HomeMy WebLinkAboutPZ - Declarations of covenants conditions restrictions and easmen.._
Charlene Way
From:Seguin,Angie <Angie.Seguin@thecdcompanies.com>
Sent:Friday, July 28, 2023 10:57 AM
To:Stacy Hersh; Bill Parsons; Bill Nary; Kurt Starman; Chris Johnson; Joy Hall; Charlene
Way
Subject:RE: New Horizon Academy CUP H-2023-0034 Staff Report
Attachments:2020-108848 Declarations of covenants conditions restrictions and easmen.._.pdf
External Sender - Please use caution with links or attachments.
Hi Stacy,
I wanted to let you know that there is a shared parking agreement for this Development – see excerpt below and
attached. We can include this with the CZC package and add the wheel stops.
Thanks!
ANGIE SEGUIN, PE, LEED AP BD+C
PROJECT MANAGER
o: 314.238.2028
c: 314.960.0167
12 Sunnen Dr. Suite 100
St. Louis, MO 63143
theCDcompanies.com
From: Stacy Hersh <shersh@meridiancity.org>
Sent: Tuesday, July 25, 2023 11:26 AM
To: Bill Parsons <bparsons@meridiancity.org>; Bill Nary <bnary@meridiancity.org>; Kurt Starman
<kstarman@meridiancity.org>; Chris Johnson <cjohnson@meridiancity.org>; Joy Hall <jhall@meridiancity.org>;
1
Charlene Way <cway@meridiancity.org>; Seguin,Angie <Angie.Seguin@thecdcompanies.com>
Subject: New Horizon Academy CUP H-2023-0034 Staff Report
Importance: High
Good Afternoon,
Attached is the staff report for New Horizon Academy. This item is scheduled to be on the Commission agenda
on August 3, 2023. The public hearing will be held at City Hall, 33 E. Broadway Avenue, beginning at 6:00 pm.
You may attend in person or virtually via Zoom – the link/phone number to join the meeting is located at the
top of the meeting agenda. Please call or e-mail with any questions.
Please submit any written response you may have to the staff report to the City Clerk’s office
(comment@meridiancity.org) and me as soon as possible. If you have a presentation you’d like to present at
the public hearing, please send it to the City Clerk’s office no later than 12:00 pm the day of the hearing.
Best regards,
Stacy Hersh | Associate Planner
City of Meridian | Community Development Department
33 E. Broadway Ave., Meridian, Idaho 83642
Phone: (208)-489-0576, Fax: (208)-887-1297
Built for Business, Designed for Living
All e-mail messages sent to or received by City of Meridian e-mail accounts are subject to the Idaho law,
in regards to both release and retention, and may be released upon request, unless exempt from disclosure by law.
2
ADA COUNTY RECORDER Phil McGrane 2020-108848
BOISE IDAHO Pgs=38 ANGIE STEELE 08/24/2020 01:56 PM
FIDELITY NATIONAL TITLE-BOISE $121.00
After recording, return to:
Kuna Victory, LLC
PO Box 51298
Idaho Falls, ID 83405
Space is resened,for Frse by Recorder
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND
EASEMENTS FOR VICTORY COMMONS
This Declaration of Covenants, Conditions, Restrictions and Easements (this "Declaration"), is
made made as of August 21, 2020, by Kuna Victory LLC, an Idaho limited liability company
("Declarant").
RECITALS
Declarant owns all of the real property described in Exhibit A and generally depicted on
Exhibit B attached hereto (the "Project") and desires to establish certain restrictions, covenants,
conditions, and easements for the common development, operation, maintenance, management,
and use of the Project.
Capitalized terms used in this Declaration and not otherwise defined above or elsewhere in
this Declaration are defined in Article 1.
NOW, THEREFORE, in order to assure the orderly and beneficial development of the
Project, Declarant hereby declares that all Lots in the Project shall be held, sold and conveyed
subject to the provisions of this Declaration, which shall run with the land and be binding on and
inure to the benefit of all Owners having or acquiring any right,title or interest in any Lot, and all
heirs, successors and assigns of such Owners.
ARTICLE 1 DEFINITIONS
1.1 "Building" shall mean any enclosed structure placed, constructed or located on a
Lot, which for the purpose of this Declaration shall include but not be limited to any appurtenant
foundations,canopies, supports,loading docks,truck ramps and other outward extensions.
1.2 "Common Area" shall mean all areas within the Project that are not Buildings
including but not limited to: roadways, driveways,parking areas, access drives,paving, striping,
curbs, gutters, landscaping, directional or traffic signs, shared utility infrastructure, and storm
water facilities; but excluding all Buildings and Improvements appurtenant thereto intended for
the exclusive use of a particular Permittee or Building such as drive-thru lanes,menu boards,truck
ramps,loading docks and other similar appurtenances.
1.3 "Declarant" shall mean Kuna Victory, LLC and any subsequent Owner(s) which
may be appointed as the successor Declarant in accordance with Article 4.
1.4 "Hazardous Materials" means any material or substance that is toxic, ignitable,
reactive or corrosive and that is regulated by the State of Idaho, the United States Government or
any agency thereof including, without limitation, any and all materials defined as "toxic
substance","hazardous waste","extremely hazardous waste",or"hazardous material"pursuant to
state, federal or local law, as amended.
1.5 "Improvement(s)"shall mean all Buildings,Conunon Area and other development
on a Lot including but not limited to all pavement, concrete, parking lot striping, landscaping,
irrigation systems, storm water systems,mailboxes, lighting, trash enclosures,utilities, and signs.
1.6 "Indemnify"shall mean indemnify,protect,hold harmless and defend with counsel
designated by the insurer charged with the obligation to defend(or if no insurer is involved, with
counsel reasonably acceptable to the Owner being defended).
1.7 "Laws" shall mean and include all laws, rules, regulations, orders, ordinances,
statutes and other requirements of all federal, stale, county and municipal authorities having
jurisdiction over the Project.
4.8 "Liabilities" shall mean all claims, damages, losses, liabilities, actions,
proceedings, costs and expenses(including reasonable attorney fees and costs).
1.9 "Lot" shall mean Parcel A and-Parcel B (each a Lot) as described on Exhibit A
hereto and all subsequent subdivision lots thereof set forth and described on a Plat.
1.10 "Lot Area" shall mean the area of each Lot measured in square feet.
1.11 "Manager" shall mean the Declarant or the party designated as Manager by the
Declarant pursuant to Section 4.6.
1.12 "Owner" shall mean, individually or collectively, as the case may be, any person
owning fee simple title to all or any portion of a Lot. If more than one person or entity owns fee
simple title to any Lot they shall collectively be deemed the Owner of such Lot.
1.13 "Permittee" shall mean any party entitled to use and occupy any portion of a
Building in the Project under an ownership right or any lease, sublease, license, concession or
other similar agreement and their officers, directors, employees, agents, contractors, customers,
vendors, suppliers, visitors, invitees, licensees, subtenants and concessionaires, insofar as their
activities relate to the intended development, use and occupancy of the Project but expressly
excluding distributing any circular,handbill,leaflet,flyer,pamphlet,placard or booklet, soliciting
memberships or contributions for any purposes,parading,picketing or demonstrating,or failing to
follow rules established by the Owners relating to the use of the Project.
DECLARATION OF COVENANTS,CONDITIONS.RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
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1.14 "Plat' shall mean the final subdivision plat or plats comprising any portion of the
Project as may be recorded in the records of Ada County, Idaho.
1.1 S "Project" shall have the meaning set forth in the Recitals above.
1.16 "Regular Assessment"means assessments levied against each Lot by the Manager
for the estimated Shared Maintenance Cost to be paid by each Owner as set forth in Article 8
which, except as set forth in Section 8.2, shall be a proportionate share of the Shared Maintenance
Costs calculated by multiplying the total Shared Maintenance Costs by the fraction where the
numerator is the Lot Area of the Lot, and the denominator is the aggregate of the Lot Area on all
Lots.
1.17 "Site Plan" shall mean the Site Plan attached hereto as Exhibit B, which may be
amended or superseded by the Declarant to reflect the then current development, designation and
configuration of the Project.
1.18 "Shared Maintenance Costs" means the cost and expense incurred by Declarant
or Manager in performing management and maintenance activities in accordance with Article S.
1.19 "Special Assessment" means a Lot specific assessment levied against a particular
Lot or Lots in accordance with Section 8.7.
1.20 "Storm Water System" shall mean the system of drainage lines, surface drainage
ways and detention and retention facilities within the Project for retaining, detaining, and. or
discharging storm water within or from the Project.
1.21 "Utility Lines" shall mean those facilities and systems for the transmission of
utility services, including the drainage and storage of surface water.
(a) "Common Utility Lines"shall mean those Utility Lines which are installed to
provide the applicable utility service to more than one Lot. The surface water collection,retention,
detention and distribution facilities shall be deemed to be a Common Utility Line.
(b)"Private Utility Lines" shall mean those Utility Lines which are installed to
Provide the applicable service to a Lot. For the purpose of this Declaration,the portion of a Utility
Line extending from a Common Utility Line to a Building shall be considered a Private Utility
Line.
ARTICLE 2 TERM
2.1 The easements set forth in this Declaration shall be perpetual in duration unless
otherwise specifically provided. The restrictions, covenants and conditions set forth in this
Declaration shall be binding upon and enforceable against Owners and Permittees for a period of
100 years from the date this Declaration is recorded in the public records of the governmental
subdivision where the Project is located. If any law prohibits any such restrictions, covenants,
and/or conditions from being enforceable for any period, the Declarant hereby reserves unto
DECLARATION OF COVENANTS,CONDITIONS.RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
3
Declarant and its successors a power of attorney to re-record this Declaration at any time for the
purpose of extending the enforceability of the same as contemplated by this Section 2.1.
ARTICLE 3 RIGHTS OF PERMITTEES AND THE PUBLIC
3.1 Rights of Permittees. With respect to the easements created by this Declaration,
each Owner benefited thereby shall be entitled to designate which, if any, of its Permittees shall
be entitled to utilize and enjoy such easements. This Declaration shall not create any independent
rights as to any Peimittee, except for those which may be terminated or withdrawn at any time by
the Owner through whom such rights were derived.
3.2 No Rights in Public Generally. The easements, restrictions, covenants and
conditions created, reserved, granted and established in this Declaration do not, are not intended
to, and shall not be construed to create any easements,rights or privileges in and for the benefit of
the general public. Notwithstanding anything to the contrary contained in this Declaration, each
Owner shall have the right to prohibit or limit any solicitation, petition signing, distribution of
literature or flyers,collection of money,giving of speeches,leafleting,picketing,carrying of signs,
canvassing,demonstrations,or similar activities within the Common Area located on said Owner's
Lot.
ARTICLE 4 DECLARANT AUTHORITY
4.1 Rules and Regulations. In addition to all other authority expressly reserved unto
Declarant in this Declaration, Declarant may, in its sole and absolute but good faith discretion,
promulgate, amend and enforce reasonable rules and regulations regarding:
(a) the use and maintenance of the drive aisles;
(b) signs;
(c) landscaping and parking areas (including, without limitation, provisions
regarding parking striping patterns and colors, employee parking or requiring an Owncr to
maintain landscaping near structures, equipment or vehicles);
(d) construction activities (including but not limited to staging, times for
transportation of materials to and from a job site, damage and cleaning deposits, contractor
parking,trash containers, screening, fencing, smoking,music and site curfew); and
(e) all other activities and events in the Common Area.
4.2 Design Approval. Owners shall not commence construction on any Building,
Building sign, monument sign, pylon sign, Conunon Area Improvements or any other
Improvement or thereafter make any modification thereto(except regular maintenance)on any Lot
unless and until the plans and specifications therefor, and the use thereof,have been approved in
advance in writing by the Declarant in accordance with, and to the extent required by, Article 7.
4.3 Common Area Maintenance. As set forth in Section 4,6 Declarant may elect to
self-perform or engage a Manager to perform the maintenance and repair of the Common Area
DECLARATION OF COVENANTS,CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
4
and in its sole discretion, may direct or allow one or more Owners to maintain and repair the
Common Area or portion thereof on the Owner's Lot as set forth in Article S.
4.4 Appointment of Successor Declarant. Declarant, in its sole discretion may,without
approval of any other Owner, designate a successor Declarant by a written amendment to this
Declaration, executed only by Declarant and the successor Declarant, recorded in the public
records of Ada County,Idaho. If Declarant ceases to be an Owner of any Lot and fails to designate
a successor Declarant, the Owner of the Lot that includes the northern most portion of the Project
shall automatically become the Declarant Notwithstanding anything to the contrary contained
herein,all successor Declarants shall be an Owner of a Lot and may appoint subsequent successors
pursuant to this Section.
4.5 Declarant Action/Decision Binding on Successors. All decisions of the Declarant
shall be binding upon all successor Declarants unless the party benefitted by the decision or action
agrees in writing to modify or amend previous Declarant decisions.
4.6 Appointment and Termination of Manager. Declarant may elect to self-perform or
may appoint a Manager to perform the maintenance and repair of the Common Area. The Manager
shall have the right,power and authority to enter into agreements with third parties to provide for
all such maintenance, except for the Owner-Maintained Lots. Unless Declarant approves
otherwise in writing, such maintenance agreements shall not exceed a one (1) year term or shall
include a provision allowing Declarant to terminate the agreement upon 30 days' advance notice.
All maintenance agreements shall be on an"arm's length"basis and on terms and conditions not
more favorable to the Manager or vendor than are generally available in the geographic area in
which the Project is located. The Manager shall have the right,upon giving 90 days' prior written
notice to the Declarant,to resign as the Manager. The Declarant shall have the right,upon giving
90 days' written notice to the Manager, to terminate the Manager. In either event, the Declarant
may promptly assume the role of Manager or appoint another party to serve as the Manager. If
the Manager is terminated, said terminated manager shall not be released from any Liabilities
arising out of its actions or omissions occurring during said manager's period of service. If at any
time there is no acting Manager, then each Owner shall be responsible for performing the
obligations of the Manager with respect to such Owner's Lot.
ARTICLE 5 BUILDING IMPROVEMENTS
5.1 General Requirements.
(a)All construction activities performed within the Project shall be performed in
compliance with all applicable Laws. All construction shall use new materials and shall be
performed in a good, safe and workmanlike manner.
(b) Construction activities performed by an Owner or its contractors shall not:
(i) cause a material increase in the cost of constructing Innprovennents
upon another Owner's Lot;
(ii) unreasonably interfere with construction work being performed on
any other part of the Project;
DECLARATION OF COVENANTS,CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
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(iii) unreasonably interfere with the use,occupancy or enjoyment of any
other part of the Project by any other Owner or its Permittees; or
(iv) cause any Building located on another Lot to be in violation of any
Law.
(c)All construction,reconstruction,repair,rebuilding,replacement shall be subject
to and comply with all construction requirements of this Declaration and all applicable rules and
regulations enacted in accordance therewith.
5.2 Desim and Construction.
(a) All Buildings- constructed in the Project shall be designed so that the exterior
elevation of eaeh Building will be architecturally and aestheti(rAly compatible with the others, as
determined by the Declarant, including the hei gl at color,materials, design and architectural theme
(including signs located thereon). All Buildings constructed in the Project shall be constructed to
comply with all applicable governmental requirements (including fire sprinkler and setback
requirements). If constriction commences on a Building but ceases prior to completion for more
than 120 day`, and the Declarant in its reasonable discretion determines that such unfinished
Building creates an unsafe or unsightly condition detrimental to the Project, the Declarant may
construct a barricade around the unfinished construction site and the Owner thereof shall upon
demand reimburse the Declarant for costs and expenses incurred.
(b) Buildings shall not exceed two (2) story or 35 feet in height or the maximum
allowable height of a two-story building allowed by code,whichever is lower in height,measured
perpendicular from the finished floor of the ground level to the top of the roof structure,including
any screening, parapet,penthouse, mechanical equipment or similar appurtenance located on the
roof of such Building. If allowed by code, architectural elements such as towers, chimneys and
roof extensions may extend above the maximum permitted height so long as the length of such
element does not exceed seven and one-half percent(7.5%) of the total length of the perimeter of
the Building. Rooftop elements such as elevator equipment rooms, equipment penthouses and
exhaust stacks may extend above the maximum permitted height if positioned so they are not
visible from the ground anywhere in the Project. Owners may also install,maintain,repair,replace
and remove communications equipment on the Building roof such as satellite dishes,antennas and
laser heads and associated equipment and cables, which may exceed the maximum permitted
height so long as they are positioned to reduce the visibility thereof.
5.3 Staging Areas.
(a) In connection with any construction; reconstruction, repair or maintenance on
its Lot, each Owner reserves the right to create a temporary staging and/or storage area in the
Common Area on its Lot at such location as will.not unreasonably interfere with access between
such Lot and the other areas of the Project.
(b) If a business is operating on a Lot, then other Owner's staging and/or storage
area shall not be located within one hundred feet(100')of the premises of the operating business,
DECLARATION OF COVENANTS,CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
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unless approved by the other Owner. If substantial work is to be performed, the Declarant may
direct the Owner to fence off the staging and/or storage area.
(c) Prior to the commencement of any work which requires the establishment of a
staging and/or storage area on a Lot, an Owner shall give at least twenty(20)days prior notice to
the Declarant of the proposed location of such staging and/or storage area. All material storage,
construction parking shall be confined to the constructing Owner's Lot and all construction access
confined to the access drives located upon the constructing Owner's Lot,unless use of such access
points is not reasonably practicable, and then only to the extent approved by the Declarant in
writing.
(d)Upon completion of such work, the constructing Owner shall restore any
damaged Common Area to a condition equal to or better than what existing prior to
commencement of such work.
5.4 License to use Common Areas.
(a) F.ach Owner hereby irrevocably grants to each other Owner and to its respective
contractors,materialmen and laborers a temporary license during the term of this Declaration for
access and passage over and across the Common Area of the grantor's Lot as shall be reasonably
necessary for the grantee Owner to construct and/or maintain Improvements upon the grantee's
Lot. Such license shall be in effect only during periods when actual construction and/or
maintenance is being performed and such license shall not be used in a manner that will
unreasonably interfere with the use and operation of the Common Area by others. Prior to using
the license granted herein, the grantee Owner shall endeavor to notify the grantor Owner of the
work to be performed.
(b)Any Owner availing itself of the temporary license provided in this Section 5.4
shall promptly pay all costs and expenses associated with such work, shall complete such work as
quickly as possible, and shall promptly clean the area and restore and/or repair any damaged or
otherwise adversely altered portion of the Common Area to a condition which is equal to or better
than the condition which existed prior to the cominencenient of such work.
(c) If a dispute exists between the contractors, laborers, suppliers and/or others
connected with construction activities, each Owner shall have the right to prohibit the contractors,
laborers, suppliers and/or others working for another Owner from using the Common Area on its
Lot.
5.5 Adjacent Buildings.
(a) The Owners hereby specifically consent to the placement of Buildings in close
proximity to their respective common boundary lines as may be approved by the Declarant in its
sole discretion,and each Owner shall(i)not unreasonably withhold support of a request by another
Owner for a side-yard or setback variance if the same is required in order to accommodate such
construction; and(ii)if requested by an adjacent Owner, design the footings of its Building where
situated along a common boundary to accommodate an adjacent Building.
(b) The second Owner to construct a Building adjacent to a common boundary line
shall do so in a manner that does not result in damage to the Improvements in place on the adjoining
DECLARATION OF COVENANTS,CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
7
Lot, and such Owner shall have both the right and obligation to undertake and assume, at its sole
cost, the work of completing and maintaining the nominal attachment (flashing and seal) of its
Building to that of the existing Building on the other Lot, it being the intent of the Owners to
establish and maintain the appearance of one continuous Building complex. In performing such
attachment, the wall of one Building shall not receive support fi-om nor apply pressure to the wall
of the other Building.
5.6 Liens. If any mechanic's lien is filed against the Lot of an Owner as a result of
services performed or materials furnished for another Owner, the Owner permitting or causing
such lien to be filed shall promptly cause such lien to be discharged either by paying the liability
which gave rise to such lien or by posting a bond or other security and shall Indemnify the other
Owner and its Lot against all Liabilities on account of such lien or claim of lien.
ARTICLE 6 COMMON AREA IMPROVEMENTS
6.1 Common Area. Constriction and development of Common .Area Improvements
shall be subject to and approved in accordance with Article 4. Buildings,barricades or structures
shall not be placed, erected or constructed x�dthin the Common Area except trash enclosures, signs
(.to the extent not otherwise prohibited hereii)), bumper guards, curbs, paving, landscaping,
lighting, driveways., ,%-1-4kways, parking, parking canopies, columns or pillars supporting roof
overhangs, and any other Improvements as may be required under applicable laws, rules,
ordinances and regulations of any governmental body having jurisdiction ovcr the Project. Fences or
other barriers that would prevent or unreasonably obstruct passage of pedestrian or vehicular travel
shall not be erected or permitted within the Common Area, except: (i) limited curbing and other
forins of traffic control approved by the Declarant in writing, and (ii) temporary staging and/or
storage areas approved by Declarant. The Common Area on each Lot shall be substantially
completed no later than the day on which the first occupant of such Lot opens for business. Such
work shall be done in a good and workmanlike manner and in accordance with good engineering
standards.
6.2 Parking Requirements.
(a) All Lots shall maintain(independently and without reliance on any other Lot or
easement) a parking ratio as unposed under applicable Law.
(b) Parking spaces shall be at least 9' by 1.8' in size and comply to uniform striping
patterns and design standards adopted(or thereafter amended) by the Declarant. Parking spaces
shall not be designated for use by specified parties or for specified time periods except as expressly
set forth herein and as otherwise expressly authorized in writing by the Declarant.
(c) If a condemnation of part of a Lot or sale or transfer in lieu thereof reduces the
number of usable parking spaces to less than the quantity required herein, the Owner whose Lot is
so affected shall use its best efforts (including using proceeds from the condemnation award or
settlement) to restore and/or substitute ground level parking spaces in order to comply with the
parking requirements set forth in this Declaration.
DECLARATION OF COVENANTS,CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
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(d) Parking within the Project is restricted to Owners and Permittees. In no event
shall the owner(s),Iessee(s)and/or occupant(s)of any property outside of the Project be permitted
to use the parking spaces within the Project.
(e) There shall be no overnight parking by customers,visitors, or invitees,without
express written approval from the Declarant.
6.3 Common Area Modifications. Owners shall not make changes to the improved
Common Area on its Lot without the written approval of the Declarant, except that each Owner
hereby reserves the right,without obtaining the approval of Declarant or any other Owner,to make
at its own expense any insignificant change, modification or alteration of the Common Area if
(a) the change, modification or alteration does not unreasonably restrict or hinder
parking or significantly modify accessibility of such Common Area for pedestrian and vehicular
traffic(as it relates to the remainder of the Project);
(b) a sufficient member of vehicular parking spaces are retained on the Lot to meet
the parking requirements set forth in this Declaration;
(c) the Owner complies with all Laws applicable to such change, modification or
alteration;
(d) the change, modification or alteration does not change, alter or modify the
access points between the Common Area and the adjacent public streets (additional access points
may be created with the written approval of the Declarant).
ARTICLE 7 PLAN APPROVAL AND CONSTRUCTION DEPOSIT
7.1 Approval. All Improvements to be constructed, altered, modified, removed or
demolished must first be approved by the Declarant.
i.2 Non-Liability. The Declarant shall not be liable to any Owner or any other patty
for any loss, damage or injury arising out of or connected with the performance of its duties and
responsibilities by reason of a mistake in judgment,negligence or nonfeasance arising out of or in
connection with the approval or disapproval or failure to approve an application for the
construction of Improvements. Every Owner or Permittee who submits an application for approval
of plans and specifications for the construction of Improvements agrees,by submission of such an
application, not to bring any action or suit against the Declarant to recover any such damages.
1.3 Basis of Approval. Approval of plans and specifications for the construction of
Improvements shall be based, among other things, on the adequacy of the Lot's dimensions;
conformity and harmony of external design with neighboring Improvements;the effect of location
and use of Improvements on neighboring Lot's operations and uses; the relationship of the
topography,grade,finished ground elevation and landscaping of the Lot being improved to that of
neighboring Lots; proper facing of the main elevation with respect to nearby streets; and the
conformity of the plans and specifications to the purpose and general plan and intent of this
Declaration and the design and sign standards and applicable rules adopted(or thereafter amended
DECLARATION OF COVENANTS.CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
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in whole or in part)by the Declarant. Approval shall not be arbitrarily or unreasonably withheld
or delayed.
7.4 Variances and Waivers. Declarant may authorize,in its sole discretion, a variance
or waiver from compliance with the requirements of any conditions and restrictions contained in
this Declaration, of the design and sign standards and applicable rules adopted by the Declarant,
or of any prior approval when circumstances such as topography, natural obstructions, aesthetics
or environmental considerations or hardship may warrant or when otherwise determined
reasonable by the Declarant. Such variance or waiver must be evidenced in a writing signed by
the Declarant. The granting of such shall not operate to waive any of the terms and provisions of
this Declaration, the design and sign standards or the applicable adopted rules for any purpose
except as expressly stated in the written wavier or variance for the specific Lot covered thereby,
7.5 Application. To request approval for the construction, alteration, modification,
removal or demolition of any Improvements, the applicant shall submit a written application in a
form reasonably required by the Declarant, which must be signed by the Owner of the Lot and
contain all information reasonably requested and be accompanied by all other material to be
submitted as hereafter provided. All applications must contain, or have submitted therewith, the
following material (collectively, the "plans and specifications") prepared in accordance with
acceptable architectural standards and submitted with the application form:
(a) a site plan showing the location of the Building and all other Improvements,
including fences and walls on the Lot, storm water control facilities, set backs, curb cuts,
driveways,parking areas and other pertinent information relating to the Improvements;
(b)building plans consisting of a preliminary or final footprint for the Building,
elevation drawings of the north, south, east and west sides, and detailed exterior specifications,
which shall indicate,by sample, all exterior colors,materials and finishes, including for the roof,
to be used; and
(c) a landscape plan for portions of the Lot to be landscaped showing the location,
type and size of trees, plants, ground cover, shrubs, berming and mounding, grading, drainage,
sprinkler system,fences,exterior lights,driveways,parldng areas and walkways,mailbox,parking
lot, striping locations, striping color, and directional signage.
The applicant may also be required to fi mush additional specifications,drawings,material samples
or such other information as the Declarant shall deem necessary or convenient for the purpose of
reviewing and processing the application. Additionally,the applicant may be required to pay a fee
at the time the application is submitted, the amount of such fee to be based upon the reasonable
anticipated expenses of the Declarant to be incurred in reviewing and processing the application
and the Declarant may delay the review until such fee is paid.
7.6 Decision. All applications shall be either approved or denied within 30 days after
the Declarant receives a properly submitted application and any processing fee. The decision of
the Declarant may be in the form of an approval, a conditional approval or a denial. A conditional
approval shall set forth with particularity the conditions upon which the application is approved,
and the applicant shall be required to affix a copy of such conditions to the working drawings or
DECLARATION OF COVENANTS.CONDITIONS.RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
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blueprints, which shall be kept on the job site during the entire course of the work to which such
plans relate. A denial of an application shall state with particularity the reasons for such denial.
7.7 Construction Deposit. Prior to the connnencennent of construction, alteration,
modification, removal or demolition of a Building or other Improvements, the Owner of the Lot
shall be required to post a deposit with the Manager in accordance with the rules adopted by the
Declarant, to ensure compliance by the Owner's contractor and subcontractor with all rules
adopted by the Declarant with respect to the construction, alteration, modification, removal or
demolition of a Building or other Improvements within the Project.
ARTICLE 8 COMMON AREA MAINTENANCE AND ASSESSMENTS
8.1 Common Area Maintenance.
(a) Except as otherwise set forth herein,Manager shall be responsible for:
(i) Drive and Parking Areas. Maintaining all paved surfaces and curbs
in a smooth and evenly covered condition, including, without limitation, replacing base, skin
patching, resealing and resurfacing (for the purpose of this section, an overlay of the drives and
parking areas shall be considered to be a maintenance item). Notwithstanding the foregoing, the
Manager shall not be responsible for maintenance or insurance of any service facilities, drive-up
or drive through customer service facilities,fuel facilities,menu boards adjacent to a drive-up lane
or window, or monument signs.
(ii) Debris and Refuse. Periodically removing all papers, debris, filth,
refuse, ice and snow, including periodic vacuuming and broom sweeping to the extent necessary
to keep the Common Area in a first-class, clean and orderly condition. All sweeping shall be
performed at appropriate intervals during such times as shall not interfere with the conduct of
business or use of the Common Area by Permittees. Snow shall be plowed as soon as a two inch
accumulation occurs and replowed as necessary to maintain less than a two inch accumulation at
all times;upon cessation of the snowfall,the Common Area shall be plowed to the paved surface.
(iii) Non-Occupant Signs and Markers. Maintaining,cleaning,repairing
and replacing directional, stop and handicapped parking signs and markers; restriping of parking
lots and drive lanes as necessary to maintain parking space designation and traffic direction; and
keeping clearly marked fire lanes,loading zones, no parking areas and pedestrian crosswalks.
(iv) Lighting. Maintaining, cleaning, repairing and replacing Common
Area lighting facilities, including light standards, wires, conduits,lamps,ballasts and lenses,time
clocks and circuit breakers for the Common Area lighting. Each Owner shall maintain and provide
electricity to all lighting fixtures attached to its respective building(s), at said owner's sole cost
and expense.
(v) Landscaping. Maintaining and replacing all landscape plantings,
trees and shrubs, including those adjacent to the exterior walls of Buildings, in an attractive and
thriving condition, trimmed and weed free. Maintaining and replacing landscape planters,
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including those adjacent to exterior walls of Buildings, and modifying irrigation systems to satisfy
governmental water allocation or emergency requirements.
(vi) Obstructions. Keeping the Common Area free from any
obstructions,including those caused by the sale or display of merchandise,unless such obstruction
is permitted under the provisions of this Declaration.
(vii) Sidewalks. Maintaining, cleaning, repairing and replacing
sidewalks within and along public rights of way and interconnecting pathways,but excluding those
adjacent and contiguous to Buildings within the Project. Sidewalks shall be cleaned at least
monthly and shall be swept at appropriate intervals during such times as shall not interfere with
the conduct of business or use of the Common Area.
(viii) Supervisory Personnel. Providing professional supervisory
personnel for the Common Area,if reasonably required.
(ix) Traffic. Supervising traffic at entrances and exits to the Project and
within the Project as conditions reasonably require in order to maintain an orderly and proper
traffic flow.
(x) Security. If and only to the extent approved by the Declarant in its
sole discretion,providing security services for the Common Area.
(xi) Public Rights of Wray. Maintaining, cleaning, repairing and
replacing all sidewalks in the public rights of way adjacent to the Project, maintaining and
replacing all landscape plantings, trees and shrubs in the public rights of way in an attractive and
thriving condition, trimmed and weed free, and periodically removing papers and debris from the
public rights of way.
8.2 Owner-Maintained Lots. If Declarant directs or otherwise agrees in writing to
allow Owners to maintain the Common Area on their own Lot, such Owner shall at its own cost
and expense maintain the Conunon Area on such Lot in accordance with standards set forth herein
and also pay a separate annual fee approved by the Declarant,in its sole discretion, as contribution
toward the repair and maintenance of the common drive aisles, storm water facilities and other
Common Area Improvements. Lots authorized or directed in writing by the Declarant to be
maintained by their Owners may sometimes be collectively referred to herein as "Owner-
Maintained Lot(s)." Notwithstanding anything to the contrary herein,the Owner of each Lot shall
keep the unimproved Common Area on such Lot mowed, weed free and litter free.
8.3 Maintenance Standard. Whether maintained by the Manager or the Lot Owner, the
minimum standard of maintenance for the Common Area on all the Lots shall be comparable to
the standard of maintenance followed in other first class nixed use commercial developments of
comparable size in the metropolitan area in which the Project is located, and in compliance with
the provisions of this Declaration and all applicable governmental laws,rules, and regulations. All
Common Area Improvements to the Lots shall be repaired or replaced with material s at least equal
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to the quality of the materials being repaired or replaced so as to maintain the architectural and
aesthetic harmony and integrity of the Lots and Project as a whole.
(a) Following the construction of Improvements thereon,maintenance of Common
Area shall include,without limitation:
(i) maintaining and repairing or replacing all sidewalks and the surface
of the parking and roadway areas, removing all papers, debris and other refuse from and
periodically sweeping all parking and road areas as reasonably necessary to maintain the same in
a clean, safe and orderly condition;
(ii) maintaining appropriate lighting fixtures for the parking areas and
roadways;
(iii) maintaining marking,directional signs,lines and striping as needed;
and
(iv) maintaining landscaping, and performing any and all such other
duties as are necessary to maintain such Common Area in a clean, safe and orderly condition.
8.4 Maintenance of Unimproved Lots. Until such time as Buildings and/or Common
Area Improvements are constructed on a Lot by the Owner,the Owner thereof shall maintain the
unimproved Lot in a clean,safe and orderly condition and shall take reasonable measures to control
weeds,dust, dirt,litter or debris.
8.5 Damage to the Common Area. if any portion of the Common Area is damaged or
destroyed by any cause whatsoever,whether insured or uninsured,the Owner of the Lot with the
damaged Common Area shall, at its sole cost and expense promptly replace, repair, restore and
rebuild such Common Area to its condition prior to such damage or destruction; or promptly raze
and remove such damaged or destroyed Improvements and either landscape or pave and maintain.
any such Lot (including concealment of any exposed slab or foundation thereof) in a manner
consistent with the Common Area and other Lots (or with such changes in compliance with this
Declaration and as approved by Declarant).
8.6 Regular Assessments. The Manager shall expend only such funds as are reasonably
necessary for the operation,repair, replacement and maintenance of the Common Area, and shall
pay such costs when due. Subject to Section 8.2, the Manager shall levy Regular Assessments
against the Lots and the Owners shall pay the Regular Assessments to the Manager subject to the
following:
(a) Restaurants may be assessed a Lot specific Special Assessment as set forth in
Section 8.7 for parking lot cleaning.
(b) Subject to an annual reconciliation, the Manager may estimate the annual
Shared Maintenance Costs and levy Regular Assessments against each T-ot and invoice each
Owner in advance to be paid on a monthly basis on or before the first day of each month for the
estimated Regular Assessment. The Manager shall prepare an annual statement in reasonable
detail showing the actual Shared Maintenance Costs incurred,the allocation of such expenses,and
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the difference between the amount owed and the amounts previously paid by such Owner. The
Manager will prepare and transmit the annual statement within 120 days after the end of each
calendar year. All annual statements shall be deemed correct unless disputed in writing within 90
days after received. The payment obligations for such charges will not be affected in any manner
by the late submission of the statement or by any estimate or statement which is subsequently
modified by actual or corrected figures. Any overpayment by an Owner will be credited against
the total estimated Regular Assessment for the following period and the remaining monthly
invoices for the period shall be modified accordingly.
(c) Regular Assessments shall commence for each Lot and the first monthly
payment thereof shall commence on the first day of the month following the earlier of(i)issuance
of any permit for construction of any Improvements on the Lot; or (ii) upon construction of
Common Area Improvements which benefit or service the Lot. If an Owner fails to pay the entire
amount of such invoice within 30 days it shall be subject to the provisions of Article 15.
(d) Regular Assessments shall include all reasonable expenses incurred by
Manager for labor (including reasonable compensation to employees of the Manager), services,
equipment,supplies, and materials in connection therewith, and a management fee,payable to the
Manager,of not more than fifteen percent(15%) of the costs incurred.
(e)The Manager shall maintain complete and accurate records of all Shared
Maintenance Costs for a period of at least two (2) years following the release of the annual
statement provided for in this Section 8.6. Within 90 days after receipt of the annual statement
and with at least 10 days' prior written notice to the Manager, an Owner may inspect the records
for all Shared Maintenance Costs incurred during the preceding calendar year. The Owner's
inspection shall take place at a reasonable time during ordinary business hours at the Manager's
main office, or at such other location reasonably designated by the Manager. If the Owner's
inspection reveals an overpayment or underpayment, the Owner shall provide a detailed written
report of such to the Manager. If the Manager agrees there was an overpayment,it shall be credited
against the total estimated Regular Assessment for the subsequent period and the remaining
monthly invoices for the subsequent period shall be modified accordingly. If the Owner's
inspection reveals an underpayment,the owner shall reimburse the Manager its proportionate share
of any such underpayment within 30 days. If the Manager disputes the Owner's assertion of an
overpayment, the Owner may obtain an audit by a mutually agreeable independent certified public
accountant at the Owner's expense. If the audit reveals there was an overpayment,the amount of
overpayment shall be credited against the total estimated Regular Assessment for the subsequent
period and the remaining monthly invoices for the subsequent period shall be modified
accordingly. If the audit reveals that the Manager overstated expenses by more than 5%, the
Manager shall also reimburse the Owner the reasonable costs of the audit within 30 days.
(f)The Shared Maintenance Costs shall first be reduced by all payments paid or
payable by the Owner-Maintained Lots with respect to the applicable period and then be allocated
among all the remaining improved Lots as part of the Regular Asssessment.
(g)Notwithstanding anything to the contrary herein, Shared Maintenance Costs
shall not include marketing costs related to the Project, capital improvement costs related to any
Conilnon Area Improvements or depreciation thereof,wages, salaries or other compensation paid
to executive employees of Declarant; costs associated with the operation of the business of the
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entity which constitutes Declarant,which costs are not directly related to maintaining or operating
the Common Areas, any expense representing an amount paid for products or services(other than
overall property management) to a person or entity related to or affiliated with Declarant that
exceeds fair market value of such services and products; fees incurred in disputes with Owners or
Permittees.
8.7 Special Assessment. If an Owner or Permittee of one or more particular Lots fails
to repair damage to the Common Area as set forth in Section 8.5 or for any other reason causes the
Manager to incur additional, unusual or extraordinary maintenance costs, the Manager shall
segregate those costs and levy a special assessment("Special Assessment")against the Lot or Lots
owned by the Owner that caused the Manager to incur the additional, unusual or extraordinary
maintenance cost. Special Assessments shall be a separate line item on the Manager's invoice to
the Owner provided for in Section 8.6.
ARTICLE 9 MAINTENANCE OF BUILDINGS AND UTILITY LINES
9.1 Building Improvements.
(a) After completion of construction, each Owner shall maintain and keep the
exterior portion of the Buildings located on its Lot in a first-class condition and state of repair in
compliance with all applicable Laws and the provisions of this Declaration. Each Owner shall
store all trash and garbage in adequate containers, locate such containers within a screening
enclosure approved by Declarant so that they are not readily visible, and arrange for regular
removal of the trash. Trash enclosures for restuarants shall include visual screening doors or gates
approved by Declarant.
(b) If any of the Buildings are damaged by fire or other casualty(whether insured
or not), the Owner thereof shall, subject to governmental regulations and/or insurance adjustment
delays,promptly remove the debris resulting from such event,install visual screening, and within
a reasonable time thereafter perform one of the following:
(i) repair or restore the damaged Building in accordance with all
applicable provisions of this Declaration;
(n) construct another Building in such location in accordance with all
applicable provisions of this Declaration; or
(iii) demolish the damaged portion and/or the balance of such Building
and restore the cleared area to either a hard surface or landscaped condition that shall be considered
Common Area until a replacement Building is constructed.
9.2 Utility Lines.
(a) Each Owner shall maintain and repair, or cause to be maintained and repaired,
in a clean, safe and orderly condition, all Private Utility Lines used by such Owner,regardless of
where located, unless the provider of the utility service or a public or quasi-public authority has
agreed to maintain such Utility Lines. Each Owner shall give 20 days notice to other Owners
before performing any maintenance,replacement and/or repair of private Utility Lines located on
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the other Owner's Lot(except in an emergency the work may be initiated with reasonable notice).
The maintenance, replacement and/or repair on another Owner's Lot shall occur after normal
business hours when reasonably feasible, and in a manner that minimizes disruptions. Any Owner
performing or causing to be performed maintenance or repair work shall promptly pay all costs
and expenses associated therewith, diligently complete such work as quickly as possible and
promptly clean the area and restore the affected portion of the Common Area to a condition equal
to or better than the condition which existed prior to the commencement of such work.
(b) Common Utility Lines shall be maintained, repaired and/or replaced by the
Manager and the costs and expenses related thereto shall be allocated to the Owners of the Lots
served by such Common Utility Line in accordance with the standards set forth in Section 8.1
above.
ARTICLE 10 EASEMENTS
10.1 Ingress and EgKess Easement. Declarant hereby declares, establishes, creates and
grants to the Owner of each Lot for the benefit of each Lot: (i)a non-exclusive perpetual easement
for vehicular ingress, egress, and passage of vehicles over and across all parking, roadways,
driveways, and entrance ways as may be located on the Common Area of any Lot; and(ii) a non-
exclusive perpetual easement for the passage and accommodation of pedestrians over and across
the parking, driveway and sidewalk areas as may be located on the Common Area of any Lot.
10.2 Cross Parking Easement. Declarant hereby declares,establishes,creates and grants
to the Owner of each Lot for the benefit of each Lot a non-exclusive perpetual easement for parking
of vehicles over and across all parking areas located on the Common Area of any Lot. The
foregoing easements shall not be construed to, and shall not, create any other easement for the
installation or construction of parking areas by any Owner on the Lot of another Owner.
10.3 Avoidance of Prescription. Subject to Section 10.6,the Owner of each Lot shall be
entitled to interrupt or disturb the parking and passage of vehicular and pedestrian access,ingress,
and egress over and across all roadways, driveways, entrance ways, and waWways located on the
Common Area on the Owner's Lot for a period not to exceed one(1)day in each calendar year for
the purpose of preventing the creation of prescriptive easement rights in and to such areas in favor
of the public.
10.4 Utilities.
(a) Each Owner hereby grants and conveys to each other Owner nonexclusive
perpetual easements in, to, over, under, along and across those portions of the Common Area
located on the grantor's Lot necessary for the installation, operation, flow, passage, use,
maintenance,connection,repair,relocation,and removal of Utility Lines serving the grantee's Lot,
including, but not limited to, sanitary sewers, storm drains, and water (irrigation, fire and
domestic), gas; electrical, telephone and communication lines.
(b) All Utility Lines shall be underground except:
(i) ground mounted electrical transformers, switch gear and ground
sleaves;
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(ii) ground level or above ground surface water collection,retention and
distribution facilities which are or became a part of the Project;
(iii) as may be necessary during periods of construction,reconstruction,
repair or temporary service;
(iv) as may be required by governmental agencies having jurisdiction
over the Project;
(v) as may be required by the provider of such service; and
(vi) fire hydrants.
(c) At least twenty (20) days prior to any installation, maintenance, connection,
repair, relocation or removal of Utility Lines located-on another Owner's Lot pursuant to the
casement granted herein (except in an emergency, the work may be initiated with reasonable
notice),the grantee Owner shall first provide the grantor Owner with a written statement describing
the need for such work; shall identify the proposed location of the Utility Linel the nature of the
service to be provided, and the anticipated commencement and completion dates for the work and
shall furnish a certificate of insurance showing that its contractor has obtained the minimum
insurance coverage required by Section 14.2.
(d) The location of any Utility Line shall be subject to the prior written approval of
the Owner whose Common Area is to be burdened thereby, which approval shall not be
unreasonably withheld or delayed. The easement area shall be no wider than necessary to
reasonably satisfy the requirements of a private or public utility, or five feet (5') on each side of
the centerline if the easement is granted to an Owner. Upon request of any grantee Owner, the
grantor Owner shall cooperate with and execute an appropriate easement instrument as may be
required by the City of Meridian,utility company or other governing body,which cooperation and
execution shall not be unreasonably withheld or delayed. Upon request, the grantee Owner shall
provide to the grantor Owner a copy of an as built survey showing the location of such Utility
Line.
(e) Except as otherwise agreed to by the grantor Owner and the grantee Owner,any
Owner installing Private Utility Lines 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 zn.anner so as to minimize
interference with the use of the Common Area. In addition,the grantee of any Private Utility Line
shall Indemnify the grantor Owner from all Liabilities arising out of or resulting from the
installation,maintenance and operation of the Private Utility Line.
(f) Each grantor Owner shall have the right to relocate a Utility Line located on its
Lot with twenty(20)days' prior written notice to the grantee Owner so long as such relocation:
(i) shall not be commenced during the months of October, November
or December without written consent of the Owners of the Lots served thereby which consent shall
not be unreasonably withheld conditioned or delayed;
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(ii) shall not interfere with or diminish the utility service to the grantee
Owner during its business hours;
(iii) shall not reduce or unreasonably impair the usefulness or function
of such Utility Line;
(iv) shall be performed without cost or expense to the grantee Owner;
(v) shall be completed using materials and design standards which equal
or exceed those originally used; and
(vi) shall have been approved by the provider of such service and the
appropriate governmental or quasi-governmental agencies having jurisdiction thereover.
Documentation of the relocated easement area, including the furnishing of an "as-built"
survey, shall be performed at the grantor Owner's expense and shall be accomplished as soon as
possible following completion of such relocation.
10.5 Storm Water,
(a) The Common Area grades and the surface water drainage/retention system for
the Project shall be initially constructed in strict conformance with the details approved by the
Declarant; and
(b) Owners shall not alter or permit to be altered the surface of the Conmion Area
or the drainage/retention system constructed on its Lot if such alteration would materially increase
the flow of surface water onto an adjacent Lot, either in the aggregate or by directing the flow of
surface water to a limited area.
10.6 Easement Conditions and Limitations. The easement rights granted or reserved
herein shall be subject to the following conditions, as well as any other applicable provisions
contained in this Declaration.
(a)Except as expressly allowed in this Declaration,prior to closing off any portion
of the Coinnion Area, each Owner shall give advance written notice to each other Owner of its
intention to do so, and shall attempt to coordinate such closing with each other Owner so that
unreasonable interference with the passage of pedestrians or vehicles does not occur.
(b)Not more than once per calendar quarter and for periods not to exceed one week
in duration, each Owner shall have the right to block off and use a portion of the parking areas on
its own Lot for promotional events, including outdoor demonstrations and outdoor sales so long
as the Owner retains sufficient open parking spaces on its own Lot to prevent overburdening of an
adjacent Lots' parking.
(c) Each Owner that has established a temporary staging and/or storage area on its
Lot for construction purposes reserves the right to exclude and restrain persons from using the
staging and/or storage area during the period of time it is used for staging and construction
purposes.
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(d) Owners shall not grant any easements for the benefit of property outside of the
Project.
(e) Each Owner shall have the right at any time to exclude and restrain any person
who is not a Permittee from using the Common Area on its Lot.
ARTICLE 11 PROHIBITED USES
11.1 Prohibited Uses.
(a) The Project shall. be used only for retail sales, offices, restaurants or other
commercial purposes consistent with the operation of a first-class commercial mixed use project.
Without limiting the generality of the foregoing,the following uses are prohibited unless approved
in writing by the Declarant, which approval may be granted or withheld in the sole discretion of
the Declarant
0) any use which emits an obnoxious odor, noise or sound which can
be heard or smelled outside of any Building in the Project, except that this provision shall not
prohibit normal and ordinary odors which are associated with uses authorized by local zoning
ordinances;
(ii) any mobile home park, trailer court, labor camp, junkyard or
stockyard, except that this provision shall not prohibit the temporary use of construction trailers
during periods of construction,reconstruction or maintenance;
(iii) any dumping, disposing, incinerating, storing, processing or
reduction of garbage or scrap (exclusive of garbage compactors located near the rear of any
Building);
(iv) any fire sale, going out of business sale, bankruptcy sale (unless
pursuant to a court order)or auction house operation;
(v) any central laundry, central dry cleaning plant, laundromat or other
self-service laundry facility, except that this provision shall not prohibit nominal supportive
facilities for on-site service oriented to pickup and delivery by the ultimate consumer, as the same
maybe found in first-class Projects;
(vi) any car wash, service station, or automobile, truck, trailer or
recreational vehicles sales,display,rental,repair, or service operation or body shop or junk yard;
(vii) any veterinary hospital or animal raising facility, except that this
prohibition shall not prohibit pet shops or pet supply superstores and veterinary services which are
incidental thereto;
(viii) any mortuary, funeral home or crematory;
(ix) any movie theater, live performance theater, adult book store, adult
video store, adult entertainment club or night club, or establishment selling or displaying nudity
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(including, but not limited to, partially clothed dancers or wait staff) or selling, renting or
exhibiting pornographic materials;
(x) any bar,tavern, restaurant or other establishment whose reasonably
projected annual gross revenues from the sale of alcoholic beverages for on-premises consumption
exceeds Fifty percent(50%)of the gross revenues of such business;
(xi) store selling liquor,beer, or wine, except the sale of liquor, beer or
wine by a full-line grocery store, drug store or convenience store shall be permitted and the
foregoing will not limit the sale of liquor,beer or wine for on premises consumption by a restaurant
if such restaurant does not derive more than fifty percent(50%) of its gross annual sales revenue
from the sale of alcoholic beverages;
(xii) any flea market, second-hand or surplus store, thrift shop, pawn
shop or other business principally engaged in the sale of used merchandise, amusement or video
arcade, pool or billiard hall, bowling alley, skating rink, massage parlor, tattoo parlor, body
piercing establishment or dance hall, except that this provision shall not prohibit a restaurant from
including three(3) or fewer video games as an incidental use to its operations;
(xiii) any school,child or day care center,church or other related religious
or educational facility,or religious reading room;
(xiv) any payday loan or check cashing operation, head shop,vape store,
or store selling marijuana,CBD derivatives or products or drug-related paraphernalia;
(xv) any casino or other gambling facility or operation,including,but not
limited to, off-track or sports betting parlors, table games such as black jack or poker, slot
machines,video gambling machines and similar devices,and bingo halls,except that this provision
shall not apply to a restaurant so long as no money is wagered or changes hands in connection with
any such activity;
(xvi) any refining, smelting, agricultural or mining operation,
slaughterhouse or other use that produces an excessive quantity of dust, dirt or ash;
(xvii) any use involving the storage, display or sale of explosives other
damaging or dangerous hazards(including but not limited to fireworks)
(xviii) any residential use,including,but not limited to, any hotel or motel;
(xix) any carnivals,fairs, auctions; or
(xx) any illegal use.
(b)This Declaration is not intended to, and does not, create or impose any
obligation on an Owner to operate,continuously operate or cause to be operated a business or any
particular business on any Lot.
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l l.2 Use of Common Area.
(a) Merchandise, equipment or services, including, but not limited to, vending
machines,promotional devices and similar items, shall not be displayed,offered for sale or lease,
or stored on the sidewalks or within the remainder of the Common Area without the prior written
approval of the Declarant, which approval may be granted or withheld in the sole discretion of the
Declarant. The foregoing prohibition shall not apply to any recycling center or trash enclosures
required by law,the location of which shall be subject to the approval of the Declarant.
(b) Except to the extent required by law, Pennittees shall not be charged for the
right to use the Common Area; for the purposes of this provision, a tax assessment or other form
of charge applicable to parking spaces or parking lots may be deemed by the Declarant to be an
imposition required by law.
(c) Each Owner shall use commercially reasonable efforts to cause its Permiltees
to park vehicles only on its Lot.
11.3 Hazardous Materials. Owners shall not use or permit the use of Hazardous
Materials on, about,under or in its Lot or any other portion of the Project, except in the ordinary
course of its usual business operations conducted thereon, and any such use shall at all times be in
compliance with all environmental laws which relate to or deal with human health or the
environment. Each Owner shall Indemnify the other Owners from and against all Liabilities,
including,but not limited to,costs of investigation, litigation and remedial response arising out of
any Hazardous Materials released by Permittees of such Owner, whether or not in the ordinary
course of business.
ARTICLE 12 COMMON AREA LIGHTING
12.1 Common Area Lighting. All parking lots and other Common Area shall be
illuminated utilizing fixtures of the type designated by the Declarant. The location,height, finish,
pole,base, heads and lamp type for all Common Area lighting,including the lighting intensity, are
subject to approval by the Declarant. Generally, no less than 1.5 footcandle intensity shall be
provided. Maximum intensity level shall generally not exceed 15 footcandles. After completion
of the Common Area lighting system on its Lot,an Owner shall keep its Lot fully illuminated each
day from dusk to at least 11:00 p.m.unless the Declarant agrees upon a different time. Each Owner
shall keep exterior Building security lights, plus each of the lights located on light standards
adjacent to any access drive in the Project illuminated from dusk until dawn. During the term of
this Declaration, each Owner grants an irrevocable license to the other Owners for the purpose of
permitting light to shine on their Lot from the Common Area lighting fixtures on adjoining Lots.
ARTICLE 13 SIGNS
13.1 General Sign Requirements
(a) All signs shall comply with the provisions of this Declaration.
(b) A detailed sign drawing shall be submitted to Declarant(or its designated agent)
for approval that depicts the sign on the building or common area sign location, size, layout, and
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color of the proposed sign, including all lettering and/or graphics, materials, attachment devices,
construction and fabrication details. Tenants or an owner shall obtain approval of the sign drawing
prior to fabrication and installation.
(c) A sign permit shall be obtained from the applicable governing body.
(d) The tenant or owner of the sign shall pay for installation and maintenance of all
signs.
(e)When a building is vacated, signs shall be removed and the building
penetrations sealed or cabiiiet panels enclosed with blank panels.
13.2 Common Area.Monument or Pylon Signs.
(a) Subsequent to the recording of this Declaration new Common Area signs, or
replacement thereof, shall not be permitted within the Project without the approval of the
Declarant. If a Common Area sign is constructed with the approval of the Declarant,the Owner(s)
and/or Permittees whose names appear on such sign shall be responsible for the sign's operation
and maintenance on a first-class basis, and each Owner or Permittee having a sign panel thereon
shall maintain and illuminate such panel at its expense. All signs shall comply with the sign
standards and applicable rules established by the Declarant for the Project,and the Declarant shall
have the right to approve the design, size and location of all Common Area signs, including the
panel inserts.
(b)A monument-type sign will be permitted along the primary frontage for each
Lot subject to the following requirements:
(i) The maximum height and sign surface area shall conform to the sign
standards and applicable rules established by the Declarant.
(ii) All sign panels or lettering shall be illuminated. Where background
panels are opaque, letters shall be of a type or construction allowing them to be illuminated. All
light elements, transformers and ballasts shall be concealed. Panels having removable or
changeable lettering are prohibited_
(iii) The base and supporting structure must be of a decorative nature
utilizing the same materials,colors and architectural character as provided for in the sign standards
and applicable rules established by Declarant. Support poles shall be decorative or otherwise
concealed within the structure or sheathed with decorative column wraps, cabinets and finishes in
accordance with the sign standards established for the Project.
(iv) The sign configuration and orientation shall be uniform and conform
to the sign requirements set forth in Section 13.4 below and standards established by the Declarant.
13.3 Building Signs.
(a) Signage shall not be placed on any Building located on any Lot except as
expressly permitted pursuant to this Article 13. The plans for any signage of any Permittee must
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first be approved by the Declarant in accordance with Article 7, comply with applicable
governmental laws and regulations, and the following provisions.
(b) Building signs may not be painted on the surface of any Building or placed on
canopy roofs extending above the Building roof, placed on penthouse walls or extend above the
parapet, canopy,or the top of the wall upon which it is mounted.
(c) Building signs shall be mounted flat on the Building facade and may not be
placed at any angle to the Building unless it is located under an awning and is at least eight(A)feet
above the sidewalk. All building signs shall be individual, lighted channel letters that are flush-
mounted with concealed fasteners to the building facade. Channel letters shall not exceed 30"tall
by 5" deep and shall be installed a minimum of two (2) feet away from the edge of any property
line and shall be centered vertically and horizontally on the centerline of the storefront facade,
unless otherwise approved in writing by Declarant. Channel letters shall be fabricated from .063
gauge or thicker aluminum with welded returns. All exposed aluminum joints shall be ground
smooth. All aluminum surfaces shall be primed with zinc chromate primer and finish coated with
Acrylic Polyurethane to match PMS 431 dark bronze,or black if approved in writing by Declarant.
All surface finishes must be satin finish. Letter faces shall fabricated from flat 3/16"Plexiglas or
equivalent acrylic glass trimmed with 1" Jewelite or equivalent trim caps. All bolts, fasteners,
clips and any other hardware shall be painted to match building background color. All penetrations
of the fascia shall be sealed using gaskets and sealant. Conduit shall be concealed and there shall
be no exposed tubing. Shop drawings of all signage shall be submitted to Declarant for approval
PRIOR to fabrication and installation.
(d) Building signs shall not consist of. (i)banners; (ii)paper or cardboard signs; or
(iii)temporary signs,stickers or decals, except a small sticker or decal indicating hours of business,
emergency telephone numbers, acceptance of credit cards and other similar information may be
placed near the entrance of each premises.
(e) Subject to prior written approval from the Declarant, in its sole discretion,
temporary "For Sale", "For Lease", "Coming Soon" and "Grand Opening" or other short term
promotional signs may be placed in locations approved by Declarant for up to 90 days.
(f) Building signs shall not include tag lines or bylines, except when integrated in
standard prototypical signs already in use by national or regional businesses; or identify leased
departments and/or concessionaires,specific brands or products for sale or services offered,unless
such identification is part of a trade name. Single occupant Buildings may have secondary signs
as approved by the Declarant.
(g) The sign configuration and orientation shall be uniform and conform to the sign
requirements set forth in Section 13.4 below and standards established by the Declarant.
(h) Building Signs shall not have exposed raceways, exposed neon tubes, exposed
ballast boxes, or exposed transformers, except exposed raceways may be used if approved by
Declarant in writing and if the primary purpose is to minimize damage to the Building to which
the sign is attached and it is designed, configured and colored to conceal it when viewed from the
Common Area.
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13.4 Si=Restrictions.
(a) Exterior identification signs are prohibited within the Project except as
expressly permitted in this Article 13.
(b) The following signs and sign features are prohibited:
(i) flashing, moving or audible signs, except and the Declarant may
approve a reader board or other panel containing multiple LED or other lighting elements capable
of displaying time, temperature and varying graphics or messages;
(ii) signs employing exposed raceways,exposed florescent tubing,neon
tubes, ballast boxes, or transformers, except exposed raceways may be used if approved by
Declarant in writing and if the primary purpose is to minimize damage to the Building to which
the sign is attached and it is designed, configured and colored to conceal it when viewed from the
Common Area.
(iii) Banners; paper or cardboard signs; temporary signs, stickers or
decals; except(A)the placement at of each occupant's entrance a small sticker or decal indicating
hours of business, emergency telephone numbers, accepted payment methods and other similar
information, and (B) "For Sale" signs, "For Lease" signs, "Coming Soon" signs and "Grand
Opening"signs withthe prior approval of the Declarant not to exceed ninety(90)days per instance;
(iv) tag lines or bylines, except when integrated in standard prototypical
signs already in use by establishments operating at a regional or national level; and
(v) signs of any type attached to or temporarily placed within display
windows except when constructed of self-supporting material placed or suspended at least 18"
behind the glass.
(c) Notwithstanding anything contained in this Article 13 to the contrary, and
subject to approval by the Declarant and adherence to all sign standards and applicable rules
adopted (or thereafter amended in whole or in part) by the Declarant, each Owner shall be
permitted to place the following signs within the Conilnon Area located on its Lot:
(i) directional signs or informational signs such as "Handicapped
Parking";
(ii) temporary signs displaying leasing information;
(iii) one (1)temporary sign to collectively identify the Business Name
and/or occupant, the general contractor working on a construction job and the bank or other
financial institution providing financing for such construction; and
(iv) menu boards on the Building or immediately adjacent to a drive-up
or drive-through lane or window,but subject to approval of the Deelarant of the size,location and
construction quality.
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ARTICLE 14 INSURANCE
14.1 Commercial General Liability Insurance.
(a) Each Owner, as to its Lot only, shall maintain or cause to be maintained in full
force and effect commercial general liability insurance with a combined single limit of liability of
not less than Five Million Dollars ($5,000,000.00)for bodily injury,personal injury and property
damage arising out of any one occurrence-
(b)Each Owner shall Indemnify each other Owner fiom and against all Liabilities
asserted or incurred in connection with or arising from or as a result of the death of or injury to
any person or loss or damage to the property of any party which shall occur on the Lot owned by
the indemnifying Owner, except to the extent such Liabilities are caused by the negligence or the
willful act or omission of the indemnified party or its agents or employees.
14,2 Insurance During Construction.
(a) Prior to commencing any construction activities within the Project,each Owner
shall obtain,or require its contractor to obtain,and(hereafter maintain so long as such construction
activity is occurring, at least the minimum insurance coverages set forth below:
(i) worker's compensation insurance as required by any applicable law
or regulation; and
(ii) employer's liability insurance in the amount of $300,000 each
accident for bodily injury, $500,000 policy limit for bodily injury by disease and $300,000 each
employee for bodily injury by disease.
(iii) Commercial general liability insurance covering all operations by or
on behalf of the contractor, which shall include the following minimum limits of liability and
coverages:
(A)Required coverages:
(1) premises and operations;
(2) products and completed operations;
(3) contractual liability, insuring the indemnity obligations
assumed by the contractor under the contract documents;
(4) broad form property damage (including completed
operations);
(5) explosion, collapse and underground ("XCU") hazards;
and
(6) personal injury liability.
(B)Minimum limits of liability:
(1) $1,000,000 each occurrence for bodily injury and
property damage;
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(2) $1,000,000 for personal injury liability,
(3) $2,000,000 aggregate for products and completed
operations, which shall be maintained for a two (2)year
period following final completion of the work; and
(4) $2,000,000 combined single limit coverage per
occurrence of bodily injury, property damage or
combination thereof, with a $4,000,000 aggregate cap
per policy year.
(b) If the construction activity involves the use of another Owner's Lot, then the
Owner of such Lot shall be named as an additional insured and such insurance shall provide that
the same shall not be cancelled, or reduced in amount or coverage below the requirements of this
Section 14.2,without at least thirty(30) days prior written notice to the named insureds and each
additional insured. If such insurance is cancelled or expires, then the constructing Owner shall
immediately stop all work on and use of the other Owner's Lot until either the required insurance
is reinstated or replacement insurance is obtained.
(c) Each Owner shall Indemnify each other Owner from and against all Liabilities,
including liens and from any accident,injury or loss or damage whatsoever occurring to any person
or to the property of any party arising out of or resulting from any construction activities performed
or authorized by such indemnifying Owner. The foregoing shall not be applicable to either events
or circumstances caused by the negligence or willful act or omission of such indemnified Owner,
its licensees, concessionaires, agents, servants, employees, or anyone claiming by, through or
under any of them.
14.3 Property/Casualty Insurance.
(a) Effective upon the commencement of construction of any Building on its Lot
and so long as such Building exists, each Owner shall carry, or cause to be carried,
property/casualty insurance with "extended" or"all risk" coverage, in the amount of 100%of the
full replacement cost thereof(excluding footings,foundations or excavations). At a minimum,the
insurance coverage required by this Section 14.3(a) shall extend to loss or damage by fire,
windstorm, cyclone, tornado, hail, explosion, riot, riot attending a strike, civil commotion,
malicious mischief, vandalism, aircraft,vehicle, smoke damage and sprinkler leakage.
(b) To the full extent permitted by law,each Owner("Indemnitor")shall Indemnify
each other Owner ("Indemnitee") from and against all Liabilities asserted by or through any
Permittees using or on the Indemnitor's Lot for any loss or damage to the property of such
Permittee located on the Indernnitor's Lot, which loss or damage is of the typo generally covered
by the insurance required to be maintained under this Section 14.3, irrespective of any negligence
on the part of the Indemnitee which may have contributed to or caused such loss.
14.4 Insurance Policy Requirements.
(a) All insurance coverage required by this Article 14 shall be provided under one
or more of the following:
(i) an individual policy covering the particular location;
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(ii) a blanket policy which includes other liabilities, properties and
locations of such insured parry and if a blanket commercial general liability insurance policy
contains a general policy aggregate of less than Twenty Millions Dollars ($20,000,000), then the
insured party shall also maintain excess liability coverage necessary to establish a total liability
insurance limit of Twenty Million Dollars($20,000,000);
(iii) a plan of self insurance if the self-insuring Owner notifies the other
Owners of its intent to self insure and shall upon request deliver to any other Owners,but not more
than once per calendar year, a copy of its annual report or Form 10 K that is audited by an
independent certified public accountant and which discloses that such Owner has Seventy-Five
Million Dollars($75,000,000) or more of net current assets;
(iv) a plan of self insurance maintained by such Owner's parent
company if the parent company complies with the requirements of(iii)above and guarantees such
Owner's insurance obligations under this Article 14; or
(v) a combination of any of the foregoing insurance programs.
(b) All insurance provided under Section 14.4(a)(i) or Section 14.4(a)(ii) shall be
procured from companies authorized to issue such insurance in the state in which the Project is
located and shall be rated by Best's Insurance Reports not less than B+IX or a reasonably
equivalent rating commonly used in the industry. To the extent any deductible is permitted or
allowed as a part of any insurance policy carried by an Owner, such Owner shall be deemed to be
covering the amount thereof under an informal plan of self insurance. However, in no event shall
any deductible exceed Fifty Thousand Dollars ($50,000.00)unless such Owner complies with the
requirements regarding self insurance pursuant to Section 14.4(a)(iii)or Section 14.4(a)(iv). Each
Owner shall furnish to any Owner requesting the same a certificate(s) of insurance, or statement
of self insurance, as the case may be, evidencing that the insurance required to be carried by such
Owner is in frill force and effect.
(c) The following shall apply to the insurance required pursuant to Section 14.1:
W the insurance policy may not be canceled or materially reduced in
amount or coverage below the requirements of this Article 14, without at least thirty (30) days
prior written notice by the insurer to each insured and to each additional insured;
(ii) the insurance shall provide for severability of interests;
(iii) the insurance shall provide that an act or omission of one of the
insureds or additional insureds which would void or otherwise reduce coverage shall not reduce or
void the coverage as to the other insureds; and
(iv) the insurance shall provide for contractual liability coverage with
respect to the indemnity obligations set forth in this Declaration.
l 4.5 Additional Insurance Coverage. In addition to the foregoing insurance coverages,
the Manager may obtain such policies of commercial general liability insurance and
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property/casualty insurance with respect to the Common Area as it deems necessary or prudent in
its sole discretion, the cost of which shall be reimbursable pursuant to Section 8.6.
ARTICLE 15 DEFAULT
15.1 Default. The occurrence of any one or more of the following events shall constitute
a material default and breach of this Declaration by the non-performing Owner (the "Defaulting
Owner"):
(a) the failure to make any payment required to be made under this Declaration
within ten (10) days after the Defaulting Owner has received notice of its failure to make such
payment on or before the due date therefor; or
(b) the failure to observe or perform any of the covenants, conditions or obligations
of this Declaration, other than as described in subsection (a) above, within thirty (30) days after
the issuance of a notice by the Manager or another Owner(the Non-Defaulting Owner')specifying
the nature of the default claimed except if such matter is not susceptible of being cured within
thirty(30)days,the cure period shall be extended for a reasonable period of time if the Defaulting
Owner conlrnences the cure within said thirty(30) day period and thereafter diligently prosecutes
the cure to completion.
Each Owner shall be responsible for the default of its Permittees.
15.2 Right to Cure.
(a) With respect to any default under Section 15.1, the Manager and any Non-
Defaulting Owner shall have the right,but not the obligation,to cure such default by the payment
of money or the performance of some other action for the account of and at the expense of the
Defaulting Owner. However,if an event that would become a default under Section 15.1(b)with
the passage of time would become an emergency condition, the Manager or a Non-Defaulting
Owner,acting in good faith,shall have the right to cure such event within the time period set forth
in Section 15.1(b).
(b)If the Manager or any Non-Defaulting Owner shall cure a default; the
Defaulting Owner shall reimburse the Manager or Non Defaulting Owner for all costs and
expenses incurred in connection with such curative action,plus interest as provided herein,within
ten(10)days after receipt of demand therefor together with reasonable documentation supporting
the expenditures made.
(c) To effectuate any such cure,the Manager or a Non-Defaulting Owner shall have
the right to enter upon the Lot of the Defaulting Owner(but not into any Building)to perform any
necessary work or furnish any necessary materials or services to cure the default of the Defaulting
Owner.
15.3 Interest and Late Pees. If at any time an Owner does not pay any sum payable
under this Declaration to another Owner or the Manager within five(5) days of the due date, or if
no due date is specified herein, within 30 days, then (i) a 5% late fee shall accrue on the unpaid
amount; (ii) the unpaid balance shall thereafter accrue interest at the rate of 10%per annum; and
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(iii) the Owner or Manager may file a claim of lien in accordance with Section 15.4, and may
pursue all available remedies.
15.4 Lien Ri ts.
(a) Costs and expenses inured pursuant to this Article 15 shall be secured by and
constitute a lien against the Defaulting Owner's Lot. The lien shall attach and take effect only
upon recordation of a claim of lien in the official real estate records of the County of the State in
which the Project is located by the -Manager or an Owner making the claim. The claim of lien
shall include the following:
(i) the name of the lien claimant;
(ii) a statement concerning the basis for the claim of lien and identifying
the lien claimant as the Non-Defaulting Owner;
(iii) an identification of the Owner or reputed Owner of the Lot or
interest therein against which the lien is claimed;
(iv) a description of the Lot against which the Hen is claimed;
(v) a description of the work performed that is the basis for the claim of
lien and a statement itemizing the amount thereof; and
(vi) a statement that the lien is claimed pursuant to the provisions of this
Declaration,reciting the date of recordation and the recorded document number(or book and page)
hereof,
(b) The claim of lien shall be duly verified, acknowledged and contain a certificate
that a copy thereof has been served, in accordance with Section 16.1, upon the Owner of the Lot
against which the lien is claimed. The lien so claimed may be enforced in any judicial proceedings
allowed by law, including, without limitation, a suit to foreclose a mechanic's lien under the
applicable provisions of the law of the state in which the Project is located.
15.5 Costs of Enforcement. 1f the Manager or any Owner brings an action at law or in
equity to enforce or interpret this Declaration, the prevailing party in such action shall be entitled
to recover its reasonable attorney fees, court costs and expert witness fees for all stages of
litigation, including, but not limited to, appellate proceedings, in addition to any other remedy
granted.
15.6 Remedies Cumulative.
(a) The Manager and each Non Defaulting Owner shall have the right to prosecute
any proceedings at law or in equity against any Defaulting Owner hereto, or any other party
violating or attempting to violate or default upon any of the provisions contained in this
Declaration and to recover damages for any such violation or default. Such proceeding shall
include the right to restrain by injunction any violation or threatened violation by another of any
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of the terms, covenants or conditions of this Declaration, or to obtain a decree to compel
performance of any such terms, covenants or conditions,it being agreed that the remedy at law for
a breach of any such term, covenant or condition(except those, if any,requiring the payment of a
liquidated sum)is not adequate.
(b) All of the remedies permitted or available to the Manager or an Owner under
this Declaration or at law or in equity shall be cumulative and not alternative and invocation of
any such right or remedy shall not constitute a waiver or election of remedies with respect to any
other permitted or available right or remedy.
(c) In all situations arising out of this Declaration the Manager and all Owners shall
attempt to avoid and mitigate the damages resulting from the conduct of any other Owner. Each
Owner hereto shall take all reasonable measures to effectuate the provisions of this Declaration.
(d) A breach of this Declaration shall not(i)entitle any Owner to cancel,rescind or
otherwise terminate this Declaration, or (ii) defeat or render invalid the lien of any mortgage or
trust deed made in good faith and for value as to any part of the Project. However, such limitation
shall not affect in any manner any other rights or remedies which the Manager or an Owner may
have hereunder by reason of any such breach.
15.7 No Waiver. The failure of the Manager or any Owner to insist upon strict
performance of any of the terms, covenants or conditions hereof shall not be deemed a waiver of
any rights or remedies which the Manager or that Owner may have hereunder, at law or in equity
and shall not be deemed a waiver of any subsequent breach or default in any of such terms,
covenants or conditions. Any waiver by the Manager or any Owner of any default under this
Declaration shall not: (i) be effective or binding unless made in writing; (ii) shall not be inferred
from any omission by the Manager or Owner to take action in respect to such default; and (iii)
affect any other default or cover any other period of time other than the default and/or period of
time specified in the express written waiver. One or more written waivers or any default under
any provision of this Declaration shall not be deemed to be a waiver of any subsequent default in
the performance of the same provision or any other term or provision contained in this Declaration.
ARTICLE 16 MISCELLANEOUS
16.1 Notices.
(a) All notices,demands, statements and requests (collectively,"notices")required
or permitted to be given under this Declaration must be in writing and shall be delivered to the
Owner's mailing address on record with the Ada County Assessor by one of the following methods
of delivery:
(i) FedEx, UPS or other nationally recognized overnight courier
service, in which event the notice shall be deemed to have been given on the first business day
after the notice is deposited with the courier service (or the next business day thereafter if the
notice is deposited with the courier set-vice on a day other than a business day); or
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(ii) United States registered or certified mail,postage prepaid and return
receipt requested, in which event the notice shall be deemed to have been given three(3)business
days after the notice is deposited with the United States Postal Service.
(b) Each Owner shall have the right to change its address for notice purposes to any
other address within the United States of America upon at least ten(10) days prior written notice
to the other Owners in accordance with the provisions of this Section 16.1. Refusal to accept
delivery of a notice or the inability to deliver a notice because of an address change which was not
properly communicated shall not defeat or delay the giving of a notice hereunder.
16.2 Estoppel Certificate.
(a) Each Owner shall,upon the written request (which shall not be more frequent
than three (3) times during any calendar year) of any other Owner, issue to such Owner, or its
prospective mortgagee or successor, an estoppel certificate stating to the best of the issuer's
knowledge that as of such date:
(i) whether it knows of any default under this Declaration by the
requesting Owner, and if there are known defaults, specifying the nature thereof,
(ii) whether this Declaration has been modified or amended in any way
by it and if so,then stating the nature thereof, and
(iii) whether this Declaration is in full force and effect.
(b)An estoppel certificate issued pursuant to this Section 16.2 shall bar the Owner
issuii-ig such certificate from asserting any claim that is based upon facts contrary to those asserted
in the estoppel certificate,to the extent the claim is asserted against a bona fide encumbrancer or
purchaser for value who has acted in reasonable reliance upon the estoppel certificate without
knowledge of facts to the contrary of those contained therein.
(c)Notwithstanding anything to the contrary contained in this Declaration or
otherwise,the Owner issuing an estoppel certificate shall in no event be subject to damages arising
out of the negligent or inadvertent failure of such Owner to disclose correct and/or relevant
information in the estoppel certificate, nor shall such Owner be barred from challenging acts
committed by other Owners for which approval by the Declarant was required but not sought or
obtained.
16.3 Further Division of Lots. The Lots may be further subdivided and platted as may
be approved by the City of Meridian in the future. Owners shall cooperate and participate with
other Owners in a plat or replat of the other Owner's Lot and shall execute the plat or re-plat and
other related documents as may be required by the City of Meridian,Ada County Highway District
or other governing body. Subject to the provisions of this Declaration, an Owner may create a
condominium project with respect to its Lot and the condominium owners association on such Lot
shall collectively constitute the Owner of such Lot.
16.4 Expansion of Project. Declarant may at any time subject additional real property
to the provisions of this Declaration by recording a "Supplemental Declaration" describing the
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3t
additional real property to be subjected to and benefited by this Declaration and thereby annexing
such real property into the Project,which Supplemental Declaration shall attach a revised Site Plan
to reflect the additional land area added to the Project. A Supplemental Declaration recorded
pursuant to this Section shall not require the consent of any Person except the Owner of such other
real property and Declarant.
16.5 Modification of Declaration_ This Declaration may not be modified or amended
without a written agreement signed by Declarant and the Owners affected by the amendment as
set forth below. An amendment shall be effective only when recorded in the official real estate
records of the county and state where the Project is located. Amendments shall not impose any
additional or increased obligation on, or materially restrict or impair any right of, an Owner or its
Lot without the consent of such Owner. Amendment of this Declaration shall not require the
consent of any Permittee or Owner except for the Declarant and the affected Owners, all of which
may consider, approve or disapprove any proposed amendment to this Declaration in its sole
discretion without regard to reasonableness or timeliness.
16.6 Approval.
(a) Whenever the consent or approval ("approval") of the Declarant is required
under this Declaration,the following shall apply, subject to the rights of Owners:
(i) unanimous approval of the Declarant must be given;
(ii) the Declarant shall have absolute discretion to make the decisions
on behalf of the entire portion of the Project represented by such position even if the Declarant
then owns less than all thereof;
(iii) if this Declaration provides that the Declarant may grant or withhold
its approval in its sole discretion., such discretion shall be absolute, the approval may be
unreasonably withheld or conditioned and the Declarant shall not be obligated to state the reasons
for withholding its approval;
(iv) if this Declaration does not expressly provide that the Declarant may
grant or withhold its approval in its sole discretion,the Declarant shall not unreasonably withhold
or condition its approval, and disapproval shall be in writing and the reasons therefor shall be
clearly stated;
(v) if an Owner asserts an approval is unreasonably withheld its sole
remedy shall be an action for specific performance and the Declarant shall not be liable to such
Owner for damages; and
(vi) exercise of any approval right shall not subject the Declarant to
liability for breach of any covenant of good faith and fair dealing otherwise implied by law to be
part of this Declaration.
(b)Unless provision is made for a specific time period, each response to a request
for an approval or consent required to be considered pursuant to this Declaration shall be given by
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the Owner to whom directed within thirty(30)days of receipt of such request. If a response is not
given in writing within the required time period, the requested Owner shall be deemed to have
given its approval if the original notice stated in capitalized letters that failure to respond within
the applicable time period will be deemed an approval.
16.7 Taxes and Assessments. Each Owner shall pay, or cause to be paid, prior to
delinquency, all taxes and assessments with respect to its Lot, the Building and other
Improvements located thereon, and any personal property owned or leased by such Owner in the
Project. If the taxes or assessments or any part thereof may be paid in installments, the Owner
responsible therefor may pay each such installment as and when the same becomes due and
payable. Nothing contained in this Section 16.7 shall prevent any Owner from contesting at its
cost and expense any such taxes and assessments with respect to its Lot in any manner such Owner
elects, so long as such contest is maintained with reasonable diligence and in good faith. At the
time as such contest is concluded(allowing for appeal to the highest appellate court),the contesting
Owner shall promptly pay all such taxes and assessments determined to be owing, together with
all interest,penalties and costs thereon.
16.8 Condemnation. if any portion of the Project shall be condemned, or conveyed
under threat of condemnation, the award shall be paid to the Owner owning the land or the
Improvements taken,and the other Owners hereby waive and release any right to recover any value
attributable to the property interest so taken, except that (a) if the taking includes Improvements
belonging to more than one Owner, such as Utility Lines or signs, the portion of the award
allocable thereto shall be used to relocate, replace or restore such jointly owned Improvements to
a useful condition, and (b) if the taking includes easement rights which are intended to extend
beyond the term of this Declaration,the portion of the award allocable to each such easement right
shall be paid to the respective grantee thereof. In addition to the foregoing,if a separate claim can
be filed for the taking of any other property interest existing pursuant to this Declaration which
does not reduce or diminish the amount paid to the Owner owning the land or the Improvement
taken,then the Owner of such other property interest shall have the right to seek an award for the
taking thereof. Except to the extent they burden the land taken, easements or licenses set forth in
this Declaration shall not expire or terminate based solely upon such taking.
16.9 Construction and Interpretation.
(a) The terms of this Declaration and all easements granted hereunder shall
constitute covenants running with the land and shall bind the Project described herein and inure to
the benefit of and be binding upon the signatories hereto and their respective successors and
assigns who become Owners hereafter.
(b) Whenever required by the context of this Declaration, (i) the singular shall
include the plural, and vice versa,and the masculine shall include the feminine and neuter genders,
and vice versa; and (ii)use of the words"including", "such as", or words of similar impart,when
following any general term, statement or matter shall not be construed to limit such statement,
term or matter to specific items, whether or not language of non-limitation, such as "without
limitation", or"but not limited to", are used with reference thereto, but rather shall be deemed to
refer to all other items or matters that could reasonably fall within the broadest scope of such
statement,terms or matter.
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(c) The captions preceding the text of each article and section of this Declaration
are included only for convenience of reference and shall be disregarded in the construction and
interpretation of this Declaration. Capitalized terms are also selected only for convenience of
reference and do not necessarily have any connection to the meaning that might otherwise be
attached to such term in a context outside of this Declaration.
(d) Invalidation of any of the provisions contained in this Declaration, or
invalidation of the application thereof to any Owner by judgment or court order, shall in no way
affect any of the other provisions hereof or the application thereof to any other Owner and the
same shall remain in full force and effect.
(e) Only the Owners shall have the right to enforce any of the provisions of this
Declaration.
16.10 Negation of Partnership. None of the terms or provisions of this Declaration shall
be deemed to create a partnership between or among the Owners in their respective businesses or
otherwise, nor shall it cause them to be considered joint venturers or members of any joint
enterprise. Each Owner shall be considered a separate Owner,and Owners shall not have the right
to act as an agent for another Owner, unless expressly authorized to do so herein or by separate
written instrument signed by the Owner to be charged.
16.11 Excusable Delays. Whenever performance is required of any Owner hereunder,
such Owner shall use all due diligence to perform and take all necessary measures in good faith to
perform. If completion of performance is delayed at any time by acts of God,war,pandemic,civil
commotion, riots, strikes, picketing or other labor disputes, unavailability of labor or materials,
damage to work in progress by reason of fire or other casualty,or any cause beyond the reasonable
control of such Owner (excluding financial reasons), then the time for performance as herein
specified shall be appropriately extended by the time of the delay actually so caused. The
provisions of this Section 16.11 shall not operate to excuse any Owner from the prompt payment
of any monies required by this Declaration.
16.12 Joint Owners/Tenant's in Common.
(a) Subject to the provisions of Section 16,13, each Owner shall be liable for the
performance of all covenants, obligations and undertakings herein set forth with respect to the
portion of the Project owned by it which accrue during the period of such ownership.
(b) If a Lot is owned by more than one Owner as tenants in common or as joint
tenants,the Owner holding at least 51%of the ownership interest in the Lot shall designate one of
thejoint or common Owners to represent all Owners of the Lot, and such designated Owner shall
be deemed to be the Owner for such Lot.
16.13 Limitation of Liability. Except as specifically provided below, there shall be
absolutely no corporate or personal liability of persons, firms,corporations or entities who merely
hold an ownership interest in an Owner, including, but not limited to, officers, directors,
shareholders, members,partners, employees or agents of an Owner hereto, with respect to any of
the terms, covenants, conditions and provisions of this Declaration. Any Non-Defaulting Owner
who seeks recovery from a Defaulting Owner shall look solely to the interest of such Defaulting
DECLAR A,TION OF COWNI ANTS,CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
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Owner, its successors and assigns, in the Project for the satisfaction of each and every remedy of
the Non-Defaulting Owner. The foregoing shall not in any way impair,limit or prejudice the right
of any Owner to:
(a)pursue equitable relief in connection with any term, covenants or condition of
this Declaration, including a proceeding for temporary restraining order, preliminary injunction,
permanent injunction or specific performance;
(b)recover from another Owner all damages and costs on account of, or in
connection with, casualty insurance or condenuiation proceeds which are not applied or used in
accordance with the terms of this Declaration;
(c)recover from another Owner (or its guarantor) all losses suffered, Liabilities
incurred or costs imposed arising out of or in connection with, or on account of, such Owner's (or
its guarantor's) breach of its obligation to carry liability insurance, or fund its self insurance
obligation pursuant to Section 14.4(a)(iii);
(d) recover from any Owner all damages and costs arising out of or in connection
with, or on account of, a breach by such Owner of its obligations regarding Hazardous Material
under Section 11.3;
(e) recover from any Owner all damages and costs arising out of or in connection
with, or on account of, the failure by such Owner to pay when due any tax, assessment or lien as
specified under Section 16.7; and
(f) recover from any Owner all damages and costs as a result of any fraud or
misrepresentation by such Owner in connection with any term covenant or condition in this
Declaration.
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed
effective as of the day and year first above written.
KUNA VICTORY,LLC
By: BV Managernent Services,Inc., an Idaho
corporation,the Manager
ByIThel
Casper,�VriicePresident
DECLARATION OF COVENANTS,CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VTC:TORY COMMONS
35
STATE OF IDAHO )
)ss.
County of Bonneville )
On the 2- �'-'day of August,2020,before me the undersigned,a notary public in and for said State,
personally appeared Thel W,Casper,known or identified to me to be the Vice President of B V Management
Services,Tne.,which corporation is the Manager of Kuna Victory,LLC,and the Manager who subscribed
said limited liability company name to the foregoing instrument, and acknowledged to me that such
corporation as the Manager executed the same in said limited liability company name.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year in this certificate first above written.
CLAY HANSEN
*66MMISSION NO. 6887 IV Lary Public for Idaho
NOTARY PUBLIC
STATE OF DAHO
Y COMMISSION EXPIRES IV22122
DECLARATION OF COVENANTS;CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VTCTORY COMMONS
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Exhibit A
Property Description
All of Parcel A and Parcel B as described in and depicted on the Record of Survey for B_V.A.
Property Boundary Adjustment recorded in the records of Ada County, Idaho on March 13, 2020
as Instrument Number 2020-042373,
DECLARATION OF COVENANTS,CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
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Exhibit S
Site Plan
I �
I � at ri
I �
I `
I `
p — PARCEL A
st
z `
g PARCEL B
I
I
I
E VICTORY RD
DECLARATION OF COVENANTS,CONDITIONS,RESTRICTIONS AND EASEMENTS FOR VICTORY COMMONS
38