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Home My WebLink AboutOV120503D' F. ANN RODRIGUEZ, RECORDER RECORDED BY: RJL DEPUTY RECORDER 9544 PE2 TFATI LEWIS AND ROCA ONE SOUTH CHURCH AVE STE 700 TUCSON AZ 85701 When recorded return to: Amy J. Welander Lewis and Roca LLP One South Church Avenue, Suite 700 Tucson Arizona 85701-1611 1 DOCKET: 13140 ,�, " p4 P1 �q p� PAGE: NO. OF PAGES: SEQUENCE: EASMNT 4582 40 20071790828 09/14/2007 18:00 $IZOTy MAIL AMOUNT PAID $ 45.00 g t c r 59 RECIPROCAL EASEMENT AND OPERATION AGREEMENT by and between ORACLE LINDA VISTA INVESTORS, LLC, an Arizona limited liability company and ORO VALLEY SUNWAY, LLC, a Kansas limited liability company 1 3 1 4 Oro Valley, Arizona 0 0 4 5 8 2 216769.7 EP TABLE OF CONTENTS Pa ARTICLE I. GRANT OF EASEMENTS........................................................................................2 1.01 Access and Parking Easements.....................................................................2 1.02 Utility Easements.....................................................................................3 1.03 Drainage Easement......................................................................................5 1.04 Maintenance Easement................................................................................6 1.05 Temporary Construction Easement..............................................................6 1.06 Limitation on Easement Rights....................................................................7 1.07 Restrictions..................................................................................................8 ARTICLE II. CONSTRUCTION, MAINTENANCE AND OPERATION...................................8 2.01 Construction of Common Drive A Improvements; Construction of Common Drive B Improvements.................................................................8 2.02 Maintenance and Repair of Common Areas and Utility Lines....................9 2.03 Taxes and Assessments..............................................................................I I 2.04 Operation and Lighting.............................................................................11 2.05 Landscaping and Irrigation........................................................................11 2.06 Grading and Drainage.............................................:..................................12 2.07 Maintenance of Buildings. .......... .......... 13 2.08 Shared Property Manager; Maintenance of Com CommonDrive B.......................................................................................13 2.09 Cost of Operating and Maintenance..........................................................13 ARTICLE M. COVENANTS AND RESTRICTIONS.................................................................16 3.01 Use Restrictions.........................................................................................16 3.02 Parking ............................. ............................................................................. 18 ARTICLE IV. LIABILITY; INDEMNIFICATION; INSURANCE; LIENS...............................18 4.01 Liability; Indemnification..........................................................................18 4.02 Liability Insurance.....................................................................................19 4.03 Liens:..........................................................................................................19 ARTICLE V. CASUALTY AND EMINENT DOMAIN.............................................................20 5.01 Casualty......................................................................................................20 5.02 Casualty Insurance.....................................................................................20 1 5.03 Eminent Domain........................................................................................20 1 4 ARTICLE VI. REMEDIES...........................................................................................................20 0 6.01 Self Help; Lien Rights; Disputes ............................... 6.02 Injunctive Relief and Other Remedies .......................................................21 5 6.03 Non Waiver................................................................................................21 8 6.04 Non Terminable Agreement......................................................................22 6.05 Force Majeure ............................................................................................22 216769.7 IL ARTICLE VII. AMENDMENT, MODIFICATION; TERMINATION.......................................22 7.01 Amendment; Modification; Termination ...................................................22 ARTICLE VIII. EFFECT OF INSTRUMENT.............................................................................22 8.01 Binding Effect; Covenants Running with the Land...................................22 8.02 Non-Dedication..........................................................................................23 8.03 Responsibility ............................................................................................23 ARTICLE IX. NOTICES...............................................................................................................23 ARTICLE X. MISCELLANEOUS...............................................................................................24 ii 216769.7 1 3 1 4 0 0 4 5 8 4 RECIPROCAL EASEMENT AND OPERATION AGREEMENT THIS RECIPROCAL EASEMENT AND OPERATION AGREEMENT (the "Agreement"), is made as of this I''+ day of September, 2007 (the "Effective Date"), between Oracle Linda Vista Investors, LLC, an Arizona limited liability company ("Landholder"), and Oro Valley Sunway, LLC, a Kansas limited liability company ("Hotel Owner"). RECITALS: A. Landholder is the fee title owner of certain real property located in the municipal limits of the Town of Oro Valley, Arizona, consisting of approximately 19.57 acres, as more particularly described on Exhibit A attached hereto (the "Center"). B. Landholder intends to sell to Hotel Owner a portion of the Center consisting of approximately 8.71 acres, as more particularly described on Exhibit B attached hereto (the "Hotel Parcel"), concurrently with the recordation of this Agreement pursuant to the terms of that certain Purchase and Sale Agreement and Escrow Instructions, dated January 19, 2007, as amended, between Landholder, as the Seller thereunder, and the Hotel Owner, as the Purchaser thereunder. Upon the conveyance of the Hotel Parcel to Hotel Owner, Landlord shall retain the remaining portion of the Center consisting of approximately 10.86 acres, as more particularly described on Exhibit C attached hereto (the "Landholder's Parcel"). Hotel Owner intends to construct on the Hotel Parcel a hotel, restaurant(s), and retail shop(s), and related parking and site facilities in the area indicated on the site plan attached hereto as Exhibit D_(the "Site Plan"). Landholder's Parcel and the Hotel Parcel are herein collectively referred to as the "Center." The Landholder's Parcel, the Hotel Parcel, or any portion of the Center that is separately owned in fee shall be referred to herein individually as a "Parcel" and collectively as the "Parcels." C. Landholder and Hotel Owner recognize that for the most favorable development of the Center, it is necessary that they agree and cooperate with respect to the operation and maintenance of their Parcels and the Common Areas. For purposes of this Agreement, the term "Common Areas" shall refer to the parking areas, roadways, driveways, access lanes and aisles (the latter four terms being collectively referred to as the "Access Lanes" and, individually, an "Access Lane"), including, without limitation, the common area driveway extending from Oracle Road in an easterly direction through the Center, as depicted on Exhibit E attached hereto (the "Common Drive A"), and the common area drive extending from Linda Vista Boulevard in a northerly direction through the Center, as depicted on Exhibit E attached hereto (the "Common Drive B"), and all common curb cuts, walkways and sidewalks appurtenant to the Access Lanes. D. Landholder and Hotel Owner intend herein to grant to each other certain reciprocal easements for parking and for pedestrian and vehicular ingress and egress over the Common Areas for access and for delivery, and to grant certain reciprocal easements to install and maintain Utility Lines (as defined in Section 1.02, below) within the Access Lanes of the Common Areas, upon the terms and conditions set forth below. 216769.7 1 3 1 4 0 0 4 8 5 E. Landholder and Hotel Owner herein intend to grant each other certain reciprocal easements for drainage over the Landholder's Parcel and the Hotel Parcel, upon the terms and conditions set forth below. F. Landholder and Hotel Owner desire to agree upon their respective maintenance responsibilities for the Common Areas located on their respective Parcels, the Utility Lines, and the Drainage Facilities (as defined in Section 1.03(a)), upon the terms and conditions set forth below. G. The parties acknowledge that there shall be a shared property manager (the "Shared Property Manager") for the Center that shall maintain Common Drive A and Common Drive B, the cost and expense of which shall be allocated among the Owners by the Shared Property Manager, upon the terms and conditions set forth in this Agreement, and that Landholder or its designee shall serve as the Shared Property Manager. The Owners of the Hotel Parcel and Landholder's Parcel intend to grant to the Shared Property Manager a maintenance easement over Common Drive A, and the Owner of the Landholder's Parcel intends to grant to the Shaved Property Manager a maintenance easement over Common Drive B, so as to allow the Shared Property Manager to carry out its obligations under this Agreement, upon the terms and conditions set forth below. H. Landholder and Hotel Owner intend to provide for certain obligations and restrictions with respect to the operation and maintenance of their respective Parcels, the Common Areas and the facilities to be constructed thereon. I. The easements, obligations and restrictions in this Agreement shall run to the benefit of, and bind the respective Parcels, and the owners from time to time of the Center or any portion thereof. The terms "Hotel Owner" and "Landholder" shall be deemed to refer to such parties and the respective heirs, successors, grantees and assigns of such parties (individually, the "Owner", or collectively, the "Owners"). NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, Landholder and Hotel Owner hereby grant, covenant and agree as follows: ARTICLE I. GRANT OF EASEMENTS 1.01 Access and Parking Easements. (a) The Owners of the Hotel Parcel and Landholder's Parcel hereby grant and 1 convey, each to the other, for the benefit of the Hotel Parcel and Landholder's Parcel and the 4 Owners thereof, and their respective tenants, occupants, customers, employees, agents, 0 contractors and invitees, a perpetual, non-exclusive, appurtenant easement to use during the term p of this Agreement the Common Areas on the Hotel Parcel and Landholder's Parcel for purposes 5 of ingress, egress, passage and delivery, by vehicles and pedestrians. 8 (b) The owners of the Hotel Parcel and Landholder's Parcel hereby grant and convey, each to the other, for the benefit of the Hotel Parcel and Landholder's Parcel and the Owners thereof, and their respective tenants, occupants, customers, employees, agents, 2 216769.7 contractors and invitees, a perpetual, non-exclusive, appurtenant easement to use during the term of this Agreement the parking areas from time to time maintained on the Hotel Parcel and the Landholder's Parcel for purposes of vehicular parking. Notwithstanding the foregoing easements, each Owner shall maintain on its own respective Parcel sufficient parking so as to comply with the parking ratio required by the applicable Governmental Authority (as that term is defined in Section 1.02(b) for such Owner's Parcel. Such parking easements shall otherwise comply with all other terms, conditions and restrictions contained in this Agreement pertaining to the maintenance and operation of the parking areas on each Owner's Parcel and Common Areas. (c) Each Owner reserves the right at any time and from time to time to exclude and restrain any person who is not a permittee, is otherwise committing a nuisance or crime, or is otherwise interfering with the intended use of the Common Areas from the use and/or occupancy of the portion of the Common Areas located on such Owner's Parcel. 1.02 Utility Easements. (a) The Owners of the Hotel Parcel and Landholder's Parcel hereby grant and convey, each to the other and to the other's tenants, occupants, customers, employees, agents, contractors and invitees, for the benefit of the Hotel Parcel and Landholder's Parcel, a perpetual, nonexclusive, appurtenant easement under and through the Access Lanes within the Common Areas located on the Hotel Parcel and Landholder's Parcel for the purpose of installation, operation, flow and passage, maintenance, repair, replacements, removal and relocation of underground storm sewer line, sanitary sewer pipes, water and gas mains, electric power lines, telephone lines, security systems, cable television and other utility lines (collectively, "Utility Lines" and individually, "Utility Line") to serve the facilities located on the Hotel Parcel and Landholder's Parcel; provided, however, that such easements shall only be granted if and to the extent the Governmental Authorities, as that term is defined below, require that an Owner's Utility Lines be installed across the Parcel of another Owner, as described in Section 1.02(h). (b) Notwithstanding the easement granted pursuant to this Section 1.02, the Hotel Owner and Landholder shall each use good faith efforts to develop their respective Parcels such that the Utility Lines required to be installed to serve the Hotel Parcel are installed within the Hotel Parcel and the Utility Lines required to be installed to serve the Landholder's Parcel are installed within the Landholder's Parcel. If the Utility Lines required to serve either the Hotel Parcel or the Landholder's Parcel are required to be installed across the other Owner's Parcel by the applicable utility provider and/or the applicable governmental authority or agency having jurisdiction over the Center (individually, the "Governmental Authority" or collectively, the "Governmental Authorities"), such Owner shall have the right to install and construct its Utility Lines under and through the Access Lanes within the Common Areas located on the other Owner's Parcel; provided, however that the installation and construction of any 4 Utility Lines within such Access Lanes shall be subject, as to location, to the written approval of 0 the granting Owner, which approval shall not be unreasonably withheld, conditioned or delayed. 4 Upon completion of construction, installation, reconstruction, or relocation of Utility Lines, as the 5 case may be, the Hotel Owner and Landholder shall, upon the request of the other Owner, join in 7 the execution of an agreement to be recorded in the Official Records of Pima County, Arizona (the "Official Records"), appropriately identifying the type and location of each such Utility Line located within the Hotel Parcel and/or Landholder's Parcel, as the case may be. Utility Lines may 3 216769.7 be for the exclusive use of an Owner and its occupants and their permittees or for the use of more than one Owner, occupant or permittee with the consent of such Owner. (c) The parties acknowledge that the Governmental Authorities may require that the Hotel Owner and Landholder share a sewer line for sewer service to the Hotel Parcel and Landholder's Parcel (the "Shared Sewer Line"). In such event, each Owner shall, at its initial cost and expense, construct and maintain that portion of the Shared Sewer Line located on such Owner's Parcel, and shall have the right to request reimbursement for the cost to design, permit, construct and maintain the Shared Sewer Line, as the case may be (collectively, the "Shared Sewer Costs"), from the other Owners to be served by the Shared Sewer Line in accordance with such other Owners' Pro Rata Share (as defined in Section 2.09(a)). Each Owner shall pay its Pro Rata Share of the Shared Sewer Costs within ten (10) business days following such Owner's receipt of (i) detailed invoices from the Owner requesting reimbursement identifying the applicable work performed and the allocable share of costs incurred due; (ii) copies of final and unconditional lien waivers and releases in statutory form from the applicable contractors ("Lien Releases") relating to the work performed; and (iii) a written certification to the applicable Owners from the contractor(s) performing such construction and/or maintenance certifying that such construction and/or maintenance has been completed. Notwithstanding anything to the contrary set forth in this Section 1.02(c), any Owner requiring sewer service through the Shared Sewer Line shall have the right to construct the Shared Sewer Line over the Access Lanes of any other Owner's Parcel, if the applicable portion of the Shared Sewer Line has not previously been constructed, in the location specified by the Governmental Authorities and approved in writing by the Owner of such affected Parcel, which Owner's approval shall not be unreasonably withheld, conditioned or delayed. Such construction shall be performed by an Arizona licensed contractor reasonably acceptable to the Owner of the Parcel to be affected by such construction, shall be commenced no earlier than five (5) days prior written notice to such affected Owner, and shall be performed in a lien -free, diligent, good and workmanlike manner and in accordance with any an all applicable laws, rules, ordinances and regulations (collectively, the "Applicable Laws"). Upon completion of such construction, the Owner that performed such construction shall restore any affected Parcel, including any improvements thereon, to at least the same condition that existed prior to commencement of such construction. The Owner commencing such construction shall have a temporary construction easement pursuant to Section 1.05. (d) Except with respect to ground mounted electrical transformers at the rear of a building, or as may be necessary during periods of construction, repair or temporary service, all Utility Lines shall be underground. 1 3 (e) The grantor of the easement shall have the right at any time to relocate any 4 such Utility Line or portion thereof, provided that such relocation shall be performed only after p thirty (30) days' written notice of such intention to so relocate shall be given to the grantee, and 0 such relocation: 4 5 8 (i) Shall not interfere with or diminish the utility services to the 8 grantee; 4 216769.7 of such Utility Line; (ii) Shall not reduce or unreasonably impair the usefulness or function (iii) Shall be performed without cost or expense to the grantee; and (iv) Shall be completed using materials and design standards which equal or exceed those originally used. (f) Documentation of the relocated easement area shall be the grantor's expense and shall be accomplished as soon as possible. The grantee shall have a right to require an as -built survey of such relocated Utility Line be delivered to it at the grantor's expense. (g) Both parties reserve the right to grant and/or transfer any easement rights as may be reasonably necessary to any public utility. 1.03 Drainage Easement. (a) The Owners of the Landholder's Parcel and the Hotel Parcel hereby grant and convey, each to the other and to the other's tenants, occupants, customers, employees, contractors, agents and invitees, for the benefit of the Landholder's Parcel and. the Hotel Parcel, a perpetual, appurtenant, non-exclusive easement over, under, across and through those portions of the Landholder's Parcel and the Hotel Parcel as may be required for drainage purposes and the construction, installation, operation, maintenance and repair (and, if it does not interfere with the use of the Landholder's Parcel or the Hotel Parcel, as applicable, relocation) of Drainage Facilities (as defined below) so as to maintain the natural flow of water from the Landholder's Parcel and the Hotel Parcel (the "Natural Flow"), or as may be required pursuant to any grading and drainage plans approved by the Governmental Authority for the Landholder's Parcel and/or Hotel Parcel (collectively, the "Approved Grading and Drainage Plans"), as the case may be, but only in the event and to theextent that such drainage cannot be contained within the boundaries of an Owner's own Parcel pursuant to Section 1.03(b). For purposes of this Agreement, "Drainage Facilities" shall mean all area drains, gutters, downspouts, berms, swells and any other drainage facilities and systems that may be required to be constructed and installed, whether to maintain the Natural Flow or as may be required pursuant to any Approved Grading and Drainage Plans, expressly excluding, however, any retention basins. Notwithstanding anything contained in this Agreement to the contrary, in no event shall any portion of the Landholder's Parcel or Hotel Owner's Parcel be designated for use as or contain an easement for a retention basin. 1 (b) Notwithstanding the easement granted pursuant to this Section 1.03, the 1 Hotel Owner and Landholder shall each use good faith efforts to develop their respective Parcels such that the drainage on and/or from the Hotel Parcel and any Drainage Facilities required in o connection with such drainage shall be contained within the boundaries of the Hotel Parcel, and 00 the drainage on and/or from the Landholder's Parcel and any Drainage Facilities required in 5 connection with such drainage shall be contained within the boundaries of the Landholder's 8 9 Parcel. If the drainage on and/or from either the Hotel Parcel or the Landholder's Parcel, and any Drainage Facilities required in connection with such drainage, are required over or under any other Owner's Parcel by the applicable Governmental Authorities, the Owner required to have 216769.7 such drainage and/or Drainage Facilities over or under such other Owner's Parcel shall have the right to cause such drainage to occur over or under such other Owner's Parcel, and shall have the right to install and construct its Drainage Facilities under and through the easement parcels created pursuant to Section 1.03(a) and Section 1.03(d) located on such other Owner's Parcel, but only in accordance with the Approved Grading and Drainage Plans for the affected Parcels. (c) The Owners of the Hotel Parcel and the Landholder's Parcel hereby covenant and agree to reasonably cooperate with each other, upon request, at no cost or expense to the non -requesting Owner, to obtain the approval of the Governmental Authorities of grading and drainage plans for the Hotel Parcel and/or the Landholder's Parcel, as applicable; provided, however, that such drainage and grading plans shall be consistent with the non -requesting Owner's grading and drainage plans or any Approved Grading and Drainage Plans. Such cooperation shall include, without limitation, executing any and all consents reasonably required in connection with the requesting Owner's application for approval of its drainage and grading plans. (d) Upon receipt of Approved Grading and Drainage Plans, any Owner of the Hotel Parcel or the Landholder's Parcel may request in writing that the Owners enter into a separate written drainage easement agreement, reasonably acceptable to the parties thereto, that shall supplement this Agreement and that shall specify the exact location of the drainage easements and Drainage Facilities on the Hotel Parcel in a manner consistent with the Approved Grading and Drainage Plans, which agreement shall be recorded in the Official Records. 1.04 Maintenance Easement. The Owners of the Hotel Parcel and Landholder's Parcel hereby grant and convey to the Shared Property Manager, its tenants, occupants, employees, agents and contractors, a perpetual, non-exclusive easement in, to, over, under and across Common Drive A for the purpose of maintaining Common Drive A, including, without limitation, maintaining, repairing and replacing the Common Drive A Improvements, as defined in Section 2.01(a), in accordance with the Shared Property Manager's obligations set forth in Section 2.08. The Owner of the Landholder's Parcel hereby grants and conveys to the Shared Property Manager, its tenants, occupants, employees, agents and contractors, a perpetual, non-exclusive easement in, to, over, under and across Common Drive B for the purpose of maintaining Common Drive B, including, without limitation, maintaining, repairing and replacing the Common Drive B Improvements, as defined in Section 2.01(d), in accordance with the Shared Property Manager's obligations set forth in Section 2.08. 1 1.05 Temporary Construction Easement. 1 4 (a) In connection with any construction and installation work to be performed 0 in connection with Common Drive A, the Utility Lines, the Shared Sewer Line (if applicable), 0 and the Drainage Facilities (if applicable), each Owner hereby grants the other Owners for the 5 benefit of such Owners and their employees, agents and contractors appurtenant, nonexclusive 0 temporary easements (i) over the Common Areas on each Owner's Parcel; (ii) over such portions of the Hotel Parcel and Landholder's Parcel as may be reasonably necessary to construct and install the Drainage Facilities so as to maintain the Natural Flow or as required pursuant to the 6 216769.7 Approved Grading and Drainage Plans; and (iii) for incidental encroachments upon the party's Parcel which may occur as a result of any such construction and installation, so long as such encroachments are kept within the reasonable requirements of construction and installation work and such work is expeditiously pursued and so long as the insurance required pursuant to Section 4.02 are maintained protecting the other party from the risks involved (collectively, the "Temporary Construction Easements"). ,. (b) All construction shall be done so as to cause minimal interference with the business operations conducted from any facility already constructed. During any such construction the construction site and surrounding areas shall be kept reasonably clean and free of construction material, trash and debris and appropriate precautions shall be taken to protect against personal injury and property damage to other Owners, occupants, tenants, licensees, customers, permittees or invitees. Failure to comply with this Section 1.05 shall constitute a breach of this agreement and subject the defaulting party to any and all remedies provided for herein or provided by law or equity. All such construction shall be done in a diligent and good and workmanlike manner, free and clear of any liens and encumbrances and in accordance with and subject to all of the terms and conditions of any development agreements entered into between the parties, any development plans approved by the Governmental Authorities (such approved development plans being referred to individually as a "Development Plan" and collectively as the "Development Plans"), and otherwise in accordance with any and all Applicable Laws. Upon the completion of such construction, the Owner that performed such construction shall restore any affected Parcels, including any improvements thereon, to at least the same condition that existed prior to commencement of such construction. The Temporary Construction Easements shall automatically terminate upon completion of any such construction and installation work without the need for any further action by or documentation from the Owners evidencing such termination. (c) Each party severally agrees to perform his respective work (i) so as not to cause any increase in the cost of constructing the remainder of the Center, or any part thereof, which is not reasonably necessary, (ii) so as not to unreasonably interfere with any construction work being performed on the remainder of the Center, or any part thereof, or (iii) so as not to unreasonably interfere with the use, occupancy or enjoyment of the remainder of the Center, or any part thereof, or any other party and any such occupant of the Center and permittees of any other party or of such other occupants. (d) Each party severally agrees to defend and hold each other party harmless from all claims, including any action or proceedings, including reasonable attorneys' fees, 1 resulting from any accident, injury or loss, or damage whatsoever occasioned to any natural 3 person or to the property of any person as shall occur by reason of the performance of such work 1 by such party. p 1.06 Limitation on Easement Rights. 5 The easements granted in this Article I are not intended nor shall it be construed 1 as creating any rights to anyone other than those referred to in Section 7.01 to approve or disapprove any modifications to this Agreement or to create any rights in or for the benefit of the 7 216769.7 general public nor shall such easements affect any real property outside of the Center. Such easement areas are reserved for said use for the term of this Agreement. 1.07 Restrictions. The easements granted by this Article I shall be subject to the covenants and restrictions set forth in this Agreement. ARTICLE 11. CONSTRUCTION, MAINTENANCE AND OPERATION 2.01 Construction of Common Drive A Improvements; Construction of Common Drive B Improvements. (a) The parties to this Agreement hereby acknowledge that the Center, as of the Effective Date, consists of vacant land and that the Center shall be developed in accordance with one or more Development Plans and in accordance °with any and all Applicable Laws. The parties to this Agreement further acknowledge that development of the Hotel Parcel and the Landholder's Parcel may occur on different timelines. Therefore, either the Hotel Owner or the Landholder shall have the right to (i) commence construction of the Access Lanes and any curb cuts, walkways and sidewalks appurtenant to the Access Lanes within Common Drive A in accordance with the Hotel Owner's and Landholder's Development Plans; (ii) install all landscaping and irrigation lines and appurtenant facilities in accordance with the landscaping plans approved by.the Governmental Authority (the "Approved Landscaping Plans"); and (iii) install all lighting fixtures and appurtenant facilities (including, without limitation, light poles and ground lighting) pursuant to the lighting plans approved by the Governmental Authority (the "Approved Lighting Plans"), (collectively, the "Common Drive A Improvements"). (b) The Common Drive A Improvements shall be constructed in a diligent, lien -free, good and workmanlike manner and in accordance the standards of comparable community shopping centers in the market area and otherwise in accordance with any and all Applicable Laws. The Owner that commences construction of the Common Drive A Improvements (the "Constructing Owner") shall diligently pursue and complete the same as soon as reasonably possible, but in no event later than eighteen (18) months following commencement of such construction. The Constructing Owner shall contract with an Arizona licensed contractor(s) for the construction of the Common Drive A Improvements reasonably acceptable to the other Owners. Upon completion of the construction of the Common Drive A. Improvements, the Constructing Owner shall cause such contractor(s) to certify in writing to the 3 other Owners that such construction has been completed (the "Contractor's Certificate"). 1 4 (c) The Constructing Owner shall have the right to request reimbursement for 0 the cost incurred by the Constructing Owner to design, permit and construct the Common Drive 4 A Improvements (collectively, the "Improvement Costs") from the other Owners in accordance 5 with their Pro Rata Share. The other Owners shall reimburse the Constructing Owner within ten 9 (10) days following their receipt from the Constructing Owner of (i) detailed invoices from the 2 Constructing Owner identifying the work performed and the allocable share of the costs incurred due, (ii) copies of the Lien Releases, and (iii) the Contractor's Certificate. 8 216769.7 (d) All improvements for Common Drive B, including, without limitation, the Access Lanes and curb cuts, walkways and sidewalks appurtenant to the Access Lanes within the Common Drive B required in accordance with the Hotel Owner's or Landholder's Development Plans, as applicable, all landscaping and irrigation lines and appurtenant facilities required in accordance with the Approved Landscaping Plans, and all lighting fixtures and appurtenant facilities (including, without limitation, light poles and ground lighting) required pursuant to the Approved Lighting Plans (collectively, the "Common Drive B Improvements"), shall be constructed by the Landholder, at the Landholder's sole cost and expense, in a diligent, good and workmanlike manner and in accordance with the standards of comparable community shopping centers in the market area and otherwise in accordance with any and all Applicable Laws. The Landholder shall contract with an Arizona licensed contractor(s) for the construction of the Common Drive B Improvements. If the Governmental Authorities require construction of all or any portion of the Common Drive B Improvements prior to the Governmental Authorities agreeing to issue building permits to the Hotel Owner for the Hotel Owner's development on the Hotel Parcel, the Landholder shall, following its receipt of the written request of the Hotel Owner, commence and cause all or such portion of the Common Drive B Improvements required to be constructed by the Governmental Authorities to be completed in a commercially reasonable manner and otherwise in accordance with the provisions of this Agreement. Notwithstanding the location of Common Drive B as depicted on Exhibit E attached hereto, until such time as Landholder no longer owns fee title to all or any portion of Common Drive B, Landholder shall have the right to relocate Common Drive B, or any portion thereof, located on the Parcel owned by Landholder, provided that such relocation shall be performed only after thirty (30) days' prior written notice from Landholder of such intention to so relocate has been given to the other Owners, and such relocation shall: (i) provide access to Linda Vista Boulevard; (ii) be performed without cost or expense to any other Owner other than Landholder; and (iii) be documented so as to depict the relocated Common Drive B, at Landholder's expense, which documentation shall be recorded in the Official Records as an amendment to this Agreement in accordance with Section 7.01, and each Owner shall consent to, execute and acknowledge any such amendment, provided the requirements of this Section 2.01(d) are satisfied. 2.02 Maintenance and Repair of Common Areas and Utility Lines. (a) Common Areas. (i) Except as provided in Section 2.07, each Owner shall maintain, repair and replace all portions of the Common Areas located on its respective Parcel in accordance with any and all Applicable Laws and so as to keep such areas at all times in a safe, sightly, good and functional condition to standards of comparable community shopping centers 1 3 in the market area. 4 0 (ii) Except as provided in Section 2.07, each Owner shall be 0 responsible for keeping the Common Areas on its own Parcel clean and free from refuse and 4 rubbish. 5 9 3 (iii) Except as provided in Section 2.07, each Owner shall re -pave, re -stripe and replace markings on the surface of the Access Lanes and parking areas within the Common Areas on its Parcel from time to time as and when necessary so as to provide for the 9 216769.7 orderly ingress and egress of vehicles and pedestrians and the orderly parking of vehicles, and shall place and maintain adequate exit and entrance and other traffic control signs to direct traffic in and out of said Common Areas. Each Owner shall maintain all curb cuts, walkways and sidewalks appurtenant to the Common Areas on its Parcel. (b) Utility Lines. (i) Each Owner shall, except as set forth in this Section, at its sole cost and expense, construct, install, service, maintain, repair and replace (and, if it does not interfere with the granting Owner's Parcel, relocate), and pay the cost of any fees or charges in connection with the Utility Lines located on its Parcel to the extent that such Utility Lines service the improvements on that Parcel or service the Center as a whole if such services are not provided. Subject to the provisions of Section 1.02, to the extent that any Utility Line exclusively servicing any Parcel crosses another Owner's Parcel, such Utility Line shall be so maintained by the party served by the Utility Line. Subject to the provisions of Section 1.02 and Section 2.02(b)(iii), to the extent that any Utility Lines constructed serve more than one Parcel, the cost thereof shall be shared by all the Owners served by such Utility Lines in accordance with each served Owner's pro rata share, which shall be determined by multiplying the cost thereof by a fraction, the denominator of which shall be the total square footage of all the Parcels served by such Utility Lines and the numerator of which shall be square footage of the applicable Owner's Parcel. Maintenance of any portion of any Utility Lines serving more than one Parcel shall be performed by the Owner of the Parcel crossed by the Utility Line, but the cost thereof shall be shared in accordance with each served Owner's pro rata share, which shall be determined in the same manner described above in this Section 2.02(b)(1). Notwithstanding the foregoing, the Utilities shall be separately metered to each Parcel and paid for by the Owner of the Parcel served by such utilities. (ii) All construction, installation, service, maintenance, repair and, if applicable, relocation, to be performed on another Owner's Parcel shall be performed expeditiously and only after five business days' written notice (except in the event of an emergency) to the granting Owner, and shall be performed in a lien -free, diligent, good and workmanlike manner. The party performing such work shall, at its cost and expense, repair any damage to any improvements on such other Owner's Parcel and restore the same to at least the same condition existing prior to commencement of such work. Each Owner shall indemnify and hold the granting Owner and any occupant of the granting Owner's Parcel harmless from any claims, damage or loss which may result from the exercise of any of the rights granted in this Section. i (iii) The parties acknowledge that the Landholder may sell portions of 4 the Landholder's Parcel to third party purchasers. In the event that the Utility Lines exclusively 0 serving the Landholder's Parcel are required to be shared by more than one Owner of the 0 Landholder's Parcel, the applicable Owners of the Landholder's Parcel shall enter into a separate 4 written agreement that shall be recorded in the Official Records, which shall allocate the 5 construction, installation, operation, maintenance, repair and relocation responsibilities of the 4 Owners of the Landholder's Parcel and the cost sharing agreement for the same, which agreement shall be consistent with this Agreement and shall not change, alter or modify the obligations of the Hotel Owner under this Agreement. The parties further acknowledge that the 10 216769.7 Hotel Owner may sell portions of the Hotel Parcel to third party purchasers. In the event that the Utility Lines exclusively serving the Hotel Parcel are required to be shared by more than one Owner of the Hotel Parcel, the applicable Owners of the Hotel Parcel shall enter into a separate written agreement that shall be recorded in the Official Records, which shall allocate the construction, installation, operation, maintenance, repair and relocation responsibilities of the Owners of the Hotel Parcel and the cost sharing agreement for the same, which agreement shall be consistent with this Agreement and shall not change, alter or modify the obligations of the Landholder under this Agreement. 2.03 Taxes and Assessments. Each Owner shall pay, prior to any penalty attaching thereto, all real estate taxes, assessments and personal property taxes, if any, imposed upon the land and improvements and equipment located on its respective Parcel. 2.04 Operation and Lighting. (a) Subject to any rules and regulations that may be adopted by the Owners from time to time pursuant to Section 3.02(a), each Owner shall keep the parking areas and Access Lanes within the Common Areas located on its respective Parcel open to the customers of the Center seven days a week at all times. Each Owner shall keep its portion of Common Drive A lighted after dusk until dawn seven days a week, or as otherwise required by the Shared Property Manager ("Normal Lighting Hours"). Any Owner or occupant of a Parcel may require the lights on any other Parcel to be kept lighted after Normal Lighting Hours if such Owner or occupant reimburses the requested Owner for the additional electrical costs incurred thereby, which cost shall be shared on a pro rata square footage basis with any other occupant which remains open during such additional hours. (b) Each Owner shall maintain the Common Area lighting fixtures located on its Parcel and replace and revamp such lighting fixtures as needed, in accordance with the Approved Lighting Plans. Any facilities and fixtures to be used in the lighting of the Parcels, including, without limitation, the Common Areas, shall be designed and installed with separate meters to measure the electricity consumed on the respective Parcels. The meters and lighting control switches for Common Drive A and Common Drive B shall be located in an exterior, accessible location on each Parcel and the Shared Property Manager shall be provided with keys and/or codes to such controls. 2.05 Landscaping and Irrigation. 1 3 Any landscaped areas on the respective Common Areas shall be mowed and 0 otherwise tended to by the Owner thereof in accordance with the Approved Landscape Plans for such Owner's Parcel. Any irrigation facilities used to irrigate the landscaping on the Parcels, 4 including, without limitation, the Common Areas, shall be designed and installed with separate 5 meters to measure the water consumed on the respective Parcels. The meters and irrigation 5 boxes and/or control switches for Common Drive A and Common Drive B shall be located in an exterior, accessible location on each Parcel and the Shared Property Manager shall be provided with the keys and/or codes to such controls. 11 216769.7 2.06 Grading and Drainage. (a) Unless specifically approved in writing by all affected parties, the grading of any Parcel shall not be modified, altered or otherwise changed, except with the prior written consent of the other affected Owners, which consent shall not be unreasonably withheld, conditioned or delayed, and only in accordance with the Approved Grading and Drainage Plans. There shall be no interference with the established drainage pattern and system or the drainage pattern and system established pursuant to the Approved Grading and Drainage Plans for the Parcels, as the case may be, unless adequate provision is made for property drainage and such interference is approved by all affected Owners and the Governmental Authorities. Subject to the provisions of Section 1.03, all Drainage Facilities shall be constructed and maintained by the Owner of the applicable Drainage Facilities, at such Owner's sole cost and expense, in a neat, orderly, lien -free and safe and sanitary condition, and in such a manner as to facilitate the orderly discharge of water by means thereof. (b) Subject to the provisions of Section 1.03 and Section 2.06(d), construction of any portion of any Drainage Facilities benefiting more than one Parcel may be performed by any Owner of a Parcel benefited by such Drainage Facilities, but the cost thereof shall be shared in accordance with each benefited Owner's pro rata share, which shall be determined by multiplying the cost thereof by a fraction, the denominator of which shall be the total square footage of all the Parcels benefited by such Drainage Facilities and the numerator of which shall be square footage of the applicable Owner's Parcel. Subject to the provisions of Section 1.03 and Section 2.06(d), maintenance, repair, replacement or reconstruction of any Drainage Facilities benefiting more than one Parcel shall be performed by the Owner of the Parcel containing such Drainage Facilities, but the cost thereof shall be shared in accordance with each benefited Owner's pro rata share, which shall be determined in the same manner, described above in this Section 2.06(b). (c) All construction, installation, service, maintenance, repair and, if applicable, relocation, to be performed on another Owner's Parcel shall be performed expeditiously and only after five business days' written notice (except in the event of an emergency) to the granting Owner, and shall be performed in a lien -free, diligent, good and workmanlike manner. The party performing such work shall, at its cost and expense, repair any damage to any improvements on such other Owner's Parcel and restore the same to at least the same condition existing prior to commencement of such work. Each. Owner shall indemnify and hold the granting Owner and any occupant of the granting Owner's Parcel harmless from any claims, damage or loss which may result from the exercise of any of the rights granted in this Section. 3 1 (d) The parties acknowledge that the Landholder may sell portions of the p Landholder's Parcel to third party purchasers. In the event that the Drainage Facilities 0 exclusively benefiting the Landholder's Parcel are required to benefit more than one Owner of 4 the Landholder's Parcel, the applicable Owners shall enter into a separate written agreement that 5 shall be recorded in the Official Records, which shall allocate the construction, installation, 6 operation, maintenance, repair and relocation responsibilities of the Owners of the Landholder's Parcel and the cost sharing agreement for the same, which agreement shall be consistent with this Agreement and shall not change, alter or modify the obligations of the Hotel Owner under this 12 216769.7 Agreement. The parties further acknowledge that the Hotel Owner may sell portions of the Hotel Parcel to third party purchasers. In the event that the Drainage Facilities exclusively benefiting the Hotel Parcel are required to benefit more than one Owner of the Hotel Parcel, the applicable owners of the Hotel Parcel shall enter into a separate written agreement that shall be recorded in the Official Records, which shall allocate the construction, installation, operation, maintenance, repair and relocation responsibilities of the Owners of the Hotel Parcel and the cost sharing agreement for the same, which agreement shall be consistent with this Agreement and shall not change, alter or modify the obligations of the Landholder under this Agreement. 2.07 Maintenance of Buildings. Each party shall at all times during the term of this agreement from and after the opening of business of the respective buildings, keep and maintain, or cause to be kept and maintained, in good, clear and attractive order, condition or repair, all completed portions of its buildings. 2.08 Shared Property Manager; Maintenance of Common Drive A and Common Drive B. (a) The parties agree that, as long as the Landholder owns of all or any portion of the Center, Landholder shall be the Shared Property Manager for the Center. Landholder shall have the right, at any time, to assign any of its rights and obligations under this Agreement by a written instrument recorded in the Official Records to any other Owner or to designate a property management company to serve as the Shared Property Manager. Notwithstanding the foregoing to the contrary, Landholder shall assign all of its rights and obligations under this Agreement as the Shared Property Manager to any other consenting Owner, as determined by Landholder in its sole and absolute discretion, pursuant to a written instrument recorded in the Official Records on the date that Landholder no longer holds fee title to any portion of the Center. (b) Notwithstanding anything to the contrary set forth in Section 2.01, the Shared Property Manager shall, at its initial cost, maintain, repair and replace Common Drive A and the Common Drive A Improvements and Common Drive B and the Common Drive B Improvements, in a lien -free, good and workmanlike manner so as to keep such areas at all times in a safe, sightly, good and functional conditional to standards of comparable community shopping centers in the market area. 2.09 Cost of Operating and Maintenance. 1 3 (a) Except as otherwise set forth in this Agreement, all costs and expenses of o operating, maintaining, repairing, replacing and reconstructing an Owner's Parcel and performing the responsibilities set forth in this Agreement shall be borne and paid for by the 4 Owner of such Parcel. Notwithstanding the immediately preceding sentence to the contrary, all 5 costs and expenses of maintaining, repairing, replacing and reconstructing Common Drive A and 9 the Common Drive A Improvements (collectively, the "Common Drive A Expenses") shall be 7 borne and paid by all of the Owners in accordance with each Owner's Pro Rata Share. All costs and expenses of maintaining, repairing, replacing and reconstructing Common Drive B and the 13 216769.7 Common Drive B Improvements (the "Common Drive B Expenses") shall be borne and paid by the Owners as follows: (i) the Hotel Owner shall bear and pay twenty-five percent (25%) of the costs and expenses to maintain, repair, replace and reconstruct the Access Lane (but excluding any walkways, sidewalks, lighting or landscaping appurtenant to the Access Lane) within Common Drive B ("Access Lane B"); and (ii) the remaining seventy-five percent (75%) of the costs and expenses to maintain, repair, replace and reconstruct Access Lane B and all other costs and expenses of maintaining, repairing, replacing and reconstructing Common Drive B and the Common Drive B Improvements shall be borne and paid by all the other Owners (excluding the Hotel Owner) in accordance with each such Owner's pro rata share, which, for purposes of this sentence only, shall be calculated by multiplying the remaining seventy-five percent (75%) of such costs and expenses incurred to maintain, repair, replace and reconstruct Access Lane B and the total of all other costs and expenses incurred to maintain, repair, replace and reconstruct Common Drive B and the Common Drive B Improvements by a fraction, the denominator of which shall be the total square footage of each Owner's Parcel (excluding the Hotel Parcel) and the numerator of which shall be the square footage of the applicable Owner's Parcel. For purposes of this Agreement, the "Pro Rata Share" for each Owner shall be determined by multiplying the total cost incurred (whether such cost is the Improvement Cost, the Shared Sewer Costs, if applicable, or the Common Drive A Expenses), by a fraction, the numerator of which shall be the total square footage of such Owner's Parcel and the denominator of which shall be the total square footage of the Center. (b) The Shared Property Manager shall have the option, in its sole discretion, to either: (a) bill each Owner after the end of each calendar year for such Owner's Pro Rata Share of the Common Drive A Expenses and share of the Common Drive B Expenses actually incurred during such calendar year, in which event such Owner shall pay his, her or its Pro Rata Share of the Common Drive A Expenses and share of the Common Drive B Expenses within ten (10) business days following the date of such bill; or (b) estimate the Common Drive A Expenses and Common Drive B Expenses on an annual basis in advance in accordance with Section 2.09(d) below and, as more particularly set forth herein, in which case each Owner shall pay its Pro Rata Share of said estimated Common Drive A Expenses and share of estimated Common Drive B Expenses in equal quarterly installments. Any election by the Shared Property Manager under this Section 2.09(h) for any calendar year shall not prevent the Shared Property Manager from changing that election for any subsequent calendar year. (c) Each Owner, by acceptance of his, her or its deed with respect. to any portion of the Center, is deemed to covenant and agree to pay such Owner's Pro Rata Share of the Common Drive A Expenses, the Improvement Costs, the Shared Sewer Line Costs (if applicable), its share of the Common Drive B Expenses, and any other costs provided for in this 3 Agreement that are to be paid or reimbursed by the Owners (collectively the "Center Costs"). 4 Such Owner's share of the Center Costs, together with interest thereon at a rate equal to four (4) 0 percent per annum plus the prime lending rate of interest charged per annum, as quoted and 0 adjusted from time to time at Citibank, NA for commercial loans, or its successor (the "Default 4 Rate"), from the date which is ten (10) days after the due date provided for in this Agreement, g and together with such costs and reasonable attorney's fees as may be incurred in seeking to 8 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 in favor of the Shared Property Manager (or such other Owner entitled to reimbursement for the Improvement Costs and/or Shared Sewer 14 216769.7 Costs pursuant to this Agreement, as and if applicable) upon the portion(s) of the Center owned by such Owner, which lien shall bind such property in the hands of such Owner and such Owner's heirs, devisees, personal representatives, successors and assigns (including, without limitation, any mortgage, deed of trust, beneficiary or other person who obtains title to such property as a result of foreclosure, trustee's sale, or deed in lieu thereof), provided that such lien shall be subordinate and inferior to: (a) the lien of all taxes, bonds, assessments and other levees which, by law, would be superior thereto; and (b) the lien of any mortgage or deed of trust made in good faith and for value and recorded against the applicable portion(s) of the Center prior to the time a notice of lien was recorded pursuant hereto. Such lien may be foreclosed in a manner provided by applicable law for the foreclosure of realty mortgages and the same redemption right shall apply. No Owner shall be relieved of his, her or its obligation to pay such Owner's share of the Center Costs by abandoning or not using all or any portion of its Parcel or the Common Areas. The Shared Property Manager shall, upon the written request of any Owner, furnish to such Owner a statement stating the date to which such Owner's share of the Common Drive A Expenses and Common Drive B Expenses has been paid and the amount, if any, of any sums billed to such Owner that remain unpaid as of the date of such statement. Any Owner entitled to reimbursement for and having previously requested reimbursement for the other Owners' Pro Rata Share of the Improvement Costs and/or the Shared Sewer Costs pursuant to this Agreement, as applicable (an "Entitled Owner") shall, upon the written request of any other Owner, furnish to such Owner a statement stating the date to which such Owner's Pro Rata Share of the Improvement Costs and/or Shared Sewer Costs, as applicable, have been paid and the amount, if any, of any sums billed to such Owner that remain unpaid as of the date of such statement. (d) Provided the Shared Property Manager makes the election set forth in clause (b) of Section 2.09(b), above, the Shared Property Manager shall estimate in advance the Common Drive A Expenses and the Common Drive B Expenses and each Owner's share thereof pursuant to Section 2.09(b) above, prior to December 31 of each calendar year, and shall notify each Owner in writing of such Owner's share of the Shared Property Manager's estimate of the Common Drive A Expenses and Common Drive B Expenses for the next succeeding calendar year. Each Owner shall pay, prior to or on the first day of the months of January, April, July and October during each year, an amount equal to one -quarter (1/4) of its share of said estimated Common Drive A Expenses and estimated Common Drive B Expenses for said year. Following the end of each calendar year, the Shared Property Manager shall provide each Owner with an itemized written statement of such Owner's share of the total Common Drive A Expenses and Common Drive B Expenses actually incurred during said calendar year. In the event the total amount paid by the Owner as its share of estimated Common Drive A Expenses and estimated Common Drive B Expenses for said calendar year exceeds the Owner's share of the Common 1 Drive A Expenses and Common Drive B Expenses actually incurred during said year, the Shared 1 Property Manager shall, within thirty (30) days after delivery of said written statement, 4 reimburse the Owner for the amount of such excess (or, at the Shared Property Manager's 0 option, apply such excess to other amounts owed or to be owed by the Owner hereunder and 0 shall notify the Owner of such application). In the event the total amount paid by the Owner as 4 the Owner's share of the estimated Common Drive A Expenses and estimated Common Drive B 9 Expenses for the year is less than the Owner's share of the Common Drive A Expenses and Common Drive B Expenses actually incurred during the year, the Owner shall, within thirty (30) days of receipt of said written statement,_ pay the amount of such deficiency to the Shared Property Manager. Notwithstanding anything to the contrary set forth in this Section 2.09(d), 15 216769.7 the provisions set forth in this Section shall only apply in the event the Shared Property Manager makes the election set forth in clause (b) of Section 2.09(b), above. (e) Notwithstanding anything to the contrary in this Section 2.09, in the event that in any calendar quarter the Shared Property Manager incurs any extraordinary expenses in connection with its operation or maintenance of Common Drive A and Common Drive B (which extraordinary expenses would constitute Common Drive A Expenses and/or Common Drive B Expenses, pursuant to the definitions set forth above), the Shared Property Manager shall have the option to bill each Owner immediately for its Pro Rata Share of such extraordinary Common Drive A Expenses and its share of the extraordinary Common Drive B Expenses (pursuant to the same calculation for Common Drive B Expenses set forth in Section 2.09(a), above), in which event, each Owner shall, within thirty (30) days after delivery of such bill, pay to the Shared Property Manager such Owner's Pro Rata Share of such extraordinary Common Drive A Expenses and its share of such extraordinary Common Drive B Expenses. (f) If the Shared Property Manager fails to meet any deadline in this Section 2.09, such failure shall not relieve any Owner from its obligation to pay its portion of the Common Drive A Expenses or Common Drive B Expenses within ten (10) business days of notice thereof. ARTICLE III. COVENANTS AND RESTRICTIONS 3.01 Use Restrictions. The Center shall be subject to the following restrictions which shall be binding on each Owner and each of its tenants, occupants, employees, agents or invitees: (a) No obstruction to the free flow or traffic, use of the parking areas on each Owner's Parcel and use of the Common Areas shall be permitted. (b) Unless all parties consent and agree in writing, no charge of any type shall be made to *or collected from any invitee or permittee for entrance to the Center or for use of the Common Areas (including, without limitation, the parking areas located on the Parcels), except for any maintenance expenses for the Common Areas as may be provided for in any lease agreement. (c) All buildings and other structures of any kind shall be constructed and maintained in accordance with any and all Applicable Laws; provided, however, that in no event shall any building or other structure of any kind exceed fifty (50) feet in height (including parapet walls or any other projections of any kind). (d) Without limiting the foregoing, no building or other structure shall be permitted within the Center if such building or other structure would reduce the parking ratio below the number of parking spaces required under any, and all Applicable Laws. (e) Any construction shall be conducted in a manner which will limit to the maximum extent practicable any interference with the operation of the balance of the Center. 16 216769.7 1 1 4 0 0 6 0 0 (f) No portion of the Center shall be used for a business or use which creates strong, unusual or offensive odors, fumes, dust or vapors; is a public or private nuisance as defined below; emits noise or sounds which are objectionable due to intermittence, beat, frequency, shrillness or loudness; creates unusual fire, explosive or other hazards; or materially increases the rate of insurance for any other Parcel or tenant. A "nuisance" shall include, without limitation, any of the following conditions: (i) Any emission of dust, sweepings, dirt, or cinders into the atmosphere, or discharges of liquid, solid waste, or other harmful matter onto, or under, the land or into any stream, river or other body of water if such emission or discharge may adversely affect the use, or intended use, of any Parcel, or any portion thereof, or which may adversely affect the health, safety or comfort of persons in the vicinity, or the discharge of wastes or any substance or material of any kind into any publicly maintained sewer serving the Parcel, or any part thereof, in violation of any Applicable Laws; (ii) The discharge into the air, onto, or under, the land, or into any stream, river or other body of water, or into any of the utilities or sewers, or the improper storage of any gas, substance or material which is determined to be a toxic or hazardous material or substance under any Applicable Laws or other governmentally ratified report or study; (iii) Without limiting the foregoing, the escape or discharge of fumes, odors, gases, vapors, acids or other substances into the atmosphere if such escape or discharge may be detrimental to the health, safety or welfare of persons, may interfere with the comfort of persons within the vicinity, or may be harmful to the improvements on the property within the Center or vegetation thereon; and, (iv) The perception, at any point outside the boundaries of any building on any Parcel, of any noise, vibration or light from any activity, machines, device or combination thereof located within such building, that unreasonably interferes with the use or enjoyment of any Parcel. (g) Except with the written permission of the Hotel Owner or its successors in title to the Hotel Parcel, no portion of the Landholder's Parcel may be used for a hotel or motel (excluding any hotel, motel or other similar boarding facility or kennel for animals) (the "Hotel Use Restriction"). The Hotel Use Restriction shall automatically terminate without the need for any further action by or documentation from the Owners evidencing such termination if: (i) the construction of a hotel or motel on the Hotel Parcel has not been commenced within three (3) years following the Effective Date, or (ii) construction of a hotel or motel has been commenced, but has not been completed, as certified in writing to the Landholder by the applicable project 1 engineer, within five (5) years following the Effective Date. Notwithstanding the foregoing to 0 the contrary, the Hotel Use Restriction shall automatically terminate without the need for any further action by or documentation from the Owners evidencing such termination on the date that 4 is sixty (60) years following the Effective Date, unless such Hotel Use Restriction has terminated 0 prior to such date. 1 (h) No portion of the Center shall be used for any of the following purposes: cemetery; mortuary; bookstore or establishment engaged in the business of selling, exhibiting or 17 216769.7 delivering pornographic or obscene materials; video game room or other type of game room or arcade; billiard parlor; off-track betting parlor; junk yard; flea market; recycling facility or stockyard; discotheque, dance hall, or night club; or industrial or manufacturing uses. (i) Without the prior written consent of all the Owners, no portion of the Center shall be used for any of the following purposes: traveling carnivals, fairs, auctions, shows, kiosks, booths for the sale of fire works, Christmas tree lots, pumpkin lots, sales by transient merchants utilizing vehicles or booths, bankruptcy sales, auctions, foreclosure sales (including UCC foreclosure sales); "going out of business" sales, liquidation sales, and other promotions of any nature. 0) Without the prior written consent of the Shared Property Manager, no portion of the Center shall be used for sidewalk sales. 3.02 Parking. (a) The Owners may adopt such rules and regulations covering the use of the parking areas on their own Parcels as such Owners may deem necessary from time to time, provided that such rules and regulations are consistent with the terms of this Agreement. Such regulations may (a) limit duration of customer parking; and (b) prescribe certain sections within the parking area on an Owner's Parcel for use as parking space by the occupants of the applicable Parcel, and the employees, tenants, agents, contractors, licensees and concessionaires of such occupant. Such regulations shall not unreasonably burden or impair the use and enjoyment by the other Owners and such other Owners' respective tenants, occupants, customers, employees, agents, contractors and invitees of the parking easements granted hereby. In the event of a conflict between the terms of this Agreement and the terms of any such rules and regulations, the terms of this Agreement shall control. The permitees of any party shall not be prohibited or prevented from parking within the parking areas located on the Parcels, so long as space is available in such parking areas, and so long as they do not violate the reasonable rules and regulations covering the use of such parking areas that may be promulgated from time to time by the Owners. (b) No automobile or other vehicle (other than emergency vehicles) may be parked on any portion of the Common Areas, except in designated parking areas on the Parcels. Except as provided herein, no automobile, mobile home, boat, truck, trailer, recreational or other vehicles shall be stored, maintained, constructed or repaired on any Parcel, except for emergency repairs and temporary parking. ARTICLE IV. LIABILITY; INDEI DURCATION; INSURANCE; LIENS 4.01 Liability; Indemnification. Each Owner shall indemnify and hold every other Owner, tenant, and occupant of the Center harmless (except for loss or damage resulting from the gross negligence, tortuous acts or other deliberate misconduct of such other parties) from and against any damages, liability, actions, claims, and expenses (including attorneys' fees in a reasonable amount) in connection with the loss of life, personal injury and/or damage to property arising from or out of any 18 216769.7 1 3 1 0 4 b 0 occurrence in or upon the Common Areas of such other Owner's Parcel and the use of easements granted herein over such other Owner's Parcel, or occasioned wholly or in part by any act or omission of said indemnifying Owner, its tenants, occupants, agents, contractors, employees, or licensees upon the Common Areas of such other Owner's Parcel and the use of the easements granted herein over such other Owner's Parcel. 4.02 Liability Insurance Each Owner shall maintain or cause to be maintained for the mutual benefit of the Owners of the Hotel Parcel and Landholder's Parcel public liability insurance insuring against claims on account of loss of life, bodily injury or property damage that may arise from, or be occasioned by the condition and use of the Common Areas and easements granted herein on each Owner's respective Parcel in the Center by the Owner and its tenants, occupants, agents, contractors, employees, licensees, customers and invitees. Said insurance shall be carried by an insurance company or companies qualified to do business in the State in which the Center is located with a rating of "A-/XII" or better by A.M. Best Co., in Best's Key Guide, and having limits for bodily injury to or personal injury to or death of any person, or more than one (1) person, or for damage to property, in an amount of not less than $2,000,000 combined single limit per occurrence/aggregate. Said insurance shall be made on an "occurrence" basis and not on a "claims made" basis. Such insurance may be carried under a "blanket" policy or policies covering other properties of the party and its subsidiaries, controlling or affiliated corporations. The dollar limit set forth for the policies required to be maintained by the Owners shall be increased on the date five (5) years after the Effective Date, and at five (5) year intervals thereafter by increases in the Consumer Price Index, All Urban Consumers, U.S. All Items 1982- 84=100, as of the date of adjustment over said index as of the first day of the preceding five (5) year period. Each Owner shall, upon written request from its other Owner, furnish to the party making such request certificates of insurance evidencing the existence of the insurance required to be carried pursuant to this Section. All such insurance shall include provisions denying to the insurer subrogation rights against the other parties to the extent such rights have been waived by the insured prior to the occurrence of damage or loss. Each Owner hereby waives any rights of recovery against any other Owner, its directors, officers, employees, agents and tenants and occupants for any damage or consequential loss covered by said policies, against which such Owner is protected by insurance, to the extent of the proceeds payable under such policies, whether or not such damage or loss shall have been caused by any acts or omissions of the other Owner or its directors, officers, employee, agents, tenants or occupants. 4.03 Liens. 1 In the event any mechanics' liens are filed against any Owner for work that 1 another Owner performed or caused to be performed on behalf of any other Owner or that 4 Owner's employees, agents, licensees, tenants and occupants, then such Owner who caused such 00 lien to be filed hereby covenants to indemnify and hold harmless the other Owner upon whose 4 Parcel the lien has been filed, and further covenants to either pay the amount of the lien and have 6 it discharged of record, promptly, or to take any and all action that may be necessary to object to 3 such lien, or to have such lien removed from such Parcel, and in all events agrees to have such lien discharged prior to the foreclosure of such lien. 19 216769.7 ARTICLE V. CASUALTY AND EMINENT DOMAIN 5.01 Casualty. In the event any Common Area improvements are damaged or destroyed, the Owner of the Parcel to which such damage has occurred shall promptly cause the repair, restoration or rebuilding of the Common Area improvements to the extent necessary to restore the damaged or destroyed area to its previously improved condition. 5.02 Casualty Insurance. In order to assure performance of their respective obligations under Section 5.01, the Owners of the respective Parcels shall cause to be carried fire and extended coverage insurance, including, without limitation, flood insurance, on all Common Area improvements on their respective Parcels in the amount of the replacement cost of such improvements, and in amounts at least sufficient to avoid the effect of any co-insurance provisions of such policies. Any such insurance shall otherwise conform to the provisions with respect to insurance contained in Section 4.02. 5.03 Eminent Domain. In the event the whole or any part of the Center shall be taken by right of eminent domain or any similar authority of law (the "Taking"), the entire award for the value of the land and improvements so taken shall belong to the Owner of the property so taken or to such Owner's mortgagees or tenants, as their interest may appear, and no other Owner shall have a right to claim any portion of such award by virtue of any interest created by this Agreement. Any Owner of a Parcel which is not the subject of a taking may, however, file a collateral claim with the condemning authority over and above the value of the land being so taken to the extent of any damage suffered by such Owner resulting from the severance of the land or improvements so taken if such claim shall not operate to reduce the award allocable to the Parcel taken. In the event of a partial Taking, the Owner of the portion of the Center so taken shall restore the improvements located on the Common Areas of the Owner's Parcel as nearly as possible to the condition existing prior to the Taking without contribution from any other Owner and any portion of any condemnation award necessary therefore shall be held in trust and applied for such purpose. ARTICLE VI. REMEDIES 6.01 Self Help; Lien Rights; Disputes. (a) If any Owner shall default in the performance of an obligation of such Owner (such, Owner being herein called a "Defaulting Owner"), which default affects the Owner of another Parcel or any occupant thereof (an "Affected Party"), such Affected Party, in addition to all other remedies it may have at law or in equity, after ten days' prior written notice to the Defaulting Owner and any first Mortgagee or a "Sale/leaseback" Lessor as herein defined (or in the event of an emergency after such notice as is practical under the circumstances), shall 20 216769.7 3 i 4 0 0 4 6 4 have the right to perform such obligation on behalf of the Defaulting Owner. In such event, the Defaulting Owner shall promptly, following receipt of detailed invoices from the Affected Party evidencing the work performed to remedy any such default, reimburse the Affected Party the cost thereof, together with interest thereon from the day of outlay at a rate equal to the lesser of (i) two percent in excess of the prime lending rate of interest charged per annum, as quoted and adjusted from time to time at Citibank, NA, or its successor, for commercial loans, or (ii) the highest rate permitted by Applicable Laws (the "Interest Rate"). (b) Any such claim for reimbursement, together with interest thereon as aforesaid, shall be secured by a lien on the Parcel and improvements thereon owned by the Defaulting Owner, which lien shall be effective upon the recording of a notice thereof in the Official Records. The lien shall be subordinate to any first mortgage or deed of trust now or hereafter affecting the subject Parcel (a "First Mortgage") and to the interest of any party who has purchased the Parcel and leased it back to the preceding Owner, or its subsidiary or affiliate, on a net lease basis with the lessee assuming all obligations thereunder in what is commonly referred to as a "sale leaseback" transaction (a "SL Lease"); and any purchaser at any foreclosure or trustee's sale (as well as any grantee by deed in lieu of foreclosure or trustee's sale) under any such First Mortgage or assignee of such SL Lease shall take title subject only to liens thereafter accruing pursuant to this Section 6.01. 6.02 Injunctive Relief and Other Remedies. In the event of a breach by any Owner of any obligation of this Agreement, the other Owners shall be entitled to obtain an injunction specifically enforcing the performance of such obligation. The Owners hereby acknowledge the inadequacy of any other legal or equitable remedies available and the irreparable harm which would be caused by any such breach. Any action taken or document executed in violation of this Agreement shall be void and may be set aside upon the petition of the other Owners of portions of the Center. Any costs and expenses of any such proceeding, including attorneys' fees in a reasonable amount, shall be paid by Defaulting Owner, and the amount due thereunder if recorded shall constitute a lien against the land, and improvements thereon, or the interests therein, until paid. Notwithstanding such recordation, the Owner of the land so liened shall have the right to dispute the amount in question. 6.03 Non Waiver. No delay or omission of any Owner in the exercise of any right accruing upon any default of any other Owner shall impair such right or be construed to be a waiver thereof, and 3 every such right may be exercised at any time during the continuance of such default. A waiver 1 by any Owner of a breach of, or a default in, any of the terms and conditions of this Agreement 4 by any other Owner shall be in writing and shall not be construed to be a waiver of any subsequent breach of or default in the same or any other provision of this Agreement. Except as 0 4 otherwise specifically provided in this Agreement, (i) no remedy provided in this Agreement 6 shall be exclusive but each shall be cumulative with all other remedies provided in this 5 Agreement and (ii) all remedies at law or in equity shall be available. 21 216769.7 6.04 Non Terminable Agreement. No breach of the provisions of this Agreement shall entitle any Owner or party to cancel, rescind or otherwise terminate this Agreement, but such limitation shall not affect, in any manner, any other rights or remedies which any party may have hereunder by reason of any breach of the provisions of this Agreement. No breach of the provisions of this Agreement shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith for value covering any part of the Center and any improvements thereon. 6.05 Force Majeure. In the event any Owner or any other party shall be delayed or hindered in or prevented from the performance of any act required to be performed by such party by reason of Acts of God, strikes, lockouts, unavailability of materials, failure of power, prohibitive governmental laws or regulations, riots, insurrections, the act or failure to act of the other party, adverse weather conditions preventing the performance of work as certified to by an architect, war or other reason beyond such party's control, then the time for performance of such act shall be extended for a period equivalent to the period of such delay. Lack of adequate funds or financial inability to perform shall not be deemed to be a cause beyond the control of such party. ARTICLE VII. AMENDMENT, MODIFICATION; TERMINATION 7.01 Amendment; Modification; Termination. The covenants, conditions, restrictions and easements contained herein shall be perpetual, except as otherwise expressly stated in this Agreement, and shall not be deemed to violate the rule against perpetuities. This Agreement may be amended, modified, or terminated at any time by a declaration in writing, executed and acknowledged by the Owners owning fee title, in the aggregate, to not less than seventy-five percent (75%) of the total square footage of the Center, or their successors or assigns; provided, however, that in no event shall this Agreement be amended, modified or terminated if such amendment, modification or termination would materially and adversely affect any Owner's rights of access to publicly dedicated streets, materially and adversely affect any such Owner's rights in, to and under the easements granted to such Owner under this Agreement, increase an Owner's share of the Center Costs, or prohibit an Owner's permitted use of its Parcel under this Agreement and the Applicable Laws without such affected Owner's prior written consent. Any such amendment, modification or termination of this Agreement shall be recorded in the Official Records. This Agreement shall not be otherwise amended, modified or terminated during the term hereof. ARTICLE VIH. EFFECT OF INSTRUMENT 8.01 Binding Effect; Covenants Running with the Land. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto, and the provisions hereunder shall constitute covenants running with the land against the Center. Every agreement, covenant, promise, undertaking, condition, 22 216769.7 3 1 0 4 6 6 easement, right, privilege, option and restriction made, granted or assumed, as the case may be, by either party to this Agreement is made by such party not only personally for the benefit of the other party hereto but also as Owner of a portion of the Center and shall constitute an equitable servitude on the portion of the Center owned by such party appurtenant to and for the benefit of the other portions of the Center. Any transferee of any part of the Center shall automatically be deemed, by acceptance of the title to any portion of the Center, to have assumed all obligations of this Agreement relating thereto to the extent of its interest in its Parcel and to have agreed with the then Owner or Owners of all other portions of the Center to execute any and all instruments and to do any and all things reasonably required to carry out the intention of this Agreement and the transferor shall upon the completion of such transfer be relieved of all further liability under this Agreement except liability with respect to matters that may have arisen during its period of ownership of the portion of the Center so conveyed that remain unsatisfied. 8.02 Non -Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of the Center to the general public or for any public use or purpose whatsoever, it being the intention of the parties hereto and their successors and assigns that nothing in this Agreement, expressed or implied, shall confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement. 8.03 Responsibility. Notwithstanding anything to the contrary contained in this instrument, each party to this Agreement shall be liable and responsible for the obligations, covenants, agreements and responsibilities created by this Agreement and for any judgment rendered hereon only to the extent of its respective interest in the land and improvements on such party's respective Parcel. ARTICLE IX. NOTICES Any notice, approval, consent or other communication required or permitted to be given to an Owner must be in writing and delivered in person, or by reputable nationwide overnight courier (i.e., Federal Express or DHL), or given by facsimile transmission, or forwarded by certified or registered mail, postage pre -paid, return receipt requested, at the address indicated below, unless the Owner giving such notice has been notified, in writing, of a change of address: If to Landholder: Oracle Linda Vista Investors, LLC c/o Scotia Group Limited 6340 North Campbell Avenue Tucson, Arizona 85718 Attn: Peter Aronoff Facsimile: (520) 547-1659 23 216769.7 1 3 1 0 0 4 6 0 7 With a copy to: 188 E. Broadway Blvd. Tucson, Arizona 85701 Attn: Ross Rulney Facsimile: (520) 622-1903 and Lewis and Roca LLP One South Church, Suite 700, Tucson, Arizona 85701-1611 Attn: Amy J. Welander, Esq. Facsimile: (520) 879-4725 If to Hotel Owner: Oro Valley Sunway, LLC c% Sunway Hotel Management, Inc. 10985 Cody, Suite 220 Overland Park, Kansas 66210 Attention: Donald E. Culbertson Facsimile: (913) 345-2444 With a copy to: Shughart, Thomson & Kilroy Twelve Wyandotte Plaza 120 West 12a` Street, Suite 1800 Kansas City, Missouri 64105 Attention: Michael B. Shteamer, Esq. Facsimile: (816) 374-0509 Notices are effective on the earliest of date of delivery (or refusal to accept delivery) if notice is given by personal delivery or facsimile transmission with evidence of error -free transmission prior to 5:00 p.m., Mountain Standard Time, on a business day (or the next succeeding business day if given after 5:00 p.m., Mountain Standard Time or on a Saturday, Sunday or federal or Arizona state holiday), on the next succeeding business day after deposit with an overnight courier for next day delivery, or if notice is sent through the United States mail, on the earlier of the date of actual delivery as shown by the addressee's receipt or the expiration of three (3) days following the date of mailing. 1 3 ARTICLE X. 1 4 MISCELLANEOUS 0 (a) If any provision of this Agreement, or portion thereof, or the application thereof to any person or circumstances, shall, to any extent be held invalid, inoperative or 6 unenforceable, the remainder of this Agreement, or the application of such provision or portion 8 thereof to any other persons or circumstance, shall not be affected thereby; it shall not be deemed that any such invalid provision affects the consideration for this Agreement; and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 24 216769.7 (b) This Agreement shall be construed in accordance with the laws of the State of Arizona. (c) The Article headings in this Agreement are for convenience only, shall in no way define or limit the scope or content of this Agreement, and shall not be considered in any construction or interpretation of this Agreement or any part hereof. (d) Nothing in this Agreement shall be construed to make the parties hereto partners or joint venturers or render either of said parties liable for the debts or obligations of the other. (e) In the event action is instituted to enforce any of the provisions of this Agreement, the prevailing Owner in such action shall be entitled to recover from the other Owner thereto as part of the judgment, reasonable attorney's fees and costs. (f) Each Owner shall be required to take all reasonable steps necessary to ensure that its assignee, transferor, and lessees have knowledge of all terms and conditions of this Agreement, including the requirement that all leases shall be subject to the provisions of this Agreement. Nonperformance of this provision shall not invalidate the "Constructive Notice" to each such person or entity resulting from the recordation of this Agreement. (g) To the extent that an Owner has personal responsibility for any term or condition of this agreement, such personal responsibility shall terminate and be of no further force and effect from and after the date said Owner ceases to retain any right to all or possession of any portion of any Parcel subject to this Agreement, except to the extent where said Owner violated a particular provision prior to transferring its rights to all and/or possession or in some other manner is responsible, in whole or in part, for the alleged default. (h) The recitals set forth above and the exhibits attached to this Agreement are by this reference incorporated herein. [Signature blocks on following page] 1 3 1 4 0 0 4 6 0 9 25 216769.7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. LANDHOLDER: OF LINDA VISTA INVESTORS, LLC, an jzo a limited liability company By: �� ---, Nam . ter Aronoff Title: Man er �.,,By: Name: Ross H. Rulney Title: Manager HOTEL OWNER: ORO VALLEY SUNWAY, LLC, a Kansas limited liability company By: Name: Title: 26 216769.7 1 3 1 4 0 0 4 6 1 0 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. LANDHOLDER: ORACLE LINDA VISTA INVESTORS, LLC, an Arizona limited liability company By: Name: Peter Aronoff Title: Manager By: Name: Title: Ross H. Rulney Manager HOTEL OWNER: ORO VALLEY SCJNWAY, LLC, a Kansas limited liability company 1 3 1 4 0 0 4 b 1 1 26 216769.7 STATE OF County On AN2�' 1*3, A00'1, before me, DICK, i— . o ece-sc N personally appeared PET& ARo NO F E personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names) 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 upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. A Y, Notary Public jJZ4 [SEAL] TA N7l Seal NOTARY PUF3LIC STATE OF ARIZONA ' County of Pima VICKI L. RrLICH M� Commission Expires March 4, 2011 JU.,1: STATE OF I� County�L On c I, a?007, before me, - T�+ G L AJ personally appeared " 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 upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. . r� 3 '�- M - b& �' 1 Notary Public 4 0 [SEAL] 0 C � Seal 6 NOTARY PUBLIC � SL ,E OF ARIZONA C*D Countyof Pima2 VICKI L. RELICH M Ccmmission ti xp res Mash . 2011 �..vrw y�YyY 27 216769.7 STATE OF U 1SS6Uf-1 ) County %44MSbN ) On ZjQA 13 2tx-1 before me, .,ia✓ss1c,A CJt_l'TL_ Oh personally appeared 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 helshe/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 upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. [SEAL] zLLQa-., &Riq-tJ Notary Public 28 216769.7 1 3 1 4 0 0 4 6 1 3 List of Attachments Exhibit A Center Exhibit B Hotel Parcel Exhibit C Landholder's Parcel Exhibit D Site Plan Exhibit E Common Drive A and Common Drive B 1 3 1 4 0 0 4 6 1 4 29 216769.7 [:*.g1111.3ull:1 The Center A PORTION OF ALL THAT PART OF LOT 4, IN SECTION 13, TOWNSHIP 12 SOUTH, RANGE 13 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PIMA COUNTY, ARIZONA, LYING EASTERLY OF TUCSON-FLORENCE HIGHWAY, FEDERAL SECONDARY PROJECT III; EXCEPT A STRIP OF LAND 30 FEET WIDE ON THE SOUTH SIDE OF LOT 4 AS CONVEYED TO THE BOARD OF SUPERVISORS OF PIMA COUNTY, ARIZONA, BY DEED RECORDED IN BOOK 150 OF DEEDS, PAGE 46, IN THE OFFICE OF THE COUNTY RECORDED IN MA COUNTY, ARIZONA; AND FURTHER EXCEPT THE NORTH 145.2 FEET; AND FURTHER EXCEPT ALL COAL AND OTHER AgNERALS AS RESERVED IN THE PATENT FROM THE UNITED STATES OF AMERICA. 1 3 1 4 0 0 4 6 1 5 30 216769.7 .It: M C CO°Z�oSS0OLARiS TUSNARIr 75 RD PAN D TEL 52M22-6400 ` SURVEYING, L.LC FAX 520-=-ga01 LE ML DESCRIPTION —Job Me. 05276 April 16, 2007 PARCEL 1: That portion of Lot 4 as recorded in Oocitet 12189, Page 2447, of Pima County Records, located in the Southeast quaver of Section 13, Township 12 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, more particularly described as follows; Commencing at the Southeast coiner of said Section 13, said confer being a brave cap in concrete at the caroler of Linda Vista Boulevard; Thence North 00°02'41" West 30.00 feet upon the East line of said Southeast quarter to the North right-of-way of Linda Vista Boulevard; Thence continue North 00002'41" West 637.68 feet upon said East tine to the point of Thence continue North 00'0241" West 509.31 feet upon said East line; Thence South 69"50'32" West 764.98 feet to the East right-oWoy of Oracle Road to a curve, turning to the right, concave to the West, from which the radium point bears South 84001'03" West 5.829.58 feet distant; Thence, southerly upon said curve. upon said East right-of-way, through a delta angle of 4'59'45" and an arc length of 508.30 feet; Thence North 90°00't30" East 734.48 feet to the Point of Beginning. Said lot contains 37B,1 SZ59 square feet or 8.71 acres, more or less. . .. r n.i.r6iiiy.Rir.Y.n......thj�wi�r9+i.i.... r1%VrY..rMY�W{'� ..I�r.w1i...'wliX.li'rn.i r�MLYN.Iirlr.Yiff.lb.n-�'—"----�..YNIuaJ.��11W.M1v1....+.. r i✓I�. �.i�+.i� 1 3 1 4 0 0 4 6 1 6 31 216769.7 -11:M- 4 O LAR I S3M N. FLOWING WELLS RD - UCSON ARIZONA 85705 #12AND TEL M-M-6400 SURVEYING, LL C Fax: 520-M-ea01 LEGAL DESCRIPTION —.fob No. 05276 April 16, 2007 That portion of Lot 4 as recorded in Dodwt 12189, Page 2447, of Pima County Rscortds, located in the Southeast quarter of Section 13. Township 12 South, Range 13 East, Ma and $af lover Nleridlan, Pima County, Arizona, more parficuiady described as follows; Com racing at the Southeast comer of said Section 13, said comer being a brass cap in ooncrete at the center of Linda Vista Boulevard; Thence North 00°0241' West 30.00 feet upon the East line of said Southeast quarter to the North right -&-way of Linda Vista Boulevard to the Point of Beginning; Thence continue North 00°02'41"West 637.68 feet upon said East Line; Thence North 90'DD'00" West 734AS feet to the East right-040y of Orade Road, to a curve, turning to the right, concave to the West, from which the radius point bears South 89'00'48' West 5,829.58 feet distant; Thence, southerly upon said curve, upon said East right-of-way. through a delta angle of 6017124" and an arc length of 839.97 feet to the North right-of-way of Linda Vista Boulevard; Thence North 89083'08" lit 759.07 feet upon said North right-of-way to the Point of Beginning. Said Parcel contains 473,018.74 square feet or 10.86 acres, more or less. 1 3 1 4 a a 4 6 1 7 32 216769.7 EXHIBIT D Site Plan (See following page) 1 3 1 4 0 40 6 i 8 33 216769.7 HmH�*o O14k-DHM &-=C f-� -'=-=�~ -- -- ` ______-''�-----------'''-^''--'-'---'-_ SITE PLAN1.� 't Cf) ..4 l Depiction of Common Drive A and Common Drive B (See following page) 35 216769.7 1 3 1 4 0 0 4 6 2 0 i -IM,--I,}+O Od+k-DNH s 1 C`:rA oieu.eti�..we.Ye M�,1,ppU{{IIAA 4i1�0�k�W�� OM��c N .r 100.00' FND ADOT 2-1/2' MON. GRAPHIC SCALE.' T Inch = 50 Feet r 50 25 0 25 50 100 200 FND. 1/2' REBAR Parcel 224-31-009F FND BCSM FND 1/2" REBAR STAMPED L534557 T NO TAG EAST 1/4 CORNER . WEST 1 4 SECTION 13-12-13 cccnnu ,a_,— — dP BP OR ByB ' 6P 6P OW LkP ap1 N 8 ' '32" E 764 98 — \ 1 I — S----=-----5 ---- S---- S— S S---- 5---- S --_ S_-- S-- 5--- 'PD. 1/2' PIPE ...., 1 � T10 TAG 1 I 1 1 1 1 FND. 1/2" PIPE 1 I TAGGED LS 7141 11 11 r — 1 N 1 1 I I (ADJACENT PARCEL: 1 1 1 R-5B29.58' 1 -04'S9'45 L-508.30' 11 I B L 649 5 SCHEDULE "B" ITEMS DETAILS ITEM No. DOCUMENT DESCRIPTION STATUS 1 N/A 200E TAXES NOT PLOTTABLE 2 N/A RESERVATIONS OR EXCEPTIONS IN PATENTS, OR IN ACTS... NOT PLOTTABLE 3 DKT. 13140 PG. 4582 RECIPROCAL EASEMENT AND OPERATION AGREEMENT SEE NOTE 8 4 DOCKET 4532, PAGE 39 EASEMENT - TELEPHONE (BLANKET) ENTIRE PARCEL 5 DOCKET 4532, PAGE 39 RIGHT OF WAY - TUCSON-FLORENCE HIGHWAY (BLANKET) ENTIRE PARCEL 6 BOOK 69, PAGE 267 - MISC. REC EASEMENT - ELECTRICAL AND INCIDENTAL (BLANKET) ENTIRE PARCEL 7 DOCKET 6487. PAGE 865 EASEMENT - COMMUNICATION AND INCIDENTAL PLOTTED 8 DOCKET 6679. PAGE 518 EASEMENT - SANITARY SEWER, TELEPHONE, k COMM. PLOTTED 9 DOCKET 7935. PAGE 1899 h 1906 EASEMENT k AGREEMENT - CABLE TELEVISION BLANKET ENTIRE PARCEL 10 DKT. 12565 PG. 581 RESOLUTION OF ESTABLISHMENT SR 77, ACQUIRING ROW NOT PLOTTABLE DKT. 12761 PG. 242 AMENDED RESOLUTION OF ESTABLISHMENT SR 77 ACO. ROW NOT PLOTTABLE DKT. 13177 PG. 228 RESOLUTION OF ESTABLISHMENT SR 77, ACQUIRING ROW NOT PLOTTABLE 11 DKT. 13140 PG. 4632 MEMORANDUM OF AGREEMENT NOT PLOTTABLE 12 N/A ALTA/ACSM DISCLOSURES - THIS SURVEY SEE DRAWING 13 N/A RIGHTS OF PARTIES, UNDISCLOSED LEASES NOT PLOTTABLE 14 N/A WATER RIGHTS, CLAIMS OR TITLE TO WATER NOT PLOTTABLE K_jz.yu I A=1T12'00" L=9,15 V--r- i 4, 2 � R 00' r,:1T12'00' 1 I I v � /I I j P OSED,' / / PA C L 1/ z I 2 42 S / I I T 4.60 ACRE old I I I A10 I 0' SE R/TELEP ONE f I EAS MENT P 4 J I IN I T. 679 PG. 518 li I II y I 1 I p 11 1 II RTH RIM — 2648, 7 - 51 I n VI I 11 PER DKT. /6679 ,PG. 510 W 1, w ) � W —F OSED�PARCEL 25t90.80 SQI. FT/ /UBJ CT A EL: 2247/31- 1 c )RAC E LI DA IST INVEISTORL 96 0 N / RA LE D,IbRO V� LLEY DOC ET 21$O PACE 2447 473 1 .7 4 /�Q. FT/ 0. 6 RES N 90 0'00'\W 15 .35' oz u n RO SEO NEW AR EL NDARY F AF• \Sd,, 2 yQ\� O 0 \ N O I q W N . m f 70.5 5 89.57 ROPOSED RIGHT-0 -WAY D (CATION ER EL RREDOR HASE II DEVELOOPP ENT PIAN BK 33 42 g 8_ 7W OB 53.07 W 1 I \ I 1 I 220-15-5500 I F"D. 11 /2" REBAR TR)GGdD PE5955 I 11 1 I\ 1 I \I I I \ I I 1 1 1 � I ( I / urill, 16'U UTY E EME T PER . 31 P . E7A4S� &P ,{;% PERINGKS 31 PSGEGRR . 74 A(9cPEXT I'" I 1 W ND.tPED;U SLS 3007 I '\ ,n ^? 15.0 1 lVl 1 `i �4 W' W� W—�.1 - f 4 . .::? .. . ...... ..: w,w..:..:w"..... ..................... I ............. ......... :............ ..... ............... ................ FND BCSM ::i;.:::FNFL:€.........::s ::.�::::.:::.::::::::": LOO M S , — _ CENTER 1/4;::�:::::':':: SECTION /13-12-13 / � FND BRAS CAP N i o POTceI - 48 \ 1 \ �+ON\CTIOM, 13 C702 N13 .. ......... I�$z PUSCH RIDGE HRISTIAN #:.'..... `..1 �� 9500 N ORA LE RD, ORO VALLEYCORNESE N NOTES FND ADOT 2-1/2' MON. FENCELRINEFINOTHELSOUTHEAST QUARTER E ROAD AND LINDA IOF SECTION 1STA BLVD. 3. T. 12 S.. R 13 OF CERTIFICATION OF SURVEY 1. THIS MAP AND THE SURVEY IT REPRESENTS IS PURSUANT TO A FIRST AMERICAN G. & S. R. M., PIMA COUNTY, AZ., AND AS SHOWN ON THIS MAP. THE ELEVATION TO: FIRST AMERICAN TITLE INSURANCE COMPANY; ORACLE LINDA VISTA INVESTORS, L-C, TITLE INSURANCE COMPANY COMMITMENT FOR TITLE INSURANCE COMMITMENT/ESCROW OF SAID BENCHMARK IS 2,64B.B8', NAVD 88 DATUM. AN ARIZONA LIMITED LIABILITY COMPANY; SUNWAY HOTEL GROUP, INC.. A KANSAS No. 475-5092972, DATED SEPTEMBER 25, 2008 (AMENDED). EXHIBIT A OF THIS TITLE 6. THE TOPOGRAPHY SHOWN ON THIS MAPS WAS SUPPLIED BY SUN MAPPING AND CORPORATION; AND OTHERS INTERESTED IN SUBJECT PARCEL SURVEYED: REPORT DESCRIBES THE SUBJECT PARCEL, WHICH IS A PORTION OF THE PARCEL CANNOT BE GUARANTEED BY POLARIS BEYOND THE ACCURACY OF THE PHOTO PANEL DESCRIBED IN THE DEED RECORDED IN DOCKET 12189. PAGE 2447, RECORDS OF PIMA CONTROL POINTS USED TO CREATE THE TOPOGRAPHY. THIS IS TO CERTIFY THAT THIS MAP OR PLAT AND THE SURVEY ON WHICH IT IS BASED WERE MADE IN COUNTY, AZ. THE SURVEYOR HAS COMPLETED NO ADDITIONAL INDEPENDENT RESEARCH ACCORDANCE WITH "MINIMUM STANDARD DETAIL REQUIREMENTS FOR ALTA/ACSM LAND TITLE SURVEYS% FOR EASEMENTS OR RESTRICTION AFFECTING THE SUBJECT PARCEL BEYOND THOSE 7, NOTES CONCERNING THE SCHEDULE B ITEMS OF THE ABOVE REFERENCE TITLE JOINTLY ESTABLISHED AND ADOPTED BY ALTA. ACSM AND NSPS IN 2005, AND INCLUDES ITEMS 1, 4, LISTED ON THE SCHEDULE 8 OF SAID TITLE REPORT. REPORT ARE LISTED IN THE CHART ABOVE AT THE TOP OF THIS DRAWING. 5, B. 9, 10. 11 (a). 16, AND 18 OF TABLE A THEREOF. PURSUANT TO THE ACCURACY STANDARDS AS ADOPTED BY ALTA, NSPS AND IN EFFECT ON THE DATE OF THIS CERTIFICATION, UNDERSIGNED FURTHER 2. THIS SURVEY WAS COMPLETED USING UTILITY PLANS, FOUND BLUESTAKE MARKINGS 8, ITEM 3 OF SAID TITLE REPORT (DKT. 13140 PG. 4582) DESCRIBES THE SUBJECT CERTIFIES THAT IN MY PROFESSIONAL OPINION, AS A LAND SURVEYOR REGISTERED IN THE STATE OF OF UNKNOWN ORIGIN, AND THE LOCATION OF ACTUAL UTILITY APPURTENANCES. AND ADJACENT PARCELS AND VARIOUS AGREEMENTS REGARDING EASEMENTS AND ARIZONA, THE MAXIMUM RELATIVE POSITIONAL ACCURACY OF THIS SURVEY DOES NOT EXCEED THAT ALTHOUGH EVERY EFFORT WAS MADE BY THE SURVEYOR TO LOCATE AND PORTRAY ALL ACCESS. NO ACTUAL EASEMENTS ARE DESCRIBED BUT AN EXHIBIT WITHIN DOES WHICH IS SPECIFIED THEREIN. UTLITIES ON THE SUBJECT PROPERTY, NO GUARANTEE CAN BE MADE REGARDING THE PORTRAY A COMMON DRIVES 'A" do "8" AFFECTING THE SUBJECT PARCEL BUT HAS ADOPTED BY THE AMERICAN LAND TITLE EXISTENCE OF HIDDEN, UNMARKED, OR UNDERGROUND UTILITIES. ASSOCIATION ON OCTOBER 5, 2005. NO DIMENSIONS THAT CAN BE USED TO RE-CREATE THE DRIVES ON THIS MAP. - ADOPTED BY THE BOARD OF DIRECTION, 3. ALL DIME'J+� 4NSIONS SHOWN ON THIS MAP ARE MEASURED OR A CALCULATED DERIVATIVE V AMERICAN CONGRESS ON SURVEYING AND THEREOF UNLESS STATED OTHERWISE. (SEE LEGEND) 9. PER AN ORO VALLEY DEPARTMENT OF PUBLIC WORKS CERTIFICATION DATED LAYIDMAPPING ON OCTOBER 24, 2005. 11-20-08, THE SUBJECT PARCELS ARE IN THE 'X-UNSHADED" ZONE, INDICATING DATE DECEMBER 17. 2008 P,W ADOPTED BY THE BOARD OF DIRECTORS, THAT THERE ARE NO FEDERAL FLOODPLAIN ISSUES. LOCAL ISSUES MAY EXIST. �Qo E'To 4. THE BASIS OF BEARINGS FOR THIS SURVEY THE EAST LINE OF SECTION 13. T.12 S. c, �6a3 'rd NATIONAL SOCIETY OF PROFESSIONAL R. 13. E AS SHOWN THIS MAP AND THE 'PUSCH RIDGE ESTATES" PLAT AS RECORDED 10. THE SUBJECT PARCELS ARE ZONED ORO VALLEY C-1 PER PIMA COUNTY GIS ON TODD A. HOOT TODD a s SURVEYORS ON OCTOBER 24. 2005. IN BOOK 31, PAGE 74 OF MAPS AND PLATS, RECORDS OF PIMA COUNTY, AZ. THE 11-24-08. THE SETBACKS FOR ORO VALLEY C-1 CANNOT BE SHOWN ON THIS REGISTRATION No. RLS 35543 HD"T IA ST., N.AN LAND TARE ASSOCIATION, 1C. L BEARING OF SAID SECTION LINE IS N 00'02'41" W. DRAWING AS THE 'FRONT". "SIDE", AND 'REAR" OF EACH PARCEL HAS NOT BEEN �` \111� ST., N.W., SURE 705. WASHINSION D.C. 20036. NATIONAL SOCIETY OF PROFESSIONAL 5. THE BASIS OF ELEVATIONS FOR THIS SURVEY IS PIMA COUNTY BENCHMARK "NN DETERMINED. THE SETBACKS FOR C-1 ZONES ARE 20' FOR FRONT, AND 0-50' FOR 'fir++,. ��`T SURVEYORS, INC., 6 MONTGOMERY VILLAGE 127' DESCRIBED AS A 9/16 STAINLESS STEEL ROD LOCATED AT THE NORTHWEST THE SIDES AND REAR, DEPENDENT UPON SITE USAGE. SEE ORO VALLEY CODE FOR MORE DETAILS. Ex AVENUE, SUITE 403, GAITHERSBURG, MD 20879. SURVEY: CP/JCR aTE 11 04118 O LA R I S 3528 N. FLOWING WELLS RD. CAD: TAH/ , TucsoN, ARIZONA 85705 ALTA/ACSM LAND TITLE SURVEY & SPLIT OF A PORTION OF LOT 4 OF CHECKED:TAH DATE:11.24.08 Jab No.:0.52]6—a6 REVISION:RFAX:TEL.(520) 322-640SECTION 13, T. 12 S., R. 13 E", G. & S. R. M", PIMA COUNTY, ARIZONA SHEET , aF , DATE. ,z.,].a6 SURVEYING, LLC FAX: (520) 322�a01 POLARIS R \ AND ' SURVEYING, LLC rl.-il�1' ' ... FF lAN 2 3 200q .'-I jT N.528 Fl_0 , ., S F �J,CSON; AR'IL��A� EL: 52-0-322-6400 FAX: 520-322-6401 LEGAL DESCRIPTION — Job No. 05276-08 December 17, 2008 PARCEL 1, revised: That portion of Lot 4, Section 13 as recorded in Docket 12189, Page 2447, of Pima County Records, located in the Southeast quarter of Section 13, Township 12 South, Range 13 East, Gila and Salt River Meridian, Pima County, Arizona, 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 per Book 2, Page 130 of Road Maps, Pima County Records; Thence North 00002'41" West 30.00 feet upon the East line of said Southeast quarter to the North right-of-way of said Linda Vista Boulevard; Thence continue North 00002'41" West 637.68 feet to the South line of the Parcel described in Docket 13140, Page 4622, Pima County Records;; Thence North 90°00'00" West 489.52 feet upon said South line to the Point of Beginning; Thence continue North 90000'00" West 244.96 feet upon said South line to the East right-of- way of Oracle Road, to a curve, turning to the right, concave to the West, from which the radius point bears South 89°00'48" West, 5829.58 feet distant; Thence southerly upon said curve, upon said East right-of-way, through a delta angle of 6017'24" and an arc length of 639.97 feet to the North right-of-way of Linda Vista Boulevard per Book 2, Page 130 of Road Maps, Pima County Records; Thence North 89°53'08" East 539.07 feet upon said North right-of-way; Thence North 00°02'41" West 57.97 feet; Thence South 89'57'19" West 70.96 feet; Thence North 00°06'58" West 65.23 feet; Thence North 44°56'28" West 93.40 feet; Thence North 00002'41" West 53.07 feet; Thence North 90°00'00" West 155.35 feet; (continued) Page 1 of 2 (Parcel 1, revised, continued) Thence North 00°02'41" West 253.26 feet to a curve, concave to the east, turning to the right, with a radius of 56.00 feet; Thence upon said curve, through an arc length of 16.81 feet and a delta angle of 17°12'00'; Thence North 17°09'19" East 63.78 feet to a cure, concave to the west, turning to the left, with a radius of 32.00 feet; Thence upon said curve, through an arc length of 9.61 feet and a delta angle of 17°12'00"; Thence North 00002'41" West 55.57 feet to the Point of Beginning. Said Parcel contains 200,427.94 square feet or 4.60 acres, more or less. LANDSG y &ICATF� 35543 �O TODD A. HOUT o$ AA Vow, Res tZ 31-d°t Page 2 of 2 (Parcel 2, revised, continued) Thence North 00002'41" West 55.57 feet to the South line of the Parcel described in Docket 13140, Page 4622, Pima County Records; Thence North 90000'00" East 489.52 feet upon said South line the East line of the Southeast quarter of said Section 13; Thence South 00002'41" East 637.68 feet upon said East line to the Point of Beginning. Said Parcel contains 272,590.80 square feet or 6.26 acres, more or less. p LAND sli. \r1CAT�c2'�GC�` c35543 o O TODD A. U I a HOUT a �RnllwIA Ex 171 tLEs IZ�3�' Page 2 of 2 CJ a o 0 mum= 40141 HOTEL12 SUNWAY Fm 0 ■ I 7 =i I ►o i 0\n n IR n 0 0\p w cn — — oz OZ 0 OO O Architectural Site Plan DECORATIVE PAVING - UNDER PORTE COCHERE t d d �� 185 PARKING SPACES TOTAL PATIO MEETING SPACE 1 STORY ❑ FOUNTAIN El 0 ❑ ❑ COURTYARD PROPOSED HOTEL TWO -STORIES 121 ROOMS 0 50' LrLru LOADING SPACE LANDSCAPED GROUNDS BICYCLE PARKING 0 rL C7 m rdA SCREENED DUMPSTER DEVELOPMENT DATA: 1 ST FLOOR 40,358 SF 2 ND FLOOR 33,511 SF TOTAL: 73,869 SF LOT AREA 270,393 SF F.A.R.: 0.273 121 ROOMS TOTAL 185 PARKING SPACES TOTAL mil EH] FE1,I� FE1, O RFOSKON3 DATE ARCHITECTS _C:�Z7 &JEET'i sP100