95-024984 AN 12'96 15:26 FR UINSA AND ELKINS 214 220 771 . :.0.91706250400$, P.02i;
. After Recording Return to: ; •
Debra Ellers 7 5 * 44:1 a - • (lb1 //1
Holland s Hart —
Suite 1400 West One Plaza / - -I Z
P.O. Box 2527 Lt.2644. •
Boise, Idaho 83701 -252
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• ON ' • I' R • L 'i ag l[.i � 3! � , Pr
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THIS FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT (the "First
Amendment ") is made as of the day of March 1995, by and
between WAREMART, INC., an Idaho corporation ("Waremart'), as the successor to
SUPERVALU HOLDINGS, INC., an Ohio corporation (" SUPERVALU'), and MARK
LURIA and DOYLE WHEELES ( "Luria and Wheeles "), as successors to PETsMART, .
INC., a Delaware corporation, and PETsMART, INC., a Delaware corporation
('PETsMART) (Waremart, Luria, and Wheeles are referred to
collectively as the "owners ").
RECITALS
A. SUPERVALU and PETsMART entered into that certain
Declaration of Covenants, Conditions and Restrictions and Recip-
rocal Easement Agreement (the "Declaration ") dated August 30,
1993, recorded as Instrument No. 93081054, records of Washington
County, Oregon, for the purposes of setting forth covenants,
conditions, and restrictions governing, among other things,
reciprocal access, sign usage, parking, pedestrian access,
maintenance of parking lots, landscaping, and building exteriors,
and types of use to enhance the value of the Shopping Center
developed on the Property. Defined terms not otherwise defined
in this First Amendment have the meanings set forth in the
Declaration.
B. Waremart purchased the Property pursuant to that
certain Purchase Agreement dated January 8, 1993, by and between
Waremart and SUPERVALU, and has succeeded to SUPERVALU's interest
under the Declaration.
C. Luria and Wheeles purchased Lot 2, also known as
Retail B, from PETsMART and PETsMART is a Prime Lessee as that
term is defined in Section 1.01(s) of the Declaration.
D. Waremart has entered into a separate Purchase Agreement
dated August 16, 1994, with Trammell Crow BTS, Inc., which has
assigned its interest to TCC -BTS Tigard I, L.L.C. ( "TCC- BTS "),
for the development of an Office Max store to be located on Lot 4
and Lot 5 on the Site Plan attached as B to the
'JRN 12'96 15:29 FR VIt J RND ELKINS 214 220 7716 917082504008 P.03/23
Declaration, as amended by the Site Plan covering Lots 4 and 5
attached hereto as Exhibit B (the "Office Max Parcel ").
E. When developed, the office Max Parcel will have a
parking ratio of 3.2 :1, which is less than the currently required
• parking ratio of 5:1 for similar developments as set forth in the
Declaration.
F. The Owners have agreed that the value and utility of
the Property will be enhanced by an Office Max store, and wish to
amend the Declaration to permit development of the Office Max
Parcel.
NOW, THEREFORE, in consideration of the recitals above, the
parties agree to amend the Declaration as follows:
1. Amendment of Definitions.
a. Paragraph 1.01(d) is hereby amended to read in its
entirety as follows:
"Building Area" means all those areas on each •
Lot located within the "Building Area" or
"Building Envelope Lin& ".shown on the Site
Plan ( "Defined,Site Plan ") attached hereto as
Exhibit B and incorporated herein by this
reference.
b. Paragraph 1.01(f) is hereby amended to read in its
entirety as follows:
"Consenting Owners" means the owners of
Lots 1, 2, 3, 4, and 5 and their respective
heirs, successors, and assigns.
2. Amendment of Parkins Easements. Section 2.01.7,
ParKing Easements, is hereby amended to read in its entirety as
follows:
Nonexclusive cacemente in and to the parking
areas for access to and use for vehicular
parking purposes. Such parking easements
shall consist of at least 5.0 parking spaces
for each 1,000 square feet of Gross Floor
Area on each Lot, except that: (i) such
ratio shall be augmented to 10.0 parking
spaces for each 1,000 square feet of Gross
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Floor Area devoted to restaurant uses on any
Lot, and (ii) such ratio shall be reduced to
a minimum of 3.2 parking spaces for each
1,000 square feet of Gross Floor Area of
Lots 4 and S, only if and so lony as the
requirements of this paragraph are satisfied.
Notwithstanding (ii) above, so long as
PETsMART or its corporate successor or any
sublessee or assignee (hereinafter called a
"Successor ") is a Prime.` Lessee or if at any
time PETEMart or its Successor is no longer a
Prime Lessee, then if and for so long as •
Waremart or its corporate successor and /or
Luria and Wheeles, or any one or more
successor corporations, general partnerships,
limited partnerships or limited liability
companies in which either Lurid or Wheeles
has at least a 10% interest, or any family
trusts of either Luria or Wheeles or any
heirs or devisees of Luria or Whcolcc
• (hereinafter called a "Successor to Luria or
Wheeles"), (each of Waremart, its corporate
successor, Luria, Wheeles, or a Successor to
Luria or Wheeles is an "Approving Party ") are •
Owners, if any use is proposed to be made of
any portion of t.ots 4 and 5 other than by
officeMax or another office supply store,
then the change. in use for Lots 4 and 5 shall
require the approval ofPETsMART or its
Successor or any Approving Party, if
applicable, which shall not be unreasonably •
withheld or delayed. PETsMART or its
Successor or any Approving Party, if
applicable, may withhold c:unsent under this
Section 2.01..7 solely on the basis of whether
the proposed use will have higher parking
needs than an Office}ax or other office
supply store. PETsMART or its Successor or
any Approving Parly, if applicable, shall
have 10 days after the delivery of written
notice which (i) specifies in reasonable
detail the intended change in the use of
Lots 4 and 5, (ii) refers expressly to this
paragraph and (iii) states that PETsMART or
its successor or any Approving Party has 10
days to object in writing to such intended
use, and that PETsMART's or its Successor's
or any Approving Party's failure to object
within such 10 -day period shall be deemed
approval thereof . Such notice shall also
specify the name and address to which such
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'JAN 12.'96 15:25 FR VIN HNL ELKINS 214 220 7716 517082504008 P.05/23
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objection must be delivered. The written
notice in this Section 2.01.7 shall be deemed
received and effective if delivered at the
address set forth herein or s uch other'
address as any party may designate by notice
from time to time (A) 5 days after being
deposited in the United States Mail,
registered or certified, return receipt
requested, postage prepaid, (8) one business
day after being sent by overnight express
mail or nationally recognized courier service
(e.g., Federal Express), or (C) when received
if given by personal delivery' With a receipt
signed by an authorized representative of
such party. Any dispute which may arise
pertaining to this Section 2.01.7 shall be
resolved, at the election of any party, by
compulsory arbitration in a manner provided
below. Any party may, in its solc
discretion, submit such a dispute to binding
arbitration by giving written notice thereof
to the other party, which notice shall
Specify the issue or all of the issues to be
arbitrated. Within 7 days after giving or
receiving such notice, each patty shall
submit to the other its final and best
position as to such issue or all of sucn
issues, which shall remain the position of
such party throughout the arbitration
process. Notwithstanding the foregoing, the
parties may make offers in settlement at any
time, but no such proposal shall be
considered by the arbiLralur or board of
arbitration. If the parties fail to agree
upon a single arbitration within 14 days
following the date of such notice, each party
shall within 7 days thereafter appoint one
arbitrator, and the two arbitrators so
selected shall, within 7 days thereafter,
appoint a third arbitrator, who shall at as
chairperson of the board of arbitration. All
arbitrators shall be natural persons who are
independent and neutral and have significant
experience with issues regarding owning,
managing, or leasing spate in retail shopping
centers. At any time within 14 days after
the arbitrator or all or the. arbitrators have
been appointed, either party may request a
hearing, which shall he held within 30 days
following such request ur on such later date
• as the arbitrator or the board of arbitration
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may reasonably determine. At such hearing,
evidence, analyses, and briefs shall be
presented by all parties pursuant to Uniform
Rules of Arbitration established by the
American Arbitration Association. If no
hearing is requested, the parties may submit
• to the arbitrator or board of arbitration, by
date no later than 30 days following the
appointment thereof, written evidence,
memoranda, and briefs supporting their
respective positions, with a copy to the
other party, which submission shall address
separately each issue subject to arbitration
and the submitting parties' position thereon.
Each party shall have 10 days to respond to
the initial submission of the other party.
Within 45 days after receipt of the initial
submissions the arbitrator(s) shall make a
determination as to all of the issues taken
as a whole in favor of the position of one
party or the other as submitted within the
first 7 days following the commencement of
the arbitration proceedings without
alteration or compromise shall require the
unsuccessful party to pay all reasonable
costs and fees, including attorney fees, of
the prevailing party. If the members of the
board of arbitration fail to reach a
unanimous decision, the decision of the
majority of the board shall be determined.
Such determination shall be final and binding
upon the parties and not subject to appeal in
the absence of fraud, and the prevailing
party may enforce the same by application for
entry of judgment in any court of competent
jurisdiction or other procedures established
by law. Each Owner covenants and agrees that
at all times during the term of this
Declaration the parking area and ratios shall
be maintained in the general configuration
set forth in the Site Plan. subject to the
applicable requirements of any governmental
• agency having jurisdiction over the Shopping
Center, each Owner covenants that the widths
of parking spaces, parking lanes and parking
bays shall be in accordance with the widths
and dimensions shown on the Site Plan on
their respective portions of the Shopping
Center, but that in any event the parking
spaces in Lots 1, 2, and 3, will be no less
than 9 feet wide and 18 feet deep, and the .
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parking spawn in Lots 4 and .5 will be no
less than 8.5 Feet wide and 18 feet deep.
Notwithstanding the preceding sentence, the
Owner Of Lots 4 and 5 may designate up to 10
compact parking spaces which will be no less
than 7.S feet vide and 18 feet deep. The
Owners agree to designate employee parking
spaces on their respective Lots with the
standard letter "E" of such size and color au
to be readily observable in daylight hours to
users of the parking areas. The owners shall
designate adequate employee parking places on
their respective Lots to serve the businesses •
located on their respective Lots. The owner
and /or Occupant of each Lot shall require the
Owner's employees or the employees of all
Occupants of each Lot to park only in the
employee parking spaces marked with "t" on
its Lot.
3. Amendment of Unimeeded Access. Section 2.02, unimpeded
Access, is hereby amended to read in its entirety as follows:
The Owners agree that no barricade or other
divider will be cnnstructed between the Lots
and the Owners and Occupants will do nothing -
to prohibit or discourage the free and
uninterrupted flow of vehicular or pedestrian .
traffic throughout the Shopping Center in the
areas designated for such purpose on the Site
Plan; provided that each Owner will have the .
right to temporarily erect barriers to avoid
the possibility of dedicating such areas for
public use or creating prescriptive rights
therein; provided that no barricade shall
impair access to another owner's Lot. Not -
withstanding anything contained herein to the
contrary, nothing in this paragraph shall
prohibit (a) the Owners or Occupants of
Lots 1, 2, 3, 4, and 5 from (i) conducting
sales of products, such as coffee, espresso,
hot dogs and the like, from moveable carts
located on sidewalks and under canopies on
such Owner's or Occupant's Lot, (ii) instal-
, ling or maintaining a video cassette collec
tion box in the parking area on their res-
pective Lots, or (iii) using small parts of
the Commun Area for the return of shopping
carts; (b) the Owners or Occupants of Lots 1,
2, 3, 4, and 5 from (i) conducting up to
three (3) sidewalk calee of no more than
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•JIRN 12'96 15:32 FR VIN,' RNL ELKINS 214 220 7716 "917082504008 P.08/23
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seven (7) days each on the Common Area which
is immediately in front of the building on
their respective Lots, and (ii) erecting a
tent for the sale of merchandise in the
Common Area on their respective Lots, subject
to the following limitations: (A) such tent
shall be used only during a single period in
the Spring of each calendar year, such annual
period net. to exceed twelve (12) weeks,
(B) such tent shall not interfere with any
driveway in the Common Area, and shall cover
no more than ten (10) parking spaces, and
(C) any such tent on Lot 1 shall be placed
not closer than 150 feet from PM:MART'c
building on Lot 2; and (c) the Owner or
occupant of Lot 1 from (i) selling fireworks
from a temporary stand located on Lot 1 and
at least 300 feet from PETsMART's building on
Lot 2 for a of approximately
twenty (2.0) days before July 4 of each year.
•
4. Amendment of Architectural Standards. Section 3.03.1,
Elevations in Building Signage, is hereby amended to read in its
entirety as follows: •
Each building in the Shopping Center, now and
in the future, shall be of first quality
construction and architecturally designed so
that its exterior elevations (including,
without limitation, color) will be architec-
turally and aesthetically compatible and
harmonious with all other buildings in the
Shopping Center. No building may be con -
structed, not the exterior of any existing
building materially changed (including,
without limitation, color and finishes)
without the prior written approval of the
Consenting Owners as to the exterior
elevations (including, without limitation,
color and finishes) of the building to be
constructed. or modified. Anything in this
paragraph to the contrary notwithstanding,
before the construction of any building or
any modification of an existing building
which requires approval is commenced,
sufficientsnformation shall be sent to the
Consenting Owners to enable' the Consenting
Owners to make a reasonable determination as
to the architectural and aesthetic compati-
bility of said building or modification with
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•
all other buildings in the Shcippiny Center.
No Consenting Owner may arbitrarily or
unreasonably withhold its approval of the
proposed building or modification if it is
architecturally and aesthetically compatible
and harmonious with 011 other buildings in
the Shopping Center. Each Consenting Owner
must approve or disapprove the proposal
within 30 days after receipt of a complete •
proposal, and, if such Consenting Omer
disapproves of a proposal, it shall provide a
written explanation in reasonable detail of
its reasons for disapproval. Ir d Consenting
Owner rejects or disapproves the proposal and
fails to provide sucn explanation within the
30 day period, such Consenting Owner shall be
deemed to have approved same. Tf the
proposal is disapproved as provided herein,
then an alternate proposal may be submitted,
Which alternate proposal shall be handled in
• the same manner as the initial or any
subsequent proposal, except that the time
period for disapproval shall be shortened to
10 days. Waremart, PETsMART, and Luria and
Wheeler each hereby approve the other's
exterior elevations, and the exterior
elevations or the office Max to be con-
structed by TCC -BTS.
5. AM0114Ment of BUildinq ..aeiaht. section 3.03.4, Building
Height, is hereby amended to read in its entirety as follows: .
All buildings on Lots 1, 2, 3, 4, and 5 shall
by single Story with mezzanine permitted and
shall not exceed 31 Peet in height. All
other buildings shall be single story with no
mezzanine permitted and shall not exceed 22
feet in height (including mechanical fixture.
and equipment and screening tor same). No
mezzanine or basement shall be used for the
sale or display of merchandise.
. G. Amendment of Pylon signage. Section 3.03.5, Pylon or
monument signage, is hereby amended to read in its entirety as
follows:
Subject to governmental approval, two free-
standing signs shall be erected at the
locations designated 'Center Pylon Sign' on
the Site Plan. It is agreed that there shall
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JAN 12'96 15:33 FR VINS,' AND ELKINS 214 220 771' - 0 917082504008 P.10 /2
be a shared pylon sign with Lot l's Owner
having the first choice of position for a
single Occupant of Lot 1 (the 'First sign
User'), Lot 2's Owner having second choice of
position for a single Occupant of Lot 2 (the
'Second Sign User'), and Lot 3's Owner having
third choice of position for a single Occu-
pant of Lot 3 (the 'Third Sign User'). If
there are two pylon or monument sign struc-
tures permitted, the second pylon or monument
sign structure shall bear the sign faces of a
• single Occupant of Lot 1 only the costs of
construction and maintenance of such second
sign and the easements associated therewith
shall be borne by the Owner of Lot 1. The
costs of construction and operation (inclu-
ding utilities, maintenance, repair and
replacement) of the shared pylon structure
and the easements servicing same, and the
allocations of the permitted square footage
• of sign fascia on the shared pylon structure,
shall be (i) 47% for the identification sign
of the First Sign User, (ii) 21% of the
changeable letter sign for the sole use and
benefit of the First Sign User, (iii) 16% for
the identification of the Second Sign User,
and (iv) 16% for the identification of the
Third Sign User. The sign fascia on the
pylon or monument sign structures ( "Pylon
Fascia ") shall be separately circuited and
illuminated by each Owner during the
operating hours of the store on its Lot.
Each Occupant displaying a designation on a
Center Pylon Sign shall supply and maintain
its own Pylon Fascia, and shall have the
right to change or replace such Pylon Fascia
at any time or from time to time, and shall
be responsible to assure that any change in
its signage conforms to legal requirements
and does not impair or diminish the signage
rights of the other occupants displaying
signage on such Center Pylon Sign structures.
The design of the Center Pylon Sign struc-
tures shall be subject to the approval of the
Consenting Owners. There shall be no other
signs, except approved business identifica-
tion signs or buildings ( "Building Signs ")
and directional signs in the Shopping Center.
All directional signs, Pylon Fascia and
Building Signs shall require the prior
written approval of the Consenting Owners,
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•JNN 12'96 15:34 FR UIN RND ELKINS 214 220 7716 917082504008 0.11/23
•
which shall not be unreasonably delayed or
withheld, provided however that the standards
signs and logos of Cub Foods, PETsMART and
any National Chain occupying space in the
Shopping Center, ae they may exist from time
to time, are hereby approved to the extent
such signs conform with Cub Foods, PETsMART,
or such National c'hain's respective current
new store sign packages. Except as specifi-
cally set forth in the preceding sentence,
Building Signs shall not include any image or
copy except the name of the busincec or
service to which they pertain. In addition,
the Building Signs shall (i) employ no
letters which emceed ten feet (10') in height
ror the Owners or Occupants of Lets 1, 2, and
. 3 co long ae they are occupying more than
twenty -tour, thousand (24,000) or more con-
.
tiguous square feet of Gross Floor Arca, or
five feet (5') in height for Owners or
Occupants occupying less than twenty -four
thousand (24,000) contiguous square feet of
Gross Floor Area, nor shall the length
thereof exceed seventy percent (70 %) of the
store frontage of any such Owner or'Occupant,
(ii) be coaposed of individual pan channel
letters, and not painted letters or single
can and sign fascia, (iii) be internally
illuminated if illuminated at all,
(iv) utilize no flashing, moving or audible
lights or appurtenances, and (v) not extend
or protrude above the top of the building
roof or parapet, not be mounted to the roof,
penthouse walls, or screening. Notwith-
standing the preceding sentence, the owners
or Occupants of Lots 4 and 5 may use letters
up to six feet (6') in height on the Building
Signs. The Consenting Owners shall have the
right to promulgate, modify and enforce such
sign criteria for the Shopping Center as
they, in the reasonable exercise of their
sole discretion, shall deem necessary to
promote and/or preserve the Shopping Center's
character as a first -class shopping center.
Notwithstanding anything contained herein to
the contrary, the Owners or Occupants of
Lots 1, 2, 3, 4, and S may from time to time
hang or display banners or other temporary
signage on or about the exterior of their
respective Buildings or un the interior or
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•JAN 12'96 15:34 FR VIA' a AND ELKINS 214 220 7716 917062504005 P.12/23
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exterior glass surfaces of the windows and •
doors thereof.
7. Amendment of Maintenance of Wetlands Miticiatioa
Facilities. Section 4.07 15 hereby amended to read in its
entirety as follows:
The Owners acknowledge that the Mitigation
Area will by constructed and hereafter
maintained in connection vith the development
of the Shopping Center and the Property. The
Udner of Lot 1 shall perform all required •
monitoring, maintenance and repair with
respect to the Mitigation Area and the
facilities relating thereto, and all costa
therefor after the initial construction and
establishment thereof, shall be paid by the
Owners in the ratio which the Gross Floor
Area of the Buildings located on each Lot or
Expansion Area bears to the total Gross Floor
Area of the improvements located on all Lots,
except that the total liability of Lots 2, 3,
4 and 5 and the Owner or. Occupants thereof in
connection with any Mitigation Area shall not
exceed Two Hundred Dollars ($200.00) per
calendar year per Owner.
8. Amendment of Supermarket Use Restriction.
Section 6.02, Supermarket Use Restriction, is hereby amended to
read in its entirety as follows:
For so long as Lot 1 is being used or has
during the immediately preceding twelve (12)
months been used for the operation of a
supermarket, no portion of the Shopping
Center, other than Lot 1, shall be used as a
supermarket (which is hereby defined to mean
any store, DaXery, or delicatessen, engaging
in the sale of fresh or frozen meat, poultry,
fish or produce for primarily off- premises
preparation or consumption or otherwise
primarily devoted to the retail sale of food
for off - premises preparation and con-
sumption). Notwithstanding the foregoing,
nothing herein shall prevent or prohibit the
Building on Lot 2 from being 1eaced, occupied
or used as a general merchandise discount
department store, or for the retail sale of
pet foods, products and services as more
fully set forth in Section 6.03 below, ur :or
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JAN- 12'96 15:34 FR DINS( AND ELKINS 214 220 771E 0 917062504008 P.13'2
any other lawful retail use provided, how-
ever, that for so long as Lot 1 is being used
or has during the immediately preceding
•
twelve (12) months been so used for the
operation of a supermarket, no more than 5%
of the Gross Floor Area of each other store
in the Shopping Center shall be devoted to
the sale of food (not including pet food) for
off - premises preparation and consumption, and
soap and cleaning products as reasonably
demonstrated by records maintained by such
store, which records shall be made available
to the Owner of Lot 1 in a timely and
reasonable manner upon written request. So
long as Lot 1 is being used for the operation
of a supermarket or has been so used within
the preceding twelve (12) months, this
restriction. may be waived solely by the Owner
of Lot 1 in.writing by an instrument recorded
in the Office of the Washington County
Recorder. The twelve (12) month period
referred to in this Section 6.02 shall not
include any period during which the par-
ticular use lapses due to damage, destruc-
tion, condemnation, or remodeling of the
•
building on Lot 1 so log as the Owner
thereof diligently proceeds with such repair
and restoration of such building reasonably
calculated to permit resumption of such use.
• 9. Meaftent of Prohibited IIgga.
(a) Section 6.05(r) is hereby amended to read in its
entirety as follows:
(r) Any entertainment or recreational
facility including a theater, bowling alley,
skating rink, gym, dance hall, billiard or
pool hall, massage parlor, game parlor, video
arcade, health spa or studio or video rental
store (except the prohibition on the sale or
rental of video products or services shall
not be applicable to Lots 1, 2, 3, 4 or 5).
(b) Section 6.05 is hereby amended to read as follows:
Nothing in the foregoing Restrictions shall
prohibit a full - service sit -down restaurant
(i.e., a restaurant providing full- service
dining) from selling alcoholic beverages for
on- premises consumption as part of its
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JAN 12'96 15:35 FR VIA' J AND ELKINS 214 220 7716 917062504008 P.14/23
•
restaurant business, provided that no more
than one - third of the gross retail sales of
such restaurant during any calendar month
shall be derived from the sale of alcoholic
beverages, as reasonably demonstrated by
records maintained by such restaurant, which
records shall be`Made available to the
Consenting Owners, their cucceeeors or
assigns, in a timely and reasonable manner
upon written request. Nothing contained
herein shall prohibit the Owners or Occupants
of Lots 1, 2, 3, 4, and 5 from installing and
maintaining a video cassette collection box
in the parking area on their Lots. It is
also agreed the Owners of Lots 1, 2, 3, 4,
and 5 shall have a right to install and
maintain in the parking area on their
respective'Lots a reclamation area to reclaim
recyclable products and materials nut
exceeding 1.0% of the parking area located on
• each of their respective Lots in the area
designated therefor on the Site Flan. Any ..
Owner or Occupant installing a video
collection box or reclamation area shall, at
all timce, keep and maintain the same in a
neat, clean and sate condition and
appearance.
10. A new Section 6.09 is hereby added to the Declaration
to read in its entirety as follows:
6.09 OfficeMax Usa Restriction. For so long
as Lots 4 and 5 are used or have been used
during the immediately preceding 12 month
period by OfficeMax or a tenant, assignee, or
successor- of Office Max for the operation of
an office product store, no portion of the
Shopping Center, other than Lots 4 and 5,
shall be used (a) for the primary purposes of
(i) the sale of office, home office, school,
or business products, supplies, or equipment,
(ii) the sale of computers or computer
products, supplies, or equipment; (iii) the
sale of office furniture; or (iv) a business
offering any of the following services:
printing, desktop publishing, or resume
design and/or printing; or (b) an , Office
Depot, Staples, Office Shop Warehouse,
Workplace, or any other wholesale or retail
office supply store. Notwithstanding the
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-JAN 12'96 15:35 FR VIN` RNL ELKINS 214 220 7716 917082504008 P.15/23
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Lvregoing, the foregoing sentence shall not
be construed to prohibit (x) the sale by
Waremart on Lot 1 of such office, home
office, school, or business products,
supplies or equipment, and other similar
materials that are an incidental part of its
business so long as the space devoted to the
merchandising of such products does not
exceed 5,000 square feet, (y) the sale by any
other business on its T.nt of such office,
home office, school, or business products,
supplies or equipment, and other similar
materials that are an incidental part of its
businece co long as the space devoted to the
merchandising of such products does not
exceed 1,000 square feet; or (z) the
operation of a computer or electronics
specialty store occupying more than i5,000
square foot.
• 11. ]Amendment to Reconstruction. Section 8.02,
Reconstruction, is hereby amended to read in its entirety as
follows:
If any Owner (except for the Owner of Lots 4
and n) sustains a casualty loss to the
buildings and /or Common Area of its Lot
within 25 years from the date of recording of
this DecleraLien in the Office of the
Washington County Recorder, that Owner agrees
to promptly repair and restore its building
and the Common Area on its Lot to at least
its condition immediately preceding the loss.
If any Owner sustains a casualty loss to a
building and /or Common Area or ite Lot after
that date, that Owner may elect either to
repair and restore its building on the Lot or
raze the remaining portion of the building,
remove the debris, and maintain the area tram
which the building was removed as provided in
Section 3.01. additionally, in the event an
Owner ("Non Restoring Owner ") elects not to
restore and thereafter maintain its building
and the portions of the Common Areas located
within its Lot after the expi=ation of such
25 period, then any owner may, at its
sole expense, restore and thereafter maintain
those portions of the 'common Areas located
within the Non - Restoring Owner's Lot. Each
Owner hereby grants to the other Owners
- 14 - •
•
.JRN 12'96 15:36 FR VIN" N RND ELKINS 214 220 7716 T "' 917082504008 P.16/23
easement rights over such Owner'c Lot in
order to perform such restoration and
maintenance of such Common Areas. In the
event that any Owner of Lot 4 or 5 does not
promptly repair and restore its building in
the Common Area on its Lot to a condition at
least substantially similar to the condition
immediately preceding the loss, such Owner
shall raze the remaining portion of the
building, remove the debris, and maintain the
area from which the building was removed as
provided in Section 3.01.
12. Amendment of cleanup of Hazardous Materials.
Section 10.03, Cleanup of Hazardous Materials, is hereby amended
to read in its entirety as follows:
In the event Hazardous Materials are released
within the Shopping Center in violation of
•
any Environmental Law and such release
occurred as a direct or indirect result or an
Owner's or its Occupant's or Pcrmittee's use,
handling, storage, or transportation of such
Hazardous Material, as between the Owners,
such Owner or Occupant engaged in such
activity shall be solely responsible and
shall be liable for the prompt cleanup and
remediation of any resulting contamination
and all claims, costs, cxpcnoc;, (including
reasonable attorney and Consultant fees) and
damages suffered by the other Owners,
Occupants and Permittees.
13. Addition of Notices: The following addresses are
hereby added to Section 12.09, Notices:
Mr. Richard H. Coe
TCC -HTS Tigard I L.L.C.
3500 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
With a copy to:
Mr. Philip D. Weller
Vinson` & Elkins, L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
- 15
JRN 12'96 1536 FR VIN' l RNL ELKINS 214 220 7716 ' "' 917092504008 P.17/23
•
•
OfficeMaz, Inc_
3605 Warrensville Center Road
Cleveland, Ohio 44122
Attn: Senior Vice President, Real Estate
With a copy to:.
Lawrence V. Lindberg
Baker & Hostetler
3200 National City Center
1900 East Ninth
Cleveland, Ohio 44114
Mark Luria and Doyle Wheeles
575 Cooke Street
Honolulu, Hawaii 96813
With a copy to:
Bonnie Sorkin
Foster Pepper Sherelman
15th Floor
101 S.W. Main
Portland, Oregon 97204
•
14. Amendment of Exhibits. Exhibit B is hereby amended and
replaced with Exhibit 8 attached hereto.
15. Counterparts. This First Amendment may be executed in
any number of counterparts, each of which shall be deemed to be
an original but all such counterparts together shall constitute
one and the same agreement.
16. Survival of All Other Provisiog8. Except as expressly
set forth in this Fftst Amendment, all other terms and conditions
of the Declaration remain in full force and effect. In the event
of any inconsistency between the first Amendment and the'Declara-
tion, this First A:endment shall control.
IN WITNESS WHEREOF, the parties hereto have executed this
Declaration as of the day and year first above written.
- 16
JAN 12'96 15:36 FR VI "iN RND ELKINS 214 220 771E ') 917082504008 P.18/23
WAREMART, INC.,
an Idaho oration
/ (( ��`! /)
By / . - V
Its ! / .I. ? Ai vi: ,c,r�
STATE OF IDAHO
County or Ada ) ss:
On this .50 day of /fl .( , in the year 1995, before
aPPaa f f � �Y�� • � � , notary public, personally
�� a_� ;} , known or identified to me to
be the y , , n ;fyrlr.,�: of WAREMART, INC., the Corporation that
executed the instrument or the person who executed the instrument .
on behalf of said corporation, and acknowledged to me that such
corporation executed the same.
IN WITNESS WHEREOF, I have Hereunto set my hand and affixed
my official seal the day and year in this certificate first above
written.
Notary Public for FIda}�d
Residing at Q41 G :e.;4✓
My Commission rxpl i P7
- 17 -
JAN.12'96 15:36 FR VINSON AND ELKINS 214 220 7716 TO 91708250400B P.19/23
1
c.
PETsMART,- INC.,
a Delaware corporation
By 421;;;Jai; .
Its 6 /Jc 4
STATE OF _ r_ ) .
) ss:
• County of �':vpcL )
On this C9 day of /-41( in the year 1995, before
me, ,r'J Arta , notary public, personally
appeared • .... «,L ,. known or identified to me to
be the ,,a - °,I; . of PETs -T, INC., the corporation that
executed the instrument or the person who executed the instrument
• on behalf of said corporation, and acknowledged to me that such
corporation executed the same. -
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above
`mitten. •
/ �
• �r��:r� ��� • - ''"Public .
% . r ci r.�' r fr ✓lr
S c `` ! ' "OFFICIAL SEAL" Residing at
Lari E. Geri My Commission Expires c ---2/5/91
\ , � Pub Corn rizana
Marico
�' My Comm"inion Expke 2,1199
• — 18
a
JAN 12'96 15:37 FR VINSON AND ELKINS 214 220 7716 TO 917062504006 P.20/23
."
150Y WHEELES
STATE OF HAWAII
ss:
County of t p {L,4)j,t )
On this a73 day of March, in the year 1995, before tae,
A?1tD , notary public, personally appeared
DOYLE WHEELES, known or identified to me to be the persons who
executed the instrument, and acknowledged to me that they
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above
written.
)1144,42,4‘..P
Notary Public for Hayaii 1
Residing at G�31/d !6►? urk
My Commission Expires (.07/97
• - 19 -
•
JAN 12'96 15:37 FR UINSON AND ELKINS 214 220 7716 TO 917082504006 P.21'23
•
•
MARK LURIA
On this -ZS day of March, in the year 1995, before me,
//I n% �Q/[ A notary public, personally appeared
MARK LVRIA, known or identified to to be the person who
executed the instrument, and acknowledged to me that he executed
the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed .
my official seal the day and year in this certificate first above
Written.
„„pay M. EHRiCH
ry public. St st New Yak G �.�,� -
No- 108735 g95
stie i Nassau �
•
Qua Residing - ats n��(�� k 6424n . o a 6424n - 'D
0,'o"tton �,><sne 30: My Commission Expires , tw�i� ` //s
SWORN this day of March 1995
AT
BEFORE ME, § Mark Luria
A Solicitor
- 20 -
JAN 1.2'96 15:37 FR VINSON AND ELKINS 214220 7716 TO 917062504 08 F. Zit
AP'ROYAL
y
WEST ONE BANK, OREGON,la state banking corporation, executes
this Third Amendment to acknowledge its approval thereof and
agrees to recognize this Third Amendment in the event it
forecloses its liens against Lot 2.
11 �.B.
WEST ONE BANK, OREGON ,/a
State Banking Corporation
BY; 4
Its • .Zr ,. 7)
4 G
•
STATE OF OREGON,
) ss.
County of Multnomah
On this 29th day of March , 1995, before me, •
Gerd Felt , a Notary Public, personally
appeared Rollin D. Watson , known or pro"e to me to be the
Vice President of WEST ONE BANK, OREGON/ the person whose
name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same on behalf of said state banking
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above
written.
OFFICIAL SEAL `:-L %6
GERD FELT
) NOTARY PuBUC.OREGON Notary Pt is ic 426 GohatEMONNO.0 7 Residing
MY COMMISSION EXPIRES MAY 6,1988 g at GGI C..f ��
COMM. Expires J& ., G i lQf
43563.02
—'21 -
JAN .-12'96 15:37 FR UINSOP AND ELKINS 214 220 7716 ZO 917062504006 F.23'23
6
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** TOTAL PAGE.023 **
9 3081054
i.. __ Washington county
WHEN RECORDED RETURN TO:
WAREMART, Inc.
c/o Richard A. Canaday
MILLER, NASH, WIENER,
HAGER & CARLSEN
3500 U.S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, OR 97204 -3699
1'4 Recorded By
Rat Rmc".=1113 Insu� of OM
5 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RECIPROCAL EASEMENT AGREEMENT
THIS DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT (this "Declaration ")
is made as of August 3D , 1993, by SUPERVALU HOLDINGS, INC. ( "SUPERVALU "),
an Ohio corporation, and PETsMART, INC. ( "PETsMART"), a Delaware corporation.
RECITALS
A. SUPERVALU is the owner of the real property (the "Property ") in the
City of Tigard, Washington County, Oregon, which is described on the property description
attached hereto as Exhibit A and incorporated herein by this reference.
B. SUPERVALU has entered into a purchase agreement dated
January _, 1993 (the " Waremart Purchase Agreement "), with Waremart, Inc., an Idaho
corporation ( "Waremart"), in which SUPERVALU agreed to sell the Property to Waremart
and Waremart agreed to purchase the Property from SUPERVALU on the terms and
conditions contained therein.
C. SUPERVALU has entered into a separate purchase agreement dated
as of January 31, 1993 with Waremart and PETsMART (the "PETsMART Purchase
Agreement ") under which SUPERVALU will sell, Waremart will partially develop, and
PETsMART will purchase directly from SUPERVALU a portion of the Property referred
to herein as Lot 2, a/k/a Retail . B.
D. Waremart has obtained permission from the City of Tigard to develop
the Property as a shopping center and is proceeding to adjust the lot lines of the parcels
constituting the Property into three lots, to develop such lots for retail commercial uses, and
GKS/CC51809.A
45421 -58
•
r `
•
intends to hereafter further partition or divide the parcel designated as "Lot 1" on the
attached Site Plan into three parcels, to create a total of five lots.
E. SUPERVALU" and PETsMART (collectively the "Declarants ") have
agreed that the value and utility of each Lot and all of the Property would be enhanced by
reason of covenants, conditions and restrictions governing, among other things, reciprocal
access, sign usage, parking, pedestrian access, maintenance of parking lots, landscaping and
building exteriors, and types of use, and now desire to make and enter into this Declaration
for the benefit of themselves, Waremart (as the buyer under the Waremart Purchase
Agreement) and the Property.
NOW, THEREFORE, Declarants hereby declare that the following covenants,
conditions and restrictions, including easements will govern the use and enjoyment of the
Property and benefit, burden and be appurtenant to the Lots and each of them, and any
other portion of the Property which may be subjected to these Restrictions by a
Supplemental Declaration as defined below.
L PRELIMINARY TERMS AND CONDITIONS
1.01. Definitions.
(a) "Benefitted Lot" means a Lot which is benefitted by the
easements and rights hereinafter set forth and constitutes the dominant estate.
(b) "Burdened Lot" means a Lot which is burdened by the easements
and rights hereinafter set forth and constitutes the servient estate.
(c) "Building" means all structures hereafter installed or constructed
on any Lot.
(d) "Building Area" means all those areas on each Lot located within •
the "Building Area" or "Building Envelope Line" shown on the site plan ( "Site Plan ")
attached hereto as Exhibit B and incorporated herein by this reference, together with those
portions of the Expansion Area which are from time to time covered by a building or other
. commercial structure.
(e) "Common Area" means all those areas on each Lot which are
not. Building Area together with those portions of the Building Area on each Lot which are
not from time to time actually covered by a building or other commercial structure or which
cannot under the terms of this Declaration be used for buildings. Canopies which extend
over the Common Area, together with any columns or posts supporting same, shall be
deemed to be a part of the building to which they are attached and not a part of the
Common Area.
GOCC:51809A
4342148 -2-
f t
(f) "Consenting Owners" means the Owners of Lots 1, 2 and 3 and
their respective heirs, successors and assigns.
(g) "Environmental Laws" means all present and future federal, state
or local statute, ordinance, regulation, rule, guideline, decision or order governing the
generation, storage, release, discharge, transportation, removal, remediation, reduction or
disposal of hazardous or toxic materials such as, without limitation, the Resource
Conservation and Recovery Act (RCRA, 42 U.S.C. § 6901 11 , the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA, 42 U.S.C. § 9601 ei
sgg as amended, the Toxic Substance Control Act (TSCA, 15 U.S.C. § 2601 gt deg.,), the
Emergency Planning and Community Right -to -Know Act of 1986 (EPCRTKA, 42 U.S.C.
§ 11001 at seq.), the. Safe Drinking Water Act, (42 U.S.C. § 300f, It may), the Clean Water
Act, (33 U.S.C. § 1251, el oa the Clean Air Act, (42 U.S.C. § 7401, gt ems), the Pollution
Prevention Act of 1990, (42 U.S.C. § 13101, gl, the Hazardous Materials
Transportation Act, (49 U.S.C. § 1801, It seg or any similar laws of the State of Oregon
regulating Environmental Pollutants or underground storage tanks, and any and all
amendments, supplements, modifications and replacements thereof.
(h) "Expansion Area" means all those areas of the Property located
outside of Lots 1 through 3 inclusive.
(i) "Floor Area" or "Gross Floor Area" means the area computed
by measurements of the ground floor (and any additional floor or mezzanine if and to the
extent used for the display or sale of retail goods) made to and from the center of party
walls and the outside of exterior walls, excluding any portion of the Common Area located
within such dimensions and any area for loading docks, loading zone, delivery area trash
enclosure area, pallet area and vestibules which are not used for the sale or storage of retail
goods.
(j) "Hazardous Materials" means wastes, substances, mixtures,
pollutants, contaminants or other materials which are defined or classified by any
Environmental Law as hazardous, toxic or radioactive, including, whether or not so defined,
petroleum and natural gas products, polychlorinated biphenyls, radioactive materials, urea
formaldehyde foam insulation, and asbestos- containing materials.
(k) "Lienholder" means any mortgagee under a mortgage or a trustee
or beneficiary under a deed of trust constituting a lien on any Lot or Expansion Area
hereafter subjected to this Declaration.
(1) "Lot" means (i) any of the three lots (Lot 1, Lot 2 a/k/a Retail B,
and Lot 3 a/k/a Retail C, which are individually referred to as a "Lot" and collectively
referred to as the "Lots ") shown on the Site Plan and more particularly described in
Exhibit A, (ii) each portion of the Expansion Area subjected hereto by a Supplemental
GKSJCC51809A
45421 48 -3-
T
Declaration, and (iii) Lots 4 and 5 when Lot 1 is partitioned or subdivided as shown on the
Site Plan.
(m) "National Chain" means a business organization operating more
50 stores under the same trade name, such as "Osco" or "Payless."
(n) "Occupant" means and includes any Person or Persons (including
without limitation Lienholders) who shall be from time to time entitled to the use and
occupancy of space located within the Shopping Center whether by virtue of ownership or
under any lease, sublease, license or concession agreement, or other instrument or
arrangement under which such rights are acquired.
(o) "Owner" means any Person or Persons now or hereafter holding
a record ownership interest in fee in any Lot, their heirs, personal representatives , successors
and assigns, but not its Occupants (if other than the fee title holder), unless otherwise
specified herein.
(p) "Permittees" means customers, employees, licensees and business
invitees of an Owner or Occupant but does ro.t. include individuals, groups of individuals,
organizations, corporations and other legal or commercial entities who engage in activities
such as exhibiting placards, signs or notices, distributing circulars, handbills, placards or
booklets, soliciting memberships or contributions, parading, picketing or demonstrating or
otherwise failing to follow the Common Area rules and regulations contained in this
Declaration or adopted by the Consenting Owners unless such activities are clearly protected
as free expression under the Constitution of the United States.
(q) "Prime Rate" means the prime rate of interest as published daily
by the Wall Street Journal, or if such periodical shall cease to be published, its successor or
a similar publication reasonably selected and agreed upon by the Consenting Owners.
(r) "Person" means individuals, partnerships, joint ventures, firms,
associations, corporations, trusts, governmental agencies, administrative tribunals or any
other form of business or legal entity.
(s) "Prime Lessee" means an Owner of a Lot who sells said Lot to
an unaffiliated third party and thereafter enters into a net lease for said Lot with such third
party or its lessee or sublessee. Prime Lessee includes the successors and assigns of said
Prime Lessee but does not include the sublessees, licensees or concessionaires of said Prime
Lessee.
(t) "Restrictions" means the easements, covenants, conditions,
restrictions, liens and encumbrances contained in this Declaration.
GR.vccs1809.A
I5421.58 -4-
•
(u) "Service Facilities" means loading docks, trash enclosures, storage
areas and other similar service facilities.
(v) "Site Plan" means the site plan for the Lots attached hereto as
Exhibit B and incorporated herein by this reference.
(w) "Shopping Center" means the Lots collectively, plus any other
portion of the Property which may be subjected hereto by a Supplemental Declaration
hereafter.
(x) "Supplemental Declaration" means an instrument hereafter
recorded in the Office of the Washington County Recorder by the Owner(s) of any portion
of the Expansion Area which abuts any Lot which (i) purports to subject such abutting
Expansion Area to the Restrictions without reservation or exception, and which (ii) incudes
a revised Site Plan approved by the Owners of the then Shopping Center, and such approval
by the Owners shall not be unreasonably withheld or delayed. The portion of the Expansion
Area covered by any such Supplemental Declaration shall be deemed to be a "Lot" for
purposes of this Declaration.
1.02. Purpose. The Owners plan to develop the Shopping Center as an
integrated retail sales complex for the mutual benefit of all real property included within the
Shopping Center from time to time and, therefore, hereby establish the Restrictions.
II. EASEMENTS
2.01. Grant of Easements. The Owners hereby each grant to the other the
following easements for use by the Owners and their respective Occupants and Permittees,
without payment of any fee or charge except as otherwise agreed in writing between the
Owners:
2.01.1. Pedestrian Easements. Nonexclusive easements for the
purpose of pedestrian traffic between each Lot and (1) each other Lot which is contiguous
thereto; (ii) the public streets and alleys now or hereafter abutting or located on any portion
of the Shopping Center, (ii1) the parking areas now and hereafter located on the Shopping
Center, and (iv) over, upon, across and through the Common Areas; limited, however, to
those portions of each Lot which are improved by the Owner thereof from time to time for
pedestrian walkways and parking areas and made available by such Owner for general use
by the Permittees in conformity with this Declaration and the Site Plan.
2.01.2. Vehicular Easements. Nonexclusive easements for the
purpose of vehicular traffic over, upon, across and between each Lot and the public streets
and alleys now and hereafter abutting or located on any portion of the Shopping Center,
limited, however, to those portions of the Shopping Center which are improved by the
GKS/G 1809.A
45421 -3S -5-
Owner thereof from time to time for vehicular accessways in conformity with this
Declaration and the Site Plan.
2.013. Common Component Easements. Nonexclusive
easements for the purpose of furnishing connection, support and attachment to walls,
footings, foundations, slabs, roofs and other structural systems of any improvement now and
hereafter constructed on each Lot, for the encroachment of common components of
improvements and for the maintenance, repair and replacement of the same; limited,
however, to those portions of each Lot which are immediately adjacent to the Lot line and
on which an improvement is contiguous to an improvement constructed on another Lot.
Any Owner of a Benefitted Lot which desires to claim the benefit of the foregoing easement .
for common components and encroachments will be entitled to exercise such right on the
following conditions:
(a) The Owner of the Benefitted Lot will submit plans and
specifications showing the improvements proposed to be constructed on the
Benefitted Lot to the Owner of the Lot which will be burdened by the
easements hereby created for approval of such plans and specifications by the
Owner of the Burdened Lot.
(b) Approval of such plans and specifications by the Owner of the
Burdened Lot will constitute a designation of the portion of the Burdened Lot
to be used for the purposes therein described. Any approval requested shall
not be unreasonably delayed, denied or withheld.
(c) The construction of the improvements on the Benefitted Lot
shall be diligently prosecuted by the Owner of the Benefitted Lot with due
care and in accordance with sound design, engineering and construction
practices in a manner which is customary for such improvements and which
will not unreasonably interfere with the use of the Burdened Lot or the
improvements thereon or impose an unreasonable load on such improvements.
(d) The Owner of the Benefitted Lot shall indemnify, defend and
hold the Owner of the Burdened Lot harmless for, from and against all loss,
cost, expense and liability arising from or in connection with the construction,
use, maintenance, repair, replacement and removal of the improvements on
the Benefitted Lot and the exercise of the rights of the Owner of the
Benefitted Lot hereunder. When the exercise of the rights hereby granted to
the Owner of the Benefitted Lot requires entry upon the Burdened Lot or the
improvements thereon, the Owner of the Benefitted Lot shall give due regard
to the use of the Burdened Lot and the improvements thereon in the exercise
of such rights and shall promptly repair, replace or restore any and all
improvements on the Burdened Lot which are damaged or destroyed in the
exercise of such rights.
GKS/CC31809A
45421.58
CLa
2.01.4. Utility Easements. Nonexclusive casements in, across,
under, over and through those portions of the Common Area (exclusive of any portion
located within a Building Area) necessary for the installation, use, testing, connection to,
operation, maintenance, repair, replacement and removal of: water lines and systems;
telephone lines and systems; gas lines and systems; sanitary sewer lines and systems;
electrical lines and systems; storm sewers, drainage lines and systems; and other utility lines
or systems hereafter developed to serve one or more of the Lots; subject to the following
conditions:
(a) All pipes, wires, lines, conduits, mains, sewers, systems and
related equipment (hereafter called "Utility Facilities ") will be installed
underground or otherwise enclosed and will be installed, operated and
w `tea maintained in a manner which will not unreasonably interfere with the use of
the Shopping Center or improvements on which such Utility Facilities are
✓ , J ,'J located.
(b) The Owner of any Burdened Lot affected by any of such utility
easements will have the right, at any time, and from time to time, to relocate
any Utility Facilities then located on the Burdened Lot on the conditions that
(i) other than in an emergency situation, such right of relocation will be
exercisable only after 30 days' prior written notice of the intention to relocate
has been given to all Owners using the Utility Facilities to be relocated;
(ii) other than in an emergency situation, such right of relocation of any
Utility Facilities Iocated in the front of a building shall not be exercised
between October 1 and December 31 of any year, (iii) such relocation shall
not unreasonably interrupt any utility service to the improvements then
located on the Benefitted Lot(s); (iv) materials and designs are used which
equal or exceed those originally used and have been approved by the utility
company and all governmental agencies having jurisdiction; (v) such relocation
shall not reduce or unreasonably impair the usefulness or function of the
Utility Facilities to be relocated; (vi) all costs of such relocation shall be borne
by the Owner relocating the Utility Facilities; and (vii) the Owner relocating
the Utility Facilities shall, promptly following the relocation, repair and
restore the surface of the Burdened Lot and any other affected by such
relocation to its condition immediately preceding the relocation.
(c) Prior to utilizing the easement and exercising the rights granted
herein, the Owner shall first provide the other Owners with a written
statement describing the need for such easement and shall identify the
proposed location of the Utility Facilities. The initial location and width of
any utility easement shall be subject to the prior written approval of the
Owner of the Burdened Lot, such approval not to be unreasonably withheld
or delayed. The easement area shall be no larger than is necessary to
reasonably satisfy the utility company as to a public utility or five feet on each
GKSCcs1e09A
45421 -S8 -7-
side of the centerline as to a private line. Upon written request, the Owner
of the Benefitted Lot shall provide to the Owner of the Burdened Lot a copy
of an as -built survey showing the location of such Utility Facilities.
(d) Any Owner installing Utilities Facilities pursuant to the
provisions of this Section 2.01.4 shall pay all costs and expenses with respect
thereto and shall cause all work in connection therewith (including general
clean -up and proper surface and/or subsurface restoration) to be completed
as quickly as possible and in a manner so as to minimize interference with the
use of the Common Area.
(e) The Owner of a Lot benefitting from a utility easement across
another Lot shall indemnify, defend and hold harmless the Owner of the
Burdened Lot for, from and aginSt all demands, damage, claims, loss,
liability, or expense in connection with such benefitting Lot Owner's use,
installation, maintenance and removal of such Utility Facilities and easement
on the Burdened Lot.
2.01.5. Access Easements. Nonexclusive easements in accordance
with the access points and driving lanes shown on the Site Plan between each Lot and the
public streets and ways abutting or crossing any portion of the Shopping Center for the
purpose of providing ingress, egress and access to the easements hereby created and to the
Common Areas.
2.01.6. Construction Easements. Nonexclusive easements for the
purpose of constructing, renovating, repairing or remodeling the improvements on the
Shopping Center, including grading, balancing and compaction of soils and other site work
materials, reconstruction, installation, replacement, modification, care and maintenance,
provided such use of a Burdened Lot is reasonably necessary, shall be diligently prosecuted
in accordance with sound construction practices and shall not unreasonably interfere with
the use of the Burdened Lot or the improvements thereon.
2.01.7. Parking Easements.. Nonexclusive easements in and to
the parking areas for access to and use for vehicular parking purposes. Such parking
easements shall consist of at least 5.0 parking spaces for each 1,000 square feet of Gross
Floor Area on each Lot, except that such ratio shall be augmented to 10.0 parking spaces
for each 1,000 square feet of Gross Floor Area devoted to restaurant uses on any Lot. Each
Owner covenants and agrees that at all times during the term of this Declaration the parking
area and ratios shall be maintained in the general configuration set forth in the Site Plan.
Subject to the applicable requirements of any governmental agency having jurisdiction over
the Shopping Center, each Owner covenants that the widths of parking spaces, parking lanes
and parking bays shall be in accordance with the widths and dimensions shown on the Site
Plan on their respective portions of the Shopping Center, but that in any event the parking
spaces in Lots 1, 2 and 3 will be no less than 9 feet wide and 18 feet deep. The Owners
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agree to designate employee parking spaces on their respective Lots with the standard
letter "E" of such size and color as to be readily observable in daylight hours to users of the
parking areas. The Owners shall designate adequate employee parking places on their
respective Lots to serve the businesses located on their respective Lots. The Owner and/or
Occupant of each Lot shall require the Owner's employees or the employees of all
Occupants of each Lot to park only in the employee parking spaces marked with "E" on its
Lot.
2.01.8. Lighting Facilities Easement. Nonexclusive easement for
access to and use by the Owners and Occupants of each Lot to the public light poles located
adjacent to the perimeters of each Lot for installation, repair, replacement, maintenance and
removal of electrical wires, conduit, lighting fixtures and related apparatus to share the use
of such poles for lighting the Common Area on each Lot.
2.01.9. Self -Help Easements. Nonexclusive rights of entry and
easements over, across and under each Lot for all purposes reasonably necessary to enable
any other Owner of a Lot to perform any of the provisions of this Declaration which a
defaulting Owner has failed to perform.
2.01.10. Sign Easements. Non - exclusive easements under, through
and across the Common Area of each Lot for the installation, operation, maintenance,
repair and replacement of such free - standing pylon signs as are shown on the Site Plan
attached hereto or as may be erected by agreement of the Owners, including all appurtenant
Utility Facilities.
2.01.11. Surface Water: Drainage. Non- exclusive easements for
the flow of a reasonable volume of surface water to the nearest drainage catch basins,
waterways; provided, however, that (a) the easement for surface water drainage shall be
consistent with an overall surface water drainage plan for the Shopping Center, and (b)
following the construction of Common Areas and buildings on a Benefitted Lot no Owner
of the Benefitted Lot shall alter the flow of surface water onto a Burdened Lot in a manner
that would materially increase the volume, or materially decrease the purity or quality, of
surface water flowing onto the Burdened Lot
2.01.12. Consent for Wetlands Mitigation Area. A nonexclusive
easement to drain surface water to a storm water sedimentation pond and from there to a
wetlands mitigation area ( "Mitigation Area ") located on the property west of the Shopping
Center.
2.01.13. Fire and Emergency Access. A permanent and perpetual
nonexclusive easement for fire and emergency pedestrian and vehicular access to, and egress
from, the Building(s) and Common Area(s). No construction, installation or placement of
any permanent improvements shall be permitted within those portions of the Common Areas
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desigiated for such access, other than surface uuprovtgut rifts which shall not interfere with
the unimpeded ac cezez described herein.
2.02. Unimocd dd Acc . The Owners agree that no barricade or other
divider will be eonstructcd between the Lots and the Owners and Occupants will do nothing
to prohibit or discotirage the free and uninterrupted flow of vehicular or pedeian traffic
throughout the Shopping Center in the areas desiplrated for such purpose on the Site Plan;
provided that each Owner will have the right to temporarily erect barriers to avoid the
possibility of dedicating such areas for public use or creating prescriptive rights herein;
provided that no barricade shall impair access to another Owner's Lot Notwithstanding
anything contained herein to the contrary, nothing in this paragraph shall prohibit (a) the
Owners or Occupants of Lots 1, 2 and 3 from (i) conducting sales of products, such as
coffee, espresso, hot dogs and the lac, from moveable carts located on sidewalks and under
canopies on such Owner's or Occupants Lot, (ii) installing or maintaining a video cassetre
collection box in the parking area on their respective Lots, or (iii) using small parm of the
Common Area for the return of shopping carts; (b) the Owners or Occupants of Lots 1 and
2 from () conducting up to three (3) sidewalk sales of no more than seven (7) days each on
the Common Area which is immediately in front of the building on their respective Lot$, and
(ii) erecting a tent for the sale of merchandise in the Common Area on their respective Lots,
subject to the following limitations: (A) such rent shall be used only during a single period
in the Spring of each calendar year, such annual period not to exceed twelve (12) weeks, (B)
such tent shalt not interfere with any driveway in the Common Area, and shall cover no
more than ten (10) parking spaces, and (C) any such tent on Lot 1 shall be placed not closer
than 150 feet from PETsMARTs building on Lot 2; and (c) the Owner or Occupant of Lot
1 from (i) selling fireworks from a temporary stand located on Lot 1 and at Ieast 300 feet
from PETsMA.RTs bur7ding on Lot 2 for a period of approximately twenty (20) days before
July 4 each year.
203. Easements Appurtenant Each and all of the easements and rights
granted or created herein are appurtenanc-cs to the affected portions of the Shopping Center
and none of the easements and tights may be transferred, assigned or encumbered =wept
as an appurtenance to such portions For the purposes of such easements and rights, the
Particular areas of the Shopping Center which are benefitted by such easements shall
constitute the dominant estate, and the particular areas of the Shopping Center which are
burdened by sack easements and rights shall constitute the servient estate-
2-04. Mature and Effect of Easemeng Each and all of the easements,
covenants, restrictions and provisions contained in this Declaration_
(a) Are made for the direr mutual and reciprocal benefit of the
Owners and Occupants of the respective Lott;
(b) Create mutual equitable servitudes upon each Lot in favor of
the other Lot%
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(c) Constitute covenants running with the land; and
(d) Shall bind every Person having any fee, leasehold or other
interest in any portion of the Shopping Center at any time or from time to
time to the extent that such portion is affected or bound by the easement,
covenant, restriction, or provision in question, or to the extent that such
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easement, covenant, restriction or provision is to be performed on such
portion.
2.05. Transfer of Title. The recording or acceptance of any document
transferring or conveying fee tide to all or any part of or any interest in any Lot shall be
deemed to be the enforceable agreement of the grantee to use, occupy or allow any
Occupant of such Lot to use or occupy the Lot only in accordance with the terms and
conditions of this Declaration; provided, however, that when a grantee is a Lienholder, no
personal liability or responsibility shall be deemed to be assumed by such Lienholder until
and unless such Lienholder actually takes possession of a Lot in connection with a mortgage
foreclosure action, including without limitation acceptance of a deed in lieu of foreclosure.
III. BUILDING AND COMMON AREA DEVELOPMENT
3.01. Building Location and Timing. All buildings and other structures
(except those permitted in Section 3.02 below) shall be placed or constructed upon the Lots
only in the Building Areas; provided, however, that canopies, eaves and roof overhangs
(including columns or posts supporting same), normal foundations, utility cabinets and
meters, signs and doors for ingress and egress may project from the Building Area into the
Common Area. All Building Areas in the Shopping Center on which buildings are not
completed or under construction on the date the first Owner or Occupant opens for business
on a Lot shall be covered by grass, gravel or a one inch asphalt dust cap and shall be kept
mowed, weed free and clean at the Owner's sole expense until such time as buildings are
constructed thereon.
3.02. Common Area. The Common Area is hereby reserved for the sole and
exclusive use of all Owners, their Occupants, contractors, employees, agents, customers,
licensees and invitees and the subtenants, contractors, employees, agents, customers,
Iicensees and invitees of such Persons. The Common Area may be used for vehicular
driving, parking (except that there shall be no multi-level parking except upon approval of
the Consenting Owners, which approval may be granted or withheld in their sole discretion),
pedestrian traffic, directional signs, sidewalks, walkways, landscaping, perimeter walls and
fences, parking lot lighting, Utility Facilities and Service Facilities and for no other purpose
unless otherwise specifically provided in this Declaration. No buildings or structures not
shown on the Site Plan shall be placed or constructed in the Common Area except for pylon
and directional signs (as provided in Section 3.03.5 below), paving, bumper guards or curbs,
landscape planters, lighting standards, Utility Facilities and sidewalks to the extent they do
not impede access to any building in the Shopping Center. The Common Area shall be
developed in accordance with the Site Plan and maintained as provided for herein. The
sizes and arrangements of the Common Area improvements shown on the Site Plan,
including, without limitation, service drives and parking areas, striping, traffic directional
arrows and signs, concrete bumps, parking lot lighting and landscaped areas, together with
necessary planting, shall not be materially changed without the prior written approval of the
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1 a
Consenting Owners. Each Owner reserves the right to use the Common Area of such
Owner's Lot for staging and temporary storage during construction of such Person's building.
3.03. Architectural Standards.
3.03.1. Elevations and Building Signage. Each building in the Shopping
Center, now and in the future, shall be of first quality construction and architecturally
designed so that its exterior elevations (including, without limitation, color) will be
architecturally and aesthetically compatible and harmonious with all other buildings in the
Shopping Center. No building may be constructed, nor the exterior of any existing building
materially changed (including, without limitation, color and finishes) without the prior
written approval of the Consenting Owners as to the exterior elevations (including, without
limitation, color and finishes) of the building to be constructed or modified. Anything in this
paragraph to the contrary notwithstanding , before the construction of any building or any
modification of an existing building which requires approval is commenced, sufficient
information shall be sent to the Consenting Owners to enable the Consenting Owners to
make a reasonable determination as to the architectural and aesthetic compatibility of said
building or modification with all other buildings in the Shopping Center. No Consenting
Owner may arbitrarily or unreasonably withhold its approval of the proposed building or
modification if it is architecturally and aesthetically compatible and harmonious with all
other buildings in the Shopping Center. Each Consenting Owner must approve or
disapprove the proposal within 30 days after receipt of a complete proposal, and, if such
Consenting Owner disapproves of a proposal, it shall provide a written explanation in
reasonable detail of its reasons for disapproval. If a Consenting Owner rejects or
disapproves the proposal and fails to provide such explanation within the 30 day period, such
Consenting Owner shall be deemed to have approved same. If the proposal is disapproved
as provided herein, then an alternate proposal may be submitted, which alternate proposal
shall be handled in the same manner as the initial or any subsequent proposal, except that
the time period for disapproval shall be shortened to 10 days. Waremart and PETsMART
each hereby approve the other's exterior elevations.
3.03.2. Fire Rating Integrity. The buildings to be constructed on Lots
1, 2, and 3 shall be Type Five - Nonrated (V -N) Construction as defined in the Uniform
Building Code of the State of Oregon. Each Owner agrees not to construct, or cause or
permit to be constructed on such Owner's Lot, any building, improvement or structure which
will impair in any manner the sprinklered fire insurance rating of the building to be
constructed on any other Lot. Any building, improvement or structure constructed on an
adjacent Lot will be constructed and maintained in such manner as to not require any
structural or non - structural modifications to the building on any other Lot. All contiguous
buildings constructed on the Shopping Center shall have an automatic sprinkler system
constructed in accordance with NFPA Standard 13, for a minimum protection level based
on ordinary hazard, group 2 occupancy (or a like successor standard). The walls at or
adjoining the property line of each Lot shall be constructed as separate walls adjoining a
property line, and shall conform to all requirements of the applicable building codes,
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including, but not limited to, the requirements of (a) fire resistive construction, (b)
prohibition on openings, and (c) parapet walls. All portions of a building shall be classified
as the same type of construction and shall be constructed only of materials allowed for the
type of construction specified.
3.03.3. Structure. No building shall be built in such a manner as to
adversely affect or threaten the structural integrity of any other building in the Shopping
Center.
3.03.4. Building Height. All buildings on Lots 1, 2 and 3 shall be single
story with mezzanine permitted and shall not exceed 31 feet in height. All other buildings
shall be single story with no mezzanine permitted and shall not exceed 22 feet in height
(including mechanical fixtures and equipment and screening for same). No mezzanine or
basement shall be used for the sale or display of merchandise.
3.03.5. Pylon or Monument Signage. Subject to governmental
approval, two free - standing signs shall be erected at the locations designated "Center Pylon
Sign" on the Site Plan. It is agreed that there shall be a shared pylon sign with Lot l's
Owner having the first choice of position for a single Occupant of Lot 1 (the "First Sign
User "), Lot 2's Owner having second choice of position for a single Occupant of Lot 2 (the
"Second Sign User "), and Lot 3's Owner having third choice of position for a single
Occupant of Lot 3 (the "Third Sign User "). If there are two pylon or monument sign
structures permitted, the second pylon or monument sign structure shall bear the sign faces
of a single Occupant of Lot 1 only and the costs of construction and maintenance of such
second sign and the easements associated therewith shall be borne by the Owner of Lot 1.
The costs of construction and operation (including utilities, maintenance, repair and
replacement) of the shared pylon structure and the easements servicing same, and the
allocations of the permitted square footage of sign fascia on the shared pylon structure, shall
be (i) 47% for the identification sign of the First Sign User, (ii) 21% for a changeable letter
sign for the sole use and benefit of the First Sign User, (iii) 16% for the identification of
the Second Sign User, and (iv) 16% for the identification of the Third Sign User. The sign
fascia on the pylon or monument sign structures ("Pylon Fascia ") shall be separately circuited
and illuminated by each Owner during the operating hours of the store on its Lot. Each
Occupant displaying a designation on a Center Pylon Sign shall supply and maintain its own
Pylon Fascia, and shall have the right to change or replace such Pylon Fascia at any time or
from time to time, and shall be responsible to assure that any change in its signage conforms
to legal requirements and does not impair or diminish the signage rights of the other
occupants displaying signage on such Center Pylon Sign structures. The design of the
Center Pylon Sign structures shall be subject to the approval of the Consenting Owners.
There shall be no other signs, except approved business identification signs on buildings
( "Building Signs ") and directional signs in the Shopping Center. All directional signs, Pylon
Fascia and Building Signs shall require the prior written approval of the Consenting Owners,
which shall not be unreasonably delayed or withheld, provided however that the standard
signs and logos of Cub Foods, PETsMART and any National Chain occupying space in the
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Shopping Center, as they may exist from time to time, are hereby approved to the extent
such signs shall conform with Cub Foods', PETsMARTs, or such National Chain's respective
current new store sign packages. Except as specifically set forth in the preceding sentence,
Building Signs shall not include any image or copy except the name of the business or
service to which they pertain. In addition, the Building Signs shall (i) employ no letters
which exceed ten feet (10') in height for the Owners or Occupants of Lots 1, 2 and 3 so long
as they are occupying more than twenty -four thousand (24,000) or more contiguous square
feet of Gross Floor Area, or five feet (5') in height for Owners or Occupants occupying less
than twenty -four thousand (24,000) contiguous square feet of Gross Floor Area, nor shall
the length thereof exceed seventy percent (70 %) of the store frontage of any such Owner
or Occupant, (ii) be composed of individual pan channel letters, and not painted letters or
single can and sign fascia, (iii) be internally illuminated if illuminated at all, (iv) utilize no
flashing, moving or audible lights or appurtenances, and (v) not extend or protrude above
the top of the building roof or parapet, nor be mounted to the roof, penthouse walls, or
screening. The Consenting Owners shall have the right to promulgate, modify and enforce
such sign criteria for the Shopping Center as they, in the reasonable exercise of their sole
discretion, shall deem necessary to promote and/or preserve the Shopping Center's character
as a first -class shopping center. Notwithstanding anything contained herein to the contrary,
the Owners or Occupants of Lots 1, 2 and 3 may from time to time hang or display banners
or other temporary signage on or about the exterior of their respective Buildings or on the
interior or exterior glass surfaces of the windows and doors thereof.
3.04. Construction Requirements.
3.04.1. No Interference. All work performed in the construction,
maintenance, repair, replacement, alteration or expansion of any building, sign or Common
Area improvements located in the Shopping Center shall be effected in compliance with all
applicable laws, codes, ordinances, permits, rules and regulations as expeditiously as possible
and in such a manner as not to unreasonably interfere, obstruct or delay (i) access to or
from the Shopping Center, or any part thereof, to or from any public right -of -way, (ii)
customer vehicular parking in that portion of the improved Common Area located in front
of any building constructed in the Shopping Center, or (iii) the receiving of merchandise by
any business in the Shopping Center including, without limitation, access to the Service
Facilities. The Owner or Occupant undertaking such work shall take all necessary measures
to minimize any disruption or inconvenience caused by such work to the other Owners or
Occupants of the affected portions of the Shopping Center, and shall make adequate
provisions for the safety and convenience of all Owners, Occupants and Permittees in the
Shopping Center. Dust, noise and other effects of such work shall be controlled by the
Owner or Occupant undertaking the work, using the best accepted methods customarily
utilized in order to control such deleterious effects associated with construction projects in
a populated or developed area. The Owner or Occupant undertaking such work shall repair,
at its own cost and expense, any and all damage caused by such work and shall restore the
affected portion of the Lot upon which such work is performed to a condition equal to or
better than the condition existing prior to beginning such work. All such work shall be
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undertaken only after giving the Owners 30 days' prior written notice of the work to be
undertaken, the scope, nature and extent of the work, the duration of the work, and the area
in which the work is to be performed. Such notice shall include any plans or specifications
for the work which is to be accomplished on the affected Lot. Staging for the construction,
replacement, alteration or expansion of any building, sign or Common Area improvements
located in the Shopping Center including, without limitation, the location of any temporary
buildings or construction sheds, the storage of building materials, and the parking of
construction vehicles and equipment shall be limited to that portion of the Shopping Center
• approved in writing by the Consenting Owners unless such staging occurs only on the Lot
owned by the Person causing such work to be done and does not significantly interfere with
• the access rights granted herein. Unless otherwise specifically stated herein, the person
contracting for the performance of such work shall, at its sole cost and expense, promptly
repair and restore or cause to be promptly repaired and restored to its prior condition all
Buildings, signs and Common Area improvements damaged or destroyed in the performance
of such work.
3.04.2. Mechanic's or Construction Liens. If, because of any act
or omission (or alleged act or omission) of any Owner or Occupant, any mechanic's or
construction lien shall be filed with respect to any portion of the Shopping Center (whether
or not such lien is valid or enforceable as such), such Owner or Occupant shall cause same
to be discharged of record, or bonded, with respect to such portion of the Shopping Center
not owned by such Owner, within thirty (30) days after the filing thereof; and such Owner
and Occupant shall defend, indemnify and save harmless all Owners, all Occupants, all
ground and underlying lessors and all Lienholders with respect to any portion of the
Shopping Center for, from and against all costs, liabilities, suits, penalties, claims and
demands, including reasonable attorneys' fees resulting therefrom. If such Owner fails to
comply with the foregoing, any other. Owner shall have the option of discharging or bonding
any such lien, and if such option is exercised, the Owner whose act or omission (or alleged
act or omission) gave rise to the lien shall reimburse the Owner who discharged or bonded
such Iien for all costs, expenses, and other sums of money (including reasonable attorneys'
fees and costs and an administrative fee equal to 15% of the lien discharged or bonded) in
connection therewith promptly upon demand and such Owner shall have all rights with
respect to the amounts owed to it which are available at law, in equity or under this
Declaration.
3.043. Permitted Encroachments. The parties acknowledge and
agree that incidental encroachments upon the Common Area may occur as a result of the
use of ladders, scaffolds, store front barricades and similar facilities in connection with the
construction, maintenance, repair, replacement, alteration or expansion of buildings, signs
and Common Area improvements located in the Shopping Center, all of which are permitted
hereunder so long as all activities requiring the use of such facilities are expeditiously
pursued to completion and are performed in such a manner as to minimize any interference
with use of the improved Common Area or with the normal operation of any business in the
Shopping Center.
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3.04.4. Restriction on Construction Activities. After completion
of the initial construction of the buildings and improvements on the Shopping Center it is
agreed that, except for emergencies, the work required by the next following paragraph, or
upon the written approval of the Consenting Owners, there shall be no construction activities
in the Common Area from October 1 through December 31 of each year. Nothing
contained herein shall be deemed to prevent or prohibit the performance of Common Area
maintenance under Article IV of this Declaration.
3.05. Casualty and Condemnation. In the event all or any portion of any
structure in the Shopping Center is damaged or destroyed as a result of casualty, or is taken
or damaged as a result of condemnation (or transfer in lieu thereof) the Owner of the Lot
upon which such structure is located shall immediately repair and replace the damaged
portions of such structure or, in lieu thereof (except in the case of Common Area
structures), shall remove or cause to be removed the damaged portion of such building(s)
together with all rubble and debris related thereto, and except as otherwise provided in
Article VIII, the vacant Building Area shall thereafter be maintained as provided in Section
3.01 until buildings are again placed thereon.
IV. MAINTENANCE OF BUILDING AND COMMON AREAS
4.01. Building Maintenance. Each Owner shall maintain or cause to be
maintained (i) the exterior of any Building located on such Owner's Lot(s) in a quality and
condition comparable to that of first class shopping centers of comparable size and nature
located in the same metropolitan area as the Shopping Center, and (ii) all Service Facilities
screened from view from the parking areas, except those Service Facilities which face areas
not typically seen or used by customers of the Owners and Occupants of the Shopping
Center.
4.02. Common Area Maintenance. Each Owner shall maintain or cause to
be maintained its Lot in accordance with the standard set forth for buildings in Section 4.01
above and all applicable laws. Such maintenance shall include, but shall not be limited to:
(a) Maintenance, repair and replacement of the surface and
subsurface of sidewalks, parking lots and driveways situated on the Common
Area to maintain it level, smooth and evenly covered with the type of
materials originally constructed thereon or such substitutes as will in all
respects be equal to such materials in quality, appearance and durability;
(b) Maintenance and care of all grass, shrubs and landscaping,
including, but not limited to, the fertilizing, watering, mowing and trimming
thereof and maintaining, repairing and replacing (when necessary) automatic
sprinkler systems and water lines;
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(c) Removal from the Common Areas of papers, debris, ice, snow,
refuse and other hazards to Persons using the Common Areas, and washing
or thoroughly sweeping paved areas as required;
(d) Maintenance of such appropriate vehicular entrance, exit and
directional signs, markers and lights as will be reasonably permitted or
required from time to tirne;
(e) Such painting and repainting as may be required to maintain the
Common Area and equipment installed thereon in high quality condition.
The Owners shall coordinate any parking lot resurfacing or striping so that the
parking lot retains its appearance as an integrated common parking lot;
•
(f) Maintenance, repair and replacement of the Common Area
lighting facilities, walls, storm drains, sewer lines and other utility lines and
facilities and all other portions of the Common Area in an attractive,
serviceable and functional condition;
(g) After completion of construction, each Owner covenants and
agrees to maintain and keep the building improvements, including any allowed
video collection box and reclamation area, if any, located on its Lot in a
first - class, good, clean condition and state of repair, in compliance with all
governmental laws, rules, regulations, orders and ordinances exercising
jurisdiction thereover, and in compliance with the provisions of this
Declaration and the Site PIan. Each Owner further agrees to store all trash
and garbage in adequate containers, to locate such containers so that they are
not visible from the front of the parking area, and to arrange for regular
removal of such trash or garbage; and
(h) Keeping the Common Areas free of any other obstructions
except those permitted by this Declaration.
4.03. Failure to Properly Maintain. In the event that any Owner or Occupant
shall fail to properly maintain the exterior of its Building or that portion of the Common
Area which is located on its Lot or otherwise defaults in the performance of any of its
obligations under this Declaration (such Owner or Occupant being herein referred to as the
"Defaulting Party"), any other Owner (hereinafter referred to as the "Nondefaulting Party")
may send written notice of such failure to the Defaulting Party. Such notice shall contain
an itemized statement of the specific deficiencies (hereinafter referred to as the
"Deficiencies ") in the Defaulting Party's performance of the obligations to be , performed by
it. Except for emergency situations, the Defaulting Party shall have 10 days after receipt of
the said notice in which to correct the Deficiencies or in which to commence to correct the
Deficiencies if the Deficiencies cannot be corrected within the said 10 day period, and
thereafter, to proceed diligently to complete the correction of the Deficiencies. An
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"emergency situation" is a situation which threatens access to a Lot or threatens immediate
substantial loss or damage to real or personal property or any personal injury or death to
persons. In the event that the Defaulting Party shall unreasonably fail or refuse to timely
correct or to begin to correct the Deficiencies, as the, case may be, the Nondefaulting Party
may, at its option, correct the Deficiencies. In the event that the Nondefaulting Party shall
exercise the said option and shall correct the Deficiencies, the Defaulting Party shall,
promptly upon receipt from the Nondefaulting Party of an itemized invoice for the costs
incurred by the Nondefaulting Party in correcting the Deficiencies, pay all costs to the
Nondefaulting Party plus interest thereon at the Prime Rate plus 6% per annum until paid.
4.04. Maintenance of Easement Areas. Except to the extent that such areas
might be operated and maintained by public authorities or utilities, the Owner of each
Burdened Lot will operate and maintain or cause to be operated and maintained all of the
areas of the Burdened Lot which are subject to the pedestrian and vehicular easements
created by Sections 2.01.1 and 2.01.2 of this Agreement in sound structural and operating
condition at the sole expense of the Owner of the Burdened Lot. The operation and
maintenance of the common component and encroachment easements created by Section
2.01.3 of this Agreement and the payment of the expenses associated therewith will be
governed by the terms of Section 2.01.3 in the absence of specific agreement between the
Owners of the Benefitted Lot and the Burdened Lot. The Owner of each Burdened Lot
pursuant to Section 2.01.4 will operate and maintain all Utility Facilities located within the
boundaries of such Burdened Lot in sound structural and operating condition (except to the
extent that such operation and maintenance is performed by public authorities or utilities)
and any expenses occasioned thereby will be borne by the Owners of all Lots in the ratio
which the Gross Floor Area of the improvements located on each Lot bears to the total
Gross Floor Area of the improvements located on all Lots; provided, however, that except
as otherwise set forth in Article 4.05 below, each Owner will pay all costs associated with
the operation and maintenance of Utility Facilities and the consumption of utility services
which relate solely to the improvements located on a single Lot and no other Owner will
have any liability with respect thereto. No costs of operation and maintenance are
associated with the easements provided by Section 2.01.5. The costs of operation and
maintenance of the easements provided by Section 2.01.6 shall be borne by the Owner of
the Benefitted Lot. The costs of operation and maintenance of the easements provided by
Section 2.01.7 shall be borne by the Owner of the Burdened Lot. The cost of operation and
maintenance of the easements provided by Section 2.01.8 shall be borne by the Owners of
the Benefitted Lot(s). The cost of the operation and maintenance of the easements
provided by Section 2.01.9 shall be borne by the Owner(s) of the Benefitted Lot(s) unless
a default of the owner of the Burdened Lot(s) caused the use of the easement. The cost
of operation and maintenance of the easement provided by Sections 2.01.10 shall be borne
as provided in Section 3.033 the cost of operation and maintenance of the easement
provided by Sections 2.01.11 shall be borne as provided in Section 4.07, and the cost of
operation and maintenance of the easement provided by Sections 2.01.12 and 2.01.13 shall
be borne by the Owners of the Burdened Lots.
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4.05. parking Lot Lighting. The Owners agree that they will cause the
parking lot and driveways on their Lots to be fully illuminated for the minimum time periods
set forth below:
Date (each year) Hours of parking lot lighting
January 1 - October 31 One -half hour before sunset until 10:00 p.m.
November 1 - December 31 One -half hour before sunset until midnight
Between the hours when the parking lot is not required to be fully illuminated and sunrise
on the next day, the parking lot shall be illuminated at the greater of (i) 20% of full
illumination, or (ii) the minimum lighting level required by City authorities for security
purposes. The Owner of any Lot may request the Owner of any other Lot to extend the
hours of full illumination of the parking lot beyond the times set forth above. In the event
of such request, such hours of illumination shall be extended as requested and the Owner(s)
who make such request shall be solely responsible for all additional utility charges incurred
for the extended hours of full illumination. The additional utility charges shall be promptly
paid upon invoice therefor.
4.06. Taxes. The Owners of each Lot shall pay or cause to be paid all real
estate taxes and special assessments which are levied against that portion of the Common
Area on its Lot prior to delinquency of such taxes or special assessments.
4.07. Maintenance of Wetlands Mitigation Facilities. The Owners
acknowledge that the Mitigation Area will be constructed and hereafter maintained in
connection with the development of the Shopping Center and the Property. The Owner of
Lot 1 shall perform all required monitoring, maintenance and repair with respect to the
Mitigation Area and the facilities relating thereto, and all costs therefor after the initial
construction and establishment thereof, shall be paid by the Owners in the ratio which the
Gross Floor Area of the Buildings located on each Lot or Expansion Area bears to the total
Gross Floor Area of the improvements located on all Lots, except that the total liability of
Lots 2 and 3 and the Owner or Occupants thereof in connection with any Mitigation Area
shall not exceed Two Hundred Dollars ($200.00) per calendar year per Lot.
V. ENFORCEMENT - INJUNCTIVE RELIEF
5.01. Remedies. Without limiting any other rights or remedies available at
law, in equity or under this Declaration, in the event any Owner, Occupant or any Permittee
of any part of the Shopping Center violates or threatens to violate any of the terms,
restrictions or covenants required to be performed by any such person or entity, or violates
or threatens to violate any restriction or condition set forth herein binding on such person
or entity, then any other Owner shall have, in addition to the right to collect damages, the
right to enjoin such violation or threatened violation in a court of competent jurisdiction.
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•
5.02. Notice. Except in emergency situations an Owner will not be in default
under this Declaration unless such party shall have been served with a written notice
specifying the default and shall fail to cure such default within 10 business days after receipt
of such notice (or such longer period as may be required under any of the provisions of this
Declaration), or shall fail to commence to cure the default within such period of time if the
default cannot be cured within the said 10 day (or longer) period, and thereafter, to proceed
diligently to complete the curing of the default.
5.03. Breach Does Not Affect Declaration. It is expressly agreed that no
breach of this Declaration shall entitle any party to cancel, rescind or otherwise terminate
this Declaration, but this limitation shall not affect, in any manner, any other rights or
remedies which the parties may have by reason of any breach of this Declaration. Any
breach of this Declaration shall not defeat or render invalid the lien of any mortgage or
deed of trust made in good faith for value, but this Declaration shall be binding upon and
be effective against any Owner whose title is acquired by foreclosure, trustee's sale or
otherwise.
VI. RESTRICTIONS ON DEVELOPMENT AND USE
6.01. Site Plan. It is agreed that the Shopping Center shall be developed and
utilized consistently with the Site Plan. No Owner or Occupant shall construct or permit to
be constructed on such Owner's Lot any buildings or structures of any kind, except in the
areas designated therefor on the Site Plan. No party shall make material changes to the
Common Areas on its Lot, including, without limitation, changes to the parking spaces,
driveways and footways in the Common Areas, the entrances and exits of the Common
Areas, the lighting system servicing the Common Areas and the traffic flow pattern of the
Common Areas from the layout thereof shown upon the Site Plan without the approval of
the Consenting Owners, which approvals may be withheld in each Consenting Owner's sole
discretion. If any highway median strip break or cross -over now existing near the Shopping
Center shall be relocated, or if the installation of a highway median strip hereafter shall
include a break or cross -over near the Shopping Center, then the Owners shall make such
relocation of the vehicular entrances, exits and driveways of the Shopping Center and such
changes in the traffic flow pattern of the Shopping Center as shall be reasonably necessary
to conform the same to the new median strip break or cross -over.
6.02. Supermarket Use Restriction. For so long as Lot 1 is being used or has
during the immediately preceding twelve (12) months been used for the operation of a
supermarket, no portion of the Shopping Center, other than Lot 1, shall be used as a
supermarket (which is hereby defined to mean any store, bakery, or delicatessen, engaging
in the sale of fresh or frozen meat, poultry, fish or produce for primarily off - premises
preparation or consumption or otherwise primarily devoted to the retail sale of food for
off- premises preparation and consumption). Notwithstanding the foregoing, nothing herein
shall prevent or prohibit the Building on Lot 2 from being leased, occupied or used as a
Gxsrce318O9.A -20-
45421-58
general merchandise discount department store, or for the retail sale of pet foods, products
and services as more fully set forth in Section 6.03 below, or for any other lawful retail use
provided, however, that for so long as Lot 1 is being used or has during the immediately
preceding twelve (12) months been soused for the operation of a supermarket, no more
than 5% of the Gross Floor Area of each other store in the Shopping Center shall be
devoted to the sale of food (not including pet food) for off- premises preparation and
consumption, Da_per, and soap and cleaning products as reasonably demonstrated by records
maintained by sucfi store, which records shall be made available to the Owner of Lot 1 in
a timely and reasonable manner upon written request. So long as Lot 1 is being used for
the operation of a supermarket or has been so used within the preceding twelve (12)
months, this restriction may be waived solely by the Owner of Lot 1 in writing by an
instrument recorded in the Office of the Washington County Recorder. The twelve (12)
month period referred to in this Section 6.02 shall not include any period during which the
particular use lapses due to damage, destruction, condemnation, or remodeling of the
building on Lot 1 so long as the Owner thereof diligently proceeds with such repair and
restoration of such building reasonably calculated to permit resumption of such use.
6.03. PETsMART Use Restriction. As long as the Lot 2 is used by
PETsMART or any tenant, assignee or successor of PETsMART to conduct any part of
PETsMARTs Primary Business, all other Owners and Occupants in the Shopping Center
shall be prohibited from engaging in any part of PETsMARTs Primary Business, except that
the Owner or Occupant of Lots 1 and 3 shall have the right to engage in sales of products
which are included within the definition of PETsMARTs Primary Business, so long as no
more than 10% of the Gross Floor Area on each of Lots 1 and 3 shall be devoted to the
sale of such products as reasonably demonstrated by records maintained by such Owners or
their Occupants, which records shall be made available to the Owner of Lot 2 in a timely
and reasonable manner upon written request. As used herein, " PETsMARTs Primary
Business" shall mean retail sales of pets (including but not limited to fish, birds, reptiles,
dogs, cats and other small mammals), pet grooming, veterinary and other pet services, pet
food, pet accessories and other pet products.
6.04. Size Restrictions. The aggregate Gross Floor Area of all restaurants
located on the Shopping Center shall not exceed 7,500 square feet, and the aggregate Gross
Floor Area of all professional and business offices, if any, located on the Shopping Center
shall not exceed 5,000 square feet. Further, there shall be no "drive- through" structures
Located on the Shopping Center without the prior written approval of the Consenting
Owners, which approval shall not be unreasonably withheld or delayed, provided that such
a structure may be located on the Shopping Center in connection with the operation of an
office or branch of a financial institution with the prior written approval of the Owner of
Lot 2, as to the location of the structure, which approval shall not be unreasonably withheld
or delayed. It is agreed that at least one basis for the withholding of approval shall be that
the stacking lane(s) or points of ingress and egress requested would unreasonably impede
ingress and egress to the Shopping Center or unreasonably construct or congest the flow of
vehicular traffic within the Shopping Center. Any failure to respond for a request for
cxs01809a
45421.58 -21-
•
approval of a drive - through area within fifteen (15) days shall be deemed consent to the
proposal.
6.05. Prohibited Uses. No use or operation shall be made, conducted or
permitted on or with respect to all or any part of the Shopping Center, which use or
operation is obnoxious to, or out of harmony with, the development or operation of a
first -class shopping center, including but not limited to, the following:
(a) Any public or private nuisance.
(b) Any noise or sound that is objectionable due to intermittence,
beat, frequency, shrillness or loudness.
(c) Any excessive quantity of dust, dirt, or fly ash; provided,
however, this prohibition shall not preclude the sale of soils, fertilizers, or
other garden materials or building materials in containers if incident to the
operation of a supermarket, home improvement or other similar store.
(d) Any fire, explosion or other damaging or inherently dangerous
hazard, including without limitation the storage, display or sale of explosives.
(e) Any assembly, manufacture, distillation, refining, smelting,
agriculture or mining operations.
(f) Any mobile home or trailer court, labor camp, junkyard, stock
yard or animal raising. Notwithstanding the foregoing, pet shops and
veterinary care facilities shall be permitted within the Shopping Center.
(g) Any drilling for and/or removal of subsurface substances.
(h) Any dumping of garbage or refuse, other than in enclosed,
covered receptacles intended for such purpose.
(i) Any car washing or automobile service establishment.
(j) Any commercial laundry or dry- cleaning plant; provided,
however, this prohibition shall not be applicable to any premises containing
2500 square feet of Gross Floor Area or less if oriented to pick up and
delivery by the ultimate consumer and there are only nominal on -site
supporting facilities.
(k) Any coin- operated laundry facility.
(I) Any automobile body and fender repair work.
GKSlCC51809A
45421 -58 -22-
(m) Any flea market, swap meet, "thrift" store, Iiquidation outlet,
"second hand" store or "military surplus" store.
(n) Any liquor store, bar, tavern, cocktail lounge or night club.
(o) Any off -track betting facility.
(p) Any adult book store, adult video store, or adult movie house.
(q) Any facility for the repairing, renting, leasing or selling of or
displaying for the purpose of renting, leasing or selling of any boat, motor
vehicle, or trailer.
(r) Any entertainment or recreational facility including a theater,
bowling alley, skating rink, gym, dance hall, billiard or pool hall, massage
parlor, game parlor, video arcade, health spa or studio or video rental store
(except the prohibition on . the sale or rental of video products or services shall
not be applicable to Lots 1, 2 or 3).
(s) Any training or educational facility including, without limitation,
a beauty school, barber college, reading room, place of instruction, or any
other operation catering primarily to students or trainees as opposed to retail
customers.
(t) Any church, reading room or place of worship.
(u) Any kiosk or temporary structure except as otherwise expressly
permitted by this Declaration.
(v) Any living quarters, sleeping apartments or lodging rooms.
(w) Any health care facility, such as a clinic, medical office, dental
office or chiropractic office, or mortuary, but the foregoing shall not prohibit
or restrict the operation of a full - service veterinary clinic on Lot 2.
Nothing in the foregoing Restrictions shall prohibit a full- service sit -down
restaurant (i.e., a restaurant providing full- service dining) from selling alcoholic beverages
for on- premises consumption as part of its restaurant business, provided that no more than
one -third of the gross retail sales of such restaurant during any calendar month shall be
derived from the sale of alcoholic beverages, as reasonably demonstrated by records
maintained by such restaurant, which records shall be made available to the Consenting
Owners, their successors or assigns, in a timely and reasonable manner upon written request.
Nothing contained herein shall prohibit the Owners or Occupants of Lots 1, 2 and 3 from
installing and maintaining a video cassette collection box in the parking area on their Lots.
GICLCCS1809.A
45421 -58 -23-
vaIA
It is also agreed the Owners of Lots 1 and 3 shall have a right to install and maintain in the
parking area on their respective Lots a reclamation area to reclaim recyclable products and
materials not exceeding 1.0% of the parking area located on each of their respective Lots
in the area designated therefor on the Site Plan. Any Owner or Occupant installing a video
collection box or reclamation area shall, at all times, keep and maintain the same in a neat,
clean and safe condition and appearance.
6.07. Sales. Except as otherwise set forth in this Declaration (for instance,
Section 2.02) no portion of the Common Area shall be used for the sale or display of
services or merchandise.
6.08. Severability. If any term or provision of this Article VI or the
•
application of it to any Person or circumstance shall to any extent be invalid and
unenforceable, the remainder of this Article or the application of such term or provision to
Persons or circumstances, other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each such term and provision of this Article shall be valid and
shall be enforced to the full extent permitted by law.
VII. MUTUAL INDEMNIFICATION
7.01. Indemnification; Performance of Obligations under Declaration. Each
Owner and Occupant, with respect to its portion of the Shopping Center, shall indemnify,
defend and hold each other Owner and Occupant harmless for, from and against any and
all claims, demands, losses, damages, liabilities and expenses and all suits, actions and
judgments (including, but not limited to, costs and reasonable attorneys' fees) arising out of
or in any way related to (i) the failure by such indemnifying Owner or Occupant to maintain
its portion of the Shopping Center in a safe and proper condition; (ii) the performance or
non- performance of the indemnifying Owner's or Occupant's obligations under this
Declaration; and (iii) the indemnifying Owner's or Occupant's failure to comply with all
Environmental Laws and all other applicable laws, rules, regulations and requirements of all
public authorities having jurisdiction of the Shopping Center. Each Owner shall give each
other Owner prompt and timely notice of any claim made or suit or action commenced
which, in any way, could result in indemnification hereunder.
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45421.58 -24-
7.02. Indemnification: Damage or Injury. Each Owner and Occupant of each
Lot hereby agrees to indemnify, defend and hold harmless the other Owners and Occupants
for, from and against any and all liability, claims, damages, expenses (including reasonable
attorney's fees and reasonable attorney's fees on any appeal), judgments, proceedings and
causes of action, for injury to or death of any person or damage to or destruction of any
property occurring on the indemnifying Owner's or Occupant's Lot, unless caused by the
negligent or willful act or omission of the indemnified person, its tenants, subtenants, agents,
contractors or employees.
VIII. INSURANCE AND SUBROGATION
8.01. Casualty Liability Insurance. Each Owner shall obtain and maintain or
cause its Occupant(s) to obtain and maintain all risk insurance covering all of the buildings
and improvements now or hereafter located on its Lot, in an amount not less than 90% of
the full replacement cost thereof. Any Owner having a net worth greater than $25,000,000
may, or may permit an Occupant having a net worth greater than S25,000,000 to, self - insure
its obligations hereunder, but such self - insurance shall not relieve any Owner of its
obligations to the other Owners. Each Owner shall also obtain and maintain (unless
permitted to be self - insured hereunder) and cause its Occupant(s) and contractors to obtain
and maintain (unless permitted to be self - insured hereunder) comprehensive public liability
insurance covering injuries to persons and property on, in or about its Lot, with a combined
single incident coverage limit of not less than $1,500,000 with a deductible not in excess of
$100,000. Each liability policy required hereunder shall name the other Owners as
additional insureds under said policies, and shall contain such other provisions, such as
notice before termination or reduction in coverage, as may be agreed to in writing by
Consenting Owners from time to time. All such policies shall contain a waiver of the right
of subrogation. The Owners agree to periodically consult with each other with a view
toward maintaining the levels of public liability insurance coverage and deductibles in line
with contemporary levels of coverage in shopping centers of similar character, size and
location. Each Owner shall furnish or cause to be furnished to each other Owner
Certificates of Insurance reflecting this coverage upon request. In addition, whenever (a)
any loss, cost, damage or expense resulting, directly or indirectly, from fire, explosion or any
other casualty, accident or occurrence is incurred by any Owner, and (b) such Owner is
covered in whole or in part by insurance (or would be covered by such insurance were such
Owner not self - insured) with respect to such loss, cost, damage or expense, then such Owner
hereby releases each other Owner from any liability it may have on account of such loss,
cost, damage or expense.
8.02. Reconstruction. If any Owner sustains a casualty loss to the buildings
and/or Common Area on its Lot within 25 years from the date of the recording of this
; Declaration in the Office of the Washington County Recorder, that Owner agrees to
promptly repair and restore its building and the Common Area on its Lot to at least its
cxvcc518O9.A
45421.58 -25-
condition immediately preceding the loss. If any Owner sustains a casualty loss to a building
and/or Common Area on its Lot after that date, that Owner may elect either to repair and
restore its building on the Lot or raze the remaining portion of the building, remove the
debris, and maintain the area from which the building was removed as provided in
Section 3.01. Additionally, in the event an Owner ( "Non - Restoring Owner ") elects not to
restore and thereafter maintain its building and the portions of the Common Areas located
within its Lot after the expiration of such 25 -year period, then any Owner may, at its sole
expense, restore and thereafter maintain those portions of the Common Areas located within
the Non - Restoring Owner's Lot. Each Owner hereby grants to the other Owners easement
rights over such Owner's Lot in order to perform such restoration and maintenance of such
Common Areas.
IX. CONDEMNATION
9.01. Condemnation Awards. If all or any part of the Shopping Center is
condemned or taken by any duly constituted authority for a public or quasi - public use, then
that portion of the resulting award attributable to the value of any land within the Common
Areas so taken shall be payable only to the Owner thereof and no claim thereto shall be
made by any other Owner, provided, however, that all other Owners may file collateral
claims with the condemning authority, over and above the value of the land within the
Common Areas so taken, to the extent of any damage suffered by the Lots of such other
Owners resulting from the severance of the appurtenant Common Areas so condemned or
taken. The Owner of the Common Areas so condemned or taken shall promptly repair and
restore the remaining portion of the Common Areas owned by such Owner as near as
practicable to the condition of same immediately prior to such condemnation or taking and
without contribution from any other Owner. Nothing contained herein shall require any
Owner to construct other than a ground -level parking lot. If any buildings or other
improvements on a Lot are condemned or taken, then the resulting award shall first be
made available and used for repair and reconstruction of such buildings or other
improvements, and the same shall promptly be repaired and reconstructed as near as
practicable to the condition of same immediately prior to such condemnation or taking and
any amounts of the award not needed for the repair and replacement that can be reasonably
made shall be retained by and be the sole property of the Owner of the land, building or
improvement taken.
X. ENVIRONMENTAL MATTERS
10.01. Duties of Users. Except as provided in Section 10.02, neither the
Owners nor any Occupant(s) shall release, generate, use, store, dump, transport, handle or
dispose of any Hazardous Material within the Shopping Center or otherwise permit the
presence of any Hazardous Material on, under, or about the Shopping Center or transport
any Hazardous Material to or from the Shopping Center. Any such use, handling or storage
cxSCC518O9.A
45421.58 -26-
. a�
permitted under Section 10.02 shall be in accordance with all Environmental Laws and all
other applicable laws, ordinances, rules and regulations now or hereafter promulgated by any
governmental authority having jurisdiction thereof. Neither the Owners nor any Occupant(s)
shall install, operate or maintain any above, below or at grade tank, sump, pit, pond, lagoon
or other storage or treatment vessel or device on or about the Shopping Center unless plans
therefor have been submitted to and approved by the Consenting Owners pursuant to
Section 10.02 hereof. Each Owner with respect to its Lot shall immediately notify the other
Owners in writing of the following with respect to such Owner's Lot: (i) any notice of
violation or potential or alleged violation of any laws, ordinances or regulations which the
Owner shall have received from any governmental agency concerning the use, storage,
release and/or disposal of Hazardous Materials; (ii) any and all inquiry, investigation,
enforcement, cleanup, removal or other governmental or regulatory actions instituted or
threatened relating to such Lot(s); (iii) all claims made or threatened by any third party
relating to any Hazardous Materials; and (iv) any release of Hazardous Materials in a
reportable quantity on or about the Shopping Center which such Owner knows of or
reasonably believes may have occurred. Such notice shall be accompanied by copies of any
notices, inquiries or other documentation issued to the notifying Owner in connection with
such matters.
10.02. Permitted Use. Storage. Handling and Disposal of Hazardous Materials.
Notwithstanding anything contained in Section 10.01 to the contrary, any Owner, or any
Occupant or Permittee may sell, store and use products containing Hazardous Materials in,
on or about the Lot occupied by such Owner, Occupant or Permittee or the Common Areas
to the extent such products and/or equipment are incident to normal retail operations, and
are sold, stored or used in compliance with all applicable Environmental Laws. By way of
example and not limitation, such permitted materials may include paints, oils, solvents,
sealers, adhesives and finishes, fertilizers, medicines, insecticides and rodent poisons and the
like, which may be or contain Hazardous Materials, so long as such products are produced,
packaged and purchased for retail sale and generally merchandised or sold in retail outlets.
An Owner or an Occupant may also use other Hazardous Materials in connection with its
use of its Lot if such Owner or Occupant has received the other Owners' prior consent to
the same. An Owner shall not unreasonably withhold its consent provided (i) the Owner
demonstrates to other Owners' reasonable satisfaction that such Hazardous Materials (a) are
necessary or useful to the Owner's or its Occupant's business, (b) will be monitored, used,
stored, handled and disposed of in compliance with all Environmental Laws, (c) will not
endanger any persons or property and (d) will not invalidate or limit the coverage or
increase the premiums of any insurance policy affecting or covering any portion of the
Shopping Center, (ii) the Owner or Occupant provides the other Owners with such security
as may be reasonably required by the Owners to help secure such Owner's or Occupant's
performance of its obligations under Section 10.04 and (iii) such Owner or Occupant
satisfies any other requirements any other Owner may reasonably impose with respect to the
Owner's or Occupant's use of the subject Hazardous Materials.
GKS/CC51809.A
45421 -58 -27-
10.03. Cleanup of Hazardous Materials. In the event Hazardous Materials are
released within the Shopping Center in violation of any Environmental Law and such release
occurred as a direct or indirect result of an Owner's or its Occupant's or Permittee's use,
handling, storage, or transportation of such Hazardous Material, as between the Owners,
such Owner or Occupant engaged in such activity shall be solely responsible and shall be
liable for the prompt cleanup and remediation of any resulting contamination and all claims,
costs, expenses (including reasonable attorney and consultant fees) and damages, including
conse quential da mages, suffered by the other Owners, Occupants and Permittees.
XL DURATION AND TERMINATION
11.01. Duration. The easements, covenants, restrictions and other provisions
of this Declaration shall be of perpetual duration.
11.02. Amendment and Termination. This Declaration, or any easement,
covenant, restriction or undertaking contained herein, may be terminated, extended or
amended as to each of the portions of the Shopping Center only by the recording of the
appropriate document in the Office of the Washington County Recorder. This Declaration
may not be modified in any respect whatsoever or terminated, in whole or in part, except
with the consent of (i) the Consenting Owners, and (ii) the Owners and Prime Lessees of
the real property containing not less than 66% of the total square footage of Gross Floor
Area in the Shopping Center at the time of such modification or termination, and then only
by written instrument duly executed and acknowledged by the requisite Owners and Prime
Lessees and recorded in the Office of the Washington County Recorder. No modification
or termination of this Declaration shall affect the rights of any Lienholder unless such
Lienholder consents in writing to the modification or termination. Each Lot shall have only
one vote which shall be weighed based upon the percentage of the Gross Floor Area on
such Lot compared to the total Gross Floor Area in the Shopping Center.
11.03. Multiple Owners. The Owners (if consisting of more than one Person)
of each Lot shall agree among themselves and designate in writing to the Owners and Prime
Lessees of each of the other Lots a single Person who is entitled to cast the vote for that
Lot. If the Owners of any such Lot cannot agree who shall be entitled to cast the single
vote of that Lot, or if the Owners fail to designate the single Person who is entitled to cast
the vote for that Lot within thirty (30) days after receipt of request for same from any other
Owner or Prime Lessee, then that Lot shall not be entitled to vote. In the event a Lot is
not entitled to vote, its consent or approval shall not be necessary and the Gross Floor Area .
located on said Lot shall be disregarded for the purpose of computing the percentage
requirements set forth in this Section.
It
GICScC'SI809.A
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1
XII. MISCELLANEOUS
12.01. Not a Public Dedication. Nothing contained in this Declaration shall,
or shall be deemed to, constitute a gift or dedication of any portion of the Shopping Center
to the general public or for the benefit of the general public or for any public purpose
whatsoever, it being the intention of the parties that this Declaration will be strictly limited
to and for the purposes expressed herein.
12.02. Recording. A fully executed counterpart of this Declaration shall be
recorded in the Office of the Washington County Recorder.
12.03. Benefit. This Declaration shall inure to the benefit of, and be binding
upon, the parties hereto, and their respective heirs, executors, administrators,
representatives, successors and assigns.
12.04. Waiver. No waiver of any breach of any of the easements, covenants
and/or agreements herein contained shall be construed as, or constitute, a waiver of any
other breach or a waiver, acquiescence in or consent to any further or succeeding breach of
the same or any other covenant and/or agreement.
12.05. Severability. If any term or provision of this Declaration shall, to any
extent, be held invalid or unenforceable, the remaining terms and provisions of this
Declaration shall not be affected thereby, but each remaining term and provision shall be
valid and enforced to the fullest extent permitted by law.
12.06. Construction and Applicable Law. This Declaration shall be construed
and enforced in accordance with the laws of the State of Oregon. The captions contained
in this Declaration are intended only for convenience of reference and in no way define,
limit or describe the scope of this Declaration or the intent of any provision hereof.
Whenever the singular is used, the same shall include the plural and vice versa and words
of any gender shall include the other gender. It is hereby mutually acknowledged and
agreed that the provisions of this Declaration have been fully negotiated between parties of
comparable bargaining power with the assistance of counsel and shall be applied according
to the normal meaning and tenor thereof without regard to the general rule that contractual
provisions are to be construed narrowly against the party which drafted the same.
12.07. Compliance with Law. All Owners and Occupants of the Shopping
Center shall comply with all applicable laws, orders, statutes, ordinances, rules and
regulations of federal, state, county and municipal authorities having jurisdiction and with
any order relating to any business conducted by any of them which is made pursuant to law
by any public officer having due authority. An Owner shall have the right, upon giving
notice to the other Owners, to contest any obligation imposed upon such Owner pursuant
to the provisions of this Section 12.07 and to defer compliance during the pendency of such
contest, provided that (i) the failure of such Owner so to comply will not subject the other
GKS/C 1809A
45421.58 -29-
30
Owners to prosecution or criminal or civil penalty, (ii) prior to commencing any protest the
Owner shall post any bond or provide such other assurance as may be required or permitted
by law to avoid imposition of any penalty or damages or to pay any such penalty or damages
at such Owner's sole expense, and (iii) such Owner shall diligently pursue the resolution of
the alleged violation(s). All other Owners shall reasonably cooperate with such Owner in
such contest at such Owner's request and expense, and shall execute any documents
reasonably required in furtherance of such purpose.
12.08. Counterparts. This Declaration may be executed in several
counterparts, each of which shall be deemed an original.
12.09. Notices. All notices under this Declaration shall be effective if mailed
certified mail, return receipt requested, as follows (unless notice of a change of address is
given pursuant hereto):
A. If to SUPERVALU:
SUPERVALU Stores, Inc.
P.O. Box 990
Minneapolis, Minnesota 55440
Attn: Legal Department
Copy by ordinary mail to:
Alison D. Birmingham
Buck & Gordon
902 Waterfront Place
1011 Western Avenue
Seattle, Washington 98104 -1097
B. If to WAREMART:
Waremart, Inc.
P.O. Box 5756
Boise, Idaho 83705
Attn: Vice - President of Real Estate
Copy by ordinary mail to:
Richard A. Canaday
Miller, Nash, Wiener, Hager & Carlsen
3500 U.S. Bancorp Tower
111 Southwest Fifth Avenue
Portland, Oregon 97204 -3699
GKS►CC51809.A
45421.58 -30-
3 i
C. If to PETsMART:
Michael S. Manson
Vice- President of Real Estate
PETsMART, Inc.
10000 North 31st Avenue, Suite C -300
Phoenix, Arizona 85051
Copy by ordinary mail to:
James R. Huntwork
Fennemore Craig
Two North Central, Suite 2200
Phoenix, Arizona 85004
12.10. Relationship. Nothing contained in this Declaration and no act of any
Owner(s) shall be deemed or construed to create the relationship of principal and agent,
partnership, joint venture or any association between Owners, nor shall anything contained
in this Declaration or any act of any Owner be intended nor construed to render any party
liable for the debts or obligations of any other Owner.
12.11. Unavoidable Delays. The time within which a party shall be required
to perform any act under this Declaration, other than the payment of money, shall be
extended by a period of time equal to the number of days during which performance of such
act is unavoidably delayed by strikes, lockouts, acts of God, governmental restrictions, failure
or inability to secure materials or labor by reason of shortages or priority or similar
regulation or order of any governmental or regulatory body, enemy action, civil disturbance,
fire, unavoidable casualties, injunction or order of any court having jurisdiction over a party
without regard to the basis for such injunction or order or any other cause beyond the
reasonable control of such party excluding, however, the inability or failure of any party to
obtain any financing which may be necessary to carry out its obligations. Notwithstanding
the foregoing, unless within 30 days after the event giving rise to such claim shall have
occurred, the party which would be entitled to such extension shall give notice to the other
party(ies) of (i) its claim to an extension, and (ii) the reason for such claim, there shall be
excluded from the computation the number of days by which the time for performance of
the act in question shall be extended, the number of days which have elapsed between the
occurrence of such events and the actual giving of notice.
12.12. Estoppel Certificate. Each Owner shall, from time to time, upon not
less than 20 days written notice from any other Owner, execute and deliver to such other
Owner a certificate (in recordable form) stating that this Declaration is unmodified and in
full force and effect or, if modified, that this Declaration is in full force and effect as
modified and stating the modifications and whether or not, to the best of the knowledge of
GKS CC51809A
45421 -58 -31-
the Owner signing the same, any other Owner is in default in any respect under this
Declaration and if in default, specifying the nature of such default. The failure or refusal
of an Owner to execute and deliver the certificate in the form or within the time required
shall be deemed the agreement and representation by such Owner that this Declaration is
unmodified, is in full force and effect and that no Owner or other person is in default
hereunder.
12.13. Sale and Leaseback. Purchaser. It is expressly agreed that in the event
any of Waremart, with respect to Lot 1, PETsMART, with respect to Lot 2, and Waremart's
immediate successor -in- interest to Lot 3 (herein the "First Owners ") sells its Lot to an
unaffiliated third party and thereafter enters into a net lease for such Lot with such third
party (hereinafter referred to as "Prime Lessor "), so long as such First Owner is in
possession or control of the Lot as Prime Lessee, the parties hereto shall look solely to such
First Owner for the performance of any obligations or exercise of any rights either the Prime
Lessee or the Prime Lessor shall have under this Declaration, and the Prime Lessor(s) shall
be relieved of any obligation for the performance of or liability for the Restrictions set forth
herein relating to their respective First Owners or their respective Lots.
12.14. Legal Action. Without limiting any other provision of this Declaration,
if any Owner or Occupant breaches any provision of this Declaration, then any other Owner
may institute legal action against the defaulting Owner or Occupant for specific
performance, injunction, declaratory relief, damages, or any other remedy provided by law.
In addition to the recovery of any such sum or sums expended on behalf of the defaulting
Owner or Occupant, the prevailing party shall be entitled to recover from the losing party
such amount as the court may adjudge to be reasonable costs and attorneys' fees for the
services rendered to the prevailing party in any such action as well as interest from the date
of expenditure until repaid at an annual rate equal to the Prime Rate plus three percentage
points. The "prevailing party" involved in proceedings in the Federal Bankruptcy Court shall
mean the prevailing party in an adversary proceeding or contested matter, or any other
actions taken by the non - bankrupt party which are reasonably necessary to protect its rights
under the terms of this Declaration. The "prevailing party" involved in proceedings in any
court other than the Federal Bankruptcy Court shall mean the party that prevails in ob-
taining a remedy or relief which most nearly reflects the remedy or relief which the party
sought.
12.15. Third Parties. Except for Waremart, the rights, privileges, or
immunities conferred hereunder are for the benefit of the parties and not for any third
party. Waremart's rights and obligations under this Declaration shall not become effective
unless and until Waremart shall acquire fee title to any or all of the property now covered
by the Waremart Purchase Agreement, at which time it shall accede to all of the rights of
SUPERVALU and such further rights as may be accorded Waremart hereunder.
12.16. Time of Essence. Time is of the essence with respect to the
performance of each of the covenants and agreements contained in. this Declaration.
GlcslcC 1809A
45421 -58 -32-
33
12.17. Separate Declarations. Nothing contained in this Declaration shall
prevent or prohibit the Owners from entering into separate agreements covering certain
provisions of this Declaration. As between the parties to any separate declaration, the
separate declaration shall control. As between the Owners who are not parties to a separate
declaration, this Declaration shall control.
12.18. Joint and Several Obligations. In the event any Owner or Occupant
is composed of more than one Person, the obligations of said Persons as Owner or Occupant
hereunder shall be joint and several.
12.19 Non - Merger of Purchase Agreements. The undersigned Declarants, for
themselves and their respective heirs, successors and assigns (including without limitation
Waremart) acknowledge and agree that their respective obligations under the Waremart
Purchase Agreement and the PETsMART Purchase Agreement are independent of the
Restrictions contained herein, shall not be merged, superseded or amended hereby, and shall
survive the execution, delivery and recording of this Declaration in their entirety.
IN WITNESS WHEREOF, the parties hereto have executed this Cross -
Declaration as of the day and year first above written.
SUPERVALU HOLDINGS, INC., •
an Ohio corporation
By - B
AVID L. BOEHNEN
Its VICE PRESIDENT Its te.
PETsMART, Inc., a
Delaware corporation
By w+�
am( B lr✓'�`
Y CY
Samuel Parker `chael S. 'Manson
Chairman of the Board and Vice- President of Real Estate
Chief Executive Officer
GKS/0:51809A
45421.58 -33-
3y •
i
STATE OF tn 1 is e )
) ss•
COUNTY OF 1.1f■,.Ek p•0,3 )
Personally came before me this 3 �� day of Se .r,AA , 199x,
;.L..•u� .C3c vv:h of SUPERVALU HOLDINGS, INC., a corporation duly
organized and existing under and by virtue of the laws of the State of (`, t , , and
to me known to be the person who executed the foregoing instrument, and to me known to
be such \!,; y ,\ ? -Ii A, eQ, Lief of such corporation and acknowledged that he executed the
foregoing instrument as such officer as the act of said corporation, by its authority.
"!A•
TERESA ANN SMITH f +. ; NOTA a 1 L Vt (LJt41 1ym 1
RY RYER COU ETA
Notary Public, ' (ttr r� - all r ern"( T(,
My Coenmi�sion Expims Oet 14,1D98
w C My Commission expires: 10
M /4..
STATE OF ARIZONA )
) ss:
COUNTY OF MARICOPA )
The foregoing i strument was acknowledged before me this b ` day of
C QpftrnIt( , 199 , by Samuel Parker as Chairman of the Board and Chief
Executive Officer of PETsMART, Inc., a Delaware corporation, on behalf of PETsMART.
4 tary Public
My Commission expires:
My Commission Expires Feb. 26, 1996 . ,
-
- j'
GKS/CC51809.A
4542148 -34-
35 .
STATE OF ARIZONA )
) ss:
COUNTY OF MARICOPA )
�
+� The foregoing instrument was acknowledged before me this 0 — day of
.3N .be✓ , 199j., by Michael S. Manson as Vice- President of PETsMART,
Inc., a Delaware corporation, on behalf of the PETsMART.
N Public
My Commission expires:
My Commission Expires Feb. 26, 1996 ._.
•
cxvcc51e09.A
45421 -58 -35-
3(r)
• • , •
EXHIBIT A
SHOPPING CENTER LEGAL DESCRIPTION
A PORTION OF THE SOUTHEAST QUARTER OF SECTION 36, TOWNSHIP 1 SOUTH,
RANGE 1 WEST, W.M., WASHINGTON COUNTY, OREGON, SAID PORTION [MING
MORE PARTICULAR DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE BAST LING OF SAID PARCEL I, IN THAT CLI( PAIN
BARGAIN AND SALE DEED TO SUPERVALU HOLDINGS, INC. AND RECORDED AS
DOCUMENT NO. 93003638, DEED RECORDS OF SAID COUNTY, WHICH POINT BEARS
SOUTH 00 °02'16° EAST 152.20 FEET FROM THE NORTHEAST CORNER THEREOF, SAID
POINT OF BEGINNING ALSO BEARS NORTH 05 °04'21° WEST 975.53 FEET FROM THE
WASHINGTON COUNTY MONUMENT AT THE SOUTH QUARTER CORNER OF SAID
SECTION 36, AND RUNNING THENCE NORTH 86 °45'24° WEST 21.07 FEET TO THE
CENTER OF RED ROCK CREEK; THENCE IN THE CENTER OF SAID CREEK SOUTH 58°
43'03" WEST 5.76 FEET. SOUTH 04 WEST 34.80 FEET. SOUTH 51 °4112" WEST
44.29 FEET, SOUTH 15 °53'22' BAST 19.63 FEET, SOUTH 26•50'41° WEST 68.45 FEET,
SOUTH 78 °47''53" WEST 31.55 FEET, SOUTH 28°98'14° WEST 51.39 FEET, SOUTH 71°
42'53' WEST 25.45 FEET, SOUTH 13 •12'08° EAST 56.70 FEET, SOUTII 26 °18'07" WEST
28.27 FEET. SOUTH 56 °08'24" WEST 32.37 FEET, SOUTH 24 °39'15 WEST 27.15 FEET,
SOUTH 19 °40'08' EAST 29.20 FEET, SOUTH 47 6 21'43 ° WEST 18.99 FEET, SOUTH 14°
11'18' EAST 29.48 FEET, SOUTH 59 °58'35 WEST 23.13 FEET, SOUTH 09 °44'38" WEST
14.97 FEET, SOUTH 66.43'03° WEST 12.43 FEET, SOUTH 17 °55'29° WEST 13.88 FEET,
SOUTH 71 °08'07" WEST 22.17 FEET, SOUTH 30 °38'58° WEST 50.50 FEET, SOUTH 04°
:1613" EAST 19.85 FEET, SOUTH 63 °54'34° WEST 1135 FEET, SOUTH 40 °04'35" WEST
46.87 FEET, SOUTH 04'35'03° EAST 26.76 FEET, SOUTH 87 °53'43' WEST 15.88 FEET,
SOUTH 32°29'24" WEST 35.45 FEET, SOUTH 7$ WEST 16.27 FEET, SOUTH 55°
41'21" WEST 56.27 FEET. SOUTH 10 °32'11' WEST 15.32 FEET, 62 °2710" WEST
39.83 FEET, SOUTH 19 °21'41° WEST 7.92 FEET, NORTH 87 °54'42' WEST 17.36 FEET,
SOUTH 05 °24'38' WEST 34.15 FEET, SOUTH 31 ° 12'52° WEST 33.47 FEET AND SOUTH
40 °02'17' WEST 43.16 FEET TO A POINT ON THE WEST LINE OF SAID PARCEL 1;
THENCE ALONG THE BOUNDARY OF SAID PARCEL I. SOUTH 00°13'48" WEST 32.55
FEET AND SOUTH 83'52'11° EAST 530.34 PEET; THENCE SOUTH 89 °16'25" EAST
168.22 FEET; THENCE SOUTH 74•00'33' RUT 371.13 FEET; THENCE 117.99 FEET
• ALONG THB ARC OF A 465.00 RADIUS CURVE TO THE LEFT (THE LONG CHORD OF
WHICH BEARS SOUTH 81•17'01° EAST 117.67 FEET); THENCE SOUTH 88 °33'09" EAST
170.04 FEET TO A BRASS CAP AT THE ANGLE POINT OF THE EAST LINE OF THE
1 GEORGE RICHARDSON D.L.C. NO. 35 AND THE ANGLE POINT IN THE CENTERLINE
1 OP 72nd AVENUE (COUNTY ROAD • 245); THENCE ALONG SAID CENTERLINE,
NORTH 01 °43'56" EAST 943.33 FEET TO THE NORTHEAST CORNER OF TOWER TRACT
RECORDED IN BOOK 258, PAGE 419, uEsA RECORDS OF SAID COUNTY; THENCE
NORTH 86'45'24" WEST 825.44 FBEr to 7f POINT OF BEGINNING.
CONTAINING 22.04 ACRES (GROSS), MORE OR LESS.
SUBJECT TO THE RIGHTS OF THE PUBLIC TO ANY PORTION LYING WITHIN S.W.
72nd AVENUE (COUNTY ROAD NO. 245)
assccnanA
4SCE1411 -36-
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