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HomeMy WebLinkAboutEasement APPLICANT 8/6/2008 Dl'1\ .~".,.).!,1ldUm 10 , , fI.... Ameri.... Trtt< 1 L 17 03 27 10033001 APN 0228104 pO Box 10146 FustAM #719t-978t62 CGF I!ugene,OR 97440 RETURN RECORDED DOCUMENT TO .:l-...... lo/V /1'.... Walgreen Co Real Estate Law Dept 104 Wilmot Road, MS #1420 Deerfield, illinOIS 60015 Altn Charles Kaufman Store #10612 I DIvision of ChIef Depuly Cle~k Lane Counly Deeds and Reco~ds " 2008.0~280D $131,00 ThiS Instrument Prepared by Knstlne IIda 104 Wilmot Road Deerfie/d, illinOIS 60015 1111111111111111111111111'1111111""111111111 01014417200w0'4~806'210213 07/24/2008 03:40:16 PM RPR-REST Cnl=2 Sln=15 CASHIER 02 $5 DO $105,00 $10 00 $11 00 DECLARATION OF RECIPROCAL EASEMENTS, COVENANTS. CONDITIONS AND RESTRICTIONS THIS DECLARATION OF RECIPROCAL EASEMENTS, COVENANTS, CONDITIONS AND (tg~ICTIONS (this "Declaration") IS made and entered Into as of thiS .1Jl,l... day of I ?nnl., by SKYVIEW, LLC, a Utah limited liability company, and SOUTH PLAZA II, LL , an 'Oregon limited liability company (hereinafter, JOintly and seyerally, referred to as the "Declarant") RECITALS A Declarant IS the owner of certain real property situated In the City of Spnngfield, County of Lane, State of Oregon, compnsed of the follOWing two (2) parcels (the "Property") (I) that certain parcel Identified as a subdlYISIOn of "Lot 3300", and legally descnbed on Exhibit A attached hereto and Incorporated herein by thiS reference (hereinafter sometimes referred to as "Parcel A"), and (II) that certain parcel Identified as a subd,YISIOn of Lot 3300, and legally descnbed on said Exhibit A (hereinafter sometimes referred to as "Parcel S") B Declarant Intends to deyelop Parcel B for use by Walgreen (as hereinafter defined) C The Parcel A Owner Intends to Simultaneously or thereafter develop or allow or cause the development of Parcel A D Declarant deSires to Impose certain easements upon the Parcels, and to establish certain coyenants, condllions and restnctlons With respect to said Parcels, for the mutual and reciprocal benefit and complement of Parcel A and Parcel B, and the present and future owners and occupants thereof, on the terms and condlbons hereinafter set forth NOW, THEREFORE, In conSideration of the above premises and of the covenants herein contained, Declarant hereby declares, covenants and agrees that the Parcels and all present and future owners and occupants of the Parcels shall be and hereby are subject to the terms, covenants, Elasements, restnctlons and conditions hereinafter set forth In thiS Declaration, so that said Parcels shall be maintained, kept, sold and used In full compliance With and subject to thiS Declaration and, In connection therewith, Declarant on behalf of Itself and ItS successors and assigns, declares as follows LP 10627674\ 34118-66399 .' AGREEMENTS 1 Definitions For purposes hereof (a) The term "Owner" or "Owners" shall mean the Parcel A Owner (as to Parcel A), and the Parcel B Owner (as to Parcel B), and any and all successors or assigns of such persons as the owner or owners of fee Simple title to all or any portion of the real property covered hereby, whether by sale, assignment, Inhentance, operation of law, trustee's sale, foreclosure, or otherwise, but not including the holder of any lien or encumbrance on such real property (b) The term "Parcel" or "Parcels" shall mean each separately Idennfied parcel of real property now constituting a part of the real property subjected to this Declaration as descnbed on Exhibit A, that IS, Parcel A and Parcel B, and any future subdiVISions thereof (c) The term "Permittees" shall mean the tenant(s) or occupant(s) of a Parcel, and the respective employees, agents, contractors, customers, Invltees and licensees of (I) the Owner of such Parcel, and/or (II) such tenant(s) or occupant(s) (d) The term 'Common Area" shall mean those portions of Parcel A and Parcel B that are outSide of extenor walls of bUildings or other structures from lime to time located on the Parcels, and which are either unimproved, or are Improyed as (without limitation) parking areas, landscaped areas, dnyeways, roadways, walkways, light standards, curbing, paving, entrances, eXits and other Similar extenor site Improyements (e) The term "Walgreen" or "Walgreens" shall mean Walgreen Co, an illinOIS corporation (or any of Its affiliates, Subsldlanes, successors or assigns) Walgreen shall be deemed a third party benefiCiary to thiS Declaration (I) The term "Walgreen lease" or "Walgreens lease" shall mean that lease of Parcel B from the Parcel B Owner, as landlord, to Walgreen, as tenant, and any amendments, extensions or replacements thereof (g) The term "Site Plan" shall mean that site plan of the Parcels attached hereto as Exhibit B and by reference made a part hereof Except as may be otherwise proVided In thiS Declaralion, the Site Plan IS for Identification purposes only (h) The term "Dnveway", Singularly, and "Dnveways", collecliyely and severally, shall mean each and all the dnveways and related dnyeway ImproYements, paVing, curbing, entrances and eXits, In the locanon on Parcel B as shown on the Site Plan 2 LP 10627674\34118,66399 2 Easements 2 1 Grant of Reclorocal Easements Subject to any express conditions, limitations or reservations contained herein, Declarant hereby declares, grants and establishes that the Parcels, and all Owners and Permittees of the Parcels, shall be benefited and burdened by the following nonexclusive, perpetual and reciprocal easements which are hereby Imposed upon the Parcels and all present and future Owner's and Permittees of the Parcels (a) An easement for reasonable access, Ingress and egress oyer all Dnveways as presently or hereafter constructed and constituting a part of Parcel B, so as to proVide for the passage of motor vehicles and pedestnans between Parcel A, and to and from all abutting streets or nghts of way fumlshlng access to Parcel B, (b) An easement upon, under, over, aboye and across the Common Areas of the Parcels for the discharge, drainage, use, detention and retention of storm water runoff In the manner and In the location indicated on the Site Plan, and to Install, maintain, repair and replace storm water collection, retention, detention and dlstnbutlon lines, condUits, pipes and other apparatus under and across those portions of the Common Areas indicated on the Site Plan The storm water detention areas, If any, Indicated on the Site Plan, and all lines, condUits, pipes and other apparatus for water drainage, and all storage systems necessary In connection thereWith, shall be hereinafter called the .Water Detentron and Drainage FaCilities" The easement granted herein shall Include the nght of reasonable Ingress and egress With respect to the Water Detention and Drainage Facllitres as may be reqUired to maintain and operate the same The Water Detenllon and Drainage FaCilities reqUired for Parcel B shall Initially be constructed by the Declarant In accordance With the Site Plan and pursuant to Plans approyed by Walgreen under the Walgreen Lease, as a part of the Initial development of the Walgreens Improvements on Parcel B under the Walgreen Lease Once constructed by the Declarant (I) the Water Detention and Drainage Facllilies reqUired for Parcel B shall not be modified, altered, relocated or otherwise changed, wrthout the pnor written consent of all Owners and Walgreen (dunng the continuance of the Walgreen Lease), and, (II) each Owner shall operate and maintain, or cause to be operated and maintained, In good order, condllion and repair, the Water Detention and Drainage FaCilities located upon Its Parcel and make any and all repairs and replacements that may from lime to time be reqUired With respect thereto, (c) An easement under and across those parts of the Common Areas that are not Within any permiSSible bUilding areas shown on the Site Plan, for the installation, maintenance, repair and replacement of water marns, storm drainS, sewers, water spnnkler system lines, telephone or electrical condUits or systems, cable, gas mains and other utility faCilities necessary for the orderly development and operation of the Common Areas and each building from time to time located Within the Parcels, prOVided that (I) the nghts granted pursuant to such easements shall at all times be exercised In such a manner as not to Interfere materially With the normal operation of a Parcel and the bUSinesses conducted therein, (II) the exact location of any ulllitles shall be subject to the approyal of the Owner(s) of the burdened Parcel(s), such approyal not to be unreasonably Withheld, delayed or conditioned, and (III) except In an emergency, the right of any Owner to enter upon the Parcel of another Owner for the exercise of any right pursuant to such easements shall be conditioned upon proYldlng reasonable pnor adyance wntten notice to the other Owner (and, as to any entry upon Parcel B dunng the continuance of the Walgreen Lease, Walgreen) as to the time and manner of entry All such systems, structures, mainS, sewers, condUits, lines and other public utilities shall be Installed and maintained below the ground leyel or surface of the Parcel (except for such parts thereof that cannot and are not Intended to be placed D 3 LP 10627674 \ 34118,66399 below the surface, such as transformers and control panels, which shall be placed In such location as approyed by the Owner of the affected Parcel and Walgreen, such approval not to be unreasonably wrthheld, delayed or conditioned Once the Initial construction of Parcel B shall be completed by the Owner of Parcel B pursuant to the Walgreen Lease, thereafter no additional ublity easements affecting Parcel B shall be Installed Without Walgreen's consent (dunng the continuance of the Walgreen Lease), which consent Walgreen shall not unreasonably Withhold, delay or condition, and (d) An easement for the parking of vehicles In the parking areas designated as part of the Common Areas of the Parcels, as such parking areas are Indicated on the Site Plan and as the same may be modified or remoyed from time to time by the Owner of the Parcel upon which the parking areas are located(the "Parking Easement") (e) An easement upon Parcel B In the area shown on the Site Plan for the construction, reconstrucbon, replacement, operalion, maintenance and repair of a sign structure, such sign to be two Sided 100 square feet per Side (for an aggregate of 200 square feet total In size (such sign herein referred to as the "Parcel B Sign') The easement granted herein shall be over, under, upon and across that portion of Parcel B Identified on the Site Plan, and shall Include the nght of reasonable access oyer, under, upon and across Parcel B to Install, replace. maintain, repair and operate the Parcel B Sign and a utility line, pursuant to the terms and conditions set forth In paragraph 2 1(c) aboye, In order to proVIde such Parcel B Sign and all panels thereon With power to illuminate the same Once the Parcel B sign IS constructed, the Parcel B Owner shall thereafter maintain, operate, Illuminate and repair such Parcel B Sign and utility line The cntena for the Parcel B Sign and all sign panels to be Installed on the Parcel B Sign are set forth In Exhibit C Seventy- fiye percent (75%) of the area of the Parcel B Sign shall be for the use of Walgreen dunng the continuance of the Walgreen Lease (or for the use of such other persons or entitles as Walgreen, dunng the continuance of the Walgreen Lease, shall permit) and, after the expiration or termination of the Walgreen Lease, for the exclUSive use of the Owner and/or Permittees of Parcel B as the Owner of Parcel B shall determine The balance of the panel area of the Parcel B Sign shall be for the use of those Permittees of Parcel A as approved by the Parcel A Owner for such purpose (f) An easement upon Parcel A In the area shown on the Site Plan for the construction, reconstruction, replacement, operalion, maintenance and repair of a sign structure to be two Sided and 100 square feet per Side, 200 square feet total In size (such sign herein referred to as the "Parcel A Sign') The easement granted herein shall be oyer, under, upon and across that portion of Parcel A Identified on the Site Plan, and shall Include the nght of reasonable access oyer, under, upon and across Parcel A to Install, replace, maintain, repair and operate the Parcel A Sign and a ublity line, pursuant to the terms and condllions set forth In paragraph 2 1 (c) aboye. In order to prOVide such Parcel A Sign and all panels thereon With power to Illuminate the same Once Ihe Parcel A Sign IS constructed, the Parcel A Owner shall thereafter maintain, operate, Illuminate and repair such Parcel A Sign and utility line Twenty-fiye percent (25%) of the area of the Parcel A Sign shall be for Ihe use of Walgreen dunng the conlinuance of the Walgreen Lease (or for the use of such other persons or entities as Waljreen, dunng the continuance of the Walgreens Lease, shall permit) and, after the eXpiration or termination of the Walgreen Lease, for the excluslye use of the Owner and/or Permittees of Parcel B as the Owner of Parcel B shall determine The balance of the panel area of the Parcel A Sign shall be for the use of those Permittees of Parcel A as approyed by the Parcel A Owner for such purpose 4 LP 10627674 \34118-66399 2 2 Indemnlficallon Each Owner having nghts with respect to an easement granted hereunder shall Indemnify and hold the Owner whose Parcells subject to the easement (Including Walgreen, In the case of the Owner of Parcel B) harmless from and against all claims, liabilities and expenses (Including reasonable attorneys' fees) relating 10 accidents, InJunes, loss, or damage of or to any person or property anslng from the negligent, Intenlional or Willful acts or omiSSions of such Owner, Its contractors, employees, agents, or others acting on behalf of such Owner 2 3 Access Ooenlno The openings and access pOints contemplated between the Parcels for use of the Dnyeways, are shown on the Site Plan, and such openings and access pOints between the Parcels for use of the Dnveways, as contemplated pursuant to paragraph 2 1 (a) above, are hereinafter called the "Access Openings" The Access Openings shall In no event be blocked, closed, altered or changed to any matenal extent or remoyed, and shall at all times remain In place as shown on the Site Plan, provided, howeyer, an Owner of any Parcel on which a Dnyeway IS located shall haye the nght to temporanly block or close such Dnveway from time to time In cases of emergency or as reasonably necessary to maintain, repair or resurface such Dnyeway, or as may be reqUIred for the construction, repair or maintenance of any of the lines and faCIlities descnbed In paragraph 2 1 (c) hereof There shall be maintained between the Access Openings a smooth and level grade transition to allow the use of the Dnyeways for pedestnan and vehicular Ingress and egress as set forth In paragraph 2 1 aboye Except With respect to the Access Openings, each Owner shall be permitted to maintain a fence, curbing, landscaping Dr other Improyements along the boundary line of ItS Parcel 2 4 Reasonable Use of Easements (a) The easements herein aboye granted shall be used and enjoyed by each Owner and ItS Permittees In such a manner so as not to unreasonably Interfere With, obstruct or delay the conduct and operaliOns of the business of any other Owner or ItS Permittees at any time conducted on Its Parcel, including, Without limitation, public access to and from said bUSiness, and the receipt or dellyery of merchandise In connection therewith (b) Once the Water Detention and Drainage FaCIlities are Installed pursuant to the easements granted In paragraph 2 1 (b) hereof, and/or utility lines, systems and equipment are Installed pursuant to the easements granted In paragraph 2 1(c) hereof, no permanent bUilding, structures, trees or other Improyements inconsistent With the use and enjoyment of such easements (excluding Improvements typically found In common areas of shopping centers) shall be placed oyer or permitted to encroach upon such water detention, drainage and ullllty installations The Owner of the Parcel served by such installations shall not unreasonably Withhold Its consenl to the reasonable relocation of such Installallons requested by the Owner of a Parcel where such installations are located, at such requesting Owner's sole cost and expense, so long as water detention and drainage services or utility services, as applicable, to the other Owner's Parcel are not unreasonably Interrupted and the remaining proYISlons of thiS paragraph 2 4 are compiled With (c) Once commenced, any construction undertaken In reliance upon an easement granted herein shall be diligently prosecuted to completion, so as to minimiZe any Interference With the bUSiness of any other Owner and Its Permittees Except In cases of emergency, the nght of any Owner to enter upon a Parcel of another Owner for the exercise of any nght pursuant to the easements set forth, or to prosecute work on such Owner's own Parcel If the same Interferes With utility or drainage easements or easements of Ingress, egress or access to or In favor of another Owner's Parcel, shall be undertaken only In such a manner so as to minimize any Interference With the business of the other Owner and ItS Permittees In such case, no affirmative monetary obligation shall be Imposed upon the 5 LP 1062767 4 \ 34118-66399 other Owner (and/or, dunng the continuance of the Walgreen Lease, Walgreen), and the Owner undertaking such work shall With due diligence repair at ItS sole cost and expense any and all damage caused by such work and restore the affected pornon of the Parcel upon which such work IS performed to a condition which IS equal to or better than the condition which eXisted pnor to the commencement of such work In addition, the Owner undertaking such work shall pay all costs and expenses associated therewith and shall indemnify and hold harmless the other Owner(s) and Its Permittees from all damages, losses, liens or claims attnbutable to the performance of such work 3 Maintenance 3 1 General Until such time as Improvements are constructed on a Parcel, the Owner thereof shall maintain the same In a clean and neat condition and shall take such measures as are necessary to control grass, weeds, blOWing dust, dirt, litter or debns 3 2 BUlldlnos and Aoourtenances Thereto Each Owner covenants to keep and maintain, at ItS sole cost and expense, the bUlldlng(s) located from time to lime on ItS respective Parcel In good order, condition and repair Once constructed, In the event of any damage to or destruction of a bUilding on any Parcel, the Owner of such Parcel shall, at Its sole cost and expense, With due diligence either (a) repair, restore and rebUild such building to Its condrtlon pnor to such damage or destruction (or With such changes as shall not conflict With thiS Declaration), or (b) demolish and remove all portions of such damaged or destroyed bUilding then remaining, including the debns resulting therefrom, and otherwise clean and restore the area affected by such casualty to a leyel, graded condition Nothing contained In thiS subparagraph 3 2(b) shall be deemed to allow an Owner to aVOid a more stnngent obligation for repair, restoration and rebUilding contained In a lease or other wntten agreement between an Owner and such Owne~s Permittee Each Parcel shall comply With applicable govemmental parking ratio reqUirements Without taking Into account the parking proVided on the olher Owne~s Parcel, such that each Parcel shall be self suffiCient for vehicular parking 3 3 Common Area Each Owner of a Parcel covenants at all times dunng the term hereof to operate and maintain or cause to be operated and maintained at ItS expense all Common Area located on ItS Parcel In good order, condition and repair FollOWing the construction of Improyements thereon, maintenance of Common Area shall Include, wlthoul limitation, maintaining and repalnng all Sidewalks and the surface of the parking and roadway areas, removing all papers, debns and other refuse from and penodlcally sweeping all parking and road areas to the extent necessary to maintain the same In a clean, safe and orderly condllion, maintaining appropnate lighting fixtures for the parking areas and roadways, maintaining marking, directional signs, lines and stnplng as needed, maintaining landscaping, maintaining slgnage In good condition and repair, and performing any and all such other duties as are necessary to maintain such Common Area In a clean, safe and orderly condition Except as otherwise expressly proVided In thiS Declaralion, once constructed, In the event of any damage to or destruction of all or a portion of the Common Area on any Parcel, the Owner of such Parcel shall, at ItS sole cost and expense, With due diligence repair, restore and rebUild such Common Area to ItS condition pnor to such damage or destruction (or With such changes as shall not conflict With thiS Dedaralion) Each Owner reserves the nghtto alter, modify, reconfigure, relocate and/or remove the Common Areas or bUlldln~ areas on ItS Parcel, subject to the follOWing conditions (I) the reCiprocal easemenls between the Parcels pursuant to paragraph 2 1 (a) shall not be matenally Impaired, (II) the Dnveways and Ingress and egress thereto, and to and from the Parcels and adjacent streets and roads, shall not be so altered, modified, relocated, blocked and/or removed, except In cases of emergency or as reasonably necessary to maintain, repair or resurface a Dnyeway, Without the express wntten consent of all Owners and Walgreen (dunng the continuance of the Walgreen Lease) (which consent shall not be 6 LP 10627674 \ 3411866399 unreasonably withheld, delayed or conditioned, and (III) the same shall not Ylolate any of the provIsions and easements granted In paragraph 2 4 Construction of Imcrovements Eyery bUilding (including ItS appurtenant Common Area Improvements), now or In the future constructed on Parcel A, shall be constructed, operated and maintained so that the same IS in compliance with all applicable govemmental requirements The Drlyeways shall be constructed and completed by the Owner of Parcel B at the same lime as such Owner deyelops Parcel B for Walgreen under the Walgreen Lease (in accordance With plans approved by Walgreen under the Walgreen Lease) 5 RestrIctions 5 1 General Each Parcel shall be used for lawful purposes In conformance With all restrictions Imposed by all applicable goyemmental laws, ordinances, codes, and regulations, and no use or operation shall be made, conducted or permitted on or With respect to all or any portion of a Parcel which IS Illegal In addition to the foregOing, throughout the term of thiS Declaration, It IS expressly agreed that neither all nor any portion of any Parcel shall be used, directly or indirectly, for purposes of a cocktatl lounge, bar, any other establishment that sells alcoholic beverages for on-premises consumpllon (unless such cocktail lounge, bar or other establishment IS located In, or IS operated In connecllon With, a restaurant), diSCO, bowling alley, pool hall, billiard parlor, skating rink, roller rink, amusement arcade, a theater of any kind, children's play or party faCility, adult book store, adult theatre, adult amusement facility, any faCility selling or displaYing pornographic materials or haVing such displays (except as may be Incidental to a book, record or Video store, provided such sale of pornographic matenals IS not the primary purpose of such a faCility), second hand store, odd lot, closeout or liqUidation store (except a manufacturer's or retailer's outlet store shall be permitted hereunder), auction house, flea market, educallonal or training facility (including, Without limitatiOn, a beauty school, barber college, school or other faCility catenng primarily to students or trainees rather than customers), gymnasium, sport or health club or spa (except a day-spa, and a work-out faCility containing no more than 3,500 square feet, such as "Curves', shall be permitted on Parcel A), blood bank, massage parlor, funeral home, the outdoor hOUSing or raising of animals, the sale, leaSing or storage of automobiles, boats or other vehicles, any Industrial use (Including, Without limltallon, any manufactUring, smelting, rendering, breWing, refining, chemical manufactUring or processing, or other manufactUring uses), any mining or mineral exploration or development except by non- surface means, a car wash, a camlval, amusement park or Circus, an assembly hall, off track betting establishment, bingo hall, any use Inyolvlng the use, storage, disposal or handling of hazardous materials or underground storage tanks, any use which may materially or adversely affect the water and sewer services supplied to either Parcel, a church, temple, synagogue, mosque, or other house of worship, or any faCility for the sale of paraphernalia for use With illiCit drugs, office use (except that office use InCidental to a retail use and as permitted by Seclion 5 2(11) and any bank, a financial services, insurance, realtors and a title company office shall be permitted under thiS Section 5 1, or any use which creates a nUisance Notwithstanding anything contained In thiS Section 5 1, an Owner shall not be deemed to be In Violation of thiS Section 5 1 If a viola lion of any of the prohibitions under thiS Secllon 5 1 IS a result of the use of such Owner's Parcel, or any portion thereof, by a Ihlrd party tenant, sub-tenant or other occupant Without such Owner's consent, and such Owner takes reasonable action to enjoin such use 52 Additional Parcel Restnclions Throughout the term of the Walgreens Lease, It IS expressly agreed that Parcel A shall not be used, directly or indirectly, for anyone or more of the follOWing purposes (I) the operation of a drug store or a so-called prescription pharmacy or 7 11' 10627674\34118,66399 prescnptlon ordenng, processing or delivery facility, whether or not a pharmacist IS present at such facility, or for any other purpose requlnng a qualified pharmacist or other person authonzed by law to dispense medicinal drugs, directly or indirectly, for a fee or remuneration of any kind, (II) the operation of a medical diagnostic lab and/or the prOVIsion of treatment (other than as part of a medical, dental, phYSICian, surgical or chiropractic officers], which officers] shall not be restncted by thiS subsection [II)), (III) the sale of so-called health and/or beauty aids and/or drug sundries (not applicable to any sales to which no more than 200 square feet of floor or display area are so devoted or which IS InCidental to the operation of barber shop or beauty or hair salon, proYlded, however, In no event shall landlord permit or suffer the operation of a store Similar In nature to Sally's Beauty Supply or GNC store), (IV) the operallon of a bUSiness In which photofinlshlng services (Including, Without limitation, digital photographic processing or prlnllng, or the sale of any other Imaging services, processes or goods) and/or photographic film are offered for sale, (v) the operation of a bUSiness rn which greetrng cards or gift wrap are offered for sale, and (VI) the operallon of a bUSiness rn which prepackaged food Items for off- premises consumption are offered for sale (except that thiS clause (VI) shall not be applicable to (x) any sales of such Items for which no more than 150 square feet of a tenant's or occupant's floor or display area IS so devoted, and (y) the sale of such Items In connection With a delicatessen or a "take-out" or '1ast food" restaurant (I e a restaurant Without table service)), prOVided, however, that the operation of a convenience store, rncludlng a convenience store located wlthrn, or associated With, a gas station shall not be permitted) 6 Insurance Each Owner shall procure and maintain general and/or comprehenSive public liability and property damage rnsurance agarnst claims for personal Injury (Including contractual liability ansrng under the rndemnlty contained In paragraph 22 aboye), death, or property damage occurnng upon such Owne~s Parcel, With Single limit coverage of not less than an aggregate of Two Million Dollars ($2,000,00000) including umbrella coverage, If any, and naming each other Owner and Walgreen dunng the contrnuance of the Walgreen Lease (proVided the Owner obtaining such Insurance has been supplied With the name of such other Owner In the eyent of a change thereof) as additional Insureds Walgreen (whether as tenant under the Walgreen lease or In the event Walgreen becomes an Owner of a Parcel) may elect to self Insure and/or carry Insurance reqUired hereunder under master or blanket poliCies of Insurance Upon reasonable request by an Owner, an Owner shall furnish or request Its tenant, as applicable, to fumlsh to the requestrng party, certificates of Insurance or eYldence of self-Insurance, If applicable, or other reasonable eYldence rndlcatlng that Insurance meetrng the reqUirements hereof has been obtained hand IS In full force and effect 7 Taxes and Assessments Each Owner shall pay all taxes, assessments, or charges of any type leVied or made by any govemmental body or agency With respect to Its Parcel 8 No Rlahts In Public, No 1m oiled Easements Nothing contained herein shall be construed as creatrng any rights rn the general public or as dedicating for public use any portion of Parcel A or Parcel B No easements, except those expressly set fotth rn paragraph 2, shall be Implied by thiS Declaration, rn that regard, and Without Iimltrng the foregOing, no easements for parking, slgnage, drainage or utilities are granted or Implied 9 Remeules and Enforcement 9 1 All Leaal and Eoullable Remedies Available In the event of a breach or threatened breach by any Owner or ItS Permittees of any of the terms, coyenants, restnctlons or conditIOns hereof, the other Owner(s) and Walgreen shall be enMed forthwllh to full and adequate relief by Injunction and/or all such other available legal and eqUitable remedies from the consequences of such breach, Includrng payment of any amounts due and/or speCific performance Walgreen shall 8 LP 10627674 \ 34118-66399 have the nght, but not the obligation, to enforce this Declaration on behalf of the Owner of Parcel B, and/or to cure a breach or default hereunder by the Owner of Parcel B, which enforcement or cure shall be accepted by the other Owner(s) as If effected by the Owner of Parcel B 92 Self-HelD In addluon to all other remedies ayallable at law or m eqUity, upon the failure of a defaultmg Owner to cure a breach of this Declaration within thirty (30) days following wntten notice Ihereof by an Owner or Walgreen (unless, wrth respect to any such breach the nature of which cannot reasonably be cured wrthm such 3D-day period, the defaulting Owner commences such cure wlthm such 3D-day penod and thereafter diligently prosecutes such cure to completion), Walgreen or any Owner shall haye the nght to perform such obligation contamed m thiS Declaration on behalf of such defaulling Owner and be reimbursed by such defaultmg Owner upon demand for the reasonable costs thereof together with mterest at the pnme rate charged from time to time by Bank of Amenca (ItS successors or assigns), plus two percent (2%) (not to exceed the maximum rate of Interest allowed by law) 9 3 Lien Rlqhts Any claim for reimbursement, mcludmg Interest as aforesaid, and all costs and expenses Includmg reasonable attomeys' fees awarded to any Owner (or to Walgreen In connection With the exercise of Its nghts set forth In paragraphs 9 1 and/or 9 2 aboye) In enforcmg any payment m any SUit or proceedmg under thiS Declaration shall be assessed agamst the defaultmg Owner In favor of the prevallmg party and shall conslitute a hen (the "Assessment Lien") agamst the Parcel of the defaultmg Owner until paid, effective upon the recording of a nolice of lien With respect thereto In the Office of the County Recorder of Lane County, Oregon, proVided, however, that any such Assessment Lien shall be subject and subordinate to (I) liens for taxes and other public charges which by applicable law are expressly made supenor, (II) all liens recorded In the Office of the County Recorder of Lane County, Oregon pnor to the date of recordation of said notice of lien, and (III) all leases entered Into, whether or not recorded, pnor to the date of recordalion of said nouce of lien All liens recorded subsequent to the recordation of the notice of lien descnbed herein shall be JUnior and subordmate to the Assessment Lien Upon the timely cunng by the defaultmg Owner of any default for which a notice of lien was recorded, the party recording same shall record an appropnate release of such notice of lien and Assessment Lien 9 4 Remedies Cumulauve The remedies specified herem shall be cumulalive and m addllion to all other remedies permitted at law or In eqUity 95 No Termmatlon For Breach Notwlthstandmg the foregomg to the contrary, no breach hereunder shall entitle any Owner to cancel, rescmd, or otherwise terminate thiS Declaration No breach hereunder shall defeat or render Invalid the lien of any mortgage or deed of trust upon any Parcel made In good faith for value, but the easements, coyenants, conditions and restnctlons hereof shall be bmdmg upon and effective agamst any Owner of such Parcel coyered hereby whose title thereto IS acqUired by foreclosure, trustee's sale, or otherwise 96 Irreoarable Harm In the eyent of a Violation or threat thereof of any of the proVISions of paragraphs 2 and/or 5 of thiS Declaration, each Owner agrees that such ylolatlon or threat thereof shall cause the nondefaultmg Owner and/or rts Permittees to suffer Irreparable harm and such nondefaultmg Owner and ItS Permittees shall haye no adequate remedy at law As a result, m the e lent of a Violation or threat thereof of any of the prOVISions of paragraphs 2 and/or 5 of thiS Declaration, the nondefaultmg Owner and Walgreen, In addition to all remedies available at law or otherwise under thiS Declaralion, shall be entitled to InJunctlye or other eqUitable relief to enJoin a Violation or threat thereof of paragraphs 2 and/or 5 of thiS Declaration 10 Tenn The easements, coyenants, conditions and restnctlons contained m thiS Declaration shall be effective commencmg on the date of recordation of thiS Declaration In the office of the Lane County Recorder, Oregon, and shall remam In full force and effect thereafter m perpeturty, unless 9 LP 10627674 \ 341J 8,66399 this Declaration IS modified, amended, canceled or terminated by the written consent of all then record Owners of Parcel A and Parcel B In accordance with paragraph 11 2 hereof 11 Miscellaneous 11 1 Attomevs' Fees In the event a party (including Walgreen) Institutes any legal action or proceedmg for the enforcement of any nght or obligallon herem contamed, the preyallmg party after a final adjudication shall be entitled to recoyer ItS costs and reasonable attorneys' fees Incurred In the preparation and prosecution of such action or proceeding 11 2 Amendment (a) The parties agree that the prOVIsions of thiS Declaration may be modified or amended, In whole or m part, or terminated, only by the wntten consent of all record Owners of Parcel A and Parcel B, as eYldenced by a document that has been fully executed and acknowledged by all such record Owners and recorded In the offiCial records of the County Recorder of Lane County, Oregon (b) Notwlthstandmg subparagraph 11 2(a) aboye to the contrary, no tenmnatlon of thiS Declaration, and no modification or amendment of thiS Declaration shall be made nor shall the same be effectlye unless the same has been expressly consented to In wntmg by Walgreen (dUring the continuance of the Walgreen Lease) 11 3 Consents Wherever In thiS Declaration the consent or approyal of an Owner IS reqUired, unless otherwise expressly proYlded herem, such consent or approval shall nol be unreasonably Withheld or delayed Any request for consent or approyal shall (a) be m wntlng, (b) specify the section hereof which reqUires that such notice be given or Ihat such consent or approval be obtained, and (c) be accompanied by such background data as IS reasonably necessary to make an mformed deCISion thereon The consent of an Owner or Walgreen under thiS Declaration, to be effectlye, must be given, denied or conditioned expressly and m wntlng Dunng the contmuance of the Walgreen Lease, any consent by the Owner of Parcel B, to be effectlye, shall also reqUire the consent of Walgreen Any consent of Walgreen may be gIven, denied or conditioned by Walgreen m Walgreen's sole and absolute discretion 11 4 No Waiver No waiver of any default of any obligation by any party hereto shall be Implied from any omiSSion by the other party to take any acllon With respect to such default 11 5 No Aoenc'l Nothing In thiS Declaration shall be deemed or construed by either party or by any third person to create the relationship of principal and agent or of limited or general partners or of JOint venturers or of any other assoclallon between the parties 11 6 Other Pronertv The easements herein granted are also appurtenant to any land that may hereafter come Into common ownership With a Parcel which IS contiguous to such Parcel An area phYSically separated from a Parcel but havmg access thereto by means of the public ways or pnvate easements shall be deemed to be contiguous to such Parcel 11 7 Senaratlon of a Parcel If a ParcellS heremafter diVided Into two (2) or more parts by separation of ownership, each party oWning a part thereof shall enJoy the benefit of the easements granted to such Parcel 11 8 Transfer of Ownershlo Wheneyer a transfer of ownership of a Parcel occurs, the liability of the transferor for any breach of covenant occumng thereafter shall autnmallcally terminate With respect to such transferor Any transferee shall automatically assume and be bound by the 10 LP 10627674 \ 34118,66399 burdens and obligations hereunder runnmg with the land to the owner of the Parcel or portion thereof being transferred 11 9 Covenants to Run with '_"nd It IS Intended that each of the easements, covenants, condllions, restrictions, rights and obligations set forth herem shall run with the land and create eqUitable servitudes In fayor of the real property benefited thereby, shall bmd eyery person haVing any fee, leasehold or other mterest therein and shall Inure to the benefit of the respectlye parties and their successors, assigns, heirs, and personal representaliyes 11 10 Grantee's Acceotance The grantee of any Parcel or any portion thereof, by acceptance of a deed conyeymg title thereto or the execution of a contract for the purchase thereof, whether from an Original party or from a subsequent owner of such Parcel, shall accept such deed or contract upon and subject to each and all of the easements, covenants, conditions, restrictions and obligations contained herem By such acceptance, any such grantee shall for himself and hiS successors, assigns, heirs, and personal representatives, covenant, consent, and agree to and With the other party, to keep, observe, comply With, and perform the obligations and agreements set forth herem With respect to the property so acqUired by such grantee 11 11 Seoarabliltv Each provIsion of thiS DeclaratIOn and the application thereof to Parcel A and Parcel B are hereby declared to be mdependent of and severable from the remamder of thiS Declaration If any provIsion contained herein shall be held to be mvalid or to be unenforceable or not to run With the land, such holding shall not affect the yalidlty or enforceability of the remamder of thiS Declaration In the eyent the validity or enforceability of any provIsion of this Declaration IS held to be dependent upon Ihe eXistence of a speCific legal descnptlon, the parties agree to promptly cause such legal descnptlon to be prepared Ownership of both Parcels by the same person or entity shall not term mate thiS Declaration nor In any manner affect or Impair the yalidlty or enforceability of thiS Declaration 11 12 Interpretation The rule of strict construction does not apply to the grants herein The grants herein shall be given a reasonable construction to carry out the mtentlon of the patties hereto to confer a commerCially usable nght of enjoyment on each grantee 11 13 Termmatlon The grantee of the easement granted hereunder may termmate such easement by recordmg a release thereof With the Office of the Recorder of Deeds of Lane County, Oregon With directions for deliyery of the same to the grantor of such easement at ItS address given pursuant hereto, whereupon, all nghts, duties and liabilities hereby created shall term mate as to such easement except for liabilities mcurred hereunder pnor to such termmatlon 11 14 Time of Essence Time IS of the essence of thiS Declaration 11 15 Entire Aoreement ThiS Declaration contains the complete understandmg and agreement of the parlies hereto With respect to all matters referred to herein, and all prior representations, negotiations, and understandings are superseded hereby 11 16 Notices Notices or other communication hereunder shall be m writing and shall be sent certified or registered mall, return receipt requested, or by other national overnight courier company, or personal deliyery Notice shall be deemed glyen upon receipt or refusal to accept delivery Each party and Walgreen may change from time to lIme their respechve address for nohce hereunder by like notice to the other party and Walgreen Notice given by any Owner hereunder to be effectlye shall also Simultaneously be delivered to Walgreen (dUring the continuance of the Walgreen Lease) The notice addresses of the Parcel A Owner, the Parcel B Owner and the, and Walgreen are as follows 11 LP 10627674\34118-66399 I I i Waloreen Walgreens Attention Law Department Mail Stop No 2252 200 Wilmot Road Deerfield, IllinOIS 60015 Parcel A Owner SkYVlew, LLC and South Plaza II, LLC 515 W Pickett Circle, # 400 Salt Lake City, Utah 84115 Parcel B Owner SkYVlew, LLC and South Plaza II, LLC 515 W Pickett Circle, # 400 Salt Lake City, Utah 84115 11 17 Govemlna La", The laws of the State In which the Parcels are located shall goyern the Interpretation, validity, performance, and enforcement of thiS Declaratron 11 18 E~tnn!,,,1 Gertlficates Each Owner, Within twenty (20) day of Its receipt of a wntten request from the other Owner(s) or Walgreen, shall from time to tIme proVide the requesting Owner or Walgreen, a certificate binding upon such Owner stating (a) to the best of such Owner's knowledge, whether any party to this Declaration IS In default or Violation of thiS Declaration and If so Identifying such default or vlolatron, and (b) that thiS Declaration IS In full force and effect and Identifying any amendments to thiS Declaration as of the date of such certrficate 11 19 Banknmtcv In the event of any bankruptcy affecting any Owner or occupant of any Parcel, Ihe parties agree that thiS Declaratron shall, to the maximum extent permitted by law, be considered an agreement that runs With the land and that IS not rejectable, In whole or In part, by the bankrupt person or entrty IN WITNESS WHEREOF, the parties have executed thiS Declaratron as of the date first wnllen aboye DECLARANT SKYVIEW, LLC, a Utah limited liability company B~~ Its J.(WlfJ f ~ and SOUTH PLAZA II, LLC, an Oregon limited ~:bll~ Its~f V 12 LP 10627674 \ 34118-66399 STATE OF UTAH COUNTY OF 0i1t\- 1i1\4>J ) )SS ) I, the undersigned, a Notary PUblic In and for said County, In the State aforesaid, do hereby certify that .t?V fA- ft/)'\ , the tJ\ti\Vlt1I\~ V of SKYVIEW, LLC, a Utah limited liability company (the .Company"), personally kn~be the same person whose name IS subscnbed to the foregOing Instrument, appeared before me this day In person and acknowledged that he signed, sealed and dellyered the said Instrument, as hiS own and free and yoluntary act, and as the free and voluntary act of the Company, for the uses and purposes therein set forth Given under my hand and notanal seal this ~day of WlPl VoVl NO~!jjV1;@Y (I .,.,TRACI TAYlOR . ""l'::~i~~U: ~~~arcUlI4116 - Em. 01124120" lP 10627674 \ 3411B-66399 My CommiSSion Expires 01-24-- II STATE OF ~"otJ) )ss COUNTY OFlk _~,J ) I, the undersigned, a Notary Public In and for said County, In the State aforesaid, do hereby certify that ~".~1\."7 ~ , the (>n, ~"\ of SOUTH PLAZA II, LLC, an Oregon limited liability company (the "Company"), personally known to me to be the same person whose name IS subscribed to the foregoing Instrument, appeared before me this day In person and acknowledged that he signed, sealed and deliyered the Said Instrument, as his own and free and yoluntary act, and as the free and voluntary act of the Company, for the uses and purposes therein set forth Given under my hand and notanal seal this '3h~day of r\A..~ 2--001 ~ >rr.U"'M~L- Notary Public Ilir1iif, ~ ? ~ IO----.,J ~- LkJ ----------- My Commission Expires q - '7. 06 -- ~.- --- - - - - I . OFFICIAL SEAL ' ~ J TRUMBLE I NOTARY PUBUC-OREGON COMMISSION NO 382849 I MY Cot.lMISSIO":~XPtRES SEPT 07, 20~6.1 LP 10627674\ 34118-66399 Exhibit A Exhibit B List of Exhibits Legal Descriptions of Parcels A and B Site Plan LP 10627674\ 34118-66399 Legal Descnptlon of Overall Boundary Assessor's Map 17-03-27-10, Tax Lot 3300 A parcel of land lYing In the northeast quarter of Section 27, Township 17 South, Range 3 West of the Wlllamette Meridian, being more particularly described as follows Beginning at a pOint on the north margin of "Q" Street, said pOint bearing NORTH 30 00 feet from a pOint on the south line of the Jacob Halstead Donahon Land Claim No 47 which bears South 89051'46" East 697 59 feet from the southwest corner thereof, thence leaYlng said north margin of "Q" Street bearing NORTH 455 77 feet, thence parallel with said south line of the Jacob Halstead Donation Land Claim No 47 South 89051'46" East 156 00 feet to a pOint on the west margin of Pioneer Parkway West, said pOint being 80 00 feet from, when measured at right angles to, the centerline of the Southern PacifiC Railroad Rlght- of-Way as depicted on County Survey File 40183, on file In the Lane County Surveyor's Office, thence along Said west margin of Pioneer Parkway West South 14001'45" East 40915 feet, and South 35026'29" West 72 37 feet, returning to said north margin of "Q" Street, thence along Said north margin of "Q" Street North 89051'46" West 213 22 feet to the pOint of beginning, all In Lane County, Oregon EXHIBIT "U" Legal Description of the Parcel "A" Property A parcel of land lYing In the northeast quarter of Section 27, Township 17 South, Range 3 West of the Wlllamette Meridian, being more particularly described as follows Beginning at a pOint on the north margin of "Q" Street, said pOint bearing NORTH 30 00 feet from a pOint on the south line of the Jacob Halstead Donation Land Claim No 47 which bears South 89'51'46" East 697 59 feet from the southwest corner thereof, thence leaYlng said north margin of "Q" Street bearing NORTH 259 82 feet to the True POint of Beginning, thence continuing NORTH 195 95 feet, thence parallel with said south line of the Jacob Halstead Donation Land Claim No 47 South 89'51'46" East 156 00 feet to a pOint on the west margin of Pioneer Parkway West, said pOint being 80 00 feet from, when measured at right angles to, the centerline of the Southern PaCifiC Railroad Right-of-Way as depicted on County Survey File 40183, on file In the Lane County Surveyor's Office, thence along said west margin of Pioneer Parkway West South 14'01'45" East 168 10 feet, thence leaYlng said west margin of Pioneer Parkway West bearing South 75'58'45" West 13433 feet, thence North 89'57'13" West 66 42 feet to the True POint of Beginning, all In Lane County, Oregon Containing 33,074 square feet, more or less EXHIBIT "A'2" Legal Description of the Parcel "B" Property A parcel of land Iymg m the northeast quarter of Section 27, Township 17 South, Range 3 West of the Wlllamette Meridian, being more particularly desCribed as follows Begmnmg at a pOint on the north margm of "Q" Street, said pomt bearing NORTH 30 00 feet from a pomt on the south line of the Jacob Halstead Donation Land Claim No 47 which bears South 89'51 '46" East 697 59 feet from the southwest corner thereof, thence leaving said north margin of "Q" Street bearing NORTH 25982 feet, thence South 89'57'13" East 66 42 feet, thence North 75058'45" East 134 33 feet to a pOint on the west margin of Pioneer Parkway West, said pOint being 80 00 feet from, when measured at right angles to, the centerline of the Southern PaCifiC Railroad Right-of-Way as depicted on County Survey File 40183, on file In the Lane County Surveyor's Office, thence along said west margin of Pioneer Parkway West South 14001'45" East 24105 feet, and South 35026'29" West 72 37 feet, returning to said north margin of "Q" Street, thence along said north margin of "Q" Street North 89'51'46" West 213 22 feet to the pOint of begmnlng, all m Lane County, Oregon Containing 62,319 square feet, more or less EXHIBIT B SlvE'PLAN, (ATtACHEDl, LP 1062767 4 \ 34 J J 8-66399 III III EXHIBIT "JJ_" FOR PARKWAY CENTER JANUARY 29, 2008 \ \ ~v"~ 1 1 ~~\f/r.ii~:;~ 156.00" L\_ \ J.DJ.lCDl1 .[ +u I - -I '~ ("..,--. ~ -~ \' ." 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