CC - Cross Access Easement When Recorded Mail To:
Norco, Inc.
Attention: James A. Kissler ADA COUNTY RECORDER Phil McGrane 2020-003133
1121 W. Amity Road BOISE IDAHO Pgs=45 CHE FOWLER 01/09/2020 02:44 PM
Boise, ID 83705 ALLIANCE TITLE-BOISE PRODUCTION CENTER $142.00
AMENDED AND RESTATED DECLARATION
OF CROSS-EASEMENTS AND USE RESTRICTIONS
AND COMMON AREA MAINTENANCE AGREEMENT
FOR
OXYGEN SUBDIVISIONS
THIS AMENDED AND RESTATED DECLARATION OF CROSS-EASEMENTS AND
USE RESTRICTIONS AND COMMON AREA MAINTENANCE AGREEMENT FOR OXYGEN
SUBDIVISIONS (this "Declaration") is made effective as of its recordation by the Ada County
Recorder by James A. Kissler LLC, an Idaho limited liability company, amending and restating
in its entirety that certain Oxygen Subdivision #1, #2, and #3 Declaration of Cross-Easement
and Use Restrictions and Common Area Maintenance Agreement, dated October 16, 2017,
recorded by the Ada County Recorder as Instrument No. 2018-041517 on May 8, 2018, and
thereafter amended by that certain First Amendment to Declaration of Cross-Easement and Use
Restriction and Common Area Maintenance Agreement for Oxygen Subdivision #1, #2 and #3
recorded as Instrument No. 2018-059250 on June 26, 2018.
RECITALS
A. Declarant is the owner of those parcels of real estate located in the City of
Meridian, Ada County, Idaho, platted as Oxygen Subdivision No. 1, Oxygen Subdivision No. 2
and Oxygen Subdivision No. 3 in the final plats attached hereto and incorporated herein as
Exhibit A.
B. As depicted in Exhibit A, the Property was subdivided into three separate
subdivisions each containing two legal buildable lots, with certain of the buildable lots being
reconfigured as Parcels A—E as depicted in the record of survey recorded by the Ada County
Recorder as Instrument No. 2018-106281 on November 6, 2018, as ROS 11595 attached
hereto and incorporated herein as Exhibit B.
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C. Declarant intends for the Property to be developed and operated as an integrated
mixed-use complex to be known as "Eagle Commons at Overland." In order to effectuate the
common use and operation of the Property, Declarant hereby amends, restates, declares and
grants certain reciprocal easements on, over and across certain portions of the Property and
imposes certain covenants, conditions and restrictions thereon.
D. Unless otherwise defined in this Declaration, the capitalized terms used herein
have the meanings ascribed thereto in Article I below.
ARTICLE 1
PRELIMINARY
1.1 Definitions.
(a) "Access Easement Road": The Access Easement Road depicted on the
Site Plan.
(b) "Building Area": The Building Area shall be all those areas within each
Parcel not located within legal setback areas or designated easements.
(c) "Buildings": A permanent structural improvement enclosed by exterior
walls, floor and roof for the conduct therein of the business of the Owner or Occupant on a
Parcel.
(d) "Center Signs": Any pylon or monument sign constructed pursuant to
Article 6 below.
(e) "Common Area": All areas within the exterior boundaries of the Property
that are intended for the common use, benefit and enjoyment of all Owners and Occupants of
the Property and their Permittees. Buildings, the sidewalks around Buildings, those areas
devoted to Service Facilities or drive-up or drive through customer service facilities and
canopies extending over the Common Area, together with any columns or posts supporting the
same, shall be deemed to be a part of the Building to which they are attached and not a part of
the Common Area. Additionally, the parking spaces and any other parking area (but not drive
aisles) designated on a Parcel are reserved for the exclusive use, benefit and enjoyment of the
Owners and Occupants of the Parcel and their Permittees and are not a part of the Common
Area. "Designated Common Area" shall mean the landscaped areas of Silverstone Way from
Overland Road north to its terminus on the northeast boundary of the Consenting Owner's
Parcel, the Access Easement Road, including all adjoining curbs, gutters, sidewalks and
landscaping, and any secondary shared access road along the northern boundary of the
Property that may be constructed as referenced in Section 3.2(c) below, including all adjoining
curbs, gutters, sidewalks and landscaping.
{f) "Consenting Owner": The Owner of Oxygen Subdivision #1, Block 1,
Lot 1 (the"Consenting Owner's Parcel").
(g) "Declarant": James A. Kissler LLC, an Idaho limited liability company.
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(h) "Eagle Commons Complex": The Property developed as depicted in the
Site Plan, as it may be amended by the Declarant in accordance with this Declaration.
W "Hotel Owner": The Owner of Oxygen Subdivision #1, Block 1, Lot 2 (the
"Hotel Owners Parcel").
0) "Lienholder": Any mortgagee under a mortgage or a trustee or
beneficiary under a deed of trust constituting a lien on any Parcel.
(k) "Maintenance Directors: The maintenance director of the Eagle
Commons Complex Common Area
(1) "Occupant": Any Person occupying any portion of a Building or Parcel
who holds less than a fee simple interest, including, without limitation, lessees, licensees and
invitees.
(m) "Owner": The record holder of fee simple title to a Parcel, its heirs,
personal representatives, successors and assigns.
(n) "Parcel": Each lot or parcel comprising a part of the Property, as depicted
in Exhibit A or Exhibit B.
(o) "Permanent Access Easement": A non-exclusive, perpetual access
easement for vehicular and pedestrian ingress and egress over and across the portions of the
Common Area depicted on the Site Plan.
(p) "Permittee": All Owners and Occupants and the officers, directors,
employees, agents, contractors, customers, vendors, suppliers, visitors, invitees, licensees,
subtenants and concessionaires of Owners or Occupants, insofar as their activities relate to the
intended development, use and occupancy of the Property or a particular Parcel, as applicable.
Among others, Persons engaging in the following activities on the Common Area will not be
considered to be Permittees:
W Exhibiting any placard, sign or notice, except for a party displaying
real estate "for sale" or "for rent" signs, "coming soon" and similar development signs and legal
notices (who shall be a Permittee);
(ii) Distributing any circular, handbill, placard or booklet;
(iii) Soliciting memberships or contributions;
(iv) Parading, picketing or demonstrating; or
(v) Failing to follow the Rules and Regulations.
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(q) "Person": Individuals, partnerships, limited liability companies,
associations, corporations, trusts, governmental agencies, administrative tribunals or any other
form of business or legal entity.
(r) "Property : All the Parcels encumbered by this Declaration, as depicted
in Exhibit A and Exhibit B.
(s) "Restrictions": The easements, covenants, restrictions, liens and
encumbrances contained in this Declaration.
(t) "Rules and Regulations": Any rule, regulation, restriction, ordinance,
statute or requirement contained within or adopted under this Declaration, Meridian's City Code,
Ada County's Code, Idaho's Code or Federal Code.
(u) "Service Facilities": Loading docks, trash enclosures, bottle storage
areas, trash compactors, exterior coolers and electrical and refrigeration facilities, together with
other similar service facilities.
(v) "Site Plan": The plan attached hereto and incorporated herein as
Exhibit C depicting the"Permanent Access Easement," location of Consenting Owner's existing
Building, location of the pylon sign for the Eagle Commons Complex, and conceptual Buildings
and parking fields for future development of the Eagle Commons Complex. The conceptual
Buildings and parking fields are subject to change as the Eagle Commons Complex develops
upon recording of an amendment to this Declaration adopting a revised Site Plan in accordance
with this Declaration.
(w) "Utility Lines": Those facilities and systems for transmissions of utility
services, including, but not limited to, water drainage and storage systems or structures; fire
protection, irrigation and domestic water mains; sewer lines and systems; fire and landscape
water sprinkler systems; telephone lines; electrical conduits or systems; gas mains and other
public or private utilities. "Common Utility Lines" shall mean those Utility Lines which are
installed to provide the applicable service to more than one Parcel. "Separate Utility Lines" shall
mean those Utility Lines which are installed to provide the applicable service to only one Parcel.
For the purpose of this Declaration, the portion of a Utility Line extending between a Common
Utility Line and a Building shall be considered a Separate Utility Line.
1.2 Declaration.
Declarant hereby declares that the Property, including each Parcel and any tract or
portion thereof, is and shall be held, sold, conveyed, encumbered, hypothecated, leased, used,
occupied and improved subject to all Restrictions set forth herein, all of which are declared and
agreed to be in furtherance of a general plan for the protection, maintenance, subdivision,
improvement and sale of the Property, and to enhance the value, desirability and attractiveness
of the Property. This Declaration shall run with the land constituting the Property, and with each
estate therein, and shall be binding upon any Person having or acquiring any right, title or
interest in the Property or any Parcel or portion thereof, shall inure to the benefit of every Parcel
or portion of the Property and any interest therein; and shall inure to the benefit of and be
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binding upon Declarant and each Person or Owner having or holding an interest in the Property
and such Person's or Owner's successors in interest; and may be enforced by Declarant, any
Owner or Owner's successors in interest or any Person having or holding an interest in the
Property or such Person's successors in interest.
ARTICLE 2
CONSTRUCTION OF BUILDINGS AND COMMON AREA
2.1 Building Location.
All Buildings and other structures except those permitted in Section 2.5 below shall be
placed or constructed upon a Parcel only in the Building Areas; provided, however, that
canopies, eaves and roof overhangs (including columns or posts supporting the same), normal
foundations, utility cabinets and teeters, signs and doors for ingress and egress may project
from the Building Area into the Common Area. All of the foregoing shall be constructed and
maintained in accordance with all local, state and federal laws, rules and regulations applicable
thereto.
2.2 Construction Staging Area.
All construction staging for construction on a Parcel shall be solely within the boundaries
of such Parcel. In the event construction staging on a Parcel is not possible, staging for the
construction, replacement, alteration or expansion of any Building or improvements, including,
without limitation, the location of any temporary buildings or construction sheds, the storage of
building materials and the parking of construction vehicles and equipment, shall be limited to
that portion of the Property approved in writing by the Owner of the Parcel upon which such
construction staging or storage of materials is proposed to be located.
2.3 Construction Restriction.
After the first Occupant of any Building located on any Parcel opens for business to the
public, no new construction or construction on the exterior of any Building shall materially
interfere with access to such Parcel upon which such business is operating.
2.4 Architectural Approval.
The exterior of all Buildings to be constructed or placed within the Property shall be
architecturally compatible. In order to ensure the exterior architectural compatibility of the
Buildings within the Property, each Owner shall submit to the Consenting Owner for its approval
detailed plans covering the initial construction of each Building and any additions, remodeling,
reconstruction or other alteration thereto which changes the exterior thereof at least 30 days
prior to the commencement of any such work. If the Consenting Owner should timely reject or
conditionally approve the plans, the submitting Owner and the Consenting Owner shall mutually
consult to establish approved plans for the proposed work. The Consenting Owner shall not
arbitrarily or unreasonably condition, delay or withhold approval of any plans, and in the event
the Consenting Owner does not reject the plans in writing within 30 days after receipt thereof
the plans shall be deemed approved.
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2.5 Common Area and Improvements Thereon.
The Common Area is hereby reserved for the sole and exclusive use of all Owners and
Occupants of the Eagle Commons Complex and their Permittees and for holders of any
easement or license granting rights of access or otherwise in the Common Area or any part
thereof. The surface area of the Common Area may be used for vehicular driving, pedestrian
traffic, directional signs, sidewalks, walkways, landscaping, perimeter walls and fences, outdoor
lighting, recycle centers, cart corrals, utilities and bike racks, or as otherwise approved by the
Consenting Owner, and for no other purpose unless otherwise specifically provided in this
Declaration. Except as may be allowed in Article 4 below and except for Permitted
Improvements, as defined below, no additional buildings or structures shall be placed or
constructed in the Common Area without the Consenting Owner's approval. "Permitted
Improvements" are defined as paving, bumper guards or curbs, landscape planters, lighting
standards, utility pads and equipment, recycle centers, cart corrals, bicycle racks, sidewalks and
Service Facilities (provided that such Service Facilities are located to the rear or sides of any
Buildings and further provided that upon construction or placement of any Service Facilities they
shall not be part of the Common Area), so long as any such improvements do not (i) reduce the
total number of parking spaces on the Parcel involved below the number of parking spaces
required by the City of Meridian for such Parcel or(ii) impede the access to any other Parcel or
traffic circulation or alter the Permanent Access Easement in any manner. Each Owner shall
construct at its sole cost and expense the Common Area and monument Center Sign
associated with its Parcel at the time the Owner constructs a Building on its Parcel, in
accordance with this Declaration; except that, construction of the Permanent Access Easement
shall be in accordance with Section 3.2(b). Declarant may change the configuration of the
Common Area and proposed Building locations for a Parcel with the consent of the Parcel's
Owner and upon recording an amendment to this Declaration adopting a revised Site Plan in
accordance with this Declaration.
2.6 Construction Requirements.
(a) General Requirements. All work performed in the construction,
maintenance, repair, replacement, alteration or expansion of any Building, sign or Common
Area improvements located in the Eagle Commons Complex shall be effected as expeditiously
as possible and in such a manner as not to unreasonably interfere, obstruct or delay (i) access
to or from the Eagle Commons Complex, or any part thereof, to or from any public right-of-way,
(ii) vehicular parking constructed in the Eagle Commons Complex or (iii) the receiving of
merchandise by any business in the Eagle Commons Complex including, without limitation,
access to Service Facilities. Unless otherwise specifically stated herein, the Person contracting
for the performance of such work (the "Contracting Party") shall, at its sole cost and expense,
promptly repair and restore, or cause to be promptly repaired and restored, to its prior condition
all Buildings, signs, and Common Area improvements damaged or destroyed in the
performance of such work.
(b) Liens and Claims. The Contracting Party shall not permit any liens to
stand against any Parcel for any work done or materials furnished in connection with the
performance of the worts described in Section 2.6(a) above; provided, however, that the
Contracting Party may contest the validity of any such lien, but upon a final determination of the
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validity thereof, the Contracting Party shall cause the lien to be satisfied and released of record.
The Contracting Party shall, within 30 days after receipt of written notice from the Owner of any
Parcel encumbered by any such lien or claim of lien, cause any such outstanding lien or claim
of lien to be released of record or transferred to bond in accordance with applicable law, failing
which the Owner of said Parcel shall have the right, at the Contracting Parry's expense, to
transfer said lien to bond. The Contracting Party shall indemnify, defend and hold harmless the
Owners and Occupants of the Eagle Commons Complex from any and all liability, claims,
damages, expenses (including reasonable attorney's fees), liens, claims of lien, judgments,
proceedings and causes of action, arising out of or in any way connected with the performance
of such work, unless caused by the negligent or willful act or omission of the indemnified
Person, its tenants, subtenants, agents, contractors or employees.
(c) Incidental Encroachments. The parties acknowledge and agree that
incidental encroachments upon the Common Area may occur as a result of the use of ladders,
scaffolds, store front barricades and similar facilities in connection with the construction,
maintenance, repair, replacement, alteration or expansion of Buildings, signs and Common
Area improvements located in the Eagle Commons Complex, all of which are permitted
hereunder so long as all activities requiring the use of such facilities are expeditiously pursued
to completion and are performed in such a manner as to minimize any interference with use of
the improved Common Area or with the normal operation of any business in the Eagle
Commons Complex.
2.7 Casualty and Condemnation.
In the event all or any portion of any Building in the Eagle Commons Complex is (i)
damaged or destroyed by fire or other casualty or (ii) taken or damaged as a result of the
exercise of the power of eminent domain or any transfer in lieu thereof, the Owner of such
Building shall promptly restore or cause to be restored the remaining portion of such Building or,
in lieu thereof, shall remove or cause to be removed the damaged portion of such Building
together with all rubble and debris related thereto. All Building Areas on which Buildings are not
reconstructed following a casualty or condemnation shall be graded by the Owner thereof to the
level of the adjoining property and in such a manner as not to adversely affect the drainage of
the Eagle Commons Complex or any portion thereof, and shall be kept weed free and clean at
the Owner's sole cost and expense until Buildings are reconstructed thereon.
ARTICLE 3
EASEMENTS
3.1 Ingress and Egress.
Each Owner, as grantor, hereby grants to the other Owners, their respective tenants,
contractors, employees, agents, customers, licensees and invitees, and the subtenants,
contractors, employees, agents, customers, licensees and invitees of such tenants, for the
benefit of each Parcel belonging to the other Owners, as grantees, a non-exclusive easement
for ingress and egress by vehicular and pedestrian traffic, over and across that portion of the
Common Area located on the grantor's Parcel, except for those areas devoted to Service
Facilities or drive-up or drive through customer service facilities. The reciprocal rights of ingress
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and egress set forth in this Section 3.1 shall apply to the Common Area for each Parcel.
Notwithstanding the foregoing, no Owner or Occupant of a Parcel or their Permittees shall park
on the Parcel of another Owner without the other Owner's consent.
3.2 Permanent Access Easement
(a) Grant of Easements. In addition to the foregoing, Declarant hereby
amends, restates, declares, conveys and grants, subject to the terms contained in this
Declaration, the Permanent Access Easement depicted on the Site Plan for the benefit of each
Parcel within the Property and for the use of the Owners and Occupants thereof and their
Permittees, in common with others entitled to use the same.
(b) Construction of Permanent Access Easement Improvements. At or
before the time the Hotel Owner commences construction of a Building on the Hotel Owner's
Parcel, the Declarant, at the Declarant's cost, shall commence construction and improve the
portion of the Access Easement Road within the Permanent Access Easement that is located
on the Hotel Owner's Parcel and the Consenting Owner's Parcel. The Owners or Occupants of
all other Parcels, at such Owner's or Occupant's cost, shall commence construction and
improve the portion of the Access Easement Road within the Permanent Access Easement that
is located on such Owner's or Occupant's Parcel, if not previously constructed, at the time such
Owner or Occupant constructs a Building on its Parcel.
(c) Secondary Shared Access Road. The development of the real estate to
the north of the Property will require a secondary access to that provided by the Access
Easement Road, which will also be provided via S. Rackham Way. The Declarant may upon
recording an amendment to this Declaration adopt an amended Site Plan providing for a shared
access road along the northern boundary of the Property, together with enhanced access to the
real estate to the north of the Property. The cost of constructing the secondary shared access
road shall be borne by Declarant and the land owners to the north of the Property that are
served by such secondary shared access road. The costs related to the maintenance and
repair of the shared access road will be allocated between the Eagle Commons Complex and
the landowners to the north of the Property, subject to the limitation that not greater than 30% of
all such costs shall be allocated to the Eagle Commons Complex and constitute additional
Maintenance Expenses subject to Section 7.5(b) below.
3.3 Utility Lines.
(a) Grant of Easement. Each Owner, as grantor, hereby grants to the other
Owners, for the benefit of each Parcel belonging to the other Owners, as grantees, a perpetual
non-exclusive easement, at a location approved by the Consenting Owner, under, through and
across the grantor's Parcel for the operation, maintenance, repair and replacement of Utility
Lines existing as of the date of this Declaration or to be installed after the date of this
Declaration. All such Utility Lines shall be installed and maintained below the ground level or
surface of such easements except for ground mounted electrical transformers and such other
facilities as are required to be above ground by the utility providing such service (including
temporary service required during the construction, maintenance, repair, replacement, alteration
or expansion of any Buildings or other improvements located in the Eagle Commons Complex).
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The grantee shall provide 30-days' prior written notice to the grantor before any installation,
maintenance, repair or replacement of any such Utility Lines, except in the case of an
emergency requiring immediate action. The grantee shall coordinate all activity upon the
grantor's Parcel with grantor to ensure that grantee's use of the easement does not materially
adversely affect any operating business located upon the grantor's Parcel. In no event shall the
installation, operation, maintenance, repair or replacement of any such Utility Lines
unreasonably interfere with the use of the improved Common Area or with the normal operation
of any business in the Eagle Commons Complex. The grantee shall bear all costs related to the
installation, operation, maintenance, repair and replacement of such Utility Lines, shall repair to
the original specifications any damage to the Common Area resulting from such use and shall
provide as-built plans for all such Utility Lines or other evidence sufficient to locate such Utility
Lines to the Owners of all Parcels upon which such Utility Lines are located within 30 days after
the date of completion of construction of same. All costs associated with Separate Utility Lines
shall be borne solely by the Owner of the Parcel served thereby. All costs associated with
Common Utility Lines shall be allocated among the Owners of the Parcels served thereby in
proportion to the gross area of each Parcel shown on attached Exhibit D. The installation,
operation, maintenance, repair and replacement of Common Utility Lines may be performed by
the Owner of any Parcel served thereby at a location approved by the Consenting Owner,
subject to the requirements of this paragraph.
(b) Relocation of Easements. At any time and from time to time the Owner of
a Parcel shall have the right to relocate on its Parcel any Utility Line installed pursuant to the
foregoing grant of easement which is then located on the land of such Owner, provided that any
such relocation (i) shall be performed only after 60-days' prior written notice of the Owner's
intention to undertake the relocation shall have been given to the Owner of each Parcel served
by the Utility Line, (ii) shall not unreasonably interrupt, interfere with or diminish utility service to
the Parcels served by the Utility Line, (iii) shall not reduce or unreasonably impair the
usefulness or function of the Utility Line, (iv) shall be performed without cost or expense to the
Owner or Occupant of any other Parcel and (v) shall provide for the original and relocated area
to be restored to the original specifications. The Owner performing such relocation shall provide
as-built plans for all such relocated Utility Lines or other evidence sufficient to locate such Utility
Lines to the Owners of all Parcels served by such Utility Lines within 30 days after the date of
completion of such relocation.
(c) Additional Easements. Each Owner agrees to grant such additional
easements as are reasonably required by any public or private utility for the purpose of
providing the Utility Lines described herein, provided such easements are not otherwise
inconsistent with the provisions of this Declaration.
(d) Liens and Claims. Any grantee utilizing the easement set forth in this
Section 3.3 shall indemnify, defend and hold any grantor harmless from and against all losses,
damages, liabilities, claims, liens, fines, penalties, causes of action and expenses arising from
or out of the presence or activities of such grantee or its agents, employees, representatives,
consultants or contractors on the grantor's Parcel and any claims in connection with any
construction or maintenance activity performed under this Section 3.3 by the grantee or its
agents, contractors, subcontractors or representatives.
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3.4 Center Signs.
Each Owner upon whose Parcel a Center Sign is located, as grantor, hereby grants to
the Maintenance Director and the other Owners entitled to use the Center Sign, for the benefit
of each Parcel belonging to such other Owners, as grantees, an easement under, through and
across the Common Area on the grantor's Parcel for the installation, operation, maintenance,
repair and replacement of the Center Sign and all Utility Lines and facilities appurtenant thereto.
Except where otherwise specifically stated in this Declaration to the contrary, the grantee shall
bear all costs related to such grantee's use of the easement, shall repair to the original condition
any damage to the Common Area resulting from such use and shall provide as-built plans for all
such facilities to the Owners of all Parcels upon which such Utility Lines and facilities are
located within 30 days after the date of completion of construction of same.
3.6 Maintenance Easement.
Each Owner, as grantor, hereby grants to the Maintenance Director and other Owners,
their respective employees, agents, and contractors, as grantees, an easement over and across
that portion of the Common Area located on the grantor's Parcel for the purpose of performing
any maintenance, repairs, or replacements of the Common Utility Lines.
ARTICLE 4
USE OF COMMON AREA AND PARKING SPACES
4.1 Protection of Common Area.
Each Owner shall have the right to take such steps as it deems necessary to prevent
those Persons not authorized by this Declaration to use the Common Area from using the
Common Area for ingress, egress, parking or other purposes.
4.2 Protection of Parking Spaces.
Each Owner shall have the right to take such steps as it deems necessary to prevent
those Persons not authorized by this Declaration to park on the Owner's Parcel from using
those parking spaces or any other parking area (but not drive aisles) designated on the Owner's
Parcel.
4.3 Activities on Common Area and Parking Spaces.
Without the prior written consent of the Consenting Owner and the Owner of any Parcel
upon which any affected Common Area or parking spaces or any other designated parking area
are located, the following shall not be allowed to operate: traveling carnivals, fairs, auctions,
shows, kiosks, booths for the sale of fireworks, sales by transient merchants utilizing vehicles or
booths and other promotional activities of any nature.
ARTICLE S
RESTRICTIONS ON USE
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5.1 Use Restrictions.
No part of the Property shall be used for truck parking (except incidentally as part of
pick-up or delivery activities and for vans or vehicles used in connection with the operation of
retail/office/light-industrial uses), carpooling or park & ride arrangements; auditorium, meeting
hall or other place of assembly (other than convention and meeting spaces that are consistent
with customary hotel/motel/extended-stay business operations); dry cleaning (except facilities
for drop off and pick up of clothing cleaned at another location or EPA approved facilities or
facilities that are consistent with customary hotel/motel/extended-stay business operations);
automobile sales or repairs (provided that a fast-tube facility, nationally franchised muffler store
or a tire store selling and installing tires and related parts and accessories such as wheels or
auto parts store, including, without limitation, a Jiffy Lube, Meineke, Goodyear Tires, Just Tires,
Discount Tire, AutoZone or O'Reilly's Auto Parts, shall be permitted uses); skating rink; funeral
parlor; off track betting or other gambling establishment (except for incidental sales of state
lottery tickets, which shall be allowed); a so-called flea market or other operation for the
temporary or periodic sale of used goods (provided that facilities offering for sale of gently used
children's clothing or sporting goods, such as Other Mothers or Play it Again Sports, shall be
permitted); gun range (except an indoor gun range shall be permitted); any business or use
which emits offensive odors, fumes, dust or vapor or constitutes a public or private nuisance;
uses involving exterior loud speakers, other than speakers typically used in connection with any
drive through allowed hereunder, or emits loud noise or sounds which are objectionable, or
creates a fire, explosive or other hazard; manufacturing facility or refinery; adult book store or
adult movie house or similar store selling or exhibiting pornographic materials as a substantial
part of its business; coin operated laundry; carnival, outdoor circus or other entertainment or
outdoor meetings; bankruptcy sale or auction. Notwithstanding the foregoing, all uses on the
Property shall require the approval of the Consenting Owner and comply with all Rules and
Regulations, provided that the Hotel Owner's Parcel is approved for hotel/motel/extended-stay
uses.
5.2 Exclusive Use.
No Parcel, other than the Hotel Owner's Parcel, shall be used for extended-stay hotel or
motel uses without the prior written consent of the Hotel Owner.
ARTICLE 6
SIGNS AND LIGHTING
6.1 Center Signs.
Without the prior written consent of the Consenting Owner, no freestanding sign shall be
permitted within the Property unless constructed in areas designated on the Site Plan approved
by the Consenting Owner, and only one such sign may be located in each designated area.
One freestanding multi-occupant pylon sign located at the intersection of Overland Road and
Silverstone Way, and possibly a second pylon sign if approved by the Consenting Owner, and
one monument sign for each Parcel are permitted (collectively, the "Center Signs").
Notwithstanding the foregoing, all pylon signs, monument signs and building signs require
approval by the Consenting Owner and the City of Meridian.
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The total available sign space (not including the Eagle Commons Complex identification)
on pylon Center Signs shall be used to identify Occupants within the Property and shall be for
the exclusive use of the Consenting Owner and such other Occupants obtaining the Consenting
Owner's approval.
6.2 Use of Center Signs.
The Consenting Owner shall determine which Occupants within the Eagle Commons
Complex shall be entitled to use the pylon Center Signs, as well as the size and location of the
sign panels for such Occupants. The Owner(s) of each Parcel on which a monument sign is
erected shall determine which Occupants within the Parcel shall be entitled to use such
monument Center Sign, as well as the size and location of sign panels for such Occupants.
6.3 Costs of Pylon Center Signs.
Although the parties utilizing pylon Center Signs (the "Sign Users") shall install and
maintain their own sign fascia, the cost of constructing, maintaining and insuring the pylon
Center Signs shall be divided among the Sign Users utilizing a particular pylon sign based upon
the sign area utilized by each Sign User in relation to the sign area used by all the Sign Users
(but not including the sign area used to identify the Eagle Commons Complex). The cost of the
electrical power for a pylon Center Sign shall be divided among the Sign Users in the same
manner as set forth above for other costs. Each pylon Center Sign shall have a separate
electrical meter.
6.4 Design of Center Signs.
The design and construction of, and the panel inserts on, all Center Signs shall be
subject to the prior written approval of the Consenting Owner, which approval shall not be
unreasonably conditioned, delayed or withheld; provided, however, an Occupant shall be
authorized to use its standard signage package, subject to the dimensional and other limitations
imposed by the design of the approved Center Sign on which it will be displayed.
6.5 Center Sign Easements.
Non-exclusive easements are hereby granted over, under and across that portion of the
Parcels where the pylon and monument Center Signs are to be located and where the Utility
Lines necessary for their operation are to be located, for the installation, maintenance, repair,
replacement and removal of the Center Signs and the Utility Lines necessary for their operation,
together with access to and from the same. The easements shall include that portion of a
Parcel as is reasonably necessary and not be located within any Building Area. Pylon Center
Signs shall be subject to separate easement agreements by and between Declarant and the
Owners of the Parcels upon which the signs are located.
6.6 Building Signs.
Unless otherwise approved by the Consenting Owner, no Owner/Occupant identification
sign attached to the exterior of a Building shall:
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(a) Be placed on canopy roofs extending above the Building roof, placed on
penthouse walls, or placed so as to project above the parapet, canopy or top of the wall upon
which it is mounted;
(b) Be painted on the surface of any Building;
(c) Be flashing or audible; or
(d) Be paper or cardboard signs, temporary signs (exclusive of contractor
signs), stickers or decals; provided, however, the foregoing shall not prohibit the placement at
the entrance of each Occupant's space of small stickers or decals indicating hours of business,
emergency telephone numbers, acceptance of credit cards and other similar items of
information.
The following additional requirements apply to exterior Building signage: No exposed lamps or
skeleton tubing, animated, flashing or audible signs, crossovers, conduit, brackets, fasteners or
spacers will be permitted, and all conductors, transformers and other equipment shall be
concealed. Reader boards are subject to the approval of the Consenting Owner in its sole and
absolute discretion.
6.7 Sign Maintenance.
The Maintenance Director shall be responsible for the operation, maintenance, repair
and replacement of all pylon Center Signs, subject to reimbursement by the Sign Users as
provided in Section 6.3 above. The Owner(s) of each Parcel on which a monument sign is
erected shall be responsible for the construction, operation, maintenance, repair and
replacement of the monument Center Sign on its Parcel.
6.8 Lighting.
The artificial lighting for the Common Area and all Center Signs shall remain lighted
during the hours of dusk until 10:00 p.m., daily.
ARTICLE 7
COMMON AREA MAINTENANCE
7.1 Maintenance Director.
(a) Appointment. Subject to the requirement that the Owner of each Parcel
shall maintain it in accordance with Section 7.11 below, Declarant is appointed to be the initial
Maintenance Director of the Common Area. The Maintenance Director shall be responsible for
the maintenance and repair of the Designated Common Area, including all related mechanical
elements, lighting and directional traffic signage. In the event Declarant is unable to serve as
the Maintenance Director, then Declarant may appoint a substitute Maintenance Director of
Declarant's choice; provided, however, at such time as Declarant no longer owns any Parcel in
the Eagle Commons Complex, the Owners shall appoint another Owner of a Parcel to be the
Maintenance Director in the manner provided by Section 9.8 below (any successor Maintenance
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Director being sometimes referred to as the"Successor Maintenance Director").
(b) Resignation. A Maintenance Director shall have the right to resign upon
giving 90-days' prior written notice to the Owners of all the Parcels, in which event the Owners
shall appoint another Owner of a Parcel, or a property management company of their choice, to
be the Maintenance Director in the manner provided by Section 9.8 below.
(c) Assignment of CAM Contracts. Within 30 days prior to the effective date
of the Maintenance Director's resignation or within 10 days after removal of the Maintenance
Director, the Maintenance Director whose term is ending (the "Retiring Maintenance Director")
shall deliver to the Successor Maintenance Director copies of all contracts with third parties who
are providing maintenance services for the Common Area (the "CAM Contracts"), together with
an assignment agreement signed by the Retiring Maintenance Director assigning the CAM
Contracts to the Successor Maintenance Director. Within the same time period, the Retiring
Maintenance Director shall (i) notify the service providers under the CAM Contracts of the
assignment, (ii) provide names, addresses and telephone numbers and other pertinent
information regarding the CAM Contracts to the Successor Maintenance Director and (iii)
otherwise cooperate with the Successor Maintenance Director to ensure a smooth transition of
the transfer of maintenance responsibilities.
(d) Final Statement of Account. Within 10 days after the effective date of the
resignation or removal of the Retiring Maintenance Director, the Retiring Maintenance Director
shall deliver to each Owner final statements of account for all services performed through such
effective date. Each Owner shall provide final payment to the Retiring Maintenance Director
within 30 days after receipt of the final statement of account. The Successor Maintenance
Director shall not be liable for acts performed by the Retiring Maintenance Director, nor shall the
Successor Maintenance Director receive payment for services provided by the Retiring
Maintenance Director.
7.2 Maintenance and Insurance Obligations,
(a) Maintenance. Subject to the requirement that the Owner of each Parcel
shall maintain it in accordance with Section 7.11 below, the Maintenance Director shall at all
times except as hereinafter provided maintain the Designated Common Area and each pylon
Center Sign in good and clean condition and repair consistent with similarly situated mixed-use
complexes in the area where the Property is located. Said maintenance shall include, without
limitation, the following:
(i) Maintaining, repairing, resurfacing and re-striping when necessary
the pervious asphalt and all paved surfaces in a level, smooth and evenly covered condition
with the type of surfacing material originally installed or such substitute as shall in all respects
be equal or superior in quality, use and durability;
(ii) Removing all snow, debris, filth and refuse and thoroughly
sweeping the area to the extent reasonably necessary to keep it in a clean and orderly
condition;
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(iii) Maintaining, repairing and replacing when necessary all traffic
directional signs, markers and lines;
(iv) Operating, maintaining, repairing and replacing when necessary
artificial lighting facilities as shall be reasonably required, including, but not limited to, poles,
pole bases, wiring, lamps, ballasts, lenses, photocells, time clocks and contactors;
(v) Maintaining, repairing and replacing when necessary all
landscaped areas and automatic landscape sprinkler systems and water lines;
(vi) Maintaining, repairing and replacing when necessary all walls and
fences, including any screening walls located to the east side of the public right-of-way of
Silverstone Way;
(vii) Maintaining, repairing and replacing when necessary any
detention ponds and drainage facilities;
(viii) Maintaining, repairing and replacing when necessary the pylon
Center Signs (except for the sign fascia and cans, which shall be supplied and maintained by
the businesses designated thereon); and
(ix) Performing itself or contracting with a third party or parties to
perform any of the services described herein.
(b) Insurance for Common Area and Pylon Center Signs. In addition to the
foregoing, the Maintenance Director shall procure and maintain commercial general liability
insurance with respect to all Common Area and pylon Center Signs, which shall include
contractual liability coverage, with broad foram coverage, insuring the Maintenance Director
against claims for personal injury, bodily injury or death and property damage arising out of the
negligent act or omission of the Maintenance Director in performing (or failing to perform) its
services hereunder. Such insurance shall be written by an insurance company authorized to
write insurance in Idaho, and all Owners and Occupants (provided that the Maintenance
Director is notified in writing of each such interest) shall be named on the policy as additional
insureds. The limits of liability of all such insurance shall be a combined single limit (covering
personal injury, bodily injury and property damage) of not less than $2,000,000 per occurrence.
The Maintenance Director shall furnish the Consenting Owner and all other additional insureds
with certificates evidencing such insurance. The insurance policies shall provide that the
insurance represented by such certificates shall not be canceled without the giving of 30-days'
prior written notice to the holders of such insurance and the additional insureds. The
Maintenance Director shall also carry workers' compensation insurance as required under
applicable law in an amount not less than statutory limits and commercial automobile liability
insurance of not less than $1,000,000 per occurrence. The insurance carried by the
Maintenance Director hereunder shall be primary insurance and not contributory with any other
insurance maintained by the Owners and Occupants, who shall be responsible for their own
liability insurance and personal property insurance.
(c) Lapse of Insurance. If the Maintenance Director fails to acquire, renew or
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maintain the insurance required in Section 7.2(b) above, any of the Owners shall have the
option (but not the obligation) of immediately acquiring said insurance, in which event the
Maintenance Director shall pay to such Owner the insurance costs within 10 days after its
receipt of a statement therefor from said Owner. Notwithstanding the foregoing, an Owner shall,
prior to acquiring such insurance, be required to give the Maintenance Director reasonable
written notice and opportunity to obtain the required insurance.
(d) Maintenance Director's Indemnification Obligations. The Maintenance
Director shall indemnify, defend and hold harmless the Owners and Occupants from any and all
liabilities, claims, damages, expenses (including reasonable attorney's fees), judgments,
proceedings and causes of action of any kind whatsoever for injury to or death of any person or
damage to any property resulting from the willful misconduct or negligent act or omission of the
Maintenance Director in performing (or failing to perform) its services hereunder. Failure by the
Maintenance Director to provide and maintain all insurance which the Maintenance Director is
obligated to maintain pursuant to Section 7.2(b) above shall not relieve the Maintenance
Director of its obligations under this Section 7.2(d).
(e) Owner Insurance. Notwithstanding anything in this Section 7.2 to the
contrary, the Maintenance Director shall not be responsible for the maintenance or insurance of
any part of the Eagle Commons Complex other than the Designated Common Area and the
pylon Center Signs, with all other portions of the Common Area and the Parcel being
maintained by the Owners thereof in good and clean condition and repair in accordance with
Section 7.11 below. In addition, the Owners of the Parcels shall at all times provide and
maintain, or cause to be provided and maintained, commercial general liability insurance, which
shall include contractual liability coverage, with broad form coverage, insuring such Owners and
Occupants of the Parcels, as their respective interests may appear, against claims for personal
injury, bodily injury and property damage occurring in, on or about an Owner's Parcel or arising
out of the negligent activities or operations of said Owners and the Occupants of the Owner's
Parcel.
7.3 Lighting.
Excepting only the lighting in the Designated Common Area and for pylon Center Signs,
for which the Maintenance Director shall be responsible, the Owner of each Parcel shall be
responsible for the maintenance, repair and operation (including for electricity) of all artificial
lighting on the Owner's Parcel.
7.4 Taxes.
Each Owner shall pay directly to the tax collector when due the real property taxes and
other special taxes and assessments assessed against the Owner's Parcel, including the
portion of the Common Area on such Owner's Parcel, subject, however, to the right of any such
Owner to contest the amount or validity of all or any part of said taxes and assessments.
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7.5 Reimbursement of Maintenance Expenses; Bidding; Related Party
Transactions.
(a) Generally. The Maintenance Director shall contract and pay for all items
of maintenance and insurance set forth in Sections 7.2(a) & (b) above (collectively, the
"Maintenance Expenses") pursuant and subject to the provisions of this Article 7. All contracts
entered into by the Maintenance Director for the services described herein shall be made
expressly assignable to a Successor Maintenance Director.
(b) Cost Sharing. All Maintenance Expenses shall be shared among the
Owners based on the gross square footage of each such Owner's Parcel as compared to the
gross area of all Parcels within the Eagle Commons Complex in accordance with attached
Exhibit D.
(c) Administrative Fee. The Maintenance Director may, subject to the
provisions hereof, charge a maximum administrative fee of 10% of all Maintenance Expenses
(the "Administrative Fee"). If the Maintenance Director contracts with a management company
to provide and obtain the maintenance described in Section 7.2(a) above, then the Maintenance
Director shall not be entitled to an Administrative Fee for such Maintenance Expenses. The fee
of any management company, which shall not exceed 10% of the total Maintenance Expenses
incurred with respect to the maintenance for which it is responsible, shall be a reimbursable
expense.
(d) Bidding Requirements. Any Maintenance Expense that will exceed
$15,000.00 shall be awarded on the basis of competitive bidding, solicited in the following
manner:
0) Where practicable, the Maintenance Director shall obtain a
minimum of two written bids for each such Maintenance Expense;
(ii) Each bid will be solicited in a form so that, to the extent feasible,
uniformity will exist in the bid quotes; and
(iii) The Maintenance Director shall provide the Owners with all written
bid responses accompanied by the Maintenance Director's determination of the most
acceptable bid.
In selecting the winning bid, the Maintenance Director shall use commercially reasonable efforts
to select the bid that is in the best interests of the Eagle Commons Complex as a whole.
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(e) Related Party Transactions. The Maintenance Director shall not enter
into any agreements relating to the Property with any person or entity which controls, is
controlled by or is under common control with the Maintenance Director, or in which the
Maintenance Director or any shareholders, partners, members, directors, officers, employees,
or affiliates of the Maintenance Director have a direct or indirect financial interest.
7.6 Billing for Expenses.
(a) Estimated Budget. The Maintenance Director shall estimate the amount
of the Maintenance Expenses and Administrative Fee payable by the Owners for any whole or
partial calendar year and deliver such estimate to the Owners. Each Owner shall pay to the
Maintenance Director equal monthly installments of such Owner's pro-rata share of such
estimated Maintenance Expenses and Administrative Fee during such whole or partial calendar
year, each installment being payable in advance on or before the first day of each month.
(b) Reconciliation Statement. Within 90 days following the end of each
calendar year, the Maintenance Director shall deliver to the Owners a written statement showing
the computation of the actual Maintenance Expenses and Administrative Fee payable by each
such Owner with respect to such calendar year (the "Reconciliation Statement"). If the total of
the Maintenance Expenses and Administrative Fee paid by such Owner for such calendar year
is more than the actual amount payable by such Owner with respect to such whole or partial
calendar year, then the Maintenance Director shall credit the excess against future Maintenance
Expenses and Administrative Fees to be paid by such Owner. If the total of the Maintenance
Expenses and Administrative Fees paid by such Owner for such calendar year is less than the
actual amount payable by such Owner with respect to such whole or partial calendar year, then
such Owner shall pay the amount of such deficiency within 30 days of the Maintenance Director
providing the Reconciliation Statement.
(c) Inspection of Records. Any Owner may, upon not less than 10-days' prior
written notice to the Maintenance Director, inspect the Maintenance Director's records for all
Maintenance Expenses incurred during the preceding calendar year at the Maintenance
Director's office (or at such other location reasonably designated by the Maintenance Director)
at any time during reasonable business hours within one year after the end of such calendar
year. If said inspection reveals an overpayment of the Maintenance Expenses and
Administrative Fee, the Maintenance Director shall reimburse the Owner of each Parcel (or its
respective tenants or agents, as it may direct) for its proportionate share of any such
overpayment within 30 days after receipt of notice of the determination and amount of such
overpayment. If said inspection reveals an underpayment of Maintenance Expenses and
Administrative Fees, the Owner of each Parcel shall reimburse the Maintenance Director for its
proportionate share of any such underpayment within 30 days after receipt of notice therefor. If
said inspection reveals that the Maintenance Director misstated Maintenance Expenses and
Administrative Fees by more than 10% in total, the Maintenance Director shall reimburse the
Person making such inspection for all costs reasonably incurred in making such inspection
within 30 days after receipt of notice of the determination and amount of any such misstatement.
The Maintenance Director's reported Maintenance Expenses and Administrative Fee for any
calendar year shall be deemed correct if an Owner does not give the Maintenance Director
written notice of any such overpayment or underpayment within the one-year period provided
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above.
7.7 Default.
(a) Failure to Pay Maintenance Expenses. In the event any Owner fails or
refuses to pay when due its share of any bill for the Maintenance Expenses and Administrative
Fee for a period of 30 days after receipt of written notice thereof, such failure shall constitute a
default, and legal action may thereafter be instituted against the defaulting Owner by the
Maintenance Director or other Person paying the expense of the defaulting Owner (the "Curing
Part ") for reimbursement plus interest. Interest shall accrue from the date said bill was due
and payable to and including the date said bill is paid at a rate equal to the lesser of (i) the
highest rate allowed by law and (ii) 18% (the "Default Rate"). The Curing Party shall also have
a lien on the defaulting Owner's Parcel for the amount of said expenses and accrued interest as
set forth above; provided, however, if there is a bona fide dispute as to the existence of such
default or of the amount due and all undisputed amounts are paid, there shall be no right to
place a lien on such Owner's Parcel until 10 days after such dispute is settled by final court
decree or mutual agreement and payment thereof to the Curing Party has not been made.
(b) Failure to Pay Taxes. In the event an Owner fails to pay when due all
taxes and assessments described in Section 7.4 above for a period exceeding the lesser of 30
days after receipt of written notice thereof or the date such taxes and assessments are due,
such failure shall constitute a default, and any other Owner(the"Curing Owner") may thereafter
pay such taxes if such taxes are delinquent and the owing Owner has not commenced and is
duly prosecuting any contest of such taxes. The Curing Owner may then bill the defaulting
Owner for the expenses incurred. The defaulting Owner shall have 18 days within which to pay
the bill. If the defaulting Owner does not so pay, the Curing Owner shall have a lien on the
Parcel of the defaulting Owner for the amount of the bill and interest at the Default Rate from the
date of the bill until paid; provided, however, if there is a bona fide dispute as to the existence of
such default or of the amount due and all undisputed amounts are paid, there shall be no right
to place a lien on such Owner's Parcel until 10 days after such dispute is settled by final court
decree or mutual agreement and payment thereof to the Curing Owner has not been made.
(c) Failure of Owner to Perform. In the event any Owner fails to perform any
other provision of this Declaration for a period of 30 days after receipt of written notice
specifying the particulars of such failure, such failure shall constitute a default, and any other
Owner may thereafter institute legal action against the defaulting Owner for specific
performance, declaratory or injunctive relief, monetary damages or any other remedy provided
by law; provided, however, that the defaulting Owner shall not be deemed to be in default if
such failure to perform cannot be rectified within said 30-day period and such Owner is diligently
proceeding to rectify the particulars of such failure.
(d) Failure of Maintenance Director to Perform. In the event the Maintenance
Director fails to perform any of the provisions of this Declaration for a period of 30 days (10 days
in the event of failure to pay money) after receipt of written notice from any Owner specifying the
particulars of such failure, such failure shall constitute a default, and any Owner may thereafter
institute legal action against the Maintenance Director for specific performance, declaratory or
injunctive relief, monetary damages or any other remedy provided by law and, in addition, may
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perform the obligations of the Maintenance Director specified in said notice of default and offset
the cost thereof from amounts due the Maintenance Director; provided, however, that the
Maintenance Director shall not be deemed to be in default if such failure to perform (excluding
the payment of money) cannot be rectified within said 30-day period and the Maintenance
Director is diligently proceeding to rectify the particulars of such failure.
7.8 Lien for Expenses or Taxes.
(a) Establishing Lien. The liens provided for in Section 7.7 above and
Section 7.11 below shall only be effective when filed of record by the Curing Party, Curing
Owner or Maintenance Director, as applicable, as a claim of lien against the Parcel of the
defaulting Owner in the office of the Ada County Recorder, signed and verified, which shall
contain at least the following information:
(i) An itemized statement of all amounts due and payable;
(ii) A description sufficient for identification of that portion of the real
property of the defaulting Owner which is the subject of the Gen;
(iii) The name of the defaulting Owner; and
(iv) The name and address of the lien claimant.
(b) Priority. The lien, when so established against the real property
described in the lien, shall be prior and superior to any right, title, interest or claim which has
been acquired or attached to such real property after the filing of the lien. The lien shall be for
the use and benefit of the Person curing the default of the defaulting Owner and may be
enforced and foreclosed in a suit or action brought in any court of competent jurisdiction.
(c) Release of Lien. Upon payment of the sum secured by a lien, the lien
claimant shall promptly file of record a release of such lien.
7.9 Responsibility If No Maintenance Director.
(a) Owner Responsibility. If there is no Maintenance Director, each Owner
shall be responsible for the maintenance, insurance, landscaping, parking field and lighting of its
entire Parcel, including all Designated Common Area located thereon, together with its pro-rata
share of the cost of the pylon Center Signs as provided in Section 6.3 above. In the event any
Owner defaults in the performance of such obligations, any other Owner may cause the
performance of the obligations of the defaulting Owner and bill the defaulting Owner for the
expenses incurred, together with initiating legal action against the defaulting Owner pursuant to
Section 7.7(c) above.
(b) Indemnity. If there is no Maintenance Director, each Owner shall
indemnify, defend and hold harmless the other Owners and Occupants of all other Parcels from
and against any and all liabilities, claims, damages, expenses (including reasonable attorney's
fees), judgments, proceedings and causes of action of any kind whatsoever, for injury to or
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death of any person or damage to any property resulting from the willful misconduct or negligent
act or omission of the indemnifying Owner, its agents, contractors or employees.
7.10 Maintenance and Insurance Obligations of Owners of Unimproved Parcels.
Notwithstanding anything in this Article 7 to the contrary, the Owner of any Parcel that
has not been improved with a Building shall be solely responsible for maintaining its Parcel in a
weed-free and well-maintained condition with a grass or other suitable dust-cap material and for
carrying its own insurance as set forth in this Declaration and paying the costs thereof.
7.11 Maintenance of Parcels by Owners.
Notwithstanding anything in this Article 7 to the contrary, each Owner shall maintain its
Parcel, including any monument Center Sign and all Common Area thereon excepting the
Designated Common Area, in a condition equal to or better than the condition of similarly
situated mixed-use complexes in the area where the Property is located. In the event an Owner
fails to maintain its Parcel in a condition equal to the Consenting Owner's Parcel, the
Maintenance Director shall give the Owner written notice of such deficient maintenance. The
Owner shall have 30 days from the date of such notice to cure said maintenance deficiency. If
the Owner fails to cure such deficiency within the allotted 30-day period, such failure shall
constitute a default, and legal action may thereafter be instituted against the defaulting Owner
by the Maintenance Director. The Maintenance Director shall also have the right to enter upon
the Owner's Parcel using the Maintenance Director's designated contractors to make whatever
repairs or improvements the Maintenance Director deems reasonably necessary to cure said
deficiency. The cost incurred by the Maintenance Director to cure the deficiency shall be billed
to the Owner of the Parcel. Notwithstanding anything above to the contrary, the Maintenance
Director shall not have the right to enter any building to cure any deficiencies within said
building unless the building, in the Maintenance Director's opinion, poses an eminent threat to
the safety of other Occupants of other Parcels within the Eagle Commons Complex. The
defaulting Owner shall have 15 days within which to pay the bill. If the defaulting Owner does
not so pay, the Maintenance Director shall have a lien on the Parcel of the defaulting Owner for
the amount of the bill, which amount shall bear interest at the Default Rate from the date of the
bill until paid; provided, however, if there is a bona fide dispute as to the existence of such
default or of the amount due and all undisputed amounts are paid, there shall be no right to
place a lien on such Owner's Parcel until 10 days after such dispute is settled by final court
decree or mutual agreement and payment thereof to the Maintenance Director has not been
made.
ARTICLE 8
INDEMNIFICATION AND INSURANCE
8.1 Indemnification of Owners and Occupants.
Each Owner shall indemnify, defend and hold harmless the other Owners and occupants
from and against any and all liability, claims, damages, expenses (including reasonable
attorney's fees), judgments, proceedings and causes of action for injury to or death of any
person or damage to or destruction of any property occurring in or arising out of the use or
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occupancy of its Parcel or in the interior of any Building on its Parcel or in its Service Facilities,
except to the extent it is caused by the negligent or willful act or omission of the indemnified
Person, its tenants, subtenants, agents, contractors or employees.
8.2 Liability Insurance of Owners.
(a) General Requirements. Each Owner shall at all times provide and
maintain or cause to be provided and maintained commercial general liability insurance insuring
such Owner against claims for bodily injury or death, property damage or destruction, personal
and advertising injury and contractual liability (including, without limitation, liability for breach of
the obligation to indemnify, hold harmless and defend set forth in this Article 8) occurring in or
arising out of the use or occupancy of its Parcel. Each insurance policy shall be written by an
insurance company authorized to write insurance in Idaho. The limits of liability of all such
insurance shall be not less than $2,000,000 for injury to or death of any one person, $2,000,000
for injury to or death of more than one person in one occurrence and $500,000 with respect to
damage to or destruction of property; or, in lieu of such coverage, a combined single limit
(covering bodily injury, death, and property damage liability) with a limit of not less than
$2,000,000 per occurrence. Each Owner shall furnish the other Owners with certificates
evidencing such insurance upon request. The policies of such insurance shall provide that the
insurance represented by such certificates shall not be cancelled or not renewed without giving
30-days' prior written notice to the insured and to the holders of such certificates.
(b) AD12roved Alternatives. The insurance required in this Section 8.2 may be
carried under (i) an individual policy covering the Owner's Parcel, (ii) a blanket policy that
includes other liabilities, properties and locations of the insured Owner, provided such policy
otherwise complies with the requirements of this Section 8.2, (iii) so long as such Owner has a
tangible net worth, determined in accordance with generally accepted accounting principles, in
excess of $100,000,000, a plan of self-insurance or (iv) a combination of any of the foregoing
alternatives.
ARTICLE 9
GENERAL PROVISIONS
9.1 Right of Declarant to Annex Other Properties.
Declarant may, in its sole discretion, at any time and from time to time for so long as
Declarant owns any Parcel within the Eagle Commons Complex, and without having to obtain
the consent, approval or signature of any Person (other than the title holder of such additional
real property), elect to subject additional real property (whether or not owned by Declarant) to
this Declaration (the "Annexed Property'); provided, however, that the use, location and
characteristics of Annexed Property must be consistent with those of the Eagle Commons
Complex. Declarant is not obligated in any manner by this Declaration to annex additional real
property, or to annex any particular tracts in any particular sequence or to annex contiguous
tracts, it being the further intention hereof that Declarant may decline to exercise the rights
granted in this Article 9 or to exercise such rights only to a limited extent. Notwithstanding
anything herein to the contrary, no real property shall become Annexed Property or be
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subjected to this Declaration without the prior express written consent and approval of
Declarant.
9.2 Amendment for Annexation.
The additions authorized by the provisions of Section 9.1 above shall be made by the
amendment of this Declaration in accordance with Section 9.7 below with respect to any
Annexed Property, which shall be executed by the fee title holder(s) of such Annexed Property,
as well as by Declarant. Each such amendment for Annexed Property may contain such
additional covenants and easements as are not inconsistent with the intent and purpose of this
Declaration, provided that no such amendment may impose additional material burdens beyond
those contained in this Declaration on any Parcel without the prior written consent of the Owner
of such Parcel. Upon recording any amendment for Annexed Property, the provisions of this
Declaration (except as modified, altered, limited or supplemented in the amendment) shall apply
to such Annexed Property as if such Annexed Property had been part of the Property upon the
effective date of this Declaration.
9.3 Restrictions Run with the Land.
Each Restriction on each Parcel shall be a burden on that Parcel, shall be appurtenant
to and for the benefit of the other Parcels, and shall run with the land.
9.4 Successors and Assigns.
This Declaration and the Restrictions created hereby shall inure to the benefit of and be
binding upon the Owners, their heirs, personal representatives, successors and assigns,
including any Person acquiring a Parcel or any portion thereof or any interest therein, whether
by operation of law or otherwise; provided, however, that if any Owner sells all or any portion of
its interest in any Parcel, such Owner shall thereupon be released and discharged from any and
all obligations as Owner in connection with the property sold by it arising under this Declaration
after the sale and conveyance of title, but shall remain liable for all obligations arising under this
Declaration prior to the sale and conveyance of title. The new Owner of any such Parcel or any
portion thereof(including, without limitation, any Owner who acquires its interest by foreclosure,
trustee's sale or otherwise) shall be liable for all obligations arising under this Declaration with
respect to such Parcel or portion thereof after the date of sale and conveyance of title.
9.5 Duration.
The term of this Declaration shall be perpetual.
9.6 Injunctive Relief.
In the event of any violation or threatened violation by any Person of any of the
Restrictions contained in this Declaration, any or all the Owners of the Parcels included within
the Eagle Commons Complex shall have the right to enjoin such violation or threatened violation
in a court of competent jurisdiction. The right of injunction shall be in addition to all other
remedies set forth in this Declaration or provided by law.
AMENDED AND RESTATED DECLARATION-23
21794.00114822-8982-9278v7
9.7 Amendments and Termination.
Subject to the following qualifications, Declarant shall retain the right to approve and
effectuate all modifications and amendments to this Declaration, provided: (a) following the sale
of the Hotel Owner's Parcel to the Hotel Owner, this Declaration, including the Site Plan, may
not be modified in a manner that materially increases the burdens on any Owner without such
Owner's consent and (b)following the sale of the last Parcel in the Eagle Commons Complex by
Declarant to an Owner unaffiliated with Declarant, this Declaration, including the Site Plan, may
not be modified in any respect whatsoever or terminated, in whole or in part, except with the
written consent of at least 80% of the Owners in accordance with Section 9.8 below, provided
that the Consenting Owner must be one of such Owners, and then only by written instrument
duly executed and acknowledged by the required number of Owners and recorded by the Ada
County Recorder. No modification or termination of this Declaration shall affect the rights of any
Lienholder unless the Lienholder consents in writing to the modification or termination. No
termination of this Declaration shall cause the termination of any easement granted or reserved
herein.
9.8 Approval and Consent.
The Consenting Owner shall retain all approval rights of all aspects of the improvements
to be constructed upon the Parcels and other related improvements to the Eagle Commons
Complex for so long as Declarant owns a Parcel, provided that following the sale of the last
Parcel owned by Declarant, whenever the consent or approval of any Owner is required, such
consent or approval shall be exercised only in the following manner. Each Parcel shall have
only one vote. The Owners (if consisting of more than one Person) of each Parcel shall agree
among themselves and designate in writing to the Owners of each of the other Parcels a single
Person who is entitled to cast the vote for that Parcel. If the Owners of any Parcel cannot agree
who shall be entitled to cast the single vote of that Parcel, or if the Owners fail to designate the
single Person who is entitled to cast the vote for that Parcel within 30 days after receipt of
request for same from any other Owner, then that Parcel shall not be entitled to vote. in the
event a Parcel is not entitled to vote, its consent or approval shall not be necessary. Whenever,
pursuant to this Declaration, Declarant or Consenting Owner exercises any right given to it to
approve, disapprove, or withhold consent, the decision of Declarant or Consenting Owner will,
except as is otherwise specifically provided in this Declaration, be in the commercially
reasonable discretion of Declarant or Consenting Owner, as applicable.
9.9 Not a Public Dedication.
Nothing contained in this Declaration shall be deemed to be a gift or dedication of any
portion of the Property to or for the general public or for any public purpose whatsoever, other
than the public pathway on the southern border of the Eagle Commons Complex, it being the
intention of the parties that this Declaration shall be strictly limited to and for the purposes
expressed.
AMENDED AND RESTATED DECLARATION-24
21794.001\4822-8982-9278v7
9.10 Breach Shall Not Permit Termination.
No breach of this Declaration shall entitle any Owner to terminate this Declaration, but
such limitation shall not affect in any manner any other rights or remedies such Owner may
have by reason of any breach of this Declaration. Any breach of this Declaration shall not
defeat or render invalid the lien of any mortgage or deed of trust made in good faith for value.
This Declaration shall be binding upon and be effective against any Owner whose title is
acquired by foreclosure, trustee's sale or otherwise.
9.11 Default.
Except as otherwise provided in this Declaration, a Person shall be deemed to be in
default of this Declaration only upon the expiration of 30 days (10 days in the event of failure to
pay money) from receipt of written notice from any Owner specifying the particulars in which
such Person has failed to perform the obligations of this Declaration, unless such Person, prior
to the expiration of said 30 days (10 days in the event of failure to pay money), has rectified the
particulars specified in said notice of default. Notwithstanding the foregoing, any such Person
shall not be deemed to be in default if such failure (except a failure to pay money) cannot be
rectified within said 30-day period and such Person is using good faith and its best efforts to
rectify the particulars specified in the notice of default.
9.12 Notices.
(a) General Requirements. All notices given pursuant to this Declaration
shall be in writing and shall be given by personal delivery, by United States mail or by United
States express mail or other established express delivery service (such as Federal Express),
postage or delivery charge prepaid, return receipt requested, addressed to the Person and
address designated below or, in the absence of such designation, to the Person and address
shown on the then current real property tax rolls of Ada County, Idaho. All notices to Declarant
shall be sent to:
Jim Kissler
c/o Norco, Inc.
112SW. Amity Road
Boise, Idaho 83708
The Person and address to which notices are to be given may be changed at any time by
written notice to the other parties. All notices given pursuant to this Declaration shall be
deemed given upon receipt.
(b) Receipt of Notice. For the purpose of this Declaration, the term "receipt"
shall mean the earlier of any of the following: (i) the date of delivery of the notice or other
document to the address specified pursuant to Section 9.12(a) above as shown on the return
receipt, (ii) the date of actual receipt of the notice or other document by the Person specified
pursuant to Section 9.12(a) above, or (iii) in the case of refusal to accept delivery or inability to
deliver the notice or other document, the earlier of (A) the date of the attempted delivery or
refusal to accept delivery, (B) the date of the postmark on the return receipt, or (C) the date of
AMENDED AND RESTATED DECLARATION-25
21794.001\4822-8982-9278v7
receipt of notice of refusal or notice of nondelivery by the sending party.
9.13 Waiver.
The failure of a Person to insist upon strict performance of any of the Restrictions
contained herein shall not be deemed a waiver of any rights or remedies that said Person may
have, nor shall it be deemed a waiver of any subsequent breach or default in the performance of
any of the Restrictions contained herein by the same or any other Person.
9.14 Attorney's Fees.
In the event any Person initiates or defends any legal action or proceeding to enforce or
interpret any of the terms of this Declaration, the prevailing party in any such action or
proceeding shall be entitled to recover from the losing party in any such action or proceeding
the reasonable costs and attorney's fees incurred (including, without limitation, reasonable costs
and attorney's fees on any appeal).
9.15 Severability.
If any term or provision of this Declaration or the application of it to any Person or
circumstance shall to any extent be invalid or unenforceable, the remainder of this Declaration,
or the application of such terms or provision to Persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each term and provision
of this Declaration shall be valid and enforced to the extent permitted by law.
9.16 Not a Partnership.
The provisions of this Declaration are not intended to create, nor shall they be in any
way interpreted or construed to create, a joint venture, partnership or any other similar
relationship between the parties.
9.17 Third-Party Beneficiary Rights.
This Declaration is not intended to create, nor shall it be in any way interpreted or
construed to create, any third-party beneficiary rights in any Person other than Owners and
Occupants of the Parcels in the Eagle Commons Complex unless otherwise expressly provided
herein.
9.18 Captions and Headings.
The captions and headings in this Declaration are for reference only and shall not be
deemed to define or limit the scope or intent of any of the terms, covenants or conditions
contained herein.
AMENDED AND RESTATED DECLARATION-26
21794.00114822-8982-9278v7
9.19 Interpretation.
The provisions of this Declaration shall be construed as a whole and not interpreted
against Declarant as its drafter.
9.20 Construction.
Whenever the context so requires in construing the provisions of this Declaration, the
use of a gender shall include all other genders, the use of the singular shall include the plural
and the use of the plural shall include the singular.
9.21 Joint and Several Obligations.
In the event any Owner or Occupant is composed of more than one Person, the
obligations of said Owner or Occupant stall be joint and several.
9.22 Recordation.
This Declaration shall be recorded by the Ada County Recorder.
[Signature page follows.j
AMENDED AND RESTATED DECLARATION-27
21794.00114822-8982-9278v7
EXECUTED as of the day and year first above written.
JAMES A. KISSLER LLC
an Idaho limited liability company
By:
Name: JamesiA-
Kissler, Member
STATE OF IDAHO )
) ss.
County of Ada )
This record was acknowledged before me on SeptembeF_ 204 by James A. Kissler
as a Member of James A. Kissler LLC.
•
�•••••Jti1fG F NoHp ''•y La�t � ��� I
NOTARY PUBLIC for Idaho
1a�i' Y Residing at: ®ism 714 X o
p� � s My commission expires: 7 o S
�. g:07
go
AMENDED AND RESTATED DECLARATION-28
21794.00114822-8982-9278v7
EXHIBIT A
(Final Plats for Oxygen Subdivisions)
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21794.001\4822-8982-9278v4
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(ROS 11696)
[Attached]
121794.001\4822-8982-9278v4
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EXHIBIT C
(Site Plan)
[Attached]
121794.00114822-8982-9278v4
Exhibit C
Permanent Access Easement
Eagle Road
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EXHIBIT D
Gross Area of Parcels
Parcel Gross Area
Oxygen Subdivision #1, 6.67 acres
Block 1, Lot 1
Parcel A 2.00 acres
Parcel B 1.18 acres
Parcel C 4.35 acres
Parcel D 1.48 acres
Parcel E 2.34 acres
121794.001\4822-8982-9278v4