enforced by execution or judicial sale; 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, procure and Record a bond of a responsible corporate surety in such amount as may be 22 58775349 * E RECORDING * Page 28 of 62 Sequence No. 20152960272 required to release the lien from the Parcel of any other Owner upon which such lien has been imposed. ARTICLE 7 EASEMENTS 7.1 Grant of Easements. Each Owner and Occupant shall have nonexclusive easements for use in common with all Owners, Users and Occupants, solely for the purpose of developing and operating the Parcels as the Shopping Center pursuant to a common plan of beneficial use, over, across, in, under and through: (a) the Common Area of all Parcels, for the uses and purposes set forth in Section 7.2; and (b) the Building Areas and Future Building Areas of the Parcels for the uses and purposes set forth in Section 7.3. 7.2 Common Area Easements. The Common Area shall be used only for the following purposes related to the businesses and activities conducted in the Shopping Center: 7.2.1 Ingress. Egress and Parking. Ingress and egress to and from public streets and ingress, egress and parking of motor vehicles of the Owners and Occupants and their Users (provided, however, that delivery vehicles shall be permitted to park only in designated loading dock, service ramp or rear door areas serving the Building to .which such deliveries are being made as set forth in the approved Architectural Documents). 7.2.2 Pedestrian Traffic. Pedestrian traffic by Owners, Occupants and Users between business establishments in the Building Areas, between the Building Areas and Common Area, and for Shopping Center pedestrian access to and from the public streets adjacent to the Common Area. 7.2.3 Utilities.' Subject to Sections 6.2 and 6_7, use, installation, maintenance, repair, replacement and operation of the utility lines and related facilities and services for the Common Areas and Building Areas or Future Building Areas, together with and including, without limitation, vaults, manholes, meters, transformers, pipelines, valves, hydrants, sprinkler controls, conduits, sewage facilities and all related facilities, all of which shall whenever and wherever reasonably feasible be located below the surface of the Common Area, or the surface of any other above -ground improvements located thereon; provided, however, that in any event: (a) all of the foregoing permitted utilities and installations which 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 (b) no such utilities and installations which must be located above the surface of the Common Area shall be placed upon any Parcel without the prior written consent of the Committee and the Owner of such Parcel, which consent shall not be unreasonably withheld (it being understood that, without limitation, it would be reasonable for the Committee to withhold its consent if such above -ground utilities and installation would materially and adversely affect the appearance of the applicable Parcel); and (c) in no event shall any wires or lines for electric, cable television, telephone or similar utilities be located above the surface of the Common Area. Each Owner shall have the right and easement, at its expense, to connect to and continually use any utility services which have previously been installed in, to, under, upon or over the Common Area falling within the Parcel of other Owners; provided, however, that no Owner shall have the right to connect to a utility 23 58775349 . ,, * E RECORDING * Page 29 of 62 Sequence No. 20152960272 service dedicated solely to another Owner's use without first having secured the written consent of such other Owner. 7.2.4 Improvements. Construction, installation, maintenance, 'repair, replacement, rearrangement and operation of Improvements ancillary to the permitted uses of the Common Area, including, but not limited to, parking sites or stalls, ramps, driveways, lanes, curbs, gutters, parking lot lighting facilities, planters, planting boxes, edgers, sprinklers, valves, landscaped areas, signals, traffic islands, sidewalks and directional and directory signs; provided that all such Improvements shall substantially conform to the Site Plan. 7.2.5 Signs. Subject to Section 4.11, installation, maintenance, repair, replacement and operation of approved signs and sign pylons with appropriate underground electrical connections; provided that, except for the Shopping Center Signs, no Owner or other Person shall have the right to install any sign upon the Parcel of any other Owner without the prior written consent of such Owner and the Association. 7.2.6 Comfort and Convenience. Installation, repair, replacement and operation of minor comfort and convenience facilities for Users, such as mailboxes and benches, as each Owner may from time to time deem appropriate to construct or permit to be constructed on its own Parcel; provided, however, that no such minor comfort and convenience facilities shall interfere with, restrict or impede the use and occupancy by other Owners, Occupants and their Users of the Common Area. 7.2.7 Temporary Construction Activity. Construction, maintenance, repair, replacement, rearrangement and remodeling permitted under this Declaration of Buildings and other Improvements. Good faith efforts shall be made to insure that all such work shall be conducted in an expeditious manner to minimize interference with use of the Common Area, shall be prosecuted to completion, and shall otherwise be performed in compliance with the provisions of Section 6.1. In connection with construction work performed within Building Areas, Parcels, or Future Building Areas, incidental encroachment upon the Common Area may occur as a result of the use of ladders, scaffolding, store -front barricades and similar facilities resulting in temporary obstruction of portions'of the Common Area, all of which are permitted hereunder so long as their use is kept within reasonable requirements of construction work expeditiously pursued. Common Area may be utilized: (a) for ingress and egress of vehicles transporting construction materials, equipment and persons employed in connection with any work provided for herein; and (b) temporary storage of materials and vehicles being utilized in connection with such construction in areas designated and approved by the Committee, which approval shall not be unreasonably withheld, subject to all of the other terms of this Declaration. Notwithstanding the foregoing to the contrary, no storage of construction materials and construction vehicles shall occur on the Parcel of another Owner without the Owner's written consent (which may be granted or withheld in such Owner's sole and absolute discretion), and the repair of any damage done to the Common Area by construction related activities shall be at the sole cost of the Owner pursuing such construction. 7.2.8 Service and Delivery Vehicles. Ingress, egress and temporary parking of delivery and service vehicles traveling to and from the Building Areas, or any portion thereof, and the public streets adjacent to the Shopping Center, for the delivery of goods, wares, 24 58775349 * E RECORDING * Page 30 of 62 Sequence No. 20152960272 merchandise, furniture, fixtures, supplies and equipment, and the rendering of services to any Occupant, subject to Section 7.2.1. 7.2.9 Doors and Exits. The opening onto the Common Area of doors and other exits of Buildings contiguous to the Common Area. 7.2.10 Footings, Overhangs and Canopies. Installation, repair, replacement and maintenance of Building footings, Building canopies and canopy support columns, and pilasters or other Building columns, over, onto, under and into the Common Area; provided, however, that Building footings shall not extend beyond a lateral distance of five (5) feet from the outside surface of the exterior walls of the Building and such extensions of Building footings shall be entirely below finished grade. 7.2.11 Encroachments. Minor encroachments of Building overhangs, canopies and support columns, eaves and signs,' and 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 closest edge of a sidewalk in the Common Area adjoining the Building Area perimeter, and shall not unreasonably restrict the visibility of any Building constructed or to be constructed. 7.2.12 Fire Exits. Ingress, egress and access over each. Owner's Parcel (other than portions thereof occupied by a Building) leading from adjacent Building Areas to the Common Area, if required from time to time by applicable building, fire or safety codes. T.2.13 Repairs, Maintenance and Replacement. Ingress, egress and access over, along and under each Owner's Parcel (other than portions thereof occupied by Buildings) for the purpose of effecting any necessary repairs, maintenance or replacements in connection withthe exercise of the common nonexclusive easements and other rights granted under this Declaration with respect to each Parcel, subject in all cases to the terms of this Declaration. 7.2.14 Drainage. Drainage of storm waters in accordance with a master drainage plan for the Property approved by Developer and the appropriate governmental agency. 7.2.15 Driveway. Ingress and egress between the Residential Tract and Oracle Road by the Residential Users as set forth in Section 7.5. 7.3 Building Area Easements. The Building Areas on each Parcel shall be subject to the following uses for the benefit of the other Parcels: . 7.3.1 Foundations and Footings. Installation, repair, replacement and maintenance of Building foundations and footings required in connection with construction of Improvements in the Building Area or Common Area on the Parcels; provided, that any such installation, repair, replacement or maintenance by or for an Owner on another Owner's Parcel shall not materially interfere with Improvements or the operation of the business being conducted (including ingress and egress of Users) on such other Owner's Parcel; provided, further, that any such installation, repair, replacement or maintenance by or for an Owner on another's Parcel shall not materially increase the cost of operation or maintenance of the 25 58775349 * E RECORDING * Page 31 of 62 Sequence No. 20152960272 Improvements or the operation of the business being conducted (including, but not limited to, ingress and egress of Users) on such other Owner's Parcel, unless the Owner performing such installation, repair, replacement or maintenance agrees in writing, in a form reasonably acceptable to such other Owner, to reimburse such other Owner for such increased costs. 7.3.2 Encroachments. Minor encroachments of Building overhangs, support columns, canopies and eaves, but only if: (a) approved in advance in writing by the Owner owning or occupying the burdened Parcel; and (b) such minor encroachment upon the Building Area of another Owner's Parcel does not materially interfere with Improvements on such other Owner's Parcel. 7.3.3 Utility Connections. Connection to or with utility installations; provided, however, that: (a) no such use shall be made or allowed in a manner which unreasonably burdens the affected Parcel, results in interference with the Improvements thereon, including but not limited to the Common Area, inconveniences unreasonably the Users or Occupants thereof, or adversely affects the fire insurance rating standard of the Building on the affected Parcel; and (b) no common utilities facilities may be located on or under the Building Area or Future Building Area of any Parcel without the consent of the Owner of the affected Parcel, which consent may be withheld in such Owner's sole and absolute discretion, whether reasonable or unreasonable. 7.4 Relocation of Access and Utility Easements. At any time during or after the term of this Declaration, the Owner of a Parcel burdened by any of the easements created under Sections 7.2.3 and 7.3.3, or the Owner of a Parcel burdened by any of the easements created under Sections 7.2.1. 7.2.2 and 7.2.8. shall have the right to relocate on its Parcel any such easements and the Improvements with respect thereto, provided that such relocation is performed only after thirty (30) days written notice of such Owner's intention so to relocate given to each Owner owning or occupying a Parcel benefited by such easements, and such relocation: (a) will not unreasonably interfere with or diminish the enjoyment of the easement by Owner or Occupant of the benefited Parcel (including any material disruption of such Owner's or Occupant's business operations conducted on a benefited Parcel); (b) will not reduce or unreasonably impair the usefulness or function of any of such easement; and (c) is performed without cost or expense to the Owner or Occupant of a Parcel benefited by such easement. Notwithstanding the foregoing to the contrary, with respect to those easements described in Section 7.2.1 that were originally intended to provide ingress and egress for the Owners, Occupants and Users over driveways shown on the Site Plan linking the Shopping Center to the public streets located adjacent to the Shopping Center, such easements shall not be relocated to any location other than those shown on the Site Plan for such driveways unless retaining such locations has become impossible by reason of an Appropriation (as defined in Section 15.2). Notwithstanding any such relocation, maintenance and operation of any easement so relocated shall continue to be the obligation of the Owner of the Parcel benefited by such easement unless there is any material increase in maintenance or operations costs resulting from such relocation, in which event the Owner effecting such relocation shall bear such excess. 7.5 Residential Tract Easement. Declarant hereby grants to the owner of the Residential Tract and its successors and assigns, for the benefit of the Residential Tract, its tenants, subtenants, invitees, agents, employees, and contractors ("Residential Users"), a 26 5877534_9 * E RECORDING * Page 32 of 62 Sequence No. 20152960272 perpetual, non-exclusive, appurtenant easement for vehicular and pedestrian ingress and egress between the Residential Tract and Oracle Road over and across the Driveway. The Residential Tract owner shall pay the Association Sixty -Six percent (66%) of the Common Expenses associated with the Driveway (the "Driveway Common Expenses"). The Residential Tract owner shall pay the Driveway Common Expenses or before fifteen (15) days following the Residential Tract owner's receipt of periodic statements from the Association setting forth an itemization of the Driveway Common Expenses. The Association shall have the same lien and enforcement rights described in Sections 9.4 and 9_5, and the Residential Tract Owner shall have the same rights with respect to the statements described in Section 9.7, but only with respect to the Driveway Common Expenses. The Residential Users shall not be otherwise entitled to use the Common Areas for any other purpose except in their capacity as invitees of Owners or Occupants. The Residential Tract Owner shall indemnify, defend and hold the Developer and the Association harmless from and against any and all claims, expenses, liabilities, loss, damage 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, loss or damage to any person or property arising from the negligent, intentional or willful acts or omissions of the Residential Tract Owner or Residential Users. ARTICLE 8 COMMON AREA MAINTENANCE AND OPERATION AND BUILDING MAINTENANCE 8.1 Common Area Maintenance and Operation. The Association shall operate and maintain the Common Area in good condition. All contractors hired by the Association or its management company to maintain the Common Area shall be required to obtain and keep in force during all such maintenance activities commercial general liability insurance in commercially reasonable amounts and with companies reasonably acceptable to the Board or such management company, with the Owners and Occupants named as additional insureds thereunder. Except as provided in Section 6.5, no Owner or other Person shall undertake work in the Common Area that would unreasonably interfere with the use thereof by other Owners, Occupants or Users without scheduling such work in a manner that is reasonably satisfactory to other Owners. In no event shall the Association be liable to any Owner or Occupant for any damage, loss or prejudice 'suffered or claimed on account of any act, omission, error or negligence of the Association if the Association has, on the basis of information as may be possessed by the Association, acted in good faith without willful or intentional misconduct; provided the foregoing exculpation will not include bodily injury or property damage arising from operation or maintenance of the Common Area by the Association or its employees, agents, representatives or contractors. The Association's obligation to operate and maintain the Common Area shall include but not be limited to the following: 8.1.1 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, cleaning, sweeping, restriping, repainting, repairing, replacing, resealing and resurfacing of the Common Area and curbs, using surfacing material identical to or in all respects equal or superior in quality, appearance and durability to the original surfacing material. 27 58775349 * E RECORDING * Page 33 of 62 Sequence No. 20152960272 . 8.1.2 Debris and Refuse. Removal of all papers, debris, rubbish, filth and refuse from, and washing or thorough sweeping of, the Common Area to the extent necessary to keep the Common Area in a first-class, clean and orderly condition; provided, however, each Owner, at its own expense and not as a Common Expense, shall install, operate and properly maintain, or cause to be installed, operated and properly maintained, on its Parcel, screened from the view of the general public shopping at the Shopping Center, sufficient trash compactors, bailers and enclosed trash bins, for use in connection with storage of all trash, refuse and waste materials of the Owner and Occupants of such Parcel and each Owner shall use, or cause to be used, commercially reasonable efforts to attempt to keep the Parcels free from all debris and rubbish caused by or emanating from such facilities, and no part of the cost therefor shall be included in Common Expenses. 8.1.3 Signals and Markers. Placing, keeping in repair, replacing and repainting, as and when necessary, any appropriate directional signs, markers and lines, including, without limitation, signs and markers . for pedestrian crossings and handicapped parking. 8.1.4 Common Area Lighting. tina. Operating, keeping, in repair, cleaning and replacing when necessary such Common Area lighting facilities as may be reasonably required. The hours during which the lighting of the Common Area shall occur shall be reasonably determined by the Association based upon the operating hours of the Occupants,or Owners in the Shopping Center. If "special' lighting is required or if regular lighting is required for a time later than the foregoing by any Owner or Occupant of a Parcel, then the electricity to service such lighting requirements shall be separately metered and all expenses thereof shall be paid by the Owner or Occupant who requires the special service. If such separate metering is not reasonably feasible, then the cost of the special lighting shall be determined by the Association on a prorated basis in accordance with the special usage and all such prorated expenses shall. be paid by the Owner or Occupant requiring the special service. 8.1.5 Landscaped Areas. Cleaning and maintaining all landscaped areas, including landscaping and planters adjacent to exterior walls of Buildings, repairing automatic sprinkler systems or water lines in.the Common Area, weeding, pruning, fertilizing or replacing shrubs and other landscaping as necessary; provided, however, that 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, the maintenance and cost thereof shall be borne solely by such Owner or Occupant without cost or expense to the other Owners and shall not be included in Common Expenses. 8.1.6 Utilities. Subject to Sections 6.2, 7.2.3 and 12.1. maintaining, cleaning and repairing any and all storm drains, utility lines, sewers and other common utility systems and services located in the Common Area which are necessary for the operation of the respective Common Areas and the respective Building Areas, other than the separate utilities for any Building Area installed pursuant to Section 6.7, which separate utilities shall be operated and maintained by the Owner thereof without cost or expense to the other Owners, and shall not be included in Common Expenses. 28 58775349 ♦` * E RECORDING * Page 34 of 62 Sequence No. 20152960272 8.1.7 Obstructions. Keeping the Common Area free from obstructions not required or permitted hereunder (other than reasonable traffic control devices), specifically (but without limitation) keeping the Common Area free from any obstructions caused by sale or display of merchandise outside the exterior walls of Buildings (except that in no event will an outside seating area and related equipment and fixtures constructed and used in accordance with the terms of this Declaration be deemed an "obstruction" under this Section). 8.1.8 Shopping Center Signs Maintaining and repairing the Shopping Center Signs. The costs of installation, maintenance, illumination and repair of the Shopping Center Signs shall be apportioned among the Owners in proportion to the area of sign face used by each Owner (or its respective Occupants), provided that such costs related to the portion of any such Shopping Center Sign used for identification or general description of the Shopping Center shall be apportioned among the Owners 'as general Common Expenses. Nothing contained in this Declaration shall entitle any Owner or Occupant to sign space or any Shopping Center Sign. 8.1.9 Sidewalks. Cleaning (including washing and/or steam cleaning), maintenance and repair of all sidewalks, including perimeter sidewalks adjacent and contiguous to Buildings and those situated on the perimeter or immediately outside the boundaries of the Shopping Center. 8.1.10 Governmental Requirements. Complying 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 equipment 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. 8.1.11 Security. Providing security services with respect to the Common Area; provided, however, nothing contained herein shall constitute a covenant, representation or warranty by Developer or the Association that any security services or any particular type of security services will be utilized with respect to the Common Area. Neither the Developer nor the Association shall have any obligation to provide security services, and each Owner assumes all responsibility for the protection of its Parcel, its agents and invitees, and their property from the acts of third parties. 8.1.12 Drainage Facilities. Operating and maintaining, all drainage channels, drainage structures and underground storm water retention systems. 8.1.13 Rules and Re laug_tions. In addition to the foregoing, the Association may establish and enforce: (a) reasonable, uniform and nondiscriminatory employee parking rules and reasonable, uniform and nondiscriminatory regulations and rules and regulations pertaining to the use of the Common Areas by Users, and (b) reasonable, uniform and nondiscriminatory rules and regulations with respect to delivery vehicles, service vehicles and Shopping Center use related vehicles, and times and places of delivery. Such rules and regulations shall apply to the entire Shopping Center in order to ensure that the maximum number of convenient parking spaces in the Common Area are available for use by Users of the 29 58775349 * E RECORDING * Page 35 of 62 Sequence No. 20152960272 Shopping Center. The Association (and any managing agent retained .by the Association pursuant to Section 9.81 shall be and is hereby authorized and directed to enforce the rules and regulations promulgated hereunder against all Owners and Occupants (and their respective Users) in a reasonable and nondiscriminatory manner and such rules and regulations shall have the same force and effect as if set forth herein; provided, however, in no event shall any such rules and regulations conflict with the terms of this Declaration. 8.2 Insurance 8.2.1 Commercial General Liability Insurance. The Association shall obtain and continue in effect at all times commercial general liability insurance insuring the Association, and its agents and employees, the Committee, and the Owners and Occupants against any liability for personal injury, property damage or death arising from the activities of the insured parties with respect to the Common Area or from the ownership thereof, including, without limitation, but only if obtainable, a "cross -liability" endorsement insuring each insured against liability to each other insured and a "severability of interest endorsement precluding the insurer from denying coverage to one insured party because of the negligence of any other. Such insurance shall be in amounts reasonably deemed appropriate by the Board, but shall in no event provide coverage of less than Two Million Dollars ($2,000,000) combined single limit for injury to or death of any number of persons or for damage to property of others arising out of any one occurrence. 8.2.2 Casualty Insurance. The Association shall obtain and continue in effect at all times a policy of insurance covering loss or damage to the Common Areas in the amount of the full replacement value thereof providing protection against all perils included under the classification of fire, extended coverage, vandalism, malicious mischief and special extended coverage (special form), including, but only if obtainable, a "waiver of subrogation" endorsement applicable to all Owners and Occupants. Such insurance shall be maintained for the benefit. of the Association and the Owners and Occupants, as their respective interests may appear. 8.2.1 Release. To the extent that "waiver of subrogation" endorsements or clauses are obtained, the Association and each of the Owners and Occupants hereby waive and release each other from all claims covered by insurance, but only to the extent of insurance proceeds actually collected 8.2.3• Worker's Compensation Insurance. The Association shall also provide worker's compensation insurance as required by law. 8.3 Building Maintenance. All Buildings shall be maintained in good aesthetic condition and in accordance with all applicable governmental rules and regulations'by the Owner thereof. ARTICLE 9 COMMON EXPENSES 9.1 Payment by Association. All Common Expenses shall be paid directly by the Association promptly and prior to delinquency. Each Owner shall pay to the Association. its 30 58775349 * E RECORDING * Page 36 of 62 Sequence No. 20152960272 Proportionate Share of all Common Expenses in the manner and at the times hereinafter specified. 9.2 Payment of Proportionate Shares: Statements. Each Owner shall pay the Association in advance its monthly estimated Proportionate Share of Common Expenses on or before thirty (30) days following the Owner's receipt of a statement from the Association setting forth the Association's estimate of such amount. The Association shall, within ninety (90) days after the end of each Accounting Period, submit to the Owners a reconciliation statement setting forth: (a) an itemization of all Common Expenses actually incurred for the prior Accounting Period; (b) a summary for such Accounting Period of the total of all Common Expenses actually incurred; and (c) the estimated Proportionate Share of Common Expenses paid hereunder by each Owner during' such Accounting Period. If an Owner's aggregate estimated monthly payments actually paid to the Association for the Accounting Period are greater than the Owner's Proportionate Share of the actual Common Expenses for such Accounting Period, the Association shall apply the excess to any past due amounts owing from such Owner, or, in the event no such past due amounts are then owing by such Owner, the Association shall credit such excess to amounts to become due from such Owner under this Section. If the estimated payments made by such Owner pursuant to tfiis Section are less than such Owner's Proportionate Share of Common Expenses, such Owner shall pay the difference to the Association within thirty (30) days of its receipt of such reconciliation statement. In assessing Owners for their respective Proportionate Shares of Common Expenses, the Association shall account for any sums due from the Residential Tract. 9.3 Extraordinary Expenses. In the event that in any year the Association incurs any extraordinary expenses in connection with its operation or maintenance of the Common Area (which extraordinary expenses would constitute Common Expenses pursuant to the definition set forth in ARTICLE 1), the Association shall have the option, in its sole discretion, to bill each Owner immediately for each such Owner's Proportionate Share of such extraordinary Common Expenses (rather than include the extraordinary expense in the Owner's monthly statement) in which event the Owner shall, within thirty (30) days after delivery of such bill, pay to the Association the Owner's Proportionate Share of such extraordinary Common Expenses; provided, however, in no event shall the Association have the right, power or authority to incur extraordinary expenses in excess of $50,000.00 unless such expenditure has been approved by Members holding at least 75% of all the votes of Members in the Association. 9.4 Covenant to Pay: Liens for Common Expenses. Each Owner, by acceptance of a deed with respect to its Parcel, is deemed to covenant and agree to pay such Owner's Proportionate Share of Common Expenses and all other charges due from such Owner to the Association and/or the Committee as provided in this Declaration. All such amounts payable by an Owner, together with interest thereon at the Prime 'Rate plus five percent (5%) per annum, from the date that is fifteen (15) days after such Owner's receipt of notice that such is due, and together with such costs and reasonable attorneys' fees as may be incurred in seeking to collect such amounts, shall be not only the personal obligation of such Owner, but shall also be a charge on the land and shall be a continuing lien upon the Owner's Parcel, provided that such lien shall be subordinate and inferior to: (a) the lien of all taxes, bonds, assessments and other levies which by law would be superior thereto; and (b) the holders of interests described in Section 18.3. Such lien shall be Recorded and foreclosed in accordance with Section 16.4 hereof. No Owner 31 58775349 * E RECORDING * Page 37 of 62 Sequence No. 20152960272 shall be relieved of his, her or its obligation to pay such Owner's Proportionate Share of Common Expenses by abandoning or not using all or any portion of the Common Area or his, her or its Parcel. The Association shall, upon the written request of an Owner, furnish to such Owner a certificate stating the date to which such Owner's Proportionate Share of Common Expenses have been paid and the amount, if any, of any sums billed to such Owner but remaining unpaid as of the date of such certificate. 9.5 Enforcement. In the event an Owner fails or refuses to pay such Owner's Proportionate Share (or estimated Proportionate Share) of Common Expenses (or any other sum required hereby to be paid by such Owner) as and when required hereby, the Association may take any and all such legal action as the Association may deem appropriate to enforce such obligation (including, but not limited to, foreclosure of the lien as provided above). The costs and expenses (including reasonable attorneys' fees) incurred by the Association in seeking to enforce such obligation shall be Common Expenses, provided, however, that in the event the Association is the prevailing party in such enforcement action, the Owner against whom such action is taken shall reimburse the Association for all such costs, expenses and fees and, upon receipt of such reimbursement, the Association shall apply the same as credits against the accounts of the various Owners on the same pro rata basis as used to determine such Owners' respective Proportionate Shares of Common Expenses. 9.6 Books and Records. The Association shall, in accordance with good bookkeeping practices, maintain a complete record of each and every item of Common Expenses. The Association shall make such records available during normal business hours for inspection, preliminary accounting review or audit by the other Owners or their designated representatives, accountants, agents or attorneys, all at the sole cost of the Owner requesting access to such records. The Association shall keep and maintain all records. and books herein required for a period of three (3) years from the end of the Accounting Period to which they apply. All records and books hereunder shall be kept by the Association at its principal place of business. 9.7 Rights With Respect to Statements. Upon prior written notice, each Owner shall have the right to inspect at the Association's offices, at reasonable times, copies of- such additional documents and records, such as paid invoices and cancelled checks, as may be necessary to verify the accuracy and content of each annual reconciliation statement hereunder and shall be entitled to make copies of such documents and records at such Owner's sole cost and expense. Any Owner may object in writing to all or portions of any statement hereunder within thirty (30) days after receipt thereof, setting forth in reasonable detail the grounds for objection. If an Owner so objects, such Owner shall nonetheless pay to the Association the Owner's Proportionate Share (or estimated Proportionate Share) of Common Expenses on or before the date due; provided, however, that the Association and the objecting Owner shall cooperate reasonably to settle any such dispute. 9.8 Designation of Managing_ Agent. The Association may, at its option, designate an independent management company (and/or the Developer or an Affiliate as described below in this Section) to perform the Association's obligations under ARTICLE 8 and ARTICLE 9 and to be responsible for the day-to-day operation of the Association, all subject to the direction of the Board. The management company (and/or the Developer or an Affiliate as described below in this Section) shall be entitled to a reasonable fee for its services, which fee shall be determined 32 58775349 * E RECORDING * Page 38 of 62 Sequence No. 20152960272 by the Association in the Association's reasonable discretion and which fee shall be a Common Expense, subject to the limitations set forth in Section 1.14.12. In addition, if designated by the Association and if it accepts such designation, the Developer or an Affiliate may perform some or all of the duties for which an independent management company may be retained under this Section. ARTICLE 10 DAMAGE OR DESTRUCTION TO COMMON AREA 10.1 Repair of Damage. In the event of any damage or destruction to the Common Area or Improvements thereon during the term of this Declaration from any cause (whether or not covered under insurance required to be carried by any Owner under this Declaration), the Association shall, unless the Owners agree otherwise,. promptly after the occurrence of the event of damage or destruction, restore, repair or rebuild such damaged or destroyed Common Area and Improvements thereto to a condition equal to or better than the condition existing prior to the event of 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, provided, however, that if such damage and destruction is the result of a non -insurable event or is not covered by the insurance described in Section 8.2.2 and results from the acts or omission of any Owner or such Owner's agent, employee or contractor, the Association's obligations hereunder shall be limited to the reimbursement proceeds available from such Owner and any excess expense shall be deemed an extraordinary expense within the meaning ascribed in Section 9.3. The Association 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. The Association shall use all due diligence to complete restoration and repair of the Common Area hereunder so that the same may be available for use and operation as part of the -Shopping Center with as little delay and as little disruption as circumstances will reasonably permit. 10.2 Payment of Costs. Any insurance proceeds paid to any Owner on account of such damage or destruction, and not attributable to damage or destruction of that Owner's Building (or equipment, fixtures, inventory or personal property), shall be made available to the Association for use in reconstruction and repair of the Common Area hereunder. In the event that such amounts (when coupled with any insurance proceeds payable under the insurance described in Section 8.2.2) are insufficient to cover the cost of the work hereunder, the Owners shall each bear their respective Proportionate Shares of the costs that exceed such amounts, except as specifically provided otherwise in Section 10.1. The amount of any available insurance proceeds and each Owner's Proportionate Share of any excess amount shall be made available by the Owners to the Association on a progressive payments basis during the work of repair and restoration of the Common Area hereunder. ARTICLE 11 LIENS The Association shall keep the Shopping Center free from any and all liens arising out of any work performed, materials furnished to or obligations incurred in connection with its 33 5877534_9 * E RECORDING * Page 39 of 62 Sequence No. 20152960272 maintenance and operation of the Common Area under this Declaration. The Association shall, within thirty (30) days after the date of the imposition of any such lien, pay the lien claim in full, unless it desires to contest any such lien claim, in which case it shall, within such thirty (30) day period, Record a bond of a responsible corporate surety, in accordance with Arizona Revised Statutes, Section 33-1004, in such amount as may be required to release the lien from the affected Parcels. All amounts expended by the Association to secure the release of any such lien (or in paying the amounts relating to the lien claim) shall be Common Expenses.. ARTICLE 12 ADDITIONAL MAINTENANCE 12.1 Clear Areas. In the event that, at any time during the term of this Declaration and after the fencing requirement set forth in Section 6.6 is applicable, there are Future Building Areas that are not being used as Common Area, upon which no Building has been constructed, or from which existing Buildings have been razed and not replaced, the Owner of each such Future Building Area shall maintain such Future Building Area in a safe, neat and attractive condition, free of weeds and debris, and take necessary and appropriate measures to prevent and control the emanation of dust and dirt from such Future Building Area which may include use of gravel, grass, ground cover or the sealing of the ground surface. Upon the start of any construction thereon, the Owner of such Future Building Area shall fence off such Future Building Area in accordance with Section 6.6. 12.2 Waste Containers. Subject to any applicable laws, regulations, ordinances or codes of any governmental authority having jurisdiction over the Property, each Owner shall have a sufficient number of commercial size solid waste containers to properly handle its (and its Occupants') waste, refuse and garbage. Said commercial waste containers shall be maintained in good mechanical condition and shall be emptied as often as necessary, all at such Owner's sole cost and expense, .so as to prevent such containers from overflowing, and at least once every seven (7) days if such container is used for• the deposit of garbage or other putrescible material. All garbage or putrescible material must be bagged or wrapped so as to be airtight before being deposited in the waste containers. When waste containers are in use, lids and doors of such waste containers are to be kept in a closed position at all times except during times when such container is being emptied or filled. Each waste container shall be screened from view from all adjacent property or streets by means of solid masonry walls at least the height of the waste container. 12.3 Outdoor Storage. Except during construction, no materials, supplies, equipment, finished or semi -finished products or articles of any nature shall be permitted to be stored on any area exterior to the Building Areas without the approval of the Committee. Any permitted outside storage shall be screened from view of adjoining properties and public and private streets by a solid visual barrier so as not to be visible to an individual six (6) feet tall standing on any part of adjacent property or streets; provided, however, that during construction of an Owner's Building(s), necessary construction materials and supplies may be stored on such Owner's Parcel without the need for a solid visual barrier providing such materials and supplies are kept in neat order considering the construction activities. Except during the construction process, no temporary building or structure shall be erected, installed or maintained on any Parcel without the prior written approval of the Committee. All temporary structures used for construction 34 58775349 * E RECORDING * Page 40 of 62 Sequence No. 20152960272 purposes must receive prior written approval of the Committee with regard to location and appearances, and must be removed promptly upon completion of construction. ARTICLE 13 INDEMNIFICATION, INSURANCE, DAMAGE AND DESTRUCTION 13.1 Common Area Indemnity. Each Owner shall indemnify, defend and hold the other Owners harmless from and against any and all claims, expenses, liabilities, loss, damage 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, loss or damage, however caused, to any person or property as shall occur in or about the Common Area located on such Owner's Parcel, except claims resulting from the negligence or willful act or omission of the indemnified Owner or any Occupant or User of any such indemnified Owner's Parcel, wherever the same may occur. 13.2 Future Building Area and Building Area Indemnity. Each Owner shall indemnify, defend and hold the other Owners harmless from and against any and all claims, expenses, liabilities, loss, damage 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; loss or damage, however caused, to any person or property as shall occur in or about the Future Building Area or Building Areas located on each Owners Parcel, or the agents, servants or employees of such Owner or Occupant, wherever the same may occur, except: (a) claims released under Section 8.2.3 or Section 13.10, but only to the extent of such release; (b) claims resulting from the negligence or willful act or omission of the indemnified Owner or any Occupant or User of any such Owner's Parcel, wherever the same may occur; and (c) mechanics' and materialmen's liens which arise from work performed or materials delivered for the benefit of one Owner on another Owner's Parcel as permitted by this Declaration (which liens shall be released at the expense of the Owner for whose benefit the work is performed or the materials are delivered). Notwithstanding the provisions of Section 13.1 to the contrary, where the Owner of a Parcel agrees to allow utility lines or other facilities to be constructed on, through, over or under his Parcel for the benefit or another Owner, the Owner who benefits from such an easement shall indemnify and hold harmless the Owner of the burdened Parcel from and against any and all claims, expenses, liabilities, loss, damage 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, loss or damage, however caused, to any person or property as shall occur in connection with the construction and maintenance of such lines or other facilities, or any easement associated therewith. 13.3 Commercial General Liability Insurance. Each Owner shall at all times during, the term hereof maintain or cause to be maintained, without expense to any of the other Owners, commercial general liability insurance covering the Future Building Areas, Building Areas and Common Areas located on such Owner's Parcel in favor of itself and its agents and employees providing coverage against any liability for bodily injury, property damage or death arising from the activities of the insured parties or incident to the ownership or use of the Future Building Areas, Building Areas and Common Areas located on such Owner's Parcel, and providing contractual liability coverage for the indemnity obligations contained in Sections 13.1 and 13.2, 35 59775349 * E RECORDING * Page 41 of 62 Sequence No. 20152960272 with a limit not less than Two Million Dollars ($2,000,000.00) on a single limit "occurrence" basis. Such policy shall name Developer, the Committee, and the Association as additional insureds thereunder. Not more frequently than annually, the Association shall be entitled to require the amount of the above -described policy for each Owner to. be increased, as reasonably required by the Association, to keep pace with inflation and industry standards for insurance coverage for similarly situated centers in the same metropolitan area where the Shopping Center is located. " .13.4 Additional Insurance. Each Owner shall carry or cause to be carried, without expense to any of the other Owners, worker's compensation and employer's liability insurance and, if and when applicable, contractor's liability insurance in builder's risk form. 13.5 Fire Insurance and Rebuilding. Each Owner shall carry or cause to be carried, without expense to any of the other Owners, a policy of insurance covering loss or damage to all Buildings upon its Parcel in the amount of the full replacement value thereof providing protection against all perils included within the classification of fire, extended coverage, vandalism, malicious mischief and special extended coverage (special form) including plate glass. coverage. If any Owner so elects, its insurance hereunder may provide for a "deductible" in an amount equal to not more than ten percent (101/o) of the coverage referred to above. The loss, if any, covered by such insurance shall be paid to the insured Owner, unless payment of all or a portion of said insurance is required to be paid to a mortgagee, deed of trust beneficiary or leaseback lessor or to the Association hereunder. In the event of any damage to or destruction of any Building from any cause for which insurance is required to be maintained under this Section 13.5, the affected Owner shall repair such damage or destruction and reconstruct the Building in accordance with: (a) the concept of an integrated Shopping Center; and (b) the provisions of this Declaration, and subject to the rights of the Owner's mortgagee, deed of trust beneficiary or leaseback lessor, the proceeds of all insurance shall be used by the affected Owner in payment for the restoration and reconstruction of the Building. Notwithstanding the immediately preceding sentence, the Owner of a damaged or destroyed Building may elect not to restore and reconstruct such Building if it makes such an election by delivering written notice thereof to the Association within ninety (90) days of the event of damage or destruction, in which event within sixty (60) days following such notice the affected Owner shall cause the damaged or destroyed Building to be demolished and the former Building Area to be graded into a neat and clean condition. 13.6 Obligations On Rebuilding. Whenever an Owner 'is required under this ARTICLE 13 to rebuild, replace or repair any Building or other .Improvement damaged or destroyed from any cause whatsoever, the work of such rebuilding, replacement or repair shall be completed with all due diligence and as soon as possible after the event of damage or destruction occurs. The work of rebuilding, replacement or repair shall be undertaken by the Owner in accordance with all the terms of this Declaration, including the provisions of ARTICLE 5. Such Owner shall prosecute completion of the Improvements as expeditiously as possible so that the same may be open for business and operating as part of the Shopping Center with as little delay and disruption as circumstances will permit. 13.7 Blanket Coverage. Any policy required to be maintained by an Owner hereunder may be maintained under a so-called "blanket policy" insuring other persons and other locations 36 58775349 * E RECORDING * Page 42 of 62 Sequence No. 20152960272 so long as the amount and types of insurance required to be provided hereunder are not thereby diminished. 13.8 Notice of Cancellation to Association. In the case of all policies of insurance required to be carried by Owners hereunder, the insured shall endeavor to cause the company issuing such insurance to commit itself in writing to notify the Association in writing at least thirty (30) days before any cancellation, expiration or modification of the coverage evidenced by such policy (but with only ten (10) days' notice required in the event of non-payment of premium). 13.9 Other Insurance Requirements. The insurance policies required to be procured by each Owner . under this ARTICLE 13 shall be obtained from companies authorized to do business in the State of Arizona and reasonably acceptable to the Association with respect to financial capability and size. Within thirty (30) days after acquiring title to its Parcel, and thereafter no later than fifteen (15) days prior to expiration, each Owner shall furnish or make available to the Association certificates or other evidence of coverage required of each Owner by this ARTICLE 13. Upon the Association's request, each Owner. shall furnish or make available to the Association sufficient evidence that such insurance is in full- force and effect. 13.10 Mutual Release. The Association and each Owner hereby release the others from any and all liability or responsibility to any of them, or anyone claiming through or under any of them by way of subrogation or otherwise, for loss or damage to property or for injury to person caused by an insured peril, even if such loss or damage shall have been caused by the act, omission, fault or negligence of the other party; provided, however, that this release and waiver shall be effective only in the event and to the extent of actual recovery or payment under the applicable insurance policy or policies. The Association and each Owner each hereby covenants . to the others that it shall secure such a waiver of subrogation clause or endorsement in or to its insurance policies providing the coverage required hereby, and shall furnish evidence of such clause(s) or endorsement(s), at any time, upon the request of the Association or any other Owner, as applicable. If any loss intended to be covered by insurance carried by or on behalf of the Association shall occur and the proceeds payable thereunder shall be reduced by reason. of insurance carried by any Owner, such Owner shall assign the proceeds of such insurance carried by it to the Association, to the extent of such reduction, for application by the Association to the same purposes as the reduced proceeds are to be applied. ARTICLE 14 AMENDMENTS TO SITE PLAN 14.1 Amendments. The Site Plan existing from time to time may be amended by Developer, in its sole and absolute discretion, and without the consent of any other Owner unless such amendment would result in a material change to the Site Plan that would materially and adversely affect a Parcel not owned by Developer. No material change to the Site Plan that would materially and adversely affect a Parcel not owned by Developer shall be made except by amending this Declaration pursuant to Section 22, in order to substitute a new Site Plan; provided, however, any such material change to the Site Plan shall require the written consent of any Owner whose Parcel. would be materially and adversely affected by such material change. For purposes of this ARTICLE 15, a "material change" to the Site Plan means a change to the 37 58775349 * E RECORDING * Page 43 of 62 Sequence No. 20152960272 Site Plan that: (a) materially and adversely affects the line of sight between the Building Area or Future Building Area, as applicable, on a Parcel not owned by Developer and Oracle Road; (b) materially and adversely affects the line of sight between Oracle Road and any Building sign or other sign that advertises only the name of such Owner's business and which was properly approved and constructed pursuant to the terms of this Declaration on a Parcel not owned by Developer (unless Developer at its sole cost provides such Owner with replacement signage with equal or better visibility from Oracle Road); (c) materially and adversely interferes with ingress and egress to or from a Parcel not owned by Developer; or (d) reduces the amount of Common Area on any Parcel to a level which is not sufficient to support all parking required by the Town without obtaining any variance or exception from the Town's usual requirements. 14.2 Plat. It is acknowledged that Developer intends to cause the Plat to be processed by the Town and recorded in the Recorder's office and that the lots created thereby may differ from the Parcels shown on the Site Plan. Upon recordation of the Plat, the Site Plan shall be deemed replaced by the Plat. Each Owner shall have an affirmative obligation to sign the Plat approved by Developer or its Affiliate. ARTICLE 15 CONDEMNATION 15.1 Distribution. Any award of compensation or damages, whether the same be obtained by agreement or by judgment, verdict or order in a legal proceeding resulting from a taking of any Parcel, or any portion thereof, by exercise of right of condemnation or eminent domain or resulting from a requisitioning of any Parcel, or a portion thereof, by military or other public authority for any purpose arising out of a temporary emergency or other temporary circumstance shall be distributed in accordance with the terms of the agreement, or judgment, verdict or order made in the proceedings. In the event of any sale of any Parcel or any portion thereof under threat of condemnation, such Parcel or portion thereof shall for all purposes be deemed to have been "taken" as that term is used in this ARTICLE 15, and the net price received therefor after deduction of the expenses of the' sale borne by the Owner of the Parcel taken shall be deemed to constitute an "award" as that term is used herein. 15.2 Condemnation of Common Area. In the event that condemnation or eminent domain or other taking, including a sale under threat of condemnation (collectively referred to as an "Appropriation") results in a permanent taking of the Common Area on the Parcel of any Owner, or a temporary taking for a period of more than sixty (60) days, so that the number of parking stalls in the Shopping Center is reduced more than ten percent (101/6), or in the event of any other Appropriation which in the Board's reasonable discretion substantially and materially restricts ingress and egress to the Shopping Center from adjoining streets, or which substantially impairs the internal automobile circulation and/or traffic flow pattern within the Common Area, in any of such events, the Owners shall immediately consult to attempt to provide functionally equivalent replacement Common Area and/or access, traffic flow and circulation in the Shopping Center (collectively, the "Replacement Common Area"). The Owners .shall devote the net proceeds of the awards received by each Owner attributable to an Appropriation of Common Area to provide the Replacement Common Area hereunder. In the event that such amounts are insufficient to cover the cost of providing Replacement Common Area hereunder, the Owners shall each bear their respective Proportionate Share of the cost that exceeds such amounts. In the 38 58775349 * E RECORDING * Page 44 of 62 Sequence No. 20152960272 event that such amounts exceed the cost of providing Replacement Common Area hereunder, the excess proceeds will be distributed among the Owners holding fee title to the Common Areas taken, on a pro rata basis. If the Owners are unable to agree as to what portion of an award is attributable to an Appropriation of Common Area, the issue shall be submitted to arbitration in Tucson, Arizona, before a panel of three arbitrators acceptable to the affected Owners (or by a single arbitrator if all affected Owners agree in writing upon a single arbitrator), which arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. Except as provided in Section 15.3, no Appropriation resulting in a taking of the Common Area on the Parcel of .any Owner shall terminate this Declaration without the written consent of all of the Owners. All reconstruction necessitated by condemnation will be completed in accordance with the standards and procedures set forth in Section 10.1. 15.3 Interests Affected. Nothing contained in this Declaration shall entitle any Owner to share in any award made to any other Owner whose Parcel is taken by eminent domain, other than as provided in 'Section 15.2; provided, however, that such Owner(s) may independently file collateral claims with the condemning (or purchasing) authority. To the extent possible, such collateral claim(s) shall not operate to reduce or diminish the award to be paid to the Owner of the Parcel so taken, nor shall the claim of the Owner of the Parcel so taken operate to reduce or diminish the award(s) to be paid to the Owner(s) filing such collateral claim(s). ARTICLE 16 RIGHTS UPON DEFAULT 16.1 Right to Cure. If ariy Owner or Occupant or the Association, as applicable, defaults in the performance of any of its obligations under this Declaration (or otherwise breaches or violates any provision of this Declaration, any default, breach or violation being referred to in this ARTICLE 16 as a "default"), the non -defaulting Owner or Owners and/or the Association, and each of them, as applicable, shall have the right, but not the obligation, upon thirty (30) days written notice, to cure such default for the account of and at the expense of the defaulting Owner or Occupant or the Association, as applicable; provided, however that in the event of emergency conditions constituting default, the non -defaulting Owner or Owners and/or the Association, as applicable, acting in good faith shall have the right to cure such default upon such advance notice as is reasonably possible under the circumstances or, if necessary, without advance notice, so long as notice is given as soon as possible thereafter. Any notice hereunder shall specify with particularity the nature of the default claimed and shall set forth in detail the action which the Owner or Owners and/or the Association, as applicable, giving such notice propose to take in order to cure the claimed default. To effectuate any such cure, the non - defaulting Owner or Owners and/or the Association, as applicable, shall have the right to enter upon the Parcel of the defaulting Owner or Occupant (but not any Buildings on such Parcel) or the applicable portion of the Common Area in the case of a default by the Association to perform any necessary work or furnish any necessary materials or services to cure the default of the defaulting Owner or Occupant or the Association, as applicable. . Each Owner shall be responsible hereunder for the default of its Occupants, provided that this sentence shall not: (a) bar any claim which an Owner may have against any of its Occupants under this Declaration or otherwise; or (b) bar any claim which any other Owner or Occupant may have against an Occupant of any Parcel under this Declaration or otherwise. 39 58775349 * E RECORDING * Page 45 of 62 Sequence No. 20152960272 16.2 Legal and Equitable Relief Subject to Sections 5.6 and 16.8, Each Owner and/or the Association shall have the right to prosecute any proceedings at law or in equity against any Owner or Occupant, or any other Person, or the Association violating or attempting to violate or defaulting upon any of the provisions contained in this Declaration, in order to prevent the violating or defaulting Owner, Occupant or other Person or the Association from violating or attempting to violate or defaulting upon the provisions of this Declaration and to recover damages (except as provided in Sections 5.6 and 16.8) for any such -violation or default. The remedies available under this Section shall include, by, way of illustration but not limitation, ex parte applications for temporary restraining orders, preliminary injunctions and permanent injunctions enjoining any such violation or attempted violation or default, and actions for specific performance of this Declaration. 16.3 Costs of Cure. All costs and expenses reasonably incurred by any Owner and/or the Association to cure a default of a defaulting Owner, Occupant or other Person, including the Association, under the provisions of Section 16.1, together with interest thereon at the rate of five percent (5%) per annum plus the Prime Rate, and all costs and expenses of any proceedings at law or in equity, including reasonable attorneys' fees, shall be paid by the defaulting or violating Owner, Occupant or Person (including the Association, as and if applicable). 16.4 Notice of Lien. There is hereby established a lien against each Parcel, which lien shall secure payment of all costs and expenses (including, but not limited to, interest and reasonable attorneys' fees) which the Omer of such Parcel (or such Owner's Occupant or other Person) may now or hereafter be obligated to pay pursuant to Section' 16.3 above, as well as any other amounts•as may now or hereafter be payable by such Owner pursuant to ARTICLE. 8 or ARTICLE 9 hereof. Any Person claiming a lien pursuant to this Section shall, in order to enforce such lien, execute and Record a notice of its claim of lien, which notice shall include the following: 16.4.1 Name. The name of the lien claimant; 16.4.2 Identification of Owner. An identification of the Owner or reputed Owner of the Parcel or interest therein against which the lien is claimed; 16.4.3 Parcel Description. A description of. the Parcel against which the lien is claimed; 16.4.4 Basis for Claim. A description of the basis for the claim including, if applicable, a general description of the work performed which has given rise to the claim of lien and a statement itemizing the amount thereof, and 16.4.5 Statement of Claim. A statement that the lien is claimed pursuant to the provisions of this Declaration, reciting the recorder's number hereof. The notice shall be duly acknowledged and shall certify that a copy thereof has been served upon the Owner against whom the lien is claimed by personal service or by first class U.S. mail, certified mail, return receipt requested. The lien shall be in'the amount claimed thereby (plus interest at the rate set forth in Section 16.3 above and any additional costs and expenses, including reasonable attorneys' fees, incurred by the lien claimant in seeking to 40 58775349 * E RECORDING * Page 46 of 62 Sequence No. 20152960272 enforce or foreclose such lien) and may be foreclosed in the manner provided by law for foreclosure of realty mortgages. As described more fully in Section 18.3, the lien described in this Section shall be subordinate to any mortgage, deed of trust or other lien or encumbrance that has been properly placed of record prior to the notice of lien described in this Section. Notwithstanding the foregoing to the contrary, in no event shall the lien described in this Section apply to, encumber or be enforcbable against the Parcel of any Owner by reason of a default by the Association. 16.5 Removal of Lien. If the Owner against whom a lien is claimed posts either: (a) a bond executed by an approved, recognized corporate surety regularly engaged in such business and duly authorized to transact such business in the State of Arizona; or (b) an irrevocable letter of credit executed by a state chartered banking corporation or national banking association authorized to transact such business in the State of Arizona, which bond or letter of credit: (i) names as the principal or payee, and is in form reasonably satisfactory to, the Person imposing the lien; (ii) is in the amount of one hundred fifty percent (I50%) of the amount of the claim of lien; and (iii) unconditionally provides that it may be'drawn upon by the Person claiming the lien in the event of a final judgment entered by a court of competent jurisdiction in favor of such person, then the Person 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 to permit such company to delete the lien as an exception to title thereto. The defaulting Owner shall post the bond or letter of credit by delivering the same to the Person claiming the lien. All costs and expenses to obtain the bond or letter of credit, and all costs and expenses incurred by the Person required to extinguish a lien claim hereunder shall be borne by the Owner against whom the lien is claimed, unless such owner shall be the prevailing party in any litigation challenging the asserted lien. 16.6 Waiver and Remedies Cumulative. No waiver by any Owner or the Association of any default under this Declaration shall be effective or binding on such Owner or the Association unless made in writing by such Owner or the Association and no such waiver shall be implied from any omission by an Owner or the Association 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. All of the remedies permitted or available to the Owners or the Association 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. 16.7 Estoppel Certificate. Any Owner or Occupant (in either case, a "Requesting Owner") may, at any time and from time to time, in connection with the sale or transfer of the Requesting Owner's Parcel, or in connection with the financing or refinancing of the Requesting Owner's Parcel or Improvements owned by such Requesting Owner by mortgage, deed of trust or sale -leaseback made in good faith and for value, deliver written notice to the Association requesting the Association to certify in writing that to the knowledge of the Association, the Requesting Owner is not in default in the performance of its obligations under this Declaration, or, if any default is claimed, to describe therein the nature and amount of any and all claimed 41 58775349 * E RECORDING * Page 47 of 62 Sequence No. 20152960272 defaults. The Association shall execute and return such certificate within twenty (20) days following receipt thereof Failure by the Association to execute 'and return such certificate within the specified period shall be deemed an admission on the Association's part that the Requesting Owner is current and not in default in the performance of such Requesting Owner's obligations under this Declaration.' The Association acknowledges and agrees that such certificates may be relied upon by transferees, mortgagees, deed of trust beneficiaries and leaseback -lessors. 16.8 No Liability Regarding Enforcement or Performance. Neither Developer, the Association, it managing agent, the Board nor the Committee (nor any member thereof or consultant thereto), if such Persons have acted in good faith, without willful or intentional misconduct, shall be liable to any Owner or Occupant for damages by reason of any mistake in judgment, negligence, nonfeasance, action or inaction in regard to the enforcement or failure to enforce or the performance or failure to perform the provisions of this Declaration, or any part hereof; provided the foregoing exculpation shall not apply to the Association with respect to claims for bodily injury or property damage arising from operation or maintenance of the Common Area by the Association or its employees, agents, representatives or contractors. Each Owner and Occupant acquiring an interest in the Property agrees that it will not bring any action or suit against Developer, Association, its managing agent, the Board or the Committee (or any member thereof or consultant thereto) to recover any damages prohibited by the immediately preceding sentence. The foregoing provisions of this Section, however, shall not be deemed to prohibit the recovery of by an Owner or Occupant of those costs and expenses, interest and reasonable attorneys' fees described in Section 16.3. ARTICLE 17 TRANSFERS OF INTEREST, RIGHTS, POWERS AND OBLIGATIONS 17.1 Method of Transfer. In no event shall the rights, powers and obligations conferred upon the Owners pursuant to this Declaration be of any time transferred or assigned by any of the Owners except through a transfer of their respective interests in all or any portion of their respective Parcels, and then only to the extent and in the manner hereinafter provided. This Section shall not be deemed to prevent an Owner from entering into leases or other occupancy agreements with tenants or other Occupants and, in connection therewith, giving to such tenants or other Occupants, and their Users, the rights of use and enjoyment of the Common Area for ingress, egress, parking and other purposes permitted by this Declaration in connection with such tenants' or other Occupants' conduct of business in the Shopping Center, subject in all cases to the terms and conditions of this Declaration. 17.2 Transfer of Entire Interest. In the event of the transfer or conveyance of the whole interest of any Owner in its Parcel without such Owner retaining any beneficial interest therein (other than as beneficiary under the terms of a deed of trust or mortgage) or without such Owner or affiliate of such Owner simultaneously acquiring a new interest in the entire Parcel by way of a leasehold, then the rights and powers conferred, and the obligations imposed, under this Declaration upon the transferring Owner shall be deemed to be transferred and assigned with and appurtenant to its interest (except that no such transfer shall relieve the transferring Owner of its personal obligation for any costs, expenses, charges or other amounts, whether for such Owner's Proportionate Share of Common Expenses or otherwise imposed by or pursuant - to this 42 5MS34 9 * E RECORDING * Page 48 of 62 Sequence No. 20152960272 Declaration upon such Owner or its Parcel prior to the date of such' transfer, nor shall such transfer pass to the transferee such personal obligation for costs, expenses, charges or other amounts imposed prior to the date of such transfer but such transfer shall be subject to the lien rights described in this Declaration). If an Owner or affiliate of such Owner simultaneously acquires a new interest in the entire Parcel by way of a leasehold, then the rights and powers conferred, and the obligations imposed, under this Declaration shall be retained by such Owner or affiliate of such Owner until the termination of such leasehold. 17.3 Interests in Owners and Encumbrances. Nothing contained herein shall affect or impair the right of each Owner to issue and transfer ownership interests in itself, or to encumber its interest in the Shopping Center or any Improvements owned by such Owner or any Occupant. ARTICLE 18 EFFECT OF BREACH UPON PURCHASERS AND MORTGAGEES 18.1 No Termination. No breach of or default under this Declaration shall entitle any Owner, Occupant or other Person to cancel, rescind or otherwise terminate this Declaration, or any conditions, covenants, easements or restrictions hereunder. 18.2 Mortgagee Protection. Subject to the provisions of Section 18.3, this Declaration shall be superior and senior to any lien placed upon any Parcel, including the lien of any mortgage or deed of trust. Notwithstanding the foregoing, no breach hereof 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, but not limited to 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. 18.3 Subordination as to Encumbrance Prior to Lien Claim. Any lien created pursuant to the provisions of Section 16.4 or ARTICLE 8 or ARTICLE 9 shall be subject and subordinate to the interests of any bona fide purchaser for value or encumbrancer for value under a mortgage or deed of trust of all or any part of a Parcel, or any interest therein or Improvements thereon, whose interest was Recorded prior to the date of Recordation of the notice of claim of lien, notwithstanding the fact that the claim of lien may be asserted with respect to work performed or costs incurred prior to the date the interest of the purchaser or encumbrancer was Recorded. The sale or transfer of any Parcel pursuant to judicial or non judicial foreclosure of a mortgage or deed of trust shall extinguish the lien created pursuant to the provisions of Section 16.4 or ARTICLE, 8 or ARTICLE 9 only as to payments which became due prior. to such sale or transfer. No sale or transfer shall relieve such Parcel from any obligation to pay any amount due under Section 16.3 or ARTICLE 8 or ARTICLE 9 thereafter becoming due nor from the lien securing any such subsequent amounts due. When a holder of a mortgage or deed of trust or other purchaser of a Parcel obtains title to the same as a result of judicial or non - judicial foreclosure, such title holder, its successors and assigns shall not be liable for amounts due under Section 16.3 or ARTICLE 8 or ARTICLE 9 chargeable to such Parcel which became due prior to the acquisition of title to such Parcel by such acquirer unless the mortgage 43 58775349 * E RECORDING * Page 49 of 62 Sequence No. 20152960272 or deed of trust was Recorded subsequent to the Recording of the notice of claim of lien evidencing the amounts due under this Declaration. ARTICLE 19 COVENANTS AND RECORDATION 19.1 Covenants Run With the Land. All of the provisions, agreements, rights, powers, covenants, conditions and obligations contained in this Declaration shall be binding upon and inure to the benefit of the Owners, their respective heirs, successors (by merger, consolidation or otherwise) and assigns, devisees, administrators, representatives, Occupants and all other. Persons acquiring any Parcel, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Declaration shalt constitute equitable servitudes and be covenants running with the land pursuant to applicable law. It is expressly acknowledged that each covenant to door refrain from doing some act on each Parcel: (a) is for the benefit of each other Parcel and is a burden upon each other Parcel; (b) runs with each Parcel; and (c) shall benefit or 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. Each covenant may be enforced as part of the uniform general plan for the Shopping Center. 19.2 Recordation. This Declaration shall become effective and binding upon all Owners, Occupants and Users, and their respective successors in interest, in accordance with the provisions hereof, upon Recordation of this Declaration. ARTICLE 20 PROPERTY TAXES 20.1 Property Taxes and Assessments. All real property taxes and assessments, whether regular or special, levied or assessed against any portion of a Parcel (including those portions constituting Common Area and all Buildings thereon) shall be paid prior to delinquency by the Owner of such Parcel, at such Owner's expense. 20.2 Contest of Property Taxes. Each Owner may contest (or allow to be contested) in good faith any real property tax or assessment levied upon its Parcel. Any such contested tax or assessment shall be paid, however, prior to delinquency. The Owners who are not parties to such contest shall execute such documents as may be reasonably necessary to establish or evidence the contesting Owner's right to contest any such tax, assessment or charge. ARTICLE 21 MISCELLANEOUS 21.1 * Negation of Partnership. None of the terms or provisions of this Declaration shall be deemed to create a partnership between or among any Owners, Users or Occupants in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members ofany joint enterprise. This Declaration is not intended nor shall it be construed to create any third party beneficiary rights in any Person who is not an Owner or Occupant, except that the owner of the Residential Tract and its successors in title shall have the right to enforce 44 58775349 * E RECORDING * Page 50 of 62 Sequence No. 20152960272 the provisions of Section 7.5, and the provisions of Section 1.5 shall be a burden running with the land with respect to the Residential Tract. 21.2 Termination and Amendment. This Declaration and all covenants, conditions, restrictions and easements herein shall continue and remain in full force and effect at all times with respect to the Property and each part thereof, now or hereafter made subject thereto commencing on the date this Declaration is Recorded and running through December 31, 2065. From and after said date, this Declaration, as amended from time to time, shall automatically, be extended for successive periods of ten (10) years each, unless earlier terminated as provided in this Section below. Subject to the provisions of ARTICLE 14, this Declaration, or any provisions hereof, may be modified or amended with respect to all or any portion of the Property, by the terms of a Recorded document executed by Developer alone until the earlier of the date when Developer is no longer an Owner of any portion of the Property or December 31, 2065; provided, however, this Declaration may not be amended in a manner which materially adversely impairs any other Owners' or Occupants' access, visibility, utilities, signage, use rights or drainage without the written consent of such materially adversely affected Owner or Occupant. Thereafter, subject to the provisions of ARTICLE 14, this Declaration may be modified or amended in whole or in part with respect to all or any portion of the Property, but only by a written Recorded instrument executed on behalf of those Owners who are then entitled to cast at least seventy-five percent (75%) of all of the votes of the Members. Additionally, following the earlier of the date when Developer is no longer an Owner or December 31, 2065, this Declaration may be terminated with respect to all or any portion of the Property by a Recorded written instrument signed on behalf of all of the Owners. Except as otherwise expressly set forth in this Declaration, this Declaration may not be terminated with respect to all or any portion of the Property except by a Recorded written instrument signed on behalf of all of the Owners. Notwithstanding the foregoing, the easement created under Section 7.5 allowing ingress and egress between the Residential Tract and Oracle Road shall be perpetual and shall be unaffected by such expiration or earlier termination, but such easement (and Persons and vehicles using such easements) shall be subject to reasonable regulation by the Owner of the burdened property. 21.3 Approvals. Unless otherwise herein provided, whenever approval, consent or satisfaction (herein collectively referred to as an "approval") is required of any Owner, Occupant or User, or from the Developer, the Board or the Association, it shall not be unreasonably withheld, conditioned or delayed. Unless provision is made for a specific time period, approval shall be deemed given within thirty (30) days after receipt of the written request for approval, and if an Owner, Occupant, or User or the Developer, the Board or the Association shall neither approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this Declaration for approval, that Person shall then be deemed to have given its approval. Unless an Owner, Occupant br User or the Developer, the Board or the Association is expressly permitted by this Declaration to give or withhold approval in its sole discretion, if an Owner, Occupant or User or the Developer, the Board or the Association shall disapprove of (or refuse to approve) any requested action, the reasons therefor shall be stated -in reasonable detail in writing. Approval by an Owner, Occupant or User or the Developer, the Board or the Association to or of any act or request shall not be deemed to waive or render unnecessary approval to or of any similar or subsequent acts or requests. - 45 58775349 * E RECORDING * Page 51 of 62 Sequence No. 20152960272 21.4 No Public Dedication. 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, it being the intention and understanding of the Owners that, except as specifically provided in Section 7.5, this Declaration shall be strictly limited to and for the purposes herein expressed for the development, maintenance and operation of a private $hopping center on private property solely for the benefit of the Owners and, through the Owners, of their Occupants and Users. 21.5 Excusable Delays. Whenever performance is required of any Owner hereunder, that Owner shall use all due diligence to perform and take all necessary measures in good faith to perform; provided, however, that if completion of performance (other than the payment of money) shall be delayed at any time by reason of acts of God, war, civil commotion, riots, strikes, picketing or other labor disputes, or damage to work in progress by reason of fire or other casualty or cause beyond the reasonable control of an Owner (financial inability, imprudent management or negligence excepted), then the time for performance as herein specified shall be appropriately extended by the amount of the delay actually so caused. Any Owner who shall encounter any such delay in excess, or estimated to be in excess, of ten (10) days, shall notify in writing the other Owners specifying the nature of, the cause, and the expected duration of the delay or delays, and shall keep the other Owners reasonably informed of the continuance and cessation of the delay(s). 21.6 Severability. 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 or circumstance and the same shall remain in full force and effect unless enforcement of this Declaration as so invalidated would be unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Declaration. 21.7 Notices. Any notice to an Owner or the Association shall be in writing and given by delivering the same to such Owner or the Association in person or by sending the same by United States registered, certified or express mail, return receipt requested, with postage prepaid, or by overnight courier service, to the Owner's or the Association's last known mailing address, as shown in the records of the Association. Any Owner or the Association may change its mailing address at any time by giving written notice of such change to the Association and all other Owners in the manner provided herein at least ten (10) days prior to the date such change is effected. It shall be the obligation of each Owner to provide the Association with a current and complete address for notices hereunder and any Owner failing to do so shall not have the right to object to actions taken that would have otherwise required prior written notice to such Owner. All notices under this Declaration shall be deemed given, received, made or communicated on the date personal delivery or overnight courier delivery is effected or refused, or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 21.8 Construction. The provisions of this Declaration shall be construed as a whole according to their common meaning and not strictly for or against any Owner. This Declaration shall be governed and construed in accordance -with the laws of the state of Arizona. Venue for enforcement hereof shall lie exclusively in Pima County, Arizona. 46 58775349 * E RECORDING * Page 52 of 62 Sequence No. 20152960272 21.9 Captions. The captions preceding the text of each Article, Section and Subsection and the Table of Contents hereof are included only for convenient reference and shall be disregarded in the construction and interpretation of this Declaration. 21.10 References. All references herein to a given Article, Section or Subsection refer to the Article, Section or -Subsection of this Declaration. 21.11 Litigation Expenses 21.11.1 Payment to Prevailing Party. If any Owner or the Association 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 alleged breach or alleged violation of any covenant, term or obligation hereof, or for the enforcement of any provision hereof, or to interpret any provision of this Declaration, or otherwise arising out of this Declaration, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of suit (including but not limited to reasonable attorneys' fees)Tfrom the non -prevailing party. 21.11.2 Attorneys' Fees in Third Party Litigation. If any Owner 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 or failure to enforce this Declaration, or otherwise arising out of this Declaration, then the Owner so initiating or defending shall be entitled to its costs and expenses incurred in connection therewith (including, but not limited to, reasonable attorneys' fees) from such other Owner. 21.11.3 Scope of Fees. Attorneys' fees under this Section 21.11 shall include reasonable 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. hereof. 21.12 Time." Time is of the essence of this Declaration and each and every provision 21.13 Annexation 21.13.1 Reservation of Certain Annexation Rights. Developer hereby reserves the right, privilege and option from time to time hereafter to add and annex to the Property (and thereby to subject to the provisions of this Declaration) any part(s) or all of the Annexable Property, without the consent of any person. Notwithstanding the foregoing sentence, no portion of the Annexable Property may be annexed to the Property pursuant to said sentence unless, at the time of each and any such annexation either: (a) the portion of the Annexable Property to be annexed is owned by Developer; or (b) the owner of the portion to be annexed (if other than Developer) consents in a written, Recorded instrument to such annexation. 21.13.2 Recordation of Annexation Instrument. Upon approval to the extent required by this Section 21.13.2 of any annexation of property to the Property, Developer shall execute, acknowledge and Record an instrument effecting and evidencing such annexation (which instrument shall also be duly executed and acknowledged by each owner of all or any part of the property being annexed and shall include a revised Site Plan showing the addition of 47 f 58775349 * E RECORDING * Page 53 of 62 Sequence No. 20152960272 the annexed property), and such annexation shall be deemed effective only upon such Recordation. Such instrument (or a separate instrument Recorded against any property annexed to the Property pursuant to this Section 21.13.2 and executed by the owner of such annexed property) may subject the annexed property to such additional covenants, conditions and restrictions as the owner thereof may deem appropriate or desirable, provided, however, that any and all such additional covenants, conditions and restrictions shall be subordinate and subject to the provisions of this Declaration. 21.13.3 Effect of Annexation. Upon the effective date of an annexation as provided above: (a) the property so annexed shall immediately be and become a part of the Property and subject to all of the provisions hereof; and (b) each Parcel then or thereafter constituting a part of the annexed property, and all Owners of each such Parcel, shall thereupon be subject to the provisions of this Declaration. ' 21.13.4 No Obligation to Annex. Nothing herein shall constitute a representation, warranty or covenant that Developer, any successor or assign of Developer, or any other Person will subject all or any part of the Annexable Property to the provisions of this Declaration, nor shall Developer, any successor or assign of Developer, or any other Person be obligated so to do, and Developer may, by Recorded instrument executed by Developer, waive its right so to do,.in whole or in part, at any time or from time to time. 21.14 Restriction on Further Subdivision and Rezoning 21.14.1 No Further Subdivision Without Approval. No Parcel shall be subdivided or separated into smaller parcels by any Owner by deed, ground lease or otherwise, and no portion less than all of any such Parcel shall be conveyed or transferred by any Owner by deed, ground lease or otherwise, without the prior written approval of Developer, while Developer remains an Owner, and thereafter by the Association. This provision shall not apply to transfers of an undivided ownership interest in the whole of any Parcel or to any subdivisions or separations due to an Appropriation. 21.14.2 Plats to be Approved. No subdivision plat, land division, land combination, lot split or lot line adjustment shall be Recorded by any Owner or other holder of an interest in the Property against any of the Property unless the provisions thereof have first been approved in writing by the Developer, while Developer remains an Owner, and thereafter by the Association. Any other subdivision plat, land division, land combination, lot- split or lot line adjustment Recorded without such approval being evidenced thereon shall be null and void. 21.14.3 Execution of Developer's Plat. Each Owner shall have an affirmative obligation to sign any subdivision plat that is contemporaneously approved by the Developer. 21.14A Rezoning, Variances and Use Permits to be Approved. No application for rezoning of any area within the Property, and no applications for variances, special exceptions or use permits, shall be filed with any governmental authority unless the proposed rezoning, variance, special exception or use permit has been approved by Developer, while Developer remains an Owner, and thereafter by the Association, and unless the proposed 48 58775349 * E RECORDING * Page 54 of 62 Sequence No. 20152960272 use otherwise complies with this Declaration. Notwithstanding anything to the contrary contained herein: (i) Developer or the Association, as applicable, may withhold their approval to a proposed rezoning, variance, special exception or use permit being sought from a governmental authority in their sole and absolute discretion, excepting any, variance or special exception required pursuant. to an Appropriation, in which event such consent shall not be unreasonably withheld, conditioned or delayed; and (ii) except if required by reason of an Appropriation, neither Developer, the Association nor the Committee shall approve a variance that would allow for the Owner or Occupant of any Parcel to locate on such Parcel less than the total number of parking spaces that would otherwise be required under applicable laws and governmental regulations to be located thereon, unless all of the other Owners agree in writing to such requested variance. IN WITNESS WHEREOF, Developer has executed this Declaration as of the date first above written. DEVELOPER: Boulder Oro Valley, LLC, an Arizona limited liability c9jnpany/7 Title: STATE OF ' 2,0ytA ss. County of c� On , 023 i 5 before me, 4+" � $1." personally appeared s personally known to me or proved to me on the basis of satisfactory evidence) t be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity on behalf of which the person(s) acted, executed the instrument. Witnessed my hand and NOTARY PUBLIC STATE OF ARIZONA Pima County JANICE A. SAUNDERS My Commission Expires November 29, 2018 c 49 58775349 * E RECORDING * Page 55 of 62 Sequence No. 20152960272 Joinder Boulder Oro Valley, LLC, an Arizona limited liability company, as owner of the Residential Tract, hereby joins in -the execution of this, Declaration for the sole purpose of consenting to the provisions and obligations applicable to the Residential Tract. RESIDENTIAL TRACT OWNER: Boulder Oro Valley L�/ C, an Arizona limited liability cq' 1pany� ! I: //M Name: — STATE OF t k ) ss. County of On o_Q before me, 4tt I"-s i personally . appeared Zos S _?, personally known to me (or proved to me on the basis of satisfactory evidence) to/be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity on behalf of which the person(s) acted, executed the instrument. Witnessed my hand and�fpteieal. S NOTARY PUBLIC d STATE OF ARIZONA Pima County JANICE A. SAUNDERS My Commission Expires November 28, 2018 Notary Public 50 ' 5877534_9 * E RECORDING * Page 56 of 62 Sequence No. 20152960272 Lienholder Consent' The undersigned is the beneficiary under the certain Deed of Trust, executed on behalf of Boulder Oro Valley, LLC, an Arizona limited liability company, recorded on January 10, 2014 as 2014-0100236, Official Records of Pima County, Arizona, encumbering all or portions of the real property described on Exhibit A attached hereto and the undersigned hereby acknowledges that this Declaration is intended to run with the land and declares that in the event the beneficiary under said Deed of Trust, its successors or assigns, exercises its rights under such Deed of Trust to foreclose upon the real property, this Declaration shall continue in full force and effect notwithstanding that it is subordinate to the Deed of Trust. Bank of America, N.A., a national banking association By: Name: Sarah �s Title: STATE OF lV10RYLyAl3 ) ) ss. County of &DLL ). On 2/ 20 efore me, rS %✓ ��t �'T1FiP personally appeared � "- L-- 14V2 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity on behalf of which the person(s) acted, executed the instrument. Witnessed my hand and official seal. NOW pumic - _ [SEAL] nOWAkWN 0 CM" [NOVIxOn Feb, 25. 2010 51 5877534_9 * E RECORDING * Page 57 of 62 Sequence No. 20152960272 EXMBIT A Property L R S , 3528 N. FLOW IN G W ELLS RD TUCSON, ARIZONA 85705 P.A N ❑ TEL: 520-322-6400 SURVEYING, LLC FAX:520-322-6401 LEGAL DESCRIPTION —.lob No. 13049 January 14, 2015 EST) PARCEL 2: That portion of Lot 4, being the Southeast quarter of the Southeast quarter of Section 13, Township 12 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, being more particularly described as follows: Commencing at the Southeast corner of said Section 13, said comer being a brass cap in concrete at the center of Linda Vista Boulevard as defined by Book 2, Page 130 of Road Maps, Pima County Records; Thence North 00902'41" West 30.00 feet upon the East line of the Southeast quarter of said Section 13 to the North right-of-way of said Linda Vista Boulevard; Thence South 69153'08" West 492.00 feet upon the North right-of-way of said Linda Vista Boulevard to the Point of Beginning; Thence North 0090241" West 1,146.62 feet; Thence South 8W50'32" West 272.97 feet to the East right-of-way of the Tucson - Florence Highway, also known as Oracle Road, to a curve, turning to the right, concave to the West, from which the radius point bears South B4 °01'03" West 5,829.58 feet distant; Thence southerly upon said curve to the right, upon said East right-of-way, through a delta angle of 11*1709" and an arc length of i,14827 feel to the North right-of-way of said Linda Vista Boulevard; Thence North 89W'08" East 267.07 feet upon said North right-of-way to the Point of Beginning. Said parcel contains 287,984.1* square feet or 6.61 acres, mote or less. EXPIRES 12-31-15 A-1 a 58775349 * E RECORDING * Page 58 of 62 Sequence No. 20152960272 S 89'50'32" W POLYLINE REPORT (� 272.972' ® NORTHING FASTING BEARING DISTANCE }' 5000.000 5000.OD0 1Q ,{ 5030.000 h999.977 N 00'02'41 " W 30.000 `l { 1 � S 89'5W08' W 492.000 { 1 5029,018 4507.977 0 I N 00'0241" W 1146.617 6175.634 4507.082 (� PARCEL % S 89'50'32' W 272,972 v_ 287.984.1 S0. Fr. 6174.882 4234.111 g { 6.61 ACRES ( RADIUS: 5329.580 LENGTH: 1148.273 CHORD: 1146.417 DELTA: 11'17'09"; CHORD ©RG: S 00*20'23" E; n PC—R: S 64'01'03' W; PT—R: N 84*41*48" W RADIUS POINT: 5567.293,-1563.719 TANGENT: 57G.000 W �^ z 5028.465 4240.9070 N 89'53'08' E 267.070 0 0 0 I4I 5029.018 4507A77 CD ZN low NI Closure Error Distance> 0.001 Error Bearing> 5.89'56'33" E W Closure Precision> 1 in 5399580.6 Total Distance> 2834.931 a; Polyline Area: 287984.1 sq ft, 6.61 acres 0 0 to 010 I' lN � ��• .��Ftz4r�" �'� LL J Co 3srrR? �w TODD A. o Z 0 I ( `a►a u i - 1"=150' 0� EXPIRES 12-31-15 U1 NOTE: THIS DRAWING IS INTENDED TO PORTRAY THE LOT CLOSURE { I CALCULATIONS FOR THE SUBJECT PARCEL AND DOES NOT REPRESENT 1 I A COMPLETE BOUNDARY SURVEY, S.E. CORNER SECTION 13 ® 267.070' � S 89'53'08" W 492.000' (2) T.12 S., N 89'53'08" E LINDA VISTA I31—VD (DV RA E. EOLARIS LOT CLOSURE REPORT FOR A AND PORTION OF LOT 4 OF SECTION 13, SURVEYING, LLC T. 12 S., R. 13 E., G.&S.R.M. 3528 N. FLOWING WULS AD, PIMA COUNTY ARI2ONA TUCSON, ARIZONA 86705 TEL.! (520) 322-6400 FAX: (520) 322.6401 POLARIS JOB No. 1304%.htU7-2015 28 JAN, 2015 A-2 5877534_9 r' * E RECORDING * Page 59 of 62 Sequence No. 20152960272 EXHIBIT B Residential Tract [20LARIS 3528 N. FLOWING WELLS RD TUCSON, ARIZONA 85705 AND TEL: 520.322-6400 Kill)SURVEYING, LLG FAx:szo-3zz6aol LEGAL DESCRIPTION — Job No. 13049 January 14, 2016 (EAST) PARCEL 1: That portion of Lot 4, being the Southeast quarter of the Southeast quarter of Section 13, Township 12 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, being more particularly described as 3ollows: Commencing at the Southeast corner of said Section 13, said comer being a brass cap in concrete at the center of Linda Vista Boulevard as defined by Book A Page 130 of Road Maps, Pima.County Records; Thence North 00902'41"West 30.00 feet upon the Fast line the Southeast quarter of said Section 13 to the North right-of-way of said Linda Vista Boulevard, to the Point of. Beginning; Thence continue North 00002'41"West 1,146.99 feet upon said East fine; South 89"50'32" West 492.00 feet; South 00902'41" East 1,146.62 feet to the North right-of-way of said Linda Vista Boulevard; North 89°53'08" East 492.00 feet upon said North right-of-way to the Point of Beginning. Said parcel contains 564,227.2 square feet or 12,95 acres, more or less. 1 u4' 05543 �o � w TObp A. o a HOt1T rh ar . •O,Q�alewao��� �,,. EXPIRES 12 31-1.5 B-1 58775349 * E RECORDING * Page 60 of 62. Sequence No. 20152960272 Polyline Report Q S 89'50'32" Vl 492.00' NORTHING FASTING BEARING I OISTAt�CE 5000.000 5000.000 (D I 1 C 00'02'41" W 30.000 (Jj 5030.006 4999.977 (0 � � N 00102'41 W 1146.990 I 6176,920 4999.081 S 89'50'32" Y/ 492.000 6175.634 4507.083 0 I � 5 0702'41" E 11146.617 _ I Q 19029.018 4507.978 Q I N 89*53*08" 5030,000 4999.978 0 E I 492.000 rn Closure Error Distance> 0.001 Error Bearing> S 89'50'32" W (rl Closure Precision> t in 3418976.1 Totol Distance> 3277.607, w Polyline Area: 564226.1 sq ft, 12.95 acres I z pp > o� I I PARCEL 1 564.227.2 SQ. FT. t 12.95 ACRES 1"=150` '� a)00 W f� �%F 1 G4 35543 u TO A. ¢' V HOUT 9��F Sf6k!D1 p EXPIRES 12-31-15 I �° NOTE: THIS DRAY/ING IS INTENDED TO PORTRAY THE LOT CLOSURE N 89_53'08" E 492.00' CALCULATIONS FOR THE SUBJECT PARCEL AND ODES NOT REPRESENT LI N DA S.E. COR. SEC. 13 1O A COMPLETE BOUNDARY SURVEY. VISTA E3L_V D T.12 S.. R.13 E. LA R I S LOT CLOSURE REPORT FOR A FO .AND PORTION OF LOT 4 OF SECTION SURVEYING, LLC T. 12 S., R. 13 E, G.&S.R.M. .13, 3528 N, FLOWING WELLS RD. PIMA COUNTY, .ARIZONA TUCSON, ARIZONA 85705 TEL.: (620) 322.6400 FAX, (520) 322-6401 POLARIS JOB No. 13049-MLD•2015 28 JAN, 2015 B-2 5877534_9 * E RECORDING * Page 61 of 62 Sequence No. 20152960272 EXHIBIT C Conceptual Site Plan � � __ cam•_._ � '� , � I 1 1 ' ? 'r � �:. ( t/�.•L'��.4 � AID rl. A C-1 1"=120' AUDENnAL 7 FLAG 58775349 * E RECORDING * Page 62 of 62 Sequence No. 20152960272 EXHIBIT D PROHIBITED USES 1. Adult bookstore, adult video store, escort or dating service, or any establishment providing sexually related services or performances. 2. Funeral establishment. 3. Pawn shop or used furniture store (except for high end estate sale -type shops specializing in jewelry, art and/or antiques). 4. Outdoor circus, carnival or amusement park. 5. Bowling alley. 6. Establishment whose primary activity is pool or billiards. 7. Refinery. 8. Blood bank or plasma center. 9. Check cashing businesses, excluding banks, credit unions or similar full -service financial institutions. 10. Truck stop. 11. Tattoo parlor. 12. Nude or semi-nude entertainment establishment. 13. Call centers. 14. Elementary, junior high or high schools, but excluding day care centers for children. 15. Marijuana dispensary or head shop. D-1 58775349 CONVEYANCE DEED For the consideration of Ten Dollars, and other valuable considerations, I or we, Boulder Oro Valley, LLC, an Arizona Limited Liability Company Do/does hereby convey to Boulder Oro Valley, LLC, an Arizona Limited Liability Company the following real property situated in Pima County, Arizona: See Exhibit "A" attached hereto and made a part hereof. SUBJECT TO: Current taxes and other assessments, reservations in patents and all easements, rights of way, encumbrances, liens, covenants, restrictions, obligations, and liabilities as may appear of record. And I or we do warrant the title against all persons whomsoever, subject to the matters set forth above. Dated: June S 2015 Grantors: Boulder Oro Valley, LLC an Arizona LimitAd Liability Company By: ACKNOWLEDGMENT ney, STATE OF ARIZONA ) ) SS. COUNTY OF PIMA ) On thisday of June, 2015 before me,�5� personally appeared Mr. Ross Rulney, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS mDhand andofficia e " '"OFFICIALSEAL" Teresa Bracamonte Notary Public - Arizona Notar Publ- Pima County y • + M Commission Ex ires 3126 2018 My commission expir 3�2(L2011�1 r 1% EXHIBIT "A" Parcel 2: That portion of Lot 4, being the Southeast quarter of the Southeast quarter of Section 13, Township 12 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, being more particularly described as follows: Commencing at the Southeast corner of said Section 13, said corner being a brass cap in concrete at the center of Linda Vista Boulevard as defined by Book 2, Page 130 of Road Maps, Pima County Records; Thence North 00°02'41" West 30.00 feet upon the East line of the Southeast quarter of said Section 13 to the North right-of-way of said Linda Vista Boulevard; Thence South 89°53'08" West 492.00 feet upon the North right-of-way of said Linda Vista Boulevard to the Point of Beginning; Thence North 00°02'41" West 363.68 feet; Thence South 89°57'19" West 97.87 feet; Thence South 00°02'41" East 18.73 feet; Thence South 89°57'19" West 107.63 feet; Thence North 00°02'41" West 251.71 feet; Thence North 89°57'19" East 174.85 feet; Thence South 45°02'41" East 43.35 feet; Thence North 00°02'41" West 580.61 feet; Thence South 89°50'32" West 272.97 feet to the East right-of-way of the Tucson -Florence Highway, also known as Oracle Road, to a curve, turning to the right, concave to the West, from which the radius point bears South 84°01'03" West 5,829.58 feet distant; Thence southerly upon said curve to the right, upon said East right-of-way, through a delta angle of 11°17'09" and an arc length of 1,148.27 feet to the North right-of-way of said Linda Vista Boulevard; Thence North 89°53'08" East 267.07 feet upon said North right-of-way to the Point of Beginning. Said parcel contains 238,559.7 square feet or 5.48 acres, more or less. CONVEYANCE DEED For the consideration of Ten Dollars, and other valuable considerations, I or we, Boulder Oro Valley, LLC, an Arizona Limited Liability Company Do/does hereby convey to Boulder Oro Valley, LLC, an Arizona Limited Liability Company the following real property situated in Pima County, Arizona: See Exhibit "A" attached hereto and made a part hereof. SUBJECT TO: Current taxes and other assessments, reservations in patents and all easements, rights of way, encumbrances, liens, covenants, restrictions, obligations, and liabilities as may appear of record. And I or we do warrant the title against all persons whomsoever, subject to the matters set forth above. Dated: June 2015 Grantors: Boulder Oro Valley, LLC an Arizona imiteA Liability Company By: Ross R lney, Agent ACKNOWLEDGMENT STATE OF ARIZONA ) SS. COUNTY OF PIMA ) !- �ca.CciYYlQyI,, ILL On this 5t;%day of June, 2015 before me,_ personally appeared Mr. Ross Rulney, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and officia al. "OFFICIAL SEAL" Teresa Bracamonte Notary Publi - Notaryi aCi� Arizona • �� M Commission R ires 3126 2016 My commission expir s 3 Z(p r EXHIBIT "A" PARCEL 3: That portion of Lot 4, being the Southeast quarter of the Southeast quarter of Section 13, Township 12 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, being more particularly described as follows: Commencing at the Southeast corner of said Section 13, said corner being a brass cap in concrete at the center of Linda Vista Boulevard as defined by Book 2, Page 130 of Road Maps, Pima County Records; Thence North 00°02'41" West 30.00 feet upon the East line of the Southeast quarter of said Section 13 to the North right-of-way of said Linda Vista Boulevard; Thence South 89153'08" West 492.00 feet upon the North right-of-way of said Linda Vista Boulevard; Thence North 00°02'41" West 363.68 feet to the Point of Beginning; Thence South 89157'19" West 97.87 feet; Thence South 00°02'41" East 18.73 feet; Thence South 89°57'19" West 107.63 feet; Thence North 00°02'41" West 251.71 feet; Thence North 89°57'19" East 174.85 feet; Thence South 45°02'41" East 43.35 feet; Thence South 00°02'41" East 202.33 feet to the Point of Beginning. Said parcel contains 49,424.4 square feet or 1.13 acres, more or less. O LA R I S 3528 N. FLOWING WELLS RD TUCSON, ARIZONA 85705 RAND TEL: 520-322-6400 SURVEYING, L L C FAX: 520-322-6401 LEGAL DESCRIPTION — Job No. 13049 May 29, 2015 PARCEL 1: That portion of Lot 4, being the Southeast quarter of the Southeast quarter of Section 13, Township 12 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, being more particularly described as follows: Commencing at the Southeast comer of said Section 13, said comer being a brass cap in concrete at the center of Linda Vista Boulevard as defined by Book 2, Page 130 of Road Maps, Pima County Records; Thence North 00°02'4'1" West 30.00 feat upon the East line the Southeast quarter of said Section 13 to the North right-of-way of said Linda Vista Boulevard, to the Point of Beginning; Thence continue North 00°02'41" West 1,146.99 feet upon said East line; South 89°50'32" West 492.00 feet; South 00°02'41" East 1,146.62 feet to the North right-of-way of said Linda Vista Boulevard; North 89°53'08" East 492.00 feet upon said North right-of-way to the Point of Beginning. Said parcel contains 564,227.2 square feet or 12.95 acres, more or less. EXPIRES 12-31-15 k I Polyline Report ® S 89'50732" W 492.00' 3� NORTHING EASTING BEARING DISTANCE I 5000.000 5000.000 1Q I N 00'02'41 " W 30.000 U ) 5030.000 4999.977 Q " � N 00'02'41 W 1146.990 I 6176.990 4999.081 3Q S 89'50'32" W 492.000 6175.634 4507.083 ® 1 �J S 00'02'41 " E 1146.617 I 5029.018 4507.978 Q O N 89'53'08" E 492.000 5030.000 4999.978 Q I m Closure Error Distance> 0.001 Error Bearing> S 89'50'32" W m Closure Precision> 1 in 3418976.1 Total Distance> 3277.607 Un Polyline Area: 564226.1 sq ft, 12.95 acres Z of D NI —1 m 564,227.2 SQ. FT. I 12.95 ACRES EXPIRES 12-31-15 NOTE: THIS DRAWING IS INTENDED T PORTRAY THE LOT CLOSURE CALCULATIONS FOR THE SUBJECT PARCEL AND DOES NOT REPRESENT A COMPLETE BOUNDARY SURVEY. r'xk� OLARIS AND `�FSURVEYING, LLC 3528 N. FLOWING WELLS RD. TUCSON, ARIZONA 85705 TEL.: (520) 322-6400 FAX: (520) 322-6401 l I p o �i 0 Chl O N I� Im ID m N I J I I� IU 0 ® N 89'53'08" E 492.00' Q LI N DA S.E. COR. SEC. 13 10 VISTA B LV D T.12 S., R.13 E. LOT CLOSURE REPORT FOR A PORTION OF LOT 4 OF SECTION 13, T. 12 S., R. 13 E., G. & S. R. M. PIMA COUNTY, ARIZONA POLARIS JOB No. 13049-MLD-2015 29 MAY 2015 0 LA R I S 3528 N. FLOWING WELLS RD AND TUCSON, ARIZONA 85705 TEL: 520-322-6400 FAX: 520-322-6401 SURVEYING, L L C LEGAL DESCRIPTION — JOB NO. 13049 May 29, 2015 PARCEL 2: That portion of Lot 4, being the Southeast quarter of the Southeast quarter of Section 13, Township 12 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, being more particularly described as follows: Commencing at the Southeast comer of said Section 13, said comer being a brass cap in concrete at the center of Linda Vista Boulevard as defined by Book 2, Page 130 of Road Maps, Pima County Records; Thence North 00002'41" West 30.00 feet upon the East line of the Southeast quarter of said Section 13 to the North right-of-way of said Linda Vista Boulevard; Thence South 8905308" West 492.00 feet upon the North right-of-way of said Linda Vista Boulevard to the Point of Beginning; Thence North 00002'41" West 363.68 feet; Thence South 89057'19" West 97.87 feet; Thence South 00°02'41" East 18.73 feet; Thence South 89057'19" West 107.63 feet; Thence North 00002'41" West 251.71 feet; Thence North 89057'19" East 174.85 feet; Thence South 45002'41" East 43.35 feet; Thence North 00002'41" West 580.61 feet; Thence South 89050'32" West 272.97 feet to the East right-of-way of the Tucson - Florence Highway, also known as Oracle Road, to a curve, turning to the right, concave to the West, from which the radius point bears South 84001'03" West 5,829.58 feet distant; Thence southerly upon said curve to the right, upon said East right-of-way, through a delta angle of 11 ° 17'09" and an arc length of 1,148.27 feet to the North right-of-way of said Linda Vista Boulevard; Page 1 of 2 Thence North 89"53'08" East 267.07 feet upon said North right-of-way to the Point of Beginning. Said parcel contains 238,559.7 square feet or 5.48 acres, more or less. p LArvb sG v �\C-1) ��(\rICgT�y 'pGct` J 35543 O O TODD A. HOUT �q?oNA S P; EXPIRES 12-31-15 Page 2 of 2 } Q I U Q 0 v S 89'50'32" W 272.972' 1� NOTE: THIS DRAWING IS INTENDED TO PORTRAY THE LOT CLOSURE z CALCULATIONS FOR THE cn o SUBJECT o N PARCEL AND j p; = DOES NOT - ^ o REPRESENT A COMPLETE BOUNDARY SURVEY. �0 u ® N.89'57' 19"E 9Q N z 174.85' �5r 00 o Iq 11 N �- PARCEL 2 N 1 :9 238,559.7 SQ. FT. 5.48 ACRES Co K3 NQ L1 4 I (Z) L3 Q6 N z 0 CA c°4 0 N (n 0 s 1"=150' ® 267.070' 30 N 89'53'0 " POLYLINE REPORT NORTHING EASTING BEARING DISTANCE 5000.000 5000.000 1Q N 00'02'41 " W 30.000 5030.000 4999.977 S 89'53'08" W 492.00 5029.019 4507.977 N 00'02'41 " W 363.676 5392.695 4507.693 S 89'57' 19" W 97.869 5392.619 4409.824 S 00'02'41 " E 18.727 5373.891 4409.839 S 89'57'19" W 107.631 5373.807 4302.208 N 00'02'41 " W 251.713 5625.520 4302.012 N 89'57' 19" E 174.847 5625.657 4476.859 90 S 45'02'41 " E 43.350 5595.028 4507.535 N 00'02'41 " W 580.610 6175.637 4507.082 Q S 89'50'32" W 272.974 6174.886 4234.109 @ RADIUS: 5829.580 LENGTH: 1148.273 CHORD: 1146.417 DELTA: 11'17'09"; CHORD BRG: S 00'20'23" E PC-R: S 84'01'03" W PT-R: N 84'41'48" W RADIUS POINT: 5567.290,-1563.721 TANGENT: 576.000 5028.488 4240.905 N 89'53'08" E 267.073 5029.021 4507.977 Q 'cam Closure Error Distance> 0.002 r�or Bearing> S 00'02'41" 8 Closure Precision> 1 in 1668572.8 Total Distance> 3326.737 �� Polyline Area: 238559.7 sf, 5.48 acres LINE BEARING DISTANCE L1 S 89*57'19" W 97.87' L2 S 00'02'41 " E 18.73' L3 S 89*57'19" W 107.63' L4 S 45'02'41 " E 43.35' PIRES 12-31-15 S.E. CORNER _S_89'53'08" W 492.000' (Z SECTION 13 - - T.12 S., 8 E LI N DA VISTA B LVD R.13 E. 6k-�fl?OLARIS AND SURVEYING, L L C 3528 N. FLOWING WELLS RD. TUCSON, ARIZONA 85705 TEL.: (520) 322-6400 FAX: (520) 322-6401 0 LOT CLOSURE REPORT FOR A PORTION OF LOT 4 OF SECTION 13, T. 12 S., R. 13 E., G, & S. R. M. PIMA COUNTY, ARIZONA POLARIS JOB No. 13049-MLD-2015 29 MAY 2015 PO LA R I S 3528 N. FLOWING WELLS RD AND TUCSON, ARIZONA 85705 TEL: 520-322-6400 SURVEYING, L L C FAX: 520-322-6401 LEGAL DESCRIPTION — JOB NO. 13049 May 29, 2015 PARCEL 3: That portion of Lot 4, being the Southeast quarter of the Southeast quarter of Section 13, Township 12 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, being more particularly described as follows: Commencing at the Southeast comer of said Section 13, said comer being a brass cap in concrete at the center of Linda Vista Boulevard as defined by Book 2, Page 130 of Road Maps, Pima County Records; Thence North 00002'41" West 30.00 feet upon the East line of the Southeast quarter of said Section 13 to the North right-of-way of said Linda Vista Boulevard; Thence South 89053'08" West 492.00 feet upon the North right-of-way of said Linda Vista Boulevard; Thence North 00002'41" West 363.68 feet to the Point of Beginning; Thence South 89057" 9" West 97.87 feet; Thence South 00°02'41" East 18.73 feet; Thence South 89057'19" West 107.63 feet; Thence North 00002'41" West 251.71 feet; Thence North 89057'19" East 174.85 feet; Thence South 45002'41" East 43.35 feet; Thence South 00002'41" East 202.33 feet to the Point of Beginning. �w �\rICATF �L ;� 35543 O Said parcel contains 49,424.4 square feet or !`r TODD A. l a NOUT Q� 1.13 acres, more or less. ad 2�NA, U S' EXPIRES 12-31-15 I Q� N I V =150' W PARCEL 3 U , 49,424.4 SQ. FT. Z I 1.13 ACRES W I 8Q N.89'57'19"E 9Q 1747 Q oz o I cn Q O O N I� N O O J (A i CNn m Q L1 N Z O I Q L3 v I POLYLINE REPORT NORTHING EASTING BEARING DISTANCE 5000.000 5000.000 1Q N 00'02'41 " W 30.000 5030.000 4999.977 Q S 89'53'08" W 492.000 5029.018 4507.977 Q N 00'02'41 " W 363.676 5392.694 4507.693 S 89'57' 19" W 97.869 5392.618 4409.824 S 00'02'41 " E 18.729 5373.889 4409.839 S 89'57' 19" W 107.631 5373.805 4302.208 Q N 00'02'41 " W 251.713 5625.517 4302.012 N 89'57' 19" E 174.847 5625.654 4476.859 9Q S 45'02'41 " E 43.350 5595.025 4507.535 S 00'02'41 " E 202.333 5392.692 4507.693 Closure Error Distance> 0.002 Error Bearing> N 00'02'41 " W Closure Precision> 1 in 570328.2 Total Distance> 896.471 Polyline Area: 49424.2 sq ft, 1.13 acres LINE BEARING DISTANCE L1 S 89*57'19" W 97.87' L2 S 00'02'41 " E 18.73' L3 S 89'57' 19" W 107.63' L4 I S 45'02'41 " E 43.35' 0 Z w ''✓o c"/- rn NOTE: THIS DRAWING IS uJ cA o (� TOD A. INTENDED TO PORTRAY THE LOT W N j a HOOT ,\ CLOSURE CALCULATIONS FOR U0114�\V��, / THE SUBJECT PARCEL AND DOES -5, NOT REPRESENT A COMPLETE BOUNDARY SURVEY. I I EXPIRES 12-31-15 I S.E. CORNER 30 S 89'53'08"_492.000' Q SECTION 13 LI N DA VISTA B LVD-� R.T. 12 E. 1Q R.13 E. O LA R 15 LOT CLOSURE REPORT FOR A S U k3AND N G LLC PORTION OF LOT 4 OF SECTION 13, ' T. 12 S., R. 13 E., G. & S. R, M. 3528 N. FLOWING WELLS RD. PIMA COUNTY, ARIZONA TUCSON, ARIZONA 85705 TEL.: (520) 322-6400 FAX: (520) 322-6401 POLARIS JOB No. 13049-MLD-2015 29 MAY 2015 �►�`#Y ^`��• TOWN OF ORO VALLEY DEVELOPMENT & INFRASTRUCTURE SERVICES DEPARMENT 11000 N. LA CANADA DRIVE, ORO VALLEY, AZ. 85737 .,,:�•,« PHONE: (520) 229-4800 FAX: (520) 742-1022 A` L www.orovalievaz.gov/dis 1.2 GENERAL APPLICATION FORM Office Use Only OV Case#: Application Type: ` ❑ Major General Plan Amendment ❑ Final Plat ❑ Rezoning/PAD Amendment ❑ Pre -Application ❑ Planned Area Development ❑ Zoning Verification ❑ Conditional Use Permit ❑ Sign Criteria ❑ Zoning Code Amendment ❑ Sign - PAD Exemption ❑ Conceptual Site Plan ❑ Master Sign Program ❑ Conceptual Public Art ❑ Communication Facility — Tier 1 and 2 Minor ❑ Conceptual Architecture Cl Communication Facility — Major ❑ Final Site Plan ❑ Revised Development Plan ❑ Conceptual Landscape Plan 12 Other Minor Land DiXision Subject Property Information: Address: 9600 North Oracle Road Parcel/Tax Code: 224-31-010E Subdivision / Commercial Center Name: El Corredor Book / Page or Sequence Number: Lot Number(s) Legal Description: Please see attached legal description Section/Township/Range: 13 / T12S / R13E Area of Property: 19.57 acres Existing Land Use: Vacant Proposed Land Use: Multi -Family & Commercial Applicant Information: Applicant *: Name: Kevin M. Hall * If more than one, attach list Firm: Cypress Civil Development, LLC Address: 2102 North Country Club Road #9 City: Tucson State: AZ Zip: 85716 Telephone:520-991-5213 Fax:520-798-3341 Email: kmhalIPcypresscivil.com Property Owner(s) if different from Applicant *: Name: Ross Rulney Firm: Boulder Valley LLC Address: PO Box 43426 City: Tucson State: AZ Zip: 85733 Telephone:520-850-9300 Fax: Consultant*: Kevin M. Hall (Discipline) Email: rossrulneyOgmail.com Name: Kevin M. Hall Firm: Cypress Civil Development, LLC Address: 2102 North Country Club Road #9 City: Tucson State: AZ Zip: 85716 Telephone: 520-991-5213 Fax: 520-798-3341 Email: kmhall@cypresscivil.com n Proiect Description/Narrative: The split of Lot 4 (parcel 224-31-010E)into two; the east consisting of 12.95 acres and the west consistingof f 6.61 acres. I hereby certify that I have read and examined this application and know the same to be true and correct. I am the owner of the property or the Owner's authorized representative, and if not the owner, I have obtained the owner's permission to perform stated work. All provisions of laws and ordinances governing this type of work will be complied with whether specified herein or not. The approval of this application does not presume to give authority to violate or cancel the provisions of any other federal, state or local law for which this project may be subject to. Notice: It is the applicant/owner's responsibility to ensure all private rules and regulations (such as Covenants, Conditions & Restrictions (CC&R's)) of the subdivision and/or commercial center are adhered to. Contact your Home Owners Association or property management to determine applicable requirements. It is also the applicant's responsibility to coordinate with all outside agencies to secure their acceptance or clearance. Failure to do so may delay issuance of permits. See attached list of agencies. d I 4=- 1 -66( Kevin M. Hall 2/9/2015 Applicant's Signature Print Name Date Important Note: All submittals received after 4:00 p.m. will be processed the next day Submittals will be reiected if: • Not folded using Pima County fold & collated; • There are missing items on the checklist unless otherwise approved by Planning Division Manager or Town Engineer. • Re -submittals cannot be accepted without a transmittal and a written narrative summary describing the purpose of submittal. 7 January 30, 2015 Town of Oro Valley Development Services 11000 North La Canada Drive Oro Valley, Arizona 85737 Attn: Mr. David Laws, Permitting Manager RE: El Corredor— Parcel Dividing Dear David: This shall serve as authorization that I am in agreement with dividing the existing parcel located at 9600 North Oracle Road, otherwise known as Parcel #224-31-010E, in Oro Valley, Arizona. The land division is being processed by Cypress Civil Development and they have my permission to act as an authorized agent for processing the land division. Please feel free to contact me should you have any questions. Sincer ly, 7; l Ross Rulney Boulder Oro Valley, LLC 9600 North Oracle Road Oro Valley, Arizona 85737 520-850-9300 1 Of 0 N m � w _ a> N a r Q O O z O W N w z (n LO m� � W z w m� O U J U U) " r Q Z Cif =-O QQw N (n w (n 1312.119' PL-J�Cjl I RIEGE:: F!E—S-7 —FE—� ES— n BOOK j 3 'I F=1AOE -74 MBcP N �CD 30' INGRESS -EGRESS Q Parcel 220-15-5500 16' UTILITY/EASEMENT EASEMENT PER Parcel 220-15-5510 Parcel 220-15-5520 o LOT 61, PUSCH PER BK. �S1 PG. 74 M&P BK. 31 PG. 74 M&P LOT 62, PUSCH LOT 63, PUSCH L' z oz RIDGE ESTATES RIDGE ESTATES RIDGE ESTATES S 00'02'41 " E 1 176.99' -2-4 1 -- I 1 146.99' �0 Ln N Z O r- :� w0 dQm m w o0 (D -L� a� O U � O Y Y L O o x o� � W w o w 0 r w 1.100 _ min Q o I Wd 0 ( I ww z Om a- cc w co w Li N O o LO O w 3:w N Lj w 0 n N 00 rn (0 4 r` w m `!N � � � of N J 0) O O w z z c� z 0 Iw w Iw d a_ > Of D Z w0� z w oo � �� m Q O CDW U aO o N � LLJLO I � Cn -m � o O Q �> N N O O M rn � N a- o' mw 0 �O N J Q W opn 1 I 00 o o ItaJ 0 M-I O --j Q Ii 9 N c0 Q r,:M 1 (0O 00 00 0 J of Q 00 w W n (n 00 wo D' O w `— I� Q� LncL 0 Qo Z FL zo / N O U) Cn z Jw — PARCEL 1 564,227.2 SQ. FT. 12.95 ACRES N 00'02'41 " W 1146.62' PARCEL 2 287,984.1 SQ. FT. 6.61 ACRES L=1148.27' R�829.58' =1117'09" Parcel220-15-5540 SCALE. 1"=50' LOT 65, PUSCH RIDGE ESTATES SO 100 NOTES 1. THIS MAP DOES NOT REPRESENT AN ALTA SURVEY. THE EASEMENTS SHOWN ARE FROM A FIRST AMERICAN TITLE INSURANCE COMPANY COMMITMENT FOR TITLE INSURANCE COMMITMENT/ESCROW No. 475-5546513, FIFTH AMENDED, DATED OCTOBER 21, 2013. EXHIBIT A OF THIS REPORT DESCRIBES THE SUBJECT PARCEL. THE SURVEYOR HAS COMPLETED NO ADDITIONAL INDEPENDENT RESEARCH FOR EASEMENTS OR RESTRICTIONS AFFECTING THE SUBJECT PARCEL BEYOND THOSE LISTED ON THE SCHEDULE B OF SAID REPORT. 2. ALL DIMENSIONS SHOWN ON THIS MAP ARE MEASURED OR A CALCULATED DERIVATIVE THEREOF UNLESS STATED OTHERWISE. 3. THE BASIS OF BEARINGS FOR THIS SURVEY THE EAST LINE OF SECTION 13, T.12 S. R. 13. E AS SHOWN THIS MAP AND THE "PUSCH RIDGE ESTATES" PLAT AS RECORDED IN BOOK 31, PAGE 74 OF MAPS AND PLATS, RECORDS OF PIMA COUNTY, AZ. THE BEARING OF SAID SECTION LINE IS N 00'02'41 " W. �Ln z� W Co ww (n O QQ ww wr z00 O _(D o_ w� ww W Y ~ O 0 0 O 0 Z w w00 V) Q w d ww z Om =� w�O w co J w� �Y �o Of wm ww (n w \ 0-- CD -t N O N O � J mod" W _ M U w -- Q w o¢ CD z� r w (n - O O N rn d- O N 30.007 30' - 60.00' — 30.00' 30.0( I3r' TOWN OF OR 0 VALLEY A.P.N. 220-15-491 C 00'06'1 1 "E 1 19.21' 89.21' GLO CAPPED PIPE S.W. CORNER 05" SECTION 18-12-14 z Q' r-) - w wzl Q or� N OOT UI Cf) ro Qw� mU'z m 1 O w N W W w O Cn z U O Q J o 0 0 Q LO 0 N w 0 O 1q: 00 00 0 I W z U z> w > ME Sao Iz oQ rho Ln Cf) m N w J N = U U Q �wm U O o� = O � O U n �m Q- m — 60.00' 30.00' �-{ 30.00' o I I LU bo I� d- `0 L=6 .30' L=1190.30' R=5 29.58' R=5829.58' = 0 '35'34" - �=11'41'56 FND ADOT 2-1/2" MON. N --F LJ C !E; O I -I F=-- L— O R E C E� I \1/v �� Y �0RACL_E ROAD — S_R. 77) o cc o w Ln 0mz a r7 w0N Q�zc~� I ww V J UUI� Q�O�essio a/F 2102 north country club road suite #9 37624 KEVIN M. tucson, arizona 85716 \ HALL p: 520.991.5213 P e: kmhall@cypresscivil.com 9ds'9Red °2��P, R/2cNA,�s. F�Oires 0613012��1 OWNER/DEVELOPER BOULDER ORO VALLEY LLC PO BOX 43426 TUCSON, ARIZONA 85733 ATTN: MR. ROSS RULNEY P: (520) 850-9300 E: ROSSRULNEY@GMAIL.COM 59/9 r Q C� O�Q 8 4,4 EL ONQU STADOR WAY 'THIS PROJECT LINDA VISTA BOULEVARD w -; > Q 24 19 CORONADO 6,' :' z v NATIONAL FOREST LU n._ e _� O 6;; _A LU CALLE CONC RDIA 14/93 A PORTION OF THE S.E. 1/4 OF THE S.E. 1/4 OF SECTION 13, T. 12 S., R. 13 E., G.&S.R.M., TOWN OF ORO VALLEY, PIMA COUNTY, ARIZONA. NORTH LOCATION MAP 3"=1MILE LEGEND SET 1 /2" REBAR ® TAGGED "RLS 35543" FOUND 1 /2" REBAR "RLS TAGGED 35543" Oo FOUND MONUMENT AS NOTED FOUND 2" BRASS CAP STAMPED AS NOTED (R) RECORD DIMENSION PROPERTY LINE EASEMENT LINE CENTER LINE - - NEW PROPERTY LINE - - OTHER PROPERTY LINE --- OTHER PROPERTY LINE SEQUENCE FEE STATE OF ARIZONA COUNTY OF PIMA HEREBY CERTIFY THAT THE INSTRUMENT WAS FILED FOR RECORD AT THE REQUEST OF DATE TIME WITNESS MY HAND AND OFFICIAL SEAL DAY AND YEAR WRITTEN ABOVE F. ANN RODRIGUEZ, COUNTY RECORDER BY DEPUTY OV1213-14 EL CORREDOR 0 L \LLJ�. oorz <t m j Cwl I 1 on { N \coo N�z Zz Q - 00L- ZL 1438.8 /L 1312.�19 ' - i � awl N zCD CL I- Ln U J O M Ln W O h 7 cn w ca 0 < Q\Z © Q� �Ldao m�� _ Q a q w ;-0 Q IN N(nww W0 0 Ytno CoCY rw w n CL / P L-J a / BOOK 3 1 �0 30' INGRESS -EGRESS Q Parcel 220-15-5500 16' UTILITY/EASEMENT EASEMENT PER Parcel 220-15-5510 ca LOT 61, PUSCH PER BK. X1 PG. 74 M&P BK. 31 PG. 74 M&P LOT 62, PUSCH n RIDGE ESTATES RIDGE ESTATES _L o �CO w N Q Ln w WCL o cL 0 z orn i o0 I �� �j0-U Jco w NmNC? �o Ned j z o) C] w LJ —zN0 �� 0 w cll f�l (f) o 0 � � N a_ Q I I I coy w Q N CO r P1 v = LO N \ Cc) z Z �q LL. O E F� I ID G El E�: !EE�; -T­ A -17 E:: !E�— PAGE -74 MBcF= Parcel 220-15-5520 LOT 63, PUSCH \ RIDGE ESTATES S 00'02'41 " E 1176.99' 1146.99' PARCEL 1 564,227.2 SQ. FT. 12.95 ACRES Ldaw> ; N 00'02'41 " W 1 146.6 ' Z z , ( 3 580.61 ' - 202.33 ' w C i Cif r� Q O W n- I 0 Z w ! w F wa- Q00 Ntn to �M O �w ! ` I w00 00 o> ry Ld I� z i Q '- w 0-) a- PARCEL 2 °' 4, PARCEL 3 0 0 Id, I I LLJI 238 559.7 SQ. FT. ,� °0 � 49,424.4 SQ. FT. I w I 000 0 _ ( j 5.48 ACRES b, 1.13 ACRES N Q0 z t Y >/ 0 ± j zz `f �zrr)D ( rL_a v� 0 N > ,�c0 0 Lijm I '� N 00'02'41 " W 25 o V)Cn Cn to 04 _-_. __ _ __ L=1148.27' R=5829.58' b,=11 ' 17' 09" aa� Li e--y a �f ; b v 00 N 0of M p 0 0 N LJ C�S o� F=— L— C R C cLEI: w /Z�S\ Y U_S. HIGHWAY 89, S.R. 77 0RACL_E ROAD NOTES Parcel 220-15-5540 SCALE. V=50' LOT 65, PUSCH RIDGE ESTATES 0 50 100 1. THIS MAP DOES NOT REPRESENT AN ALTA SURVEY. THE EASEMENTS SHOWN ARE FROM A FIRST AMERICAN TITLE INSURANCE COMPANY COMMITMENT FOR TITLE INSURANCE COMMITMENT/ESCROW No. 475-5546513, FIFTH AMENDED, DATED OCTOBER 21, 2013. EXHIBIT A OF THIS REPORT DESCRIBES THE SUBJECT PARCEL. THE SURVEYOR HAS COMPLETED NO ADDITIONAL INDEPENDENT RESEARCH FOR EASEMENTS OR RESTRICTIONS AFFECTING THE SUBJECT PARCEL BEYOND THOSE LISTED ON THE SCHEDULE B OF SAID REPORT. 2. ALL DIMENSIONS SHOWN ON THIS MAP ARE MEASURED OR A CALCULATED DERIVATIVE THEREOF UNLESS STATED OTHERWISE. 3. THE BASIS OF BEARINGS FOR THIS SURVEY THE EAST LINE OF SECTION 13, T.12 S. R. 13. E AS SHOWN THIS MAP AND THE "PUSCH RIDGE ESTATES" PLAT AS RECORDED IN BOOK 31, PAGE 74 OF MAPS AND PLATS, RECORDS OF PIMA COUNTY, AZ. THE BEARING OF SAID SECTION LINE IS N 00'02'41 " W. 363.68' I— z w -7�i� w cn - QL0 w r- �n c� w o O r- U) CD Lj (0 QQ wa- IF z� �a o Lj �Lj 0-(.0 w w �-. cn J w LLJ V O 00 C� (F�LJ �L—IC 2102 north country club road suite #9 tucson, arizona 85716 p: 520.991.5213 e: kmhali@cypresscivil.com OWNER/DEVELOPER BOULDER ORO VALLEY LLC PO BOX 43426 TUCSON, ARIZONA 85733 ATTN: MR. ROSS RULNEY P: (520) 850-9300 E: ROSSRULNEY@GMAIL.COM azw 3; Z t Q© i cLL 0 N� �� 0z TOWN OF ORO VALLEY ; CL A.P.N. 220-15-491 C CD -- N00'06'11 "E 119.21' --r 30.w ` 30' 89.21' I I GLO CAPPED PIPE S.W. CORNER 1 SECTION 18-12-14 zafr") -w- � Z I Q D' N 0 00 i i mho w (-4 LLLJ i v Ln z i0 C) 0 0 N rn ie 0 to N 60. 0' 30.00' 30.00' I0 i W( U D � 0 t- > W 00 N N 00 m 0 MM ' 1 c Lr) � P7 o 00 W z Q i 0 Ld z� Lij mn>Lf) Q C)ao�c� Iz �� I � cn - NfrL�lr�jZ N � -j N � w N O � p � a Z C� z0 0) 0 00 Cn O O m Z �- 60.00' 3C.00' 30.00' �• Q i w L 100 I� `0 L=6 R=5 .30' 29.58' L=1790.30, � R=5829.58 ' MON. END ADOT 2-1/2" d- -' 0\ o co �w6'Cz I WON 0 Q �yv Q ? F 35i38 EL CONQU STADOR WAY THIS PROJECT -19 LINDA VISTA BOULEVARD "' ;'a 24 `36 .31 > 1 cT 19 "` `` "'z w CORONADO ® - I NATIONAL FOREST _! '16,t 8 r v W CALLE C NCORDIA A PORTION OF THE S.E. 1/4 OF THE S.E. 1/4 OF"` SECTION 13, T. 12 S., R. 13 E., G.&S.R.M., TOWN:,r, OF ORO VALLEY, PIMA COUNTY, ARIZONA. NORTH 3 LOCATION MAP 3"-1MILE LEGEND SET 1 /2" REBAR TAGGED "RLS 35543" FOUND 1 /2" REBAR El TAGGED RLS 35543" FOUND MONUMENT ' AS NOTED FOUND 2" BRASS CAP STAMPED AS NOTED (R) RECORD DIMENSION PROPERTY LINE EASEMENT LINE -- CENTER LINE - - NEW PROPERTY LINE ...... _........ ____..... ...... _._. _....______- OTHER PROPERTY LINE --- OTHER PROPERTY LINE affinamm TOWN OF ORO VALLEY L SEQUENCE FEE STATE OF ARIZONA COUNTY OF PIMA I HEREBY CERTIFY THAT THE INSTRUMENT WAS FILED FOR RECORD AT THE REQUEST OF DATE TIME WITNESS MY HAND AND OFFICIAL SEAL DAY AND YEAR WRITTEN ABOVE F. ANN RODRIGUEZ, COUNTY RECORDER BY DEPUTY REF: OV1213-14 OV113-014 (0) 12-07 OV912-001