HomeMy WebLinkAboutOV129911 VISTOSO COMMUNITY ASSOCIATION
ACKNOWLEDGMENT
STATE OF ARIZONA)
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COUNTY OF PIMA )
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On a� r? ,....�D , before me, { f .
(---Notary Public,personally appeared 177c,&, %2Lu J ,personal y known to
me (or proved to me on the basis of satisfactory evi nce) to be persons whose names are
subscribed to the within instrument and acknowledged to me that they executed the same
in their authorized capacities, and that by their signatures on the instrument the persons or
the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
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Signature .� t ( 47.4ishihi!„.„5:131-4, ALBERTALEWIS
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johnston\safeway\azspin\1521\dec8.doc 06-12-00 ORO VALLEY,AZ
F ANN RODRIGUEZ, -- ORDER DOCK.�'i'• 11345
RECORDED BY MSA °'plat
PAGE 90
DEPUTY RECORDER CO NO._ OF PAGES: 27
5132 ROOC
„ SEQUENCE: 20001410031
SOROV `��'"'•
'.� �. 07/21/2000
TOWN OF ORO VALLEY 't�1ZO�4'' REST 09:02
11000 N LA CANADA
ORO VALLEY AZ 85737 PICKUP
AMOUNT PAID $ 18.00
RECORD & RETURN TO:
SAFEWAY INC.
Real Estate Law Division
5918 Stoneridge Mall Road
Pleasanton, CA 94588
DECLARATION OF EASEMENTS WITH COVENANTS AND RESTRICTIONS
AFFECTING LAND
F.
JOHNSTON\SAFEWAY\AZSPIN\1521\DECS.DOC 06-12-00 ORO VALLEY,AZ
,
TABLE OF CONTENTS
1. RECITALS 1
2. DECLARATION. 2
3. DEFINITION OF BUILDING AREA AND COMMON AREA 2
4. USE. 2
5. ARCHITECTURAL APPROVAL. 7
6. BUILDINGS. 7
7. COMMON AREA USE 9
8. COMMON AREA DEVELOPMENT 11
9. COMMON AREA MAINTENANCE. 11
10. INDEMNIFICATION. INSURANCE 13
11. REALTY TAXES AND ASSESSMENTS. 13
12. EMINENT DOMAIN. 14
13. CANCELLATION. MODIFICATION. DURATION 15
14. RELEASE FROM LIABILITY. 17
15. DEFAULT. 17
16. NOTICES 18
17. LENDER PROTECTION. 19
18. GENERAL PROVISIONS. 19
JOHNSTON\SAFEWAY\AZSPEN\1521\DEC8.DOC 06-12-00 1 ORO VALLEY,AZ
DECLARATION OF EASEMENTS WITH COVENANTS AND RESTRICTIONS
AFFECTING LAND
THIS DECLARATION OF EASEMENTS WITH COVENANTS AND
RESTRICTIONS AFFECTING LAND ("Declaration") dated t-, , j , 2000, is
made by SAFEWAY INC., a Delaware corporation("Declarant").
1. RECITALS
A. Ownership. Declarant is the legal fee owner of that certain real property
depicted on the Site Plan attached to and made a part of this Declaration as
Exhibit A and which property is more particularly described on Exhibit B
attached to and made a part of this Declaration ("Lots 1 through 8"). Declarant
intends, but shall not obligated to, develop a retail shopping center on Lots 1
through 8 anchored by a grocery supermarket. All or portions of Lots 1 through 8
may be sold or leased to third parties for development of retail and services uses.
B. Owner. The term "Owner" as used in this Declaration shall mean and refer
to each person or entity which holds fee title to any portion of the Shopping
Center and any successor of such person or entity acquiring the fee title from such
person or entity. The term "Owner," unless otherwise provided in this
Declaration, shall not include any lender, trust deed beneficiary or mortgagee, nor
any lessee, tenant or occupant of space in the Shopping Center.
C. Purpose. Declarant desires that Lots 1 through 8 be developed in
conjunction with each other pursuant to a general plan of improvement to form a
commercial shopping center (sometimes referred to in this Declaration as the
"Shopping Center") and desires that Lots 1 through 8 be subject to the easements
and the covenants, conditions and restrictions set forth below.
D. Master Declaration. The Shopping Center is encumbered by that certain
Restated Declaration of Covenants, Conditions, Restrictions and Easements for
Rancho Vistoso effective as of April 10, 1997, and recorded in the Official
Records of Pima County, Arizona, on April 24, 1997, in Docket 8021, Page 925
(the "Master Declaration"). The Shopping Center is "Covered Property", as that
term is defined in the Master Declaration. This Declaration shall be in all cases
consistent with and subordinate to the Master Declaration. �.
E. Declarant. The term "Declarant" as used in this Declaration shall mean S
Safeway Inc., a Delaware corporation, so long as Safeway Inc. has an interest as
Owner or lessee of Lot 7, and thereafter any person or entity who owns Lot 7.
.74
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2. DECLARATION.
2.1. Declaration.
2.1.1. It is the intent of this Declaration that the following
encumbrances shall attach to and run with Lots 1 through 8 and shall be for
the benefit of and shall be limitations upon Declarant and all future Owners
of Lots 1 through 8 and that all easements set forth in this Declaration shall
be appurtenant to the dominant estates.
3. DEFINITION OF BUILDING AREA AND COMMON AREA.
3.1. Building Area.
3.1.1. `Building Area" as used in this Declaration shall mean those
portions of Lot 7 and Lot 2 devoted from time to time to building
improvements and, subject to the provisions of Section 13.3, those portions
of Lots 1, 3, 4, 5, 6 and 8 located within the building limit lines shown on
Exhibit A.
3.2. Common Area.
3.2.1. "Common Area" shall be all of the Shopping Center except the
Building Area.
3.3. Conversion to Common Area.
3.3.1. Those portions of the Building Area on each Lot which are not
from time to time used or cannot under the terms of this Declaration
(including by virtue of Section 8.1.1) be used for buildings shall become part
of the Common Area for the uses permitted under this Declaration and shall
be improved, kept and maintained as provided in this Declaration. An area
converted to Common Area may be converted back to Building Area by its
development as Building Area, if, at the time of conversion back to Building
Area, it meets the requirements of this Declaration (including the provisions
of Section 8.1.1).
4. USE.
4.1. Use in General. -
4.1.1. The Shopping Center shall be used for the construction, operation
and maintenance of business, commercial, professional and mercantile (retail
and service) establishments as specified in this Declaration and related
facilities, including common and vehicular parking areas, all as more
specifically described below. The Building Area shall be used for business,
commercial, professional or mercantile purposes (retail and service) of the
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type usually carried on in a shopping center of comparable size and not
prohibited by law or ordinance.
4.2. Nuisances.
4.2.1. No portion of the Shopping Center shall be used by any Owner or
any Owner's tenants for (i) the conduct of any illegal, offensive, noisy or
dangerous trade, business, activity or occupation, (ii) any activity which
physically interferes with the business of any other Owner or Owner's
tenants, or (iii) any other unreasonable use not compatible with the operation
of a first-class shopping center, well maintained in accordance with the
standards of this Declaration.
4.3. Prohibited Uses.
4.3.1. The Owners recognize their respective customers' need for
adequate parking facilities in close proximity to their premises and the
importance of protecting such parking facilities against unreasonable or
undue encroachment that is likely to result from long term parking by patrons
or employees of certain types of business establishments. Therefore, the
Owners covenant and agree that:
4.3.1.1. No part of the Shopping Center shall be devoted to the use
or operation of any entertainment or recreational facility. As used in
this Declaration, "entertainment or recreational facility" includes,
without limitation, a theater, carnival, bowling alley, skating rink,
health or aerobic spa or studio, gym, amusement center, electronic or
mechanical games arcade, pool or billiard hall, betting parlor, bingo
parlor, massage parlor, pornographic shop, adult book store, nightclub,
dance hall, tavern, cocktail lounge, any facility for the on-premises
consumption of alcoholic beverages except as an incidental part of the
operation of a full service restaurant, or other place of public or private
amusement; and
4.3.1.2. No part of Lots 1, 5, 6 or 8 within three hundred feet (300')
of any exterior building wall of any Lot 7 building shall be devoted to
the use or operation of any restaurant (fast-food or sit-down).
4.3.1.3. No part of the Shopping Center shall be devoted to the use
or operation of any training or educational facility. As used in this S
Declaration "training or educational facility" includes, without
limitation, a beauty school, barber college, place of instruction, or any
other operation catering primarily to students or trainees rather than to
customers, but excludes employee training by Owners or Owner's
tenants incidental to the conduct of their businesses within the
Shopping Center.
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4.3.1.4. Notwithstanding the restrictions contained in Sections
4.3.1.1,4.3.1.2 and 4.3.1.3,the following uses shall be permitted:
4.3.1.4.1. One (1) restaurant may be located in the southerly
eighty feet (80') of the building designated as "Shops C" on
Exhibit A, provided such restaurant does not exceed three
thousand six hundred(3,600) square feet of floor area.
4.3.1.4.2. Either one (1) restaurant, or one (1) karate studio, or
one (1) private educational facility (such as Sylvan Learning
Centers)may be located in the northerly one hundred feet(100') of
the building designated as "Shops C" on Exhibit A provided such
restaurant does not exceed one thousand five hundred (1,500)
square feet of floor area or such karate studio or private
educational facility does not exceed two thousand (2,000) square
feet of floor area.
4.3.1.4.3. One (1) health or aerobic spa or studio, or one (1)
gym, or one (1) private educational facility (such as Sylvan
Learning Centers) may be located in the westerly forty feet (40')
of the building designated as "Shops B" on Exhibit A.
4.3.1.4.4. One (1) restaurant may be located in the westerly one
hundred twenty feet (120') of the building designated as "Shops
A" on Exhibit A, provided such restaurant does not exceed one
thousand five hundred (1,500) square feet of floor area.
4.3.1.4.5. One (1) or more restaurants may be located in the
easterly eighty feet (80') of the building designated as "Shops A"
on Exhibit A, provided that the square footage of such restaurants
does not exceed four thousand five hundred (4,500) square feet of
floor area in the aggregate, and provided further that no such
single restaurant exceeds one thousand five hundred (1,500)
square feet of floor area.
4.3.1.4.6. One (1) or more restaurants may be located within the _
Building Area on Lot 1, provided that there are ten (1) standard
size parking spaces on Lot 1 for every one thousand (1,000) -=s
square feet of Building Area on Lot 1 devoted to restaurant use.
4.4. Lot 7 Exclusive.
4.4.1. Except as provided in this Section 4.4.1, the Owner of Lot 7 shall
have the sole and exclusive right to: (i) sell food for off-premises _-
consumption; (ii) sell merchandise which, under the laws of the State of
Arizona, is required to be dispensed by or under the supervision of a
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registered or licensed pharmacist ("prescription pharmacy merchandise");
(iii) sell pet foods; and (iv) sell alcoholic beverages for off-premises
consumption. Stores in the Shopping Center other than the store on Lot 7
may devote up to, but not more than, the lesser of (a) one thousand five
hundred (1,500) square feet of sales area (including aisle space adjacent
thereto), or (b) sales area (including aisle space adjacent thereto) of up to ten
percent (10%) of the total square footage.of the store, to the sale of food for
off-premises consumption. Furthermore, the provisions of this Section 4.4.1
shall not be deemed to prohibit a restaurant (as defined in Section 4.3) from
selling food prepared on premises for off-premises consumption, subject,
however, to the provisions of Section 4.3.1.2.
4.4.2. The restriction against the sale of food and alcoholic beverages
for off-premises consumption and pet foods contained in this Section 4.4
shall terminate and be of no further force or effect if a grocery supermarket of
at least 50,000 square feet in size is not operated on Lot 7 for a continuous
period of twelve (12) months or more for any reason other than (i) a strike,
lockout or other labor difficulty, fire or other casualty, condemnation, war,
riot, insurrection, act of God, the requirements of any local, state or federal
law, rule, regulation, or any other reason beyond the reasonable control of the
Owner or occupant of Lot 7 (other than financial) or (ii) temporary closure
due to the restoration, reconstruction, expansion, alteration or remodeling of
any buildings or improvements located in the Shopping Center. Furthermore,
the restriction against the sale of prescription pharmacy merchandise
contained in this Section 4.4 shall terminate and be of no further force or
effect if, during the first three (3) years after the date this Declaration is
recorded as provided in the previous sentence, prescription pharmacy
merchandise is not sold from Lot 7 for any reason other than those set forth in
(i) and (ii) of the previous sentence, or if, at any time after prescription
pharmacy merchandise is not sold from Lot 7 for a continuous period of
twelve (12)months or more for any reason other than those set forth in (i) and
(ii) of the previous sentence. Such restrictions shall again be effective if the
Owner of Lot 7 thereafter operates a grocery supermarket on Lot 7 or
thereafter sells prescription pharmacy merchandise from Lot 7, but shall be
subject to any intervening rights. The provisions of Section 4.4.1 are for the
benefit of Lot 7 and, notwithstanding the provisions of Article 15, may be
enforced pursuant to the provisions of Article 15 only by the Owner of Lot 7. -M
4.5. Lot 2 Exclusive and Restrictions.
4.5.1. The Owner of Lot 2 shall have the sole and exclusive right to sell
gasoline and other fuels for automobiles and other means of transport and (ii)
no premises in the Shopping Center other than the premises on Lot 2 shall ,~
sell, or be permitted to sell, gasoline and other fuels for automobiles and
other means of transport.
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4.5.2. The restrictions against the sale of gasoline and other fuels for
automobiles and other means transport shall terminate and be of no further
force or effect if following the date a gas station opens for business on Lot 2 a
gas station is not operated on Lot 2 for a continuous period of twelve (12)
months or more for any reason other than (i) a strike, lockout, or other labor
difficulty, fire or other casualty, condemnation, war, riot, insurrection, act of
God, the requirements of any local, state or federal law, rule or regulation, or
any other reason (other than financial) beyond the reasonable control of the
Owner of Lot 2 or (ii) temporary closure due to the restoration,
reconstruction, expansion, alteration or remodeling of any buildings or
improvements located in the Shopping Center. Such restrictions shall again
be effective, if the Owner of Lot 2 thereafter operates a gas station on Lot 2,
but shall be subject to any intervening rights. The provisions of Section 4.5.1
are for the benefit of Lot 2 and, notwithstanding the provisions of Article 15,
may be enforced pursuant to the provisions of Article 15 only by the Owner
of Lot 2.
4.5.3. The Owner of Lot 2 shall have the right to use Lot 2 for the
operation of a retail gas station (full service and/or self service) selling
gasoline and other fuels, oil and other petroleum products, and for the sale of
groceries, beer and wine (if permitted by law), and other items commonly
sold and services commonly offered from time to time in a general food
supermarket, including a general food supermarket with gas stations/kiosks
(collectively and/or individually, "Lot 2's Primary Use"). The Owner of Lot
2 also shall have the right to use Lot 2 for any other lawful retail purpose
("Lot 2's Secondary Use"); provided, however, that Lot 2's Secondary Use
shall not conflict with any Pad Exclusive (defined below) granted within five
(5) years after the date of this Declaration pursuant to a written instrument
recorded in the office of the County Recorder for the county in which the
Shopping Center is located, and which Pad Exclusive is in effect at the time
the Owner of Lot 2 wishes to use Lot 2 for Lot 2's Secondary Use. As used
herein, "Pad Exclusive" is an exclusive right to sell specific goods or
services that satisfies all the following criteria: (i) the exclusive shall be
limited to a full-service restaurant, fast-food restaurant, or banking facility,
(ii) the exclusive shall include an exception for "incidental sales" of
competing uses by other occupants in the Shopping Center ("incidental sales"
shall mean no more than 500 square feet of the sales area of the premises is
devoted to the competing use), (iii) the exclusive may benefit only an
occupant of space in those portions of the Shopping Center depicted as "Pad
1", "Pad 3", and "Pad 4" on Exhibit A, (iv) the exclusive must be given in
good faith to a tenant or purchaser unaffiliated with the Owner of the Lot ==
benefited by the exclusive, (v)the exclusive shall be binding on the Owner of
Lot 2 and all occupants of all or any portion of Lot 2 only so long as the
exclusive is the primary use being made of the benefited premises, provided,
however, that this criterion shall not be deemed to be violated if the exclusive
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use is not being made as a result of repairs or remodeling to the building
improvements on"Pad 1", "Pad 3", or"Pad 4", and(vi) the exclusive must be
granted within five (5) years after the date of this Declaration pursuant to a
written instrument recorded in the office of the County Recorder for the
county in which the Shopping Center is located. No Pad Exclusive which
purports to prohibit the Owner of Lot 2's Primary Use shall be binding upon
the Owner of Lot 2 or Lot 2.
5. ARCHITECTURAL APPROVAL.
5.1. Architectural Approval.
5.1.1. Declarant shall have the right to review and approve, prior to
construction and prior to any modification or alteration, the building
elevations, site plan, landscaping plan, signage plan, construction materials
and colors for any and all improvements to be placed on Lots 1, 3, 4, 5, 6 and
8 ("Declarant's Architectural Approval"). Declarant's Architectural Approval
of the proposed improvements as described in the preceding sentence shall be
subject to approval by the Architectural and Landscaping Review Committee,
as required by the Master Declaration. Declarant's Architectural Approval
shall not (initially or at the time of future requests for approval) be
unreasonably withheld and the basis of Declarant's review shall be the
compatibility of the improvements in the reasonable discretion of Declarant
with improvements constructed or to be constructed on Lot 7.
5.1.2. At such time as the Owner(s) of Lots 1, 3, 4, 5, 6 and 8, their
successors and assigns, desires to obtain the approval of Declarant to one or
more of the items comprising the building plans, such Owner shall submit
such items to Declarant and Declarant shall approve or disapprove of the
items submitted within fifteen (15) business days after receipt thereof by
Declarant. If Declarant disapproves of any aspect of an item submitted for
approval, Declarant shall provide written detail to such Owner, or its
successors and assigns, setting forth the reasons for such disapproval. Any
revised submission by an Owner shall be submitted to Declarant in
accordance with the procedure set forth in the preceding sentence.
Declarant's failure to approve or disapprove each of the items submitted for
approval by an Owner within the time period provided above shall be deemed
to be an approval of the same.
6. BUILDINGS.
6.1. Location.
6.1.1. Except as otherwise provided in Section 13.3.3, no buildings
shall be constructed, erected or maintained anywhere within Lots 1, 3, 4 , 5, 6
and 8 except within the Building Area as reflected on Exhibit A. Canopies
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may encroach from the Building Area over the Common Area and canopy
support columns may encroach onto the Common Area provided such
canopies and support columns do not interfere with the normal use of the
Common Area and provided further such canopies and support columns shall
be considered part of the buildings to which they are attached and not part of
the Common Area improvements.
6.2. Design and Construction.
6.2.1. Subject to the provisions of Article 5 above, the buildings shall
be designed so that the exterior elevation of each will be architecturally and
aesthetically compatible and so that the building foundations shall not
encroach from one Lot onto another Lot. The design and construction of the
buildings shall be in conformity with sound architectural and engineering
standards and the construction shall be first quality. All buildings shall be
one story only (but may include mezzanines). The building on Lot 7 shall not
exceed forty-five feet (45') in height and the buildings on Lots 2 through 8
shall not exceed twenty-four feet (24') in height.
6.3. Encroachment.
6.3.1. In the event building wall footings encroach from one Lot onto
another Lot, despite efforts to avoid that occurrence, the Owner onto whose
Lot the footings encroach shall cooperate in granting an encroachment permit
or easement to the Owner whose building wall footings encroach.
6.4. Fire Protection.
6.4.1. Any building constructed on Lot 7 will be equipped with an
automatic sprinkler system for fire protection. Any building constructed on
Lot 6 or Lot 8 will be constructed, maintained and used in a manner which
will preserve the sprinklered insurance rate obtained on the Lot 7 building.
6.5. Damage or Destruction.
6.5.1. In the event of any damage to or destruction of any building, the
Owner of the Lot upon which such building is located, at its election, at its
sole cost and risk and with all due diligence, shall either (i) restore or replace
such building, subject to the provisions of this Declaration, or (ii) raze and
remove all parts of the damaged or destroyed building then remaining and the 5
debris resulting therefrom and otherwise clean and restore the Building Area
affected by such casualty to a level and clean condition and such former
building shall become Common Area and be maintained in accordance with
Article 9 below, with the Owner thereof continuing to pay its pro rata share of :r
common area maintenance as if the building was still in existence.
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7. COMMON AREA USE.
7.1. Grant of Easements.
7.1.1. Each Owner, as grantor, hereby grants solely to the other Owners
only for the benefit of such other Owners and their respective tenants, and
such Owners' and tenants' customers, invitees and employees, a nonexclusive
easement for roadways, walkways, ingress and egress, the parking of motor
vehicles, the drainage of stormwater over the surface of each Owner's
respective Lot and use of facilities installed for the comfort and convenience
of customers, invitees and employees on the Common Area of the grantor's
Lot.
7.2. Use.
7.2.1. Subject to existing easements of record, the Common Area shall
be used for roadways, walkways, ingress and egress, parking of motor
vehicles, loading and unloading of commercial and other delivery vehicles,
for driveway purposes, and for the comfort and convenience of customers,
invitees and employees of all businesses and occupants of the buildings
constructed on the Building Area.
7.3. No Barriers.
7.3.1. No walls or fences of any kind shall be constructed or maintained
on the Common Area, or any portion thereof, by any party which shall
prevent or impair the use or exercise of any of the easements granted in this
Declaration, or the free access and movement, including without limitation,
pedestrians and vehicular traffic between the various Lots; provided,
however, reasonable traffic controls, as may be necessary to guide and
control the orderly flow of traffic, may be installed so long as access
driveways to the parking areas in the Common Area are not closed or
blocked. The only exception to this provision shall be (i) for changes to the
Building Area and Common Area permitted by this Declaration and (ii) for
incidental encroachments upon the Common Area which may occur as a
result of the use of the ladders, scaffolding, storefront barricades and similar
facilities resulting in temporary obstruction of the Common Area, all of
which are permitted under this Declaration so long as their use is kept within
reasonable requirements of construction work being expeditiously pursued.
7.4. Limitations on Use. Y�
7.4.1. Customers. Customers and invitees shall not be permitted to park
on the Common Area except while shopping or transacting business in the =�
Shopping Center. ==
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7.4.2. Employees. Employees shall not be permitted to park on the
Common Area, except in areas designated as "employee parking areas". The
Owners from time to time may mutually designate and approve "employee
parking areas", however, if they do not, each Owner may formally or
informally designate "employee parking areas" on its own Lot.
7.5. General.
7.5.1. All of the uses permitted within the Common Area shall be used
with reason and judgment so as not to interfere with the primary purpose of
the Common Area which is to provide for parking for the customers, invitees
and employees of those businesses conducted within the Building Area and
for the servicing and supplying of such businesses.
7.6. No Use Fee.
7.6.1. Persons using the Common Area in accordance with this
Declaration shall not be charged any fee for such use without the written
consent of the Owners unless such fee shall be ordered by an appropriate
governmental authority. If an appropriate governmental authority imposes a
surcharge or regulatory fee on customer or employee parking or based on the
number of parking spaces within the Shopping Center or any other similar fee
or charge, then the Owners by mutual agreement shall use their best efforts to
institute a uniform fee collection parking system for the Shopping Center.
7.7. Utility and Service Easements.
7.7.1. The Owners shall cooperate in the granting of appropriate and
proper easements over, under and across each Lot in the Shopping Center for
the installation, maintenance, repair and replacement of water lines, sanitary
sewer lines, fire protection system, storm drainage lines, stormwater storage
pipes, drywells, underground data lines linking Lot 2 with the supermarket
building on Lot 7, and other proper services necessary for the orderly
development and operation of the Common Area and buildings to be erected
upon the Building Area. The Owners will use their best efforts to cause the
installation of such utility and service lines prior to paving of the Common
Area.
7.8. Signs.
7.8.1. Except for directional signs for guidance upon the Common Area,
and signs required by appropriate governmental authorities, no signs shall be
located on the Common Area of a Lot except signs advertising businesses
conducted on such Lot. There shall be no more than one (1) sign on each of
Lots 1, 3, 4, 5, 6 and 8. All signs must conform with the provisions of
johnston\safeway\azspin\1521\dec8.doc 06-12-00 PAGE 10 ORO VALLEY,AZ
Section 6.2 above, the recorded Plat of the Shopping Center and the
applicable City and County sign codes.
7.9. Outside Merchandising.
7.9.1. The selling, displaying or merchandising of goods shall be
confined to the interior of the buildings, and, except as provided in this
Section below, shall not be conducted upon the Common Area. The Owner
or Owner's tenants of Lot 7 may use the sidewalk immediately adjacent to the
Building Area on Lot 7 to the extent allowed by law for the placement of
shopping carts and for the display of seasonal merchandise being sold from
the building on Lot 7,provided the pedestrian use of the sidewalk shall not be
unreasonably impeded by such use.
8. COMMON AREA DEVELOPMENT.
8.1. Development.
8.1.1. Common Area Ratio. At all times there shall be independently
maintained on each Lot or further subdivision thereof, not less than three (3)
square feet of developed Common Area for each one (1) square foot of total
building floor area, including basements but excluding mezzanines.
8.1.2. Development Timing. When any building is constructed within
the Building Area on a Lot, the Common Area on that Lot shall be developed
substantially in accordance with Exhibit A, if not previously developed, at
the expense of the Owner of such Lot. If one Owner ("Developing Owner")
constructs improvements on Developing Owner's Lot prior to the
development of another Lot, Developing Owner shall have the right to grade,
pave and use any portion of the Common Area of the non-developing
Owner's Lot. Developing Owner shall cause all of such work to be separately
bid on a competitive basis, and the costs and proposed work shall be
approved in advance by the non-developing Owner in writing, provided that
such approval shall not be unreasonably withheld. The non-developing
Owner agrees to reimburse Developing Owner for such costs when any
portion of the non-developing Owner's Lot is developed or upon the sale of
any portion of the non-developing Owner's Lot, whichever first occurs.
9. COMMON AREA MAINTENANCE.
9.1. Maintenance Standards.
9.1.1. Following completion of the Common Area improvements, each =�
Owner, at its sole cost and expense, shall maintain the Common Area on its
johnston\safeway\azspin\1521\dec8.doc 06-12-00 PAGE 11 ORO VALLEY,AZ
Lot in good condition and repair. Without limiting the generality of the
foregoing, the maintenance shall include the following:
9.1.1.1. Maintaining and repairing the surfaces in a level, smooth
and evenly covered condition with the type of surfacing material and
striping originally installed or such substitute therefor as shall in all
respects be equal in quality, use and durability;
9.1.1.2. Removing all papers, debris, filth and refuse and washing
or thoroughly sweeping the area to the extent reasonably necessary to
keep the area in a neat, clean and orderly condition, and free of snow
and ice;
9.1.1.3. Placing, keeping in repair and replacing any necessary
appropriate directional signs, markers and lines;
9.1.1.4. Operating, keeping in repair and replacing when necessary,
such artificial lighting facilities as shall be reasonably required;
9.1.1.5. Maintaining .any perimeter walls in a good condition and
state of repair;
9.1.1.6. Maintaining all landscaped areas and making such
replacement of shrubs and other landscaping as is necessary;
9.1.1.7. Maintaining all private sewers; and
9.1.1.8. Maintaining all other, if any, shared Common Area
improvements.
9.2. Maintenance by Agent.
9.2.1. Subject to the revocable mutual agreement of the Owners, a third
party may be appointed as an agent of the Owners to maintain the Common
Area in the manner as outlined in Section 9.1.1. Such third party may receive
a fee for such agency which fee is mutually acceptable to the Owners to cover
supervision, management, accounting and similar services and which fee is to
be included in the general maintenance expense paid by the respective
Owners of the Common Area. In the event a third party is appointed to
maintain the common area on behalf of all of the Owners of the Common
Area, each Owner shall pay a pro rata share of the cost of such Common Area
maintenance which share shall be a fraction, the numerator of which shall be
the ground floor building area constructed on such Owner's Lot and the
denominator of which shall be the total ground floor building area
constructed on all of the Lots of the Shopping Center. 3
johnston\safeway\azspin\1521\dec8.doc 06-12-00 PAGE 12 ORO VALLEY,AZ
10. INDEMNIFICATION. INSURANCE.
10.1. Owner's Indemnification.
10.1.1. Each Owner ("Indemnifying Owner") agrees to indemnify,
protect, hold harmless and defend the other Owners and other Owner's
tenants from and against all demands, claims, causes of action or judgments,
and all reasonable expenses incurred in investigating or resisting the same,
for injury to person, loss of life or damage to property (i) occurring on the
Indemnifying Owner's Lot, except if caused by the negligence or willful act
or omission in whole or in part of any other Owner or the tenants of such
other Owner or the employees, contractors or agents of such other Owner or
tenants, or (ii) occurring on another Owner's Lot if caused by the sole
negligence, willful act or omission of the Indemnifying Owner or the tenants
of the Indemnifying Owner or the employees, contractors or agents of such
Indemnifying Owner or tenants.
10.2. Insurance.
10.2.1. Each Owner shall obtain and maintain comprehensive general
liability insurance covering its obligations in Section 10.1.1. Such insurance
shall be written with a reputable insurance carrier having a Best Insurance
Grade Rating of B VII or better and licensed to do business in the State in
which the Shopping Center is located. The limits of liability of such
insurance shall be not less than Two Million Dollars ($2,000,000.00)
combined single limit coverage for injury to person, loss of life and damage
to property arising out of any single occurrence. The dollar limit set forth
above shall be increased on the commencement of the sixth (6th) year after
the date of this Declaration and at five (5) year intervals thereafter by
agreement of the Owners or, in the absence of agreement, then by increases in
the Consumer Price Index, All Urban Consumers, U.S. City Average, All
Items, as of the date of adjustment over such index as of the first day of the
preceding five (5) year period. Upon request, each Owner shall provide the
other Owners with a copy of a certificate of insurance evidencing such
insurance.
11. REALTY TAXES AND ASSESSMENTS.
11.1. Real Estate Taxes and Assessments.
11.1.1. It is intended that all real estate taxes and assessments relating to
any portion of the Shopping Center or improvements thereon, or the
ownership thereof, shall be paid prior to delinquency by the respective =-
Owners thereof. 4
johnston\safeway\azspin\1521\dec8.doc 06-12-00 PAGE 13 ORO VALLEY,AZ
11.1.1.1. In the event any Owner fails at any time to pay before
delinquency its taxes or assessments on any portion of its Lot or Lots,
and which may become a lien on any of the Common Area, then,
except while the validity thereof is being contested by judicial or
administrative proceedings, any other Owner may pay such taxes
and/or assessments together with interest, penalties and cost, and in any
such event the defaulting Owner obligated to pay such taxes and/or
assessments shall promptly reimburse such other Owner for all such
taxes and/or assessments, interest, penalties, and cost and other charges
and until such reimbursement has been made the amount thereof shall
constitute a lien and charge on the defaulting Owner's Lot, subject and
subordinate, however, to any bona fide mortgage or deed of trust made
in good faith and for value then outstanding against such Lot.
12. EMINENT DOMAIN.
12.1. Owner's Right to Award.
12.1.1. Nothing contained in this Declaration shall be construed to give
any Owner any interest in any award or payments made to another Owner in
connection with any exercise of eminent domain or transfer in lieu thereof
affecting such other Owner's Lot or construed to give the public or any
government any rights in the Shopping Center. In the event of any exercise
of eminent domain or transfer in lieu thereof of any part of the Common
Area, the award attributable to the land and improvements of such portion of
the Common Area shall be payable only to the Owner in fee thereof and no
claim thereon shall be made by the Owners of any other portion of the
Common Area.
12.2. Collateral Claims.
12.2.1. All other Owners of the Common Area may file collateral claims
with the condemning authority for their losses which are separate and apart
from the value of the land area and improvements taken from another Owner.
12.3. Tenant's Claim.
12.3.1. Nothing in this Article 12 shall prevent a tenant from making a
claim against an Owner in accordance with the provisions of any lease =
between tenant and Owner for all or a portion of any such award or payment.
12.4. Restoration of Common Areas.
12.4.1. The Owner of the fee of each portion of the Common Area so =�
condemned shall promptly repair and restore the remaining portion of the
Common Area owned by it as nearly as practicable to the condition of the
johnston\safeway\azspin\I 521\dec8.doc 06-12-00 PAGE 14 ORO VALLEY,AZ
same immediately prior to such condemnation or transfer without
contribution from any other Owner.
13. CANCELLATION. MODIFICATION. DURATION.
13.1. Cancellation.
13.1.1. This Declaration may be canceled only by the written agreement
of all Major Owners (defined in Section 13.3.2 below) of the Shopping
Center together with the written consent of the Vistoso Community
Association created by the Master Declaration, and Declarant, so long as
Declarant has any interest in the Shopping Center as an Owner or lessee of a
Lot, which consents shall not be unreasonably withheld. The cancellation
agreement shall be recorded in the office of the County Recorder of the
county in which the Shopping Center is located.
13.2. Modification. Delegation of Authority.
13.2.1. Except as otherwise provided in Section 13.3.1, this Declaration
may be modified only by the written agreement of all Major Owners of the
Shopping Center, which modification agreement shall be recorded in the
office of the County Recorder of the county in which the Shopping Center is
located. Any modification of this Declaration that would be inconsistent with
the Master Declaration shall also require the written agreement of the Vistoso
Community Association. As long as Declarant has any interest in the
Shopping Center as an Owner or lessee of a Lot the authority for modifying
this Declaration shall rest with Declarant alone as to such Lot. Any
purchaser, lender, lessee, grantee, sublessee or other party having any interest
in any portion of a Lot of which Declarant is the Owner or lessee shall be
deemed to have appointed Declarant as its attorney-in-fact for such Lot for
the purpose of negotiating and entering into any modifications of this
Declaration.
13.3. Exhibit A and Common Area Ratio Modification.
13.3.1. Except as otherwise provided in Section 13.3.3, the layout of the
Building Area and Common Area on Lots 1, 3, 4, 5, 6 and 8 as set forth on
Exhibit A and the Common Area ratio within the Shopping Center set forth in
Section 8.1.1 may be modified only by the written agreement of all Major -:
Owners, together with the written agreement of any Owner which is not a S
Major Owner, if such Owner's Lot is affected in any of the following ways:
13.3.1.1. The Building Area of such Lot is to be reduced or relocated -_
or the building height thereof reduced;
13.3.1.2. The Common Area layout of such Lot is to be altered;
johnston\safeway\azspin\1521\dec8.doc 06-12-00 PAGE 15 ORO VALLEY,AZ
13.3.1.3. The Common Area layout of Lot 1, 3, 4, 5, 6 or 8 within
fifty feet (50') of the property line of such Lot is to be materially
altered which alteration would substantially interfere with parking for
or access to such Lot.
13.3.2. Such modification agreement shall be recorded in the office of
the County Recorder of the county in which the Shopping Center is located.
As used in this Article 13, "Major Owner" shall mean any Owner (including
Declarant pursuant to the provisions of Section 13.2.1) which holds fee title
to twenty-five percent(25%) or more of the land area of the Shopping Center.
13.3.3. Notwithstanding the matters contained in Section 13.3.1, the lay-
out of the Building Area and Common Area on Lots 1, 3, and 4 as set forth
on Exhibit A may be modified without the agreement of the Major Owners
and without a written, recorded amendment to this Declaration, provided all
of the following conditions are met:
13.3.3.1. There shall be no increase in the square footage of the
Building Area on Lot 1, Lot 3 or Lot 4 from what is shown on Exhibit
A;
13.3.3.2. There shall be no reduction in the number of parking spaces
(or replacement of standard size spaces with compact size spaces, or
elimination of handicapped spaces) on Lot 1, Lot 3 or Lot 4 from what
is shown on Exhibit A;
13.3.3.3. There shall be no material change in traffic circulation on Lot
1, Lot 3 or Lot 4 from what is.shown on Exhibit A, including without
limitation, the inclusion of a drive-through, or the relocation of an
entrance to or exit from the Shopping Center;
13.3.3.4. There shall be no material interference with the visibility of
the building on Lot 7 from the public streets adjacent to the Shopping
Center; and
13.3.3.5. The Owner of Lot 1, Lot 3 or Lot 4, as applicable, shall give
the Owner of Lot 7 prior written notice of the proposed change in the
lay-out of the Building Area and/or Common Area on Lot 1, Lot 3 or -�
Lot 4, as applicable. M
13.4. Duration.
13.4.1. Unless otherwise canceled and terminated as permitted in this
Declaration, all the easements granted in this Declaration shall continue in
perpetuity and all other covenants, conditions and restrictions shall
johnston\safeway\azspin\1521\dec8.doc 06-12-00 PAGE 16 ORO VALLEY,AZ
automatically terminate and be of no further force or effect after seventy (70)
years from the date of this Declaration.
14. RELEASE FROM LIABILITY.
14.1. Release from Liability.
14.1.1. Any person or entity acquiring fee or leasehold title to any
portion of the Shopping Center shall be bound by this Declaration only as to
the Lot or portion thereof acquired by such person or entity. Such person or
entity shall be bound by this Declaration only during the period such person
or entity is the fee or leasehold owner of such Lot or portion thereof, except
as to obligations, liabilities or responsibilities that accrue during such period.
Although persons or entities may be released under this Section, the
easements, covenants and restrictions in this Declaration shall continue to be
benefits and servitudes upon the Shopping Center running with the land.
15. DEFAULT.
15.1. Default.
15.1.1. In the event of default or threatened default of this Declaration,
only the Owners or Declarant, as long as it has any interest in the Shopping
Center as an Owner or lessee of a Lot in which event it shall be deemed an
Owner for the purpose of this Article 15., shall be entitled to institute
proceedings for full and adequate relief from the consequences of such
default.
15.2. Remedies for Default.
15.2.1. If the Owner of any Lot, during the term of this Declaration, shall
default in the full, faithful and punctual performance of any obligation
required under this Declaration and if upon the expiration of thirty (30) days
after written notice from any other Owner stating with particularity the nature
and extent of such default, the defaulting Owner has failed to cure such
default, and if a diligent effort is not then being made to cure such default,
then any other Owner, in addition to all other remedies it may have at law or
in equity, shall have the right to perform such obligation of this Declaration on behalf of such defaulting Owner and to be reimbursed by such defaulting
Owner for the cost thereof with interest at the statutory rate for judgments.
Any such claim for reimbursement, together with interest as set forth above,
shall be a secured right and a lien shall attach and take effect upon
recordation of a proper claim of lien by the claimant in the office of the
County Recorder of the county in which the Shopping Center is located. The
claim of lien shall include the following: (i) the name of the claimant; (ii) a -'
statement concerning the basis of the claim of the lien; (iii) the last known
johnston\safeway\azspin\1 521\dec8.doc 06-12-00 PAGE 17 ORO VALLEY,AZ
name and address of the Owner or reputed Owner of the Lot against which
the lien is claimed; (iv) a description of the property against which the lien is
claimed; (v) a description of the work performed or payment made which has
given rise to the claim of lien and a statement itemizing the amount of the
lien; and (vi) a statement that the lien is claimed pursuant to the provision of
this Declaration reciting the date, book and page of the recordation of this
Declaration. The claim of lien shall be duly verified, acknowledged and
contain a certificate that a copy of the lien has been served upon the Owner
against whom the lien is claimed, either by personal service or by mailing to
the defaulting Owner as provided in Article 16. The lien so claimed shall
attach from the date of recordation solely in the amount claimed and it may
be enforced in any manner allowed by law for the foreclosure of liens.
Notwithstanding the foregoing, such liens shall be subordinate to any
mortgage or deed of trust given in good faith and for value now or hereafter
encumbering the property subjected to the lien, which mortgage or deed of
trust was recorded prior to the recording of the lien, 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 first mortgage or deed of trust shall
take free and clear from any such then existing lien, but otherwise subject to
the provisions of this Declaration. The failure of the Owner or Owners of any
of the Lots subject to this Declaration to insist in any one or more cases upon
the strict performance of any of the promises, covenants, conditions,
restrictions or agreements in this Declaration, shall not be construed as a
waiver or relinquishment for the future breach of the provisions of this
Declaration.
15.3. Attorneys' Fees.
15.3.1. In the event that suit is brought for the enforcement of this
Declaration or as a result of any alleged default under it, the successful party
or parties to such suit shall be entitled to be paid reasonable attorneys' fees
and costs, including expert witness fees, by the losing party or parties, and
any judgment or decree rendered shall include an award therefor.
15.4. Governing Law.
15.4.1. This Declaration shall be governed and enforced by, and construed in accordance with the laws of the State in which the Shopping
Center is located. 17-
16. NOTICES.
16.1. Notices.
16.1.1. Notices made by the Owners in accordance with this Declaration
may be served personally or may be served by depositing the same in the
johnston\safeway\azspin\1 521\dec8.doc 06-12-00 PAGE 18 ORO VALLEY,AZ
United States mail, postage prepaid, certified or registered mail, addressed as
follows:
To Declarant: Safeway Inc.
5918 Stoneridge Mall Road
Pleasanton, CA 94588
Attn: Real Estate Law Division
With a copy to: Safeway Inc.
Real Estate Department
2750 S. Priest Drive
Tempe, AZ 85282
16.1.2. The addresses set forth above may be changed by written notice
given in accordance with the provisions of this Section.
17. LENDER PROTECTION.
17.1. Lender Protection.
17.1.1. This Declaration, and the rights, privileges, covenants,
agreements and easements under this Declaration with respect to each Owner
and all Lots, shall be superior and senior to any lien placed upon any Lot,
including the lien of any mortgage or deed of trust. Notwithstanding the
preceding sentence, no breach of this Declaration shall defeat, render invalid,
diminish or impair the lien of any mortgage or deed of trust made in good
faith and for value, but all of the covenants and restrictions, easements and
conditions and other provisions, terms and conditions contained in this
Declaration shall be binding upon and effective against any person or entity
(including any mortgagee or beneficiary under a deed of trust) who acquires
title to any Lot or any portion thereof by foreclosure, trustee's sale, deed in
lieu of foreclosure or otherwise.
18. GENERAL PROVISIONS.
18.1. No Covenant to Operate.
18.1.1. Nothing, either expressed or implied, contained in this
Declaration shall obligate any Owner or any Owner's tenants to continuously
operate any type of business on its Lot. =�
18.2. Running of Benefits and Servitudes. Rights of Successors.
18.2.1. The easements, restrictions, benefits, and obligations under this
Declaration shall create mutual benefits and servitudes upon all the Lots of
the Shopping Center running with the land. This Declaration shall bind and
johnston\Safeway\azspin11521\dec8.doc 06-12-00 PAGE 19 ORO VALLEY,AZ
inure to the benefit of the Declarant, its heirs, personal representatives,
tenants, successors, and/or assigns. The singular number includes the plural
and any gender includes all other genders.
18.3. Not a Public Dedication.
18.3.1. Nothing contained in this Declaration shall be deemed to be a gift
or dedication of any portion of the Common Area to the general public or for
the general public or for any public purposes whatsoever, it being the
intention of Declarant that this Declaration shall be strictly limited to and for
the purposes herein expressed. The right of the public or any person to make
any use whatsoever of the Common Area of the Lots herein affected, or any
portion thereof(other than any use expressly allowed by a written or recorded
map, agreement, deed or dedication) is by permission, and subject to the
control of the Owners. Notwithstanding any other provisions in this
Declaration to the contrary, the Owners by mutual agreement may
periodically restrict ingress and egress from the Common Area in order to
prevent a prescriptive easement from arising by reason of continued public
use. Any restriction on ingress and egress shall be limited to the minimum
period necessary to prevent the creation of a prescriptive easement and shall
occur at such a time as to have a minimum effect on the operation of the
Shopping Center.
18.4. Document Change.
18.4.1. This document once executed and delivered shall not be
modified, changed or altered in any respect except by a written document
executed and acknowledged by the Owners of the Shopping Center.
18.5. Interpretation.
18.5.1. Whenever used in this Declaration, the term "including" shall be
deemed to be followed by the words"without limitation". Words used in the
singular number shall include the plural, and vice-versa, and any gender shall
be deemed to include each other gender. The captions and headings of the
Articles and Sections of this Declaration are for convenience of reference
only, and shall not be deemed to define or limit the provisions of this
Declaration. -=
18.6. No Joint Venture.
18.6.1. It is not intended by this Declaration to, and nothing contained in
this Declaration shall, create any partnership, joint venture or other joint or equity type agreement between the Owners.
johnston\safeway\azspin\1 521\dec8.doc 06-12-00 PAGE 20 ORO VALLEY,AZ
18.7. Reasonableness of Consent.
18.7.1. Unless otherwise provided in this Declaration, whenever an
Owner's agreement or approval is required under this Declaration, such
Owner shall not unreasonably withhold or delay such agreement or approval.
If an Owner shall not agree or shall disapprove, the reasons therefor shall be
stated in reasonable detail in writing.
DECLARANT has executed this Declaration of Easements with Covenants and
Restrictions Affecting Land on the day first written above.
DECLARANT:
SAFEWAY INC.
a Delaware corporation
By: "/"L'I
Its Assistant Vice President
By: pgivvi/t . 7/4
Its Assistant Secretary
Form approved: 4 k
Annual assessments for 1999 and prior years
have been paid in full and this Declaration is
approved for recording in Pima County
Official Records by:
VISTOSO ASSOCIATION, an
Arizona non-profit corporation
By: � 2
Name: MR i,r$
Title: 1- 5 u(-1-4-i ew t V'J 'L
Date: VV ✓1 I , 2000
johnston\safeway\azspin115211dec8.doc 06-12-00 PAGE 21 ORO VALLEY,AZ
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EXHIBIT B
Lots 1, 2, 3,4, 5, 6, 7 and 8 of Safeway Vistoso Plaza,Lots 1 through 8, a portion of Rancho
Vistoso Neighborhood 5 Parcel U, as shown by subdivision map recorded in Book B5 of
Maps, at Page IS ,records of Pima County.
•
johnston\safeway\azspin\1521\dec8.doc 06-12-00 PAGE 23 ORO VALLEY,AZ
SAFEWAY ACKNOWLEDGMENT
STATE OF CALIFORNIA )
} ss.
COUNTY OF ALAMEDA )
On lb r`q, , 'L b) , before me, S LL) t k O C ,
Notary Public, personally appeared L.t A�tt S. L���cd��. and
l c.1/4 Lk, , personally known to me (or proved to me on the basis
of satisfactory evidence) to be persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons or the entity upon
behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
�P Q� SYLI�IA$URNETT
C.24 ;% COMM #1 l 22050 O
� ,��-��!� NOTARY±�UBUC-CALIFORNIA
Signature 1 (` (Sep COUNru OF ALAMEDA
g nay Comm Ex Tres Ja 15,20O1
johnston\safeway\azspin\1521\dec8.doc 06-12-00 ORO VALLEY,AZ