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Exhibit 10.4
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxxx Xxxxxx Properties, Limited Partnership
0000 Xxxxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
--------------------------------------------------------------------------------
(Space above line for Recorder's use)
DEVELOPMENT DECLARATION AND
OPTION TO REPURCHASE
THIS DEVELOPMENT DECLARATION AND OPTION TO REPURCHASE ("DECLARATION"), made
this 15th day of August 1996, by XXXXXX XXXXXX PROPERTIES, LIMITED PARTNERSHIP,
a Delaware limited partnership ("Declarant") and THE RESORT AT XXXXXXXXX,
LIMITED PARTNERSHIP, a Nevada limited partnership ("RASLP"), is made with
reference to the following facts:
R E C I T A L S
A. Concurrently with the original Recordation of this Declaration, RASLP
is acquiring from Declarant the real property described on Attachment "A"
attached hereto as the Sale Parcel situated in Xxxxx County, Nevada pursuant to
that certain Agreement for the Purchase and Sale of Real Property between HHP
and Seven Circle Resorts, Inc., a Delaware corporation, dated May 22, 1996, as
amended, (the "Purchase Agreement"), which was thereafter assigned by Seven
Circle Resorts, Inc. to RASLP by that certain Assignment of Rights Under
Agreement for the Purchase and Sale of Real Property, dated as of August 6,
1996.
B. Declarant has also granted RASLP an option to acquire the real
property separately described on Attachment "A" as the Option Parcel pursuant
to that certain Agreement of Option to Purchase Real Property between the
parties hereto dated August 15, 1996.
C. The Sale Parcel, and the Option Parcel if acquired by RASLP, is or are
collectively referred to herein as the "Subject Property."
D. The Subject Property is to be used for the construction, development
and operation of a resort style hotel with a nonrestricted gaming casino and
commercial, entertainment and recreational amenities.
E. In connection with such acquisition, RASLP has represented to
Declarant that it is acquiring the Subject Property to develop the same in
accordance with certain covenants, conditions, rights, restrictions and
limitations more particularly set forth below (for convenience herein,
collectively referred to as the "Restrictions"), and Declarant is selling the
Subject Property to RASLP on the basis of RASLP's
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continuing compliance with such Restrictions. RASLP acknowledges, (i) the
original purchase price paid by RASLP for the Subject Property reflects the
limitations on use referred to above; (ii) the price charged by Declarant for
the Subject Property would have been substantially higher had the Subject
Property been sold unencumbered by the Restrictions for any use permitted under
applicable zoning ordinances in effect from time to time.
F. But for such representations by RASLP, and RASLP's unique skill,
expertise and suitability in development of the Subject Property and
construction and operation of a resort hotel and casino, Declarant would not
have sold the Subject Property to RASLP; instead, Declarant either would have
sold the Subject Property to another party willing to conform to the
Restrictions or would have retained the Subject Property itself for development
in a manner consistent with its long-range master planning program and thereby
retained the benefits of ownership, including future appreciation in the value
of the Subject Property.
X. Xxxxxxxxx is the master developer of Xxxxxxxxx, a mixed use master
planned community situated in both the City of Las Vegas and unincorporated
Xxxxx County, Nevada. Among the distinguishing characteristics of Xxxxxxxxx are
the clear delineation of land use areas throughout Xxxxxxxxx, together with the
strict exercise of architectural and occupancy controls over individual
construction projects, so as to ensure the harmonious growth and development of
Xxxxxxxxx and the maximization of the value of Declarant's remaining land
holdings. It is vitally important to Declarant that the intensity of
development in Xxxxxxxxx be limited on those parcels of property (including the
Subject Property) that Declarant from time to time elects to sell to third
parties. Should the development limitations imposed by Declarant be exceeded,
Xxxxxxxxx and its planned development could be negatively impacted. Such
conditions could in turn adversely affect the ability of Declarant to develop
its remaining affected land holdings within Xxxxxxxxx, including without
limitation the "Benefitted Property" as defined below.
H. This Declaration is made in order to promote the purposes set forth
in these Recitals, and the parties intend that the Restrictions, and all other
declarations supplemental hereto, will be understood and construed in
furtherance of said purposes.
A G R E E M E N T
ARTICLE 1. DEFINITIONS
Unless the context otherwise specified or requires, the terms defined in
this Article 1 shall, as used in this Declaration, have the meanings herein set
forth:
1.1 BENEFITTED PROPERTY means all the real property described on
Attachment "B" hereto. Declarant shall have the right, by a duly Recorded
amendment to this Declaration, to unilaterally add to, subtract from, or
substitute for the Benefitted Property any real property owned by Declarant and
the term "Benefitted Property," as used herein, shall refer to such added,
reduced, or substituted real property, effective upon the Recordation of such
amendment; provided, however, that any such amendment shall not have a material
adverse effect on the Subject Property or RASLP's interest therein.
1.2 CONSTRUCTION COMMENCEMENT means the first date on which RASLP shall
have performed all of the following:
(i) RASLP has submitted the Development Plan for the Initial Project
to Declarant and Declarant has approved the drawings and specifications
with or without conditions to such approval.
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(ii) RASLP has entered into bona fide contract(s) with one or
more general contractors for the construction of the Initial Project.
(iii) RASLP has obtained a building permit from the City of Las
Vegas for the construction of the Initial Project.
(iv) RASLP has obtained a written commitment for construction
financing for the Initial Project.
(v) RASLP has substantially commenced grading of the Sale Parcel
in accordance with a Declarant approved grading plan.
(vi) RASLP or one of the following three entities: (i) Seven
Circle Resorts of Nevada, Inc., (ii) Seven Circle Gaming Corporation,
or (iii) Seven Circle Resorts, Inc., has obtained (a) a distributor's
gaming license pursuant to NRS Chapter 463 which can be converted to a
nonrestricted gaming license pursuant to NRS Chapter 463 prior to the
opening of the hotel and casino operation or, (b) a nonrestricted
gaming license with respect to the Sale Parcel.
The parties acknowledge that the Construction Commencement Deadline will be
extended by one day for each day Declarant exceeds the allowed time to review
plans and specifications pursuant to Section 1.3 of this Declaration.
1.3 CONSTRUCTION COMMENCEMENT DEADLINE means the date by which
Construction Commencement must occur pursuant to Section 6.2, which date shall
be the one year anniversary of the date of Recordation of this Declaration;
provided, the Construction Commencement Deadline shall be extended as follows:
(a) If Declarant fails to notify RASLP of its approval, disapproval or
request for clarification or further information within fourteen days after
RASLP has submitted the Development Plan to Declarant, then the
Construction Commencement Deadline shall be extended by one day for each
day that passes in excess of fourteen days from the date of submission
until such approval, disapproval or request for clarification or further
information.
(b) If Declarant fails to notify RASLP of its approval, disapproval or
request for clarification or further information within fourteen days after
RASLP has submitted the grading plan to Declarant, then the Construction
Commencement Deadline shall be extended by one day for each day that passes
in excess of fourteen days from the date of submission until such approval,
disapproval or request for clarification or further information.
(c) If Declarant is in default of the terms and conditions of this
Declaration or the Purchase Agreement, then the Construction Commencement
Deadline shall be extended by one day for each day that such default
remains uncured.
1.4 DECLARANT means Xxxxxx Xxxxxx Properties, Limited Partnership, a
Delaware limited partnership and, to the extent provided in Section 8.1 of this
Declaration, its successors and assigns.
1.5 DECLARATION means this Development Declaration and Option to
Repurchase, as it may from time to time be amended or supplemented.
1.6 DEED OF TRUST means a mortgage as well as a deed of trust.
1.7 DESIGN GUIDELINES means (a) the Xxxxxxxxx Design Guidelines for
Non-Residential Applications dated April 1, 1995, as amended, (b) The Canyons
Village Design Criteria dated March 15, 1996, (c) the Xxxxxxxxx Development
Standards, dated November 18, 1992, (d) the Xxxxxxxxx
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Improvement Standards, dated August 1988, and approved by the City of Las Vegas
on October 12, 1988, and (e)the Xxxxxxxxx Landscape Improvement Standards, and
any and all other design criteria, development standards and improvement
standards adopted by Declarant for the buildings and other improvements, as they
may from time to time be amended, modified or supplemented; provided, however,
that any such amendment, modification or supplement shall not materially
increase the burden of RASLP with respect to the Subject Property. The Design
Guidelines are incorporated herein by this reference. To the extent HHP
modifies any of the Design Guidelines applicable to Xxxxxxxxx North in a manner
that affects commercial development in Xxxxxxxxx North generally RASLP shall be
entitled to the benefit of such modifications but only subject to any new
conditions or restrictions which pertain to such modification.
1.8 IMPROVEMENT-IMPROVEMENTS shall include buildings, outbuildings,
roads, driveways, parking areas, fences, screening walls and barriers, retaining
walls, stairs, decks, water lines, sewers, electrical and gas distribution
facilities, xxxxxx, windbreaks, plantings, planted trees and shrubs, poles,
Signs, loading areas, and all other structures, installations, and landscaping
of every type and kind, whether above or below the land surface.
1.9 IMPROVEMENT MAINTENANCE STANDARDS means the standards for the
maintenance and repair of the exterior of the buildings and other improvements
on the Subject Property prepared by Declarant. Such Improvement Maintenance
Standards are hereby incorporated herein and made a part hereof.
1.10 MASTER ASSOCIATION means the Xxxxxxxxx Community Association, a
Nevada non-profit corporation created pursuant to the Master Declaration.
1.11 MASTER DECLARATION means that certain Master Declaration of
Covenants, Conditions, Restrictions and Reservation of Easements for Xxxxxxxxx
Community Association contained in instrument No. 01274, Recorded on September
25, 1990, in Book 900925, Official Records of the County, as amended.
1.12 MORTGAGE means a Deed of Trust as well as a mortgage.
1.13 MORTGAGEE means a beneficiary under, or holder of, a Deed of Trust as
well as a mortgagee under a mortgage.
1.14 OCCUPANT means a lessee or licensee of an Owner, or any other Person
other than an Owner in lawful possession of any portion of the Subject Property
with the permission of the Owner.
1.15 OPTION PARCEL means the real property described on Attachment "A" and
identified as the Option Parcel.
1.16 OWNER means RASLP and its successors as the Record owner of fee
simple title to any portion of the Subject Property, excluding any Person who
holds such interest as security for the payment of an obligation, but including
contract sellers and any Mortgagee or other security holder in actual
possession of any portion of the Subject Property.
1.17 INITIAL PROJECT CONCEPTUAL PLAN means the development plan for the
Initial Project attached hereto as Attachment "C" which has been prepared by
Owner and approved by Declarant.
1.18 PERSON means a natural individual, a corporation or any other entity
with the legal right to hold title to real property.
1.19 PURCHASE AGREEMENT means that certain Agreement for the Purchase and
Sale of Real Property between Declarant and Seven Circle Resorts, Inc., a
Delaware corporation, dated May 22, 1996, as amended, which was thereafter
assigned by Seven Circle Resorts, Inc. to RASLP by that certain
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Assignment of Rights Under Agreement for the Purchase and Sale of Real
Property, dated as of August 6, 1996.
1.20 RECORD-RECORDED-RECORDATION means, with respect to any document, the
recordation of said document in the Office of County Recorder of the County
Recorder of Xxxxx County, Nevada.
1.21 RESTRICTIONS means each and every covenant, condition, restriction,
reservation or limitation contained in this Declaration.
1.22 SALE PARCEL means the real property described on Attachment "A" and
identified as the Sale Parcel.
1.23 SIGN means any structure, device, or contrivance, electric or
nonelectric, upon or within which any poster, bill, bulletin, printing,
lettering, painting, device, or other advertising of any kind whatsoever is
used, placed, posted, tacked, nailed, pasted, or otherwise fastened or affixed;
provided, however, the term "Sign" as used herein shall not refer to any such
structure, device or contrivance located entirely within an enclosed building
and not visible to persons outside of such building.
1.24 STREET-STREETS means any street, highway, road, or thoroughfare within
or adjacent to the Subject Property and shown on any Recorded subdivision or
parcel map, or record of survey, whether designated thereon as street,
boulevard, place, drive, road, court, terrace, way, lane, circle, or otherwise.
1.25 SUBJECT PROPERTY means the real property described on Attachment "A"
as the Sale Parcel and includes the Option Parcel if annexed to this
Declaration pursuant to the terms of Section 2.3, together with all of the real
property hereafter made subject to this Declaration.
1.26 XXXXXXXXX means all of the real property described on Attachment "D"
hereto.
1.27 XXXXXXXXX NORTH means all of the real property described on Attachment
"E" hereto.
1.28 VISIBLE FROM NEIGHBORING PROPERTY means, with respect to any given
object on the Subject Property, that such object is or would be visible to a
person six (6) feet tall, standing on any adjacent property or any other
property (other than the Subject Property) at an elevation no greater than the
elevation of the base of the object being viewed.
ARTICLE 2. SUBJECT PROPERTY
2.1 GENERAL DECLARATION. Declarant hereby declares that all of that real
property located in the City of Las Vegas, County of Xxxxx, State of Nevada,
more particularly described in Attachment "A" and referred to herein as the
"Sale Parcel," is, and shall be, conveyed, hypothecated, encumbered, leased,
occupied, built upon or otherwise used, improved, or transferred in whole or in
part, subject to this Declaration. All of the covenants, conditions, and
Restrictions set forth herein are declared and agreed to be in furtherance of a
general plan for the subdivision, improvement, and sale of said real property
and are established for the purpose of enhancing and protecting the value,
desirability, and attractiveness of the Subject Property and every part thereof.
All of said covenants, conditions, and Restrictions shall run with all of the
Subject Property for all purposes and shall be binding upon and inure to the
benefit of Declarant and its successors in interest as set forth in this
Declaration.
2.2 UNIFORM ACT DOES NOT APPLY. Pursuant to NRS 116.1207, the Nevada
Uniform Common Interest Ownership Act does not apply to the Subject Property.
2.3 NOTICE OF ANNEXATION. The Option Parcel shall be annexed to the Subject
Property encumbered by this Declaration upon Recordation of a Notice of
Annexation in the form of Attachment "C" to the Option Agreement, duly executed
and acknowledged by Declarant.
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ARTICLE 3. CONSTRUCTION OF IMPROVEMENTS
3.1 [INTENTIONALLY OMITTED]
3.2 COMPLIANCE WITH CONCEPTUAL DEVELOPMENT PLAN. No Owner shall construct,
or attempt to construct, any Improvement on the Subject Property or any one
subdivided or parcelized lot thereon, unless such Improvement is in compliance
with all criteria for, and restrictions and limitations applicable to, such
building set forth in the Conceptual Development Plan for the Initial Project or
Expansion Project, as the case may be, and such Improvement is expressly
approved by Declarant as provided herein, which approval may be granted or
withheld by Declarant as provided herein.
3.3 APPROVAL OF DEVELOPMENT PLAN REQUIRED. No Improvement shall be erected,
placed, altered, maintained, or permitted to remain on any portion of the
Subject Property by any Owner or Occupant until final drawings and
specifications for the Initial Project (in the case of Improvements on the Sale
Parcel) and for the Expansion Project (in the case of any Improvements on the
Option Parcel) shall have been submitted to and approved in writing by
Declarant. The drawings and specifications for the Initial Project and for the
Expansion Project, respectively, are referred to herein as the "Development
Plans." Each Development Plan shall be submitted in duplicate over the
authorized signature of the Owner of the Subject Property or the authorized
agent thereof. Each Development Plan shall be in such form and shall contain
such information as may be required by the Declarant but shall in any event
include the following:
(a) A site plan of the Sale Parcel or Option Parcel (as the case may be)
showing the nature, grading scheme, kind, shape, composition, and location
of all structures with respect to such Parcel (including proposed front,
rear, and side setback lines), and the number and location of all parking
spaces and driveways on the Sale Parcel;
(b) A landscaping plan for the appropriate Parcel;
(c) A plan for the location of Signs and lighting; and
(d) A building elevation plan showing dimensions, materials, and exterior
color scheme in no less detail than required by the appropriate
governmental authority for the issuance of a building permit. Material
changes in approved plans must be similarly submitted to and approved by
Declarant.
Following Declarant's approval of a Development Plan for any proposed
Improvement as set forth above, Owner shall not materially or substantially
change or materially or substantially deviate from such drawings and
specifications without the prior written consent of Declarant except for change
orders executed during construction which do not alter the scope or exterior
appearance of any Improvements. Declarant agrees to approve or disapprove any
drawings and specifications properly submitted within fourteen (14) days of
submission; provided, if Declarant determines in good faith that it requires
clarification of any submission or additional information in order to complete
its review, Declarant shall request such clarification or additional information
within such fourteen (14) day period and Owner's submission shall not be deemed
complete and proper until such clarification or additional information has been
submitted. If Declarant fails to notify RASLP of its approval, disapproval or
request for clarification or further information within fourteen days (14) after
RASLP has submitted a Development Plan to Declarant, then the Construction
Commencement Deadline shall be extended as provided in Section 1.3.
3.4 BASIS FOR APPROVAL. Approval of a Development Plan shall be based,
among other things, upon conformity with the Conceptual Development Plan for the
Initial Project or Expansion Project, as the case may be, and upon compliance
with the Design Guidelines, including adequacy of site dimensions, adequacy of
structural design, conformity and harmony of external design with neighboring
structures,
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effect of location and use of proposed improvements upon neighboring property
in the vicinity of the Subject Property, proper facing of main elevations with
respect to nearby Streets, adequacy of screening of mechanical,
air-conditioning, or other roof-top installations, and conformity of the
drawings and specifications to the purpose and general plan and intent of this
Declaration. No plans will be approved that do not provide for the underground
installation of power, electrical, telephone, and other utility lines from the
property line to buildings.
Declarant shall not arbitrarily or unreasonably withhold its approval of any
drawings and specifications. Except as otherwise provide in this Declaration,
Declarant shall have the right to disapprove any drawings and specifications
submitted hereunder on any reasonable grounds including, but not limited to,
the following:
(a) Failure to comply with any of the Restrictions set forth in this
Declaration;
(b) Failure to include information in such drawings and specifications as
may have been reasonably requested by Declarant;
(c) Objection to the exterior design, the appearance of materials, or
materials employed in any proposed structure; provided, however, that any
such objection shall not be made with respect to an exterior design, the
appearance of materials or materials (i) employed in any similar commercial
building currently existing in Xxxxxxxxx, or (ii) which are specifically
authorized by the Design Guidelines for use in such a commercial building.
(d) Objection on the ground of incompatibility of any proposed structure
or use with existing structures or uses upon other property in the vicinity
of the Subject Property;
(e) Objection to the location of any proposed structure with reference to
other property in the vicinity;
(f) Objection to the grading or landscaping plan for the Subject Property;
(g) Objection to the color scheme, finish, proportions, style of
architecture, height, bulk, or appropriateness of any structure;
(h) Objection to the number or size of parking spaces, or to the design of
the parking area;
(i) Adequacy of site dimensions;
(j) Conformity and harmony of external design with existing and planned
neighboring structures;
(k) Proper site orientation with respect to nearby Streets; and
(l) Conformity of the Plans to the purpose, general scheme of improvement
and development and intent of the Design Guidelines and this Declaration.
Notwithstanding the foregoing, HHP shall not have the right to disapprove any
element of the Development Plan on account of a design feature which has been
specifically addressed in the Conceptual Development Plan for the Initial
Project, Expansion Project or any expansion or other modification of either of
them, as the case may be, and approved by HHP.
3.5 APPROVAL OF ALTERATIONS SUBSEQUENT TO COMPLETION OF PROJECT. Except
for the interior of any completely enclosed structure, no new construction,
alteration, grading, addition, excavation, modification, decoration,
redecoration, reconstruction or removal of the improvements shall be commenced
or maintained by Owner until drawings and specifications consistent with the
Design Guidelines have been
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submitted to, and approved in writing by, Declarant. Declarant may deny approval
of drawings and specifications submitted for its approval if it deems that the
construction, alterations, or additions contemplated thereby in the locations
indicated (A) will not comply with the Design Guidelines or (B) are inconsistent
with the Initial Project Conceptual Plan.
3.6 NO WAIVER OF FUTURE APPROVALS. Declarant's approval of any proposals
or drawings and specifications for any work done or proposed or approval in
connection with any other matter requiring the approval and consent of Declarant
shall not be deemed to constitute a waiver of any right to withhold approval or
consent as to any similar proposals, drawings and specifications, or matters
subsequently or additionally submitted for approval or consent. Such approval
shall not constitute or be deemed a waiver of any requirement contained in this
Declaration which relates to the conditions upon such construction, or the
manner in which such construction shall be performed.
3.7 APPROVAL. Declarant may approve drawings and specifications as
submitted, or as altered or amended, or it may grant its approval to the same
subject to specific conditions. Upon approval or conditional approval by
Declarant of any drawings and specifications submitted, a copy of such drawings
and specifications, together with any conditions, shall be deposited for
permanent record with Declarant, and a copy of such drawings and specifications,
bearing such approval together with any conditions, shall be returned to the
applicant submitting the same.
3.8 DECLARANT NOT LIABLE. Declarant shall not be liable for damage, loss,
or prejudice suffered or claimed by any Person on account of:
(a) The approval or disapproval of any plans, drawings, and
specifications, whether or not in any way defective; or
(b) The construction of any improvement, or performance of any work,
whether or not pursuant to approved plans, drawings, and specifications.
Declarant's approval of proposals or drawings and specifications shall not
constitute a representation, warranty or guarantee, whether express or implied,
that such proposals or drawings and specifications comply with good engineering
design or with zoning or building ordinances, or other governmental regulations
or restrictions. By approving such proposals or drawings and specifications
Declarant does not assume any liability or responsibility therefor, or for any
defect in the structure constructed from such proposals or plans and
specifications. Notwithstanding the foregoing, Declarant shall be liable for
damages incurred by Owner, but not in any event in excess of Five Hundred
Thousand Dollars ($500,000), if Declarant unreasonably withholds or delays its
consent to plans, drawings, or specifications and such failure causes actual
out-of-pocket losses to Owner.
3.9 CONSTRUCTION WITHOUT APPROVAL. If any improvement shall be erected,
placed, or maintained upon the Subject Property, or any new use commenced upon
the Subject Property, other than in accordance with the approval by the
Declarant pursuant to the provisions of this Article 3, such alteration,
erection, placement, maintenance, or use shall be deemed to have been undertaken
in violation of this Declaration, and upon written notice from Declarant, any
such improvement so altered, erected, placed, maintained, or used upon any
portion of the Subject Property in violation of this Declaration shall be
removed or altered so as to conform to this Declaration, and any such use shall
cease or be amended so as to conform to this Declaration.
ARTICLE 4. DEVELOPMENT AND MAINTENANCE STANDARDS
4.1 CONDITION OF SUBJECT PROPERTY. The Owner or Occupant of the Subject
Property shall at all times keep it and the buildings, improvements, and
appurtenances thereon in a safe, clean, and wholesome condition and comply, at
its own expense, in all respects with all applicable governmental safety
ordinances, regulations, requirements, and directives, and the Owner or Occupant
shall at regular
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and frequent intervals remove at its own expense any rubbish of any character
whatsoever that may accumulate upon the Subject Property.
4.2 Landscaping and Irrigation.
(a) Every portion of the Subject Property shall be landscaped and
irrigated as described in the Design Guidelines and in accordance with a
Development Plan submitted to and approved by the Declarant. Such
landscaping and irrigation shall thereafter be kept and maintained in
accordance with this Declaration, the Design Guidelines and the Improvement
Maintenance Standards.
(b) Landscaping and irrigation systems, as approved by the Declarant,
shall be completed within sixty (60) days after occupancy unless a written
extension of time has been granted by the Declarant.
(c) Landscaping and irrigation equipment, supplies and above-surface
pipes and installations shall be screened as required by the Design
Guidelines, except as otherwise permitted in writing by the Declarant.
(d) All planting and irrigation installations shall be maintained in a
neat and orderly fashion. If the Declarant determines that any portion of
the Subject Property is not being properly maintained, corrective work
shall be accomplished within thirty (30) days after receipt of notice from
the Declarant of any directions with regard to maintenance or such later
date if the corrective work cannot be reasonably accomplished within such
thirty (30) day period provided that Owner promptly commences such
corrective work and diligently prosecutes the same to completion.
(e) The following criteria shall be deemed minimum landscape maintenance
standards:
(i) All planting areas shall be kept reasonably free of leaves and
debris;
(ii) Lawns and ground cover shall be mowed and/or trimmed regularly;
(iii) All plantings shall be kept in a healthy and growing condition.
Any dead or damaged plant material resulting from improper maintenance
or any other reason shall be replaced with like plant material,
provided any change from the original approved plant material shall
require approval from the Declarant. Fertilization, cultivation,
weeding, spraying, trimming and pruning shall be performed as part of
a regular maintenance program;
(iv) Stakes, guys and ties on trees shall be checked regularly to
ensure the correct function of each. Ties shall be adjusted regularly
to avoid creating abrasions or girding of trunks or stems;
(v) Damage to plantings caused by vandalism, automobiles or acts
of nature shall be corrected within thirty (30) days after occurrence
to the condition similar to what such plantings were in immediately
before the damage occurred. All types and sizes of plantings shall be
approved by the Declarant; and
(vi) Irrigation and drainage systems shall be kept in proper working
condition. Adjustment, replacement of malfunctioning parts and
cleaning of systems shall be performed as part of a regular
maintenance program.
If, in Declarant's reasonable opinion, the required landscaping is not
maintained in a sightly and well-kept condition in accordance with the
Xxxxxxxxx Landscape Improvement Standards, Declarant shall be entitled to the
remedies set forth in Section 4.4 and Article 7.
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4.3 Maintenance of Grounds.
Owner shall be responsible for the maintenance and repair of all parking areas,
driveways, walkways, and landscaping on the Subject Property in accordance with
the Improvement Maintenance Standards. Such maintenance and repair shall
include, without limitation:
(a) Maintenance of all parking areas, driveways, and walkways in a clean
and safe condition, including the paving and repairing or resurfacing of
such areas when necessary with the type of material originally installed
thereon or such substitute therefor as shall, in all respects, be equal
thereto in quality, appearance, and durability; the removal of debris and
waste material and the washing and sweeping of paved areas; the painting
and repainting of striping markers and directional signals as required; and
(b) Cleaning, maintenance, and relamping of any external lighting
fixtures, except such fixtures as may be the property of any public utility
or government body.
4.4 Remedies for Failure to Maintain and Repair.
(a) Remedies. If any Owner shall fail to perform the maintenance and
repair required by this Declaration, then Declarant, after fifteen days
prior written notice to such delinquent Owner, shall have the right, but
not the obligation, to perform such maintenance and repair and to charge
the delinquent Owner with costs of such work, together with interest
thereon at the rate of twelve percent (12%) per annum from the date of
performance of such work to the date of reimbursement of Declarant by
Owner; provided, however, that in the event that such maintenance and
repair cannot reasonably be accomplished within such fifteen (15) day
period. Owner shall have a reasonable time period thereafter to perform
such maintenance and repair provided that Owner commences the same within
the fifteen (15) day period and diligently prosecutes the maintenance and
repair to completion. If the delinquent Owner shall fail to reimburse
Declarant for all such costs reasonably incurred within ten (10) days after
demand therefor, Declarant may, at any time within ninety (90) days after
such advance, file for Record in the Office of the County Recorder of Xxxxx
County, Nevada, a claim of lien signed by Declarant for the amount of such
charge together with interest thereon; provided, Declarant shall give the
Owner ten (10) days advance notice and opportunity to cure prior to filing
such claim of lien. The lien created by this Section shall be effective to
establish a lien against the interest of the delinquent Owner in the
Subject Property together with interest at twelve percent (12%) per annum
on the amount of such advance from the date thereof, in addition to
Recording fees, cost of title search obtained in connection with such lien
or the foreclosure thereof, and court costs and reasonable attorney's fees
that may be incurred in the enforcement of such a lien.
(b) Foreclosure of Lien. Subject to the provisions of Section 10.5, such
a lien, when so established against the Subject Property described in said
claim, shall be prior or superior to any right, title, interest, lien, or
claim that may be or may have been acquired in or attached to the real
property interests subject to the lien subsequent to the time of filing
such claim for Record. Such lien shall be for the benefit of Declarant and
may be enforced and foreclosed in a like manner as a real estate mortgage
is foreclosed in the state of Nevada.
(c) Cure. If a default for which a notice of claim of lien was filed is
cured, Declarant shall file or Record a rescission of such notice, upon
payment by the defaulting Owner of the costs of preparing and filing or
Recording such rescission, and other reasonable costs, interest, or fees
that have been incurred.
(d) Nonexclusive Remedy. The foregoing lien and the rights to foreclose
thereunder shall be in addition to, and not in substitution for, all other
rights and remedies that any party may have hereunder and by law, including
any suit to recover a money judgment for unpaid assessments.
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4.5 Refuse Collection Areas. All outdoor refuse collection areas shall be
visually screened so as not to be Visible from Neighboring Property or Streets.
No refuse collection area shall be permitted between a Street and the front of
a building.
4.6 Utility Lines and Antennas. No sewer, drainage, or utility lines or
wires or other devices for the communication or transmission of electric
current, power, or signals, including telephone, television, microwave, or radio
signals, shall be constructed, placed, or maintained anywhere in or upon any
portion of the Subject Property other than within buildings or structures,
unless the same shall be contained in conduits or cables constructed, placed, or
maintained underground or concealed in or under buildings or other structures.
No antenna, satellite dish or other device for the transmission or reception of
telephone, television, microwave, or radio signals shall be placed on any
portion of the Subject Property unless (a) such antenna, satellite dish or other
device shall be so located that it is not Visible from Neighboring Property, or
(b) the consent of Declarant shall first be obtained. Nothing contained herein
shall be deemed to forbid the erection or use of temporary power or telephone
facilities incidental to the construction or repair of buildings on the Subject
Property.
4.7 Mechanical Equipment. All mechanical equipment, utility meters,
storage tanks, air-conditioning equipment, and similar items shall be screened
with landscaping or attractive architectural features integrated into the
structure itself.
4.8 Signs. No Sign shall be permitted on the Subject Property unless
approved by Declarant in writing. No Sign shall be approved other than
identification Signs, informational and vehicular control signals. Signs
identifying the building or the business of the Owner and temporary development
Signs. All such Signs, displays, identifications, and monuments shall be only
of such size, design and color as shall have been specifically submitted to and
approved by the Declarant in writing prior to the erection or installation of
said Sign, display, identification, or monument. Notwithstanding anything
contained in this Section 4.8 to the contrary, Declarant agrees that it shall
consent to the erection or installation of a Sign which is visible from both
Rampart Boulevard and Xxxxxxxxx Parkway provided that it has been approved by
Declarant as set forth in this Section 4.8.
4.9 Fences. No fences or walls shall be permitted on any portion of the
Subject Property unless such fence or wall is necessary for security or
screening purposes. The Declarant reserves the right to approve the location
and design of all fences, and no fence shall be constructed without a letter of
approval from the Declarant.
4.10 Exterior Lighting. All exterior lighting, including the location,
design, type and size thereof, is subject to the written approval of the
Declarant and shall conform to the Design Guidelines. Exterior lighting shall
be adequately controlled to prevent glare and undesirable illumination of other
properties adjacent to the Subject Property.
4.11 Parking Areas. Off-Street parking as required in the Design Criteria
to accommodate the parking needs of the Owner or Occupant and the employees and
visitors thereof shall be provided by the Owner. The intent of this provision
is to eliminate the need for any on-Street parking; provided, however, that
nothing herein shall be deemed to prohibit on-Street parking of public
transportation vehicles.
4.12 Construction Regulations and Restrictions.
(a) No mechanical equipment, apparatus or antennae shall be placed above
the roof line (which shall be measured by the roof curb or parapet) of any
building, except within an enclosure or behind opaque screening which has
been approved in writing the Declarant, unless an exemption has been
specifically approved in writing by the Declarant.
(b) All building exteriors shall be maintained at all times in a neat,
orderly and weatherproof manner, including, without limitation, periodic
painting if painting is customary with respect to the exterior construction
materials employed for such building. The periodic painting shall be the
same
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color originally approved by the Declarant. Any change in color shall
require the approval of the Declarant.
(c) All hardscape, including but not limited to paved areas, parking
lots, sidewalks, curbs and gutters shall be maintained at all times in a
neat, orderly and weatherproof manner.
ARTICLE 5. REGULATION OF OPERATIONS AND USES
5.1 Permitted Uses. The Subject Property shall be used, developed,
maintained and operated only as a resort style hotel and/or casino, with such
ancillary commercial, entertainment and recreational amenities as are approved
by Declarant in writing.
5.2 Prohibited Uses. Without limiting the generality of Section 5.1, the
following operations and uses shall not be permitted on any property subject to
this Declaration:
(a) Residential use of any type excluding a hotel, time share, and the
management of either of such uses:
(b) Trailer courts or recreation vehicle campgrounds;
(c) Junk yards, wrecking yards, or recycling facilities;
(d) Mining, drilling for, or removing oil, gas, or other hydrocarbon
substances;
(e) Refining of petroleum or of its products;
(f) Commercial excavation of building or construction materials, provided
that this prohibition shall not be construed to prohibit any excavation
necessary in the course of approved construction; or
(g) Dumping, disposal, incineration, or reduction of garbage, sewage, or
other refuse.
5.3 Nuisances. No nuisance shall be permitted to exist or operate upon
any portion of the Subject Property so as to be offensive or detrimental to any
adjacent property or to its Occupants. Without limiting the foregoing, the
violation of any of the following provisions shall be deemed a "nuisance":
(a) No use, excluding reasonable construction and maintenance activity,
of the Subject Property that emits dust, sweepings, dirt, or cinders into
the atmosphere, or discharges liquid, solid wastes, or other matter into
any stream, river, or other waterway that, in the opinion of Declarant, may
adversely affect the health, safety, comfort of, or intended use of their
property by Persons within the area shall be permitted. No waste nor any
substance or materials of any kind shall be discharged into any public
sewer serving the Subject Property or any part thereof in violation of any
regulation of any public body having jurisdiction over such public sewer;
(b) Except as related to the standard and customary operation of a
hotel/casino and related uses, no escape or discharge of any fumes, odors,
gases, vapors, steam, acids, or other substance into the atmosphere, which
discharge, in the opinion of Declarant, may be detrimental to the health,
safety or welfare of any Person or may interfere with the comfort of
Persons within the area or may be harmful to property or vegetation shall
be permitted;
(c) Any operation producing intense glare or heat, atomic,
electromagnetic, microwave, ultrasonic, laser, or other radiation shall be
performed only within an enclosed or screened area and then only in such
manner that the glare, heat, or radiation emitted will not be discernible
from any point exterior to the Subject Property;
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(d) Buildings and other structures shall be constructed and machinery and
equipment installed and insulated on the Subject Property so that the
ground vibration inherently and recurrently generated is not perceptible
without instruments at any point exterior to the Subject Property.
(e) No rubbish, trash, waste, residue, brush, weeds or undergrowth or
debris of any kind or character shall ever be placed or permitted to
accumulate upon the Subject Property or any portion thereof, so as to
render said premises a fire hazard, unsanitary, unsightly, offensive, or
detrimental to any Person or activity on any other adjacent property or on
any Street.
(f) No building or other Improvement shall be permitted to fall into
disrepair and all buildings and other Improvements shall at all times be
kept in good condition and repair (including, without limitation, free of
the presence of wood-destroying pests and organisms) and adequately painted
or otherwise finished. Any and all exterior repairs, redecorations,
modifications or additions shall be made in accordance with, and shall be
subject to, this Declaration and the Design Guidelines and all applicable
statutes, ordinances and governmental regulations, and shall be approved in
writing by the Declarant.
(g) No condition shall be permitted to exist upon the Subject Property
which shall induce, breed or harbor infectious plant diseases or noxious
insects.
(h) No Owner or Occupant shall in any way alter the natural or established
drainage of water over the Subject Property from adjoining or other
property, nor shall any Owner or Occupant in any way interfere with the
natural or established drainage of water from the Subject Property so as to
cause or permit water to drain onto, over or under any adjoining or other
property except in accordance with a drainage, plan approved by Declarant.
If it is necessary to change the natural or established drainage flow over
the Subject Property, then the Owner or Occupant of the Subject Property
shall adequately provide for proper drainage and such changes shall be
approved in writing by the Declarant. For the purposes hereof, "natural"
drainage is defined as the drainage which would naturally occur at the time
the overall approved grading plan of the Subject Property has been
completed by Declarant. For the purposes hereof, "established" drainage is
defined as the drainage which occurred or which would occur at the time the
overall grading of the Subject Property, including the finish grading of
the Subject Property, was completed.
(i) No adverse environmental condition shall be permitted to exist on the
Subject Property, nor shall any toxic or hazardous wastes be permitted to
be generated, treated, stored, disposed of, or otherwise deposited in or on
or allowed to emanate from the Subject Property or any portion of the
Subject Property, including, without limitation, the surface waters and
subsurface waters thereof; provided, however, that hazardous substances may
be stored or used so long as such storage and use is conducted in
compliance with all applicable laws, statutes, ordinances, rules and
regulations of any local, County, State or federal governmental body.
(j) No Owner or Occupant shall permit anything to be done or kept on the
Subject Property that violates any law, statute, rule or regulation of any
City, County, State or federal governmental or public body.
5.4 SUBDIVISION. No Owner shall affect any change or amendment to any
parcel or final map covering the Subject Property or Record any further parcel
or final map of the Subject Property or any portion thereof of facilities
thereon, pursuant to Nevada Revised Statutes, or any similar statute hereafter
enacted, and any local ordinances adopted pursuant thereto, nor shall an Owner
file any applications with any governmental agency with respect to any of the
foregoing matters, unless expressly approved by Declarant.
5.5 ZONING. Owner shall not use or develop or attempt to use or develop
the Subject Property or any portion thereof for any purpose other than those
purposes expressly allowed under the zoning ordinances of the City of Las
Vegas. All development within the Subject Property shall be subject to all
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such zoning ordinances and regulations applicable to, and in effect at the time
of, such development, except where more restrictive requirements are imposed by
this Declaration or the Design Guidelines. Development and ownership of the
Subject Property shall further be subject, as applicable, to future land use
and environmental matters affecting the Subject Property. Owner shall not
change or attempt any change in zoning, or obtain or apply for a zoning
variance or exception or other similar approval with respect to the use or
development of the Subject Property or any portion thereof not expressly
allowed under such existing zoning, unless expressly approved by Declarant in
writing.
5.6 MINERAL EXPLORATION. No portion of the Subject Property shall be used
in any manner to explore for or to remove any water, steam, heat, oil, gas or
other hydrocarbons, gravel, earth, or any earth substances or other minerals of
any kind, provided, however, that this shall not prevent the excavation of earth
in connection with the grading or construction of improvements within the
Subject Property. No tools or equipment and no xxxxxxx or other structure
designed for use in boring for water, steam, heat, oil, gas or other
subterranean minerals or other substances, or designed for use in any mining
operation or exploration, shall be erected or placed upon or adjacent to the
Subject Property.
5.7 COVENANT TO HOLD PROPERTY. RASLP hereby agrees and covenants not to
sell, lease, transfer, exchange or otherwise convey or dispose of its interest
in the Subject Property to another investor, builder or developer other than a
permitted assignee for a period of one (1) year following substantial
completion of the Initial Project.
ARTICLE 6. DECLARANT'S PURCHASE OPTION
6.1 OPTION TO REPURCHASE SUBJECT PROPERTY. In consideration of Declarant's
sale of the Subject Property and the other agreements of Declarant contained in
the Purchase Agreement, Owner hereby grants to Declarant the exclusive and
irrevocable right and option to purchase the Subject Property (the "Purchase
Option") on the terms and conditions set forth in this Article 6.
6.2 EXERCISE OF PURCHASE OPTION. Declarant shall have the right to
exercise the Purchase Option in the event the Construction Commencement has not
occurred by the Construction Commencement Deadline by giving written notice of
the exercise by Declarant of the Purchase Option within ninety (90) days after
the Construction Commencement Deadline. In the event Declarant exercises the
Purchase Option, then Owner shall be obligated to sell and Declarant shall be
obligated to purchase the Subject Property pursuant to the terms of this
Article 6 unless Owner takes the following actions:
(a) Owner notifies Declarant in writing no later than three (3) days after
Declarant has exercised the Purchase Option that Owner intends to achieve
Construction Commencement within ninety (90) days of Declarant's exercise
of the Purchase Option; and
(b) Owner actually achieves Construction Commencement within such 90 day
period.
6.3 TITLE CONDITION. Upon Declarant's repurchase, the Subject Property
shall be subject only to
(a) Current taxes not yet delinquent;
(b) Matters affecting title which exist as of the date of Recordation of
this Declaration, or which are created, made, assumed, consented to or
requested by Declarant, its successors or assigns; and
(c) Noninterfering easements for utilities used in connection with the
buildings and other Improvements constructed on the Subject Property.
In the event any other matters or encumbrances exist or otherwise affect title,
Declarant shall have the right to deduct from the purchase price at the close
of escrow an amount, to be reasonably determined by
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Declarant, as sufficient to discharge such matters or to reimburse Declarant for
any costs or expenses to be incurred by Declarant in connection with such
matters.
6.4 OPTION EXPIRATION AND QUITCLAIM. In the event Construction
Commencement is achieved by the Construction Commencement Deadline or if
Declarant has not exercised the Purchase Option within ninety (90) days after
the Construction Commencement Deadline, the Purchase Option shall expire and
Owner shall be free to sell the Subject Property without complying with the
Development Plan.
6.5 REPURCHASE PRICE. Declarant's purchase price for the Subject
Property (the "Repurchase Price") upon its exercise of the Purchase Option
provided above, shall be:
(a) $14,620,000 if the Subject Property does not include the Option
Parcel, less all advances made by Declarant to restore the title to
the condition described in Section 6.3 above, to the extent not
reimbursed to Declarant by Owner.
(b) $20,459,000 if the Subject Property does include the Option
Parcel, less all advances made by Declarant to restore the title to
the condition described in Section 6.3 above, to the extent not
reimbursed to Declarant by Owner.
6.6 REPURCHASE ESCROW TERMS. Within five (5) days after Declarant's
exercise of the Purchase Option as provided above or as soon thereafter as
possible, an escrow shall be established at Nevada Title Company or another
escrow company selected by Declarant and satisfactory to Owner to consummate the
purchase as specified herein, which escrow shall have a time limit of thirty
(30) days. Said escrow shall be subject only to approval by Declarant of a then
current preliminary title report. Any exceptions shown thereon created after the
date hereof, and disapproved by written notice to Owner through escrow, shall be
removed by Owner at its sole expense at or prior to Closing. Owner and Declarant
shall each pay one-half of the escrow fees; Owner shall pay for documentary tax
stamps, for Recording the deed, and for an ALTA extended coverage owner's policy
of title insurance in the amount of the Repurchase Price showing title to the
Subject Property vested in Declarant or its assigns free and clear of all liens,
encumbrances or other title exceptions other than those set forth in Section
6.3. Any other costs or expenses shall be allocated between the parties in the
manner customary in Xxxxx County, Nevada.
6.7 OTHER DEFAULTS. Should Owner at any time prior to expiration of
the Purchase Option commit any act of bankruptcy, or be adjudicated a bankrupt
or insolvent, whether voluntarily or involuntarily, or transfer the Subject
Property or any portion thereof by operation of law under legal process pursuant
to receivership or bankruptcy, or make an assignment for benefit of creditors,
then Declarant in its sole discretion may, in addition to any other rights or
remedies available to it, exercise this Purchase Option at any time prior to
expiration of the Purchase Option, in the manner provided for herein.
6.8 BINDING EFFECT. This Purchase Option shall be binding upon and
shall inure to the benefit of the respective successors in interest to the
parties hereto.
6.9 DECLARANT'S REMEDIES. In the event Declarant exercises the
Purchase Option provided herein and Owner shall fail or refuse to reconvey the
Subject Property in accordance with the terms of this Declaration, Declarant
shall be entitled to pursue any remedy available to it at law or equity,
including the right to seek specific performance of Owner's obligations
hereunder.
ARTICLE 7. ENFORCEMENT
7.1 ENFORCEMENT. Declarant alone (subject to Declarant's right to
assign pursuant to Section 8.1) shall have the right to enforce, by proceedings
at law or in equity, all Restrictions, covenants, and reservations, now or
hereafter imposed by the provisions of this Declaration or any amendment
thereto, including the right to prevent the violation of any such Restrictions,
covenants, or reservations, and the right to recover damages or other amounts
due for such violation. The Owner of the Subject Property shall
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be primarily liable and the Occupant, if any, secondarily liable for the
violation or breach of any covenant, condition, or Restriction herein contained.
7.2 RIGHTS ARE CUMULATIVE. All rights, options, and remedies of
Declarant under this Declaration are cumulative, and no one of them shall be
exclusive of any other, and Declarant shall have the right to pursue any one or
all of such rights, options, and remedies or any other remedy or relief which
may be provided by law or in equity, whether or not stated in this Declaration.
7.3 REMEDIES. In the event of any breach, violation or failure to
perform or satisfy any of the Restrictions, Declarant at its sole option and
discretion may enforce any one or more of the following remedies or any other
rights or remedies to which Declarant may be entitled by law or equity, whether
or not set forth herein:
(a) ABATEMENT. Following thirty (30) days written notice to the Owner
or Occupant in question except in exigent circumstances, Declarant
shall have the right, privilege, and license to enter upon the Subject
Property where said violation or breach exists without further legal
process to the maximum extent permitted by law, and to summarily xxxxx
and remove, or xxxxx or remove, at the expense of the Owner or
Occupant thereof, any improvement, structure, thing, or condition that
may be or exist thereon contrary to the intent and meaning of the
provisions hereof; provided, however, that in the event that any such
violation or breach cannot reasonably be accomplished within such
thirty (30) day period, Owner or Occupant in question shall have a
reasonable time period thereafter to cure provided that such cure is
commenced within the thirty (30) day period and thereafter diligently
prosecuted to completion. No such entry by Declarant or its agents
shall be deemed a trespass, and neither Declarant nor its agents shall
be subject to liability to the Owner or Occupant of the Subject
Property for such entry and any action taken to remedy or remove a
violation. Any costs or expenses paid or incurred by Declarant in
abating such nuisance or prosecuting any such remedy (including all
reasonable attorneys' fees and costs of collection), together with
interest thereon at the maximum contract rate permitted by law then in
effect, shall be a charge against the Subject Property, shall be a
continuing lien thereon until paid if Declarant Records a notice of
same within ninety (90) days after any such advance with the Office of
the County Recorder of Xxxxx County, Nevada, and shall also be the
personal obligation of Owner or other Person who was owner of the
Subject Property when such charges became due and who committed such
breach or violation. The lien provided for in this Section shall not
be valid as against a bona fide purchaser or Mortgagee for value of
the Subject Property in question unless a suit to enforce said lien
shall have been filed in a court of Record in Xxxxx County, Nevada,
prior to the Recordation of the deed or mortgage conveying or
encumbering the Subject Property in question to such purchaser or
Mortgagee, respectively.
(b) DAMAGES. Declarant may bring a suit for damages for any
compensable breach of or noncompliance with any of the Restrictions,
or declaratory relief to determine the enforceability of any of the
Restrictions.
(c) EQUITY. It is recognized that a particular or ongoing violation
by Owner of one or more of the foregoing Restrictions may cause
Declarant to suffer material injury or damage not compensable in money
(including, but not limited to irreparable effects on the type and
quality of development on the Benefitted Property or portions
thereof), and that Declarant shall be entitled to bring an action in
equity or otherwise for specific performance to enforce compliance
with the Restrictions or an injunction to enjoin the continuance of
any such breach or violation thereof, whether or not Declarant
exercises any other remedy set forth herein.
7.4 RIGHT OF ENTRY. During reasonable hours and upon reasonable
notice and subject to reasonable security requirements and applicable Nevada
gaming laws and regulations, Declarant, or its agents, shall have the right to
enter upon and inspect any portion of the Subject Property and the improvements
thereon covered by this Declaration for the purpose of ascertaining whether or
not the
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provisions of the Declarant have been or are being complied with, and neither
Declarant nor its agents shall be deemed to have committed a trespass or other
wrongful act by reason of such entry or inspection.
7.5 DEEMED TO CONSTITUTE A NUISANCE. The result of every act or omission
whereby any covenant, condition, or Restriction herein contained is violated in
whole or in part is hereby declared to be and to constitute a nuisance, and
every remedy allowed by law or in equity against an Owner or Occupant either
public or private shall be applicable against every such result and may be
exercised by Declarant.
7.6 ATTORNEY'S FEES. In any legal or equitable proceeding for the
enforcement of this Declaration or any provision hereof, whether it be an
action for damages, declaratory relief, or injunctive relief, or any other
action, the losing party or parties shall pay the attorney's fees of the
prevailing party or parties, in such reasonable amount as shall be fixed by the
court in such proceedings or in a separate action brought for that purpose. The
prevailing party shall be entitled to said attorney's fees and costs even
though said proceeding is settled prior to judgment.
7.7 FAILURE TO ENFORCE IS NO WAIVER. The failure of Declarant to enforce
any requirement, Restriction, or standard herein contained shall in no event be
deemed to be a waiver of the right to do so thereafter or in other cases nor of
the right to enforce any other Restriction.
7.8 GENERAL PURPOSE AND CONSTRUCTIVE NOTICE. The Restrictions shall run
and pass with each and every portion of the Subject Property and be binding
upon Owner, its successors and assigns, and shall benefit the Benefitted
Property and be enforceable solely by Declarant notwithstanding any transfers
of the Benefitted Property or any portion thereof by Declarant. Every Person
who now or hereafter owns or acquires any right, title or interest in or to any
portion of the Subject Property is and shall be conclusively deemed to have
consented and agreed to every Restriction, provision, covenant, condition,
right and limitation contained herein, whether or not any reference to this
Declaration is contained in the instrument by which such Person acquired an
interest in the Subject Property.
ARTICLE 8. ASSIGNMENT
8.1 ASSIGNMENT. Any and all of the rights, powers, and reservations of
Declarant herein contained may be assigned to any Person that will assume the
duties of Declarant pertaining to the particular rights, powers and
reservations assigned, and upon any such Person evidencing its consent in
writing to accept such assignment and assume such duties, he or it shall, to
the extent of such assignment, have the same rights and powers and be subject
to the same obligations and duties as are given to and assumed by Declarant
herein provided that Declarant shall, at least ten (10) days prior to such
assignment becoming effective, deliver notice to Owner. Any assignment or
appointment made under this Article 8 shall be in reasonable form and shall be
Recorded.
Without limiting the generality of the preceding paragraph, Declarant
shall have the right in its sole discretion to assign all or part of its rights
under this Declaration to the Master Association. In the event of such an
assignment, the Master Association shall have the right to enforce those rights
assigned to the Master Association by Declarant against Owner, its successor
and assigns.
ARTICLE 9. MASTER ASSOCIATION
9.1 MASTER ASSOCIATION ASSESSMENTS. Each Owner of the Subject Property,
by acceptance of a deed thereto (whether or not it shall be so expressed in
such deed) is hereby deemed (a) to acknowledge and agree that certain portions
of Xxxxxxxxx, including but not limited to the Improvements thereon or
hereafter constructed thereon, while owned, controlled and maintained by the
Master Association, benefit the Subject Property and (b) in consideration of
such benefit, to covenant and agree to pay an assessment (hereinafter, the
"Master Association Assessment") to the Master Association as provided for in
this Article 9. The Master Association will assess the Subject Property at a
rate determined by multiplying (i) the number of acres (rounded to the nearest
one tenth (1/10) of an acre) comprising the Subject Property, by (ii) five (5)
times the amount of the Master Association's Common Assessment against
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residential lots as the same shall be fixed from time to time. Therefore, by way
of example only, if the Subject Property is 54.51 acres and the Master
Association's Common Assessments against residential lots is $25 per month, the
assessment to the Subject Property will be $6,812.50 per month ($25 x 5 x 54.50)
until such time as any such assumption changes. Any maintenance, repairs or
replacements within any portion of the "Association Property" (as such term is
used in the Master Declaration) arising out of or caused by the willful or
negligent act of any Owner or its invitee shall be cause for a Special
Assessment, as that term is used in the Master Declaration and not as used
herein, by the Master Association against such Owner and the Subject Property.
All Master Association Assessments due the Master Association together with
interest thereon, late charges, costs and reasonable attorneys' fees for the
collection thereof as provided for in the Master Declaration, shall be a charge
and continuing lien in favor of the Master Association upon the Subject Property
against which each such Master Association Assessments is made. The Master
Association shall have the same rights and remedies against the Owner as it has
against the "Owners" (as defined in the Master Declaration) in enforcing the
provisions of the Master Declaration including without limitation the provisions
of, Section 6.6 and Sections 6.11 through 6.15, inclusive, of the Master
Declaration. Master Association Assessments shall be paid to the Master
Association. Notwithstanding any payment of any Master Association Assessments
to the Master Association by any Owner in accordance with the provisions of this
Article 9, nothing in this Article 9 shall be deemed or construed to grant to
any Owner any membership, voting or other rights in the Master Association or
its property. All of the provisions of the Master Declaration referred to in, or
necessary to effect the intent of, this Article 9 are incorporated herein by
this reference. Notwithstanding any provision of this Declaration to the
contrary, the terms of this Article 9 may not be amended, altered, suspended, or
superseded without the express written consent of the Master Association which
consent shall be acknowledged in a Recorded document.
ARTICLE 10. MISCELLANEOUS
10.1 CONSTRUCTIVE NOTICE AND ACCEPTANCE. Every Person who now or hereafter
owns, occupies, or acquires any right, title, or interest in or to any portion
of the Subject Property is and shall be conclusively deemed to have consented
and agreed to every covenant, condition, and Restriction contained herein,
whether or not any reference to this Declaration is contained in the instrument
by which such Person acquired an interest in the Subject Property.
10.2 WAIVER. Neither Declarant nor its successors or assigns shall be
liable to any Owner or Occupant of the Subject Property by reason of any
mistake in judgment, negligence, nonfeasance, action, or inaction or for the
enforcement or failure to enforce any provision of this Declaration. Every
Owner or Occupant of any of said property by acquiring its interest therein
agrees that it will not bring any action or suit against Declarant to recover
any such damages or to seek equitable relief because of same.
10.3 DECLARANT'S RIGHT TO TERMINATE DECLARATION. Upon the acquisition of
all or portions of the Subject Property by Declarant by or through any
operation of law or instrument of transfer, Declarant shall have the right in
its sole discretion to terminate this Declaration and release such portions or
all of the Subject Property from the covenants and Restrictions of this
Declaration, by executing and Recording an instrument to such effect, in which
event the covenants and Restrictions shall be forever terminated and
extinguished.
10.4 RUNS WITH LAND. The covenants, Restrictions, and reservations of this
Declaration shall run with and bind the Subject Property and shall inure to the
benefit of and be enforceable by Declarant and its successors and assigns for a
term of sixty (60) years from the date this Declaration is Recorded, unless
terminated earlier in accordance with the terms of Section 10.3 above. As used
in the preceding sentence, the term "successors and assigns" shall mean and
refer to both (a) Declarant's successors and assigns as provided in Section
8.1, and (b) Declarant's successors and assigns as to all or substantially all
of Declarant's assets or by merger, consolidation, or other corporate
reorganization.
10.5 RIGHTS OF MORTGAGEES. No breach or violation of the Restrictions shall
defeat or render invalid the lien of any Mortgage, Deed of Trust or similar
instrument securing a loan made in good faith
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and for value with respect to the development or permanent financing of the
Subject Property or any portion thereof, and to the extent that the combined
principal amount of such loan and any superior loans encumbering the Subject
Property does not exceed seventy percent (70%) of the improved fair market value
of the Subject Property. However, this Declaration and all provisions hereof
shall be binding upon and effective against any subsequent Owner and its
successors and assigns or other Occupant of the Subject Property or portion
thereof whose title is acquired by foreclosure, trustee's sale, deed in lieu of
foreclosure or otherwise, but such subsequent Owner shall have a reasonable
period of time after taking title to cure any violation hereunder that is
reasonably capable of being cured, provided that such subsequent Owner
diligently acts to effect such cure.
10.6 CAPTIONS. The captions of Articles and Sections herein are used for
convenience only and are not intended to be a part of this Declaration or in
other way to define, limit, or describe the scope and intent of the particular
Article or Section to which they refer.
10.7 EFFECT OF INVALIDATION. If any provision of this Declaration is held
to be invalid by any court, the invalidity of such provision shall not affect
the validity of the remaining provisions hereof.
10.8 AMENDMENTS. Except as provided in this Declaration concerning the
addition of or substitution for other real property as the Benefitted Property,
or concerning the assignment by Declarant of its rights under this Declaration,
this Declaration may only be amended by a writing executed by Declarant and
the Record owner of the Subject Property which shall be Recorded against the
Subject Property.
10.9 FORCE MAJEURE. The time period for the performance of any
non-monetary obligation under this Agreement shall be extended for any period
that such performance is delayed or becomes impossible due to any Act of God,
war, civil insurrection, riot, earthquake, fire, weather, sickness, accident,
epidemic, act of government or government regulation, general or sympathetic
strike or lockout, unavailability of labor or materials, or any other cause
beyond the control of a party to this Agreement including, without limitation,
delays occasioned by the investigation of Owner (or one of the following three
entities: (i) Seven Circle Resorts of Nevada, Inc., (ii) Seven Circle Gaming
Corporation, or (iii) Seven Circle Resorts, Inc.) by the State Gaming Control
Board provided that Owner is cooperating with such investigation.
10.10 CONSTRUCTION. Whenever the consent of a party to this Agreement is
required pursuant to this Agreement or any related agreement, such consent
shall, in all cases, not be unreasonably withheld or delayed.
10.11 COUNTERPARTS. This Agreement may be executed in several counterparts
and all so executed shall constitute one Agreement, binding on all the parties
hereto even though all the parties are not signatories to the original or the
same counterpart.
DECLARANT RASLP
XXXXXX XXXXXX PROPERTIES, LIMITED THE RESORT AT XXXXXXXXX, LIMITED
PARTNERSHIP, a Delaware limited PARTNERSHIP, a Nevada limited
partnership partnership
By its sole general partner: THE XXXXXX By its general partner: The Resort
XXXXXX CORPORATION, a Delaware at Xxxxxxxxx, Inc., a Nevada
corporation corporation
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------------ ----------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxx
---------------------------------- --------------------------------
Title: Executive Vice President Title: Senior Vice President
--------------------------------- -------------------------------
Page 19
20
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on August 6, 1996 by Xxxx X. Xxxxxxx
as Executive Vice President of THE XXXXXX XXXXXX CORPORATION.
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Notary Public
[NOTARY SEAL] Notary Public-State of Nevada
COUNTY OF XXXXX
XXXXX X. XXXXXXXX
My Commission Expires
May 25, 1998
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on August 15th, 1996 by
Xxxx X. Xxxxxx as Senior Vice President of THE RESORT AT XXXXXXXXX, LIMITED
PARTNERSHIP.
/s/ Xxxxx Xxxx Xxxxxx
-------------------------------------
Notary Public
[NOTARY SEAL] XXXXX XXXX XXXXXX
Xxxxxx Public-State of Nevada
[illegible] in Xxxxx County
My Appointment Expires [illegible]
Page 20
21
ATTACHMENT "A"
TO DEVELOPMENT DECLARATION
AND OPTION TO REPURCHASE
DESCRIPTION OF SALE PARCEL AND OPTION PARCEL
SALE PARCEL
ALL OF PARCEL 1 AS SHOWN BY MAP THEREOF ON FILE IN FILE 82, PAGE 64 OF PARCEL
MAPS IN THE XXXXX COUNTY RECORDER'S OFFICE, XXXXX COUNTY, NEVADA LYING WITHIN
THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 29, TOWNSHIP 20, SOUTH, RANGE 60
EAST, M.D.M., CITY OF LAS VEGAS, XXXXX COUNTY, NEVADA.
OPTION PARCEL
ALL OF PARCEL 2 AS SHOWN BY MAP THEREOF ON FILE IN FILE 82, PAGE 64 OF PARCEL
MAPS IN THE XXXXX COUNTY RECORDER'S OFFICE, XXXXX COUNTY, NEVADA LYING WITHIN
THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 29 AND THE SOUTHEAST QUARTER (SE 1/4)
OF SECTION 30, TOWNSHIP 20 SOUTH, RANGE 60 EAST, M.D.M., CITY OF LAS VEGAS,
XXXXX COUNTY, NEVADA.
22
ATTACHMENT "B"
TO DEVELOPMENT DECLARATION
AND OPTION TO REPURCHASE
DESCRIPTION OF BENEFITTED PROPERTY
That parcel of land situated in the County of Xxxxx, State of Nevada, described
as portions of particular Townships and Ranges of M.D.B. & M., as follows:
Township 20 South, Range 60 East, M.D.M.
All of Sections 16, 17, 18, 19, 20 and 30;
AND
The West 1/2 of Section 29;
AND
All of Section 21, except the North 1,000.00 feet of the East 1/2
Northeast 1/4 Northeast 1/4 of said Section 21.
Township 20 South, Range 59 East, M.D.M.
All of Sections 13, 14, 15, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31,
32, 33, 34, 35 and 36;
AND
The South 1/2 of Section 16;
AND
The Southeast 1/4 of Section 17;
AND
The South 1/2 of Section 19;
AND
The South 1/2 and the Northeast 1/4 of Section 20.
Township 21 South, Range 59 East, M.D.M.
All of Sections 1, 2, 5, 7, 8, 9 and 12;
AND
The East 1/2 Southeast 1/4 of Section 6 and the Northeast 1/4 of
Section 6;
AND
The North 1/2 of North 1/2 of Section 3;
AND
The West 1/2 of Section 4 and the North 1/2 Northeast 1/4 of Section 4;
AND
The Northeast 1/4 Northwest 1/4 of Section 18 and the North 1/2
Northeast 1/4 of said Section 18;
AND
The North 1/2 North 1/2 of Section 17;
AND
The North 1/2 Northwest 1/4 of Section 16;
AND
The North 1/2 North 1/2 of Section 13;
AND
The North 1/2 North 1/2 of Section 14;
23
ATTACHMENT "B"
TOGETHER WITH AND INCLUDING:
Those certain portions of Township 21 South, Range 59 East, M.D.M., of said
County of Xxxxx, State of Nevada, more particularly described as follows:
The East 1/2 and the East 1/2 West 1/2 and the East 1/2 West 1/2 West 1/2
and the West 1/2 Southwest 1/4 Southwest 1/4 and the Northwest 1/4
Northwest 1/4 Northwest 1/4 of Section 11;
AND
All of Sections 23 and 24;
AND
All of Section 25, except the West 1/2 Southwest 1/4 Southwest 1/4 and also
excepting the Southwest 1/4 Northwest 1/4 Southwest 1/4 of said Section 25;
AND
The North 1/2 Northeast 1/4 and the North 1/2 South 1/2 Northeast 1/4 and
the East 1/2 Northeast 1/4 Northwest 1/4 of Section 36;
AND
All of Section 13, except the North 1/2 North 1/2 of said Section 13;
AND
All of Section 14, except the North 1/2 North 1/2 of said Section 14.
EXCEPTING FROM THE ABOVE DESCRIBED PARCEL OF LAND those certain portions of
land more particularly described as follows:
Parcel 2 (containing 682.117 acres) shown on Page 83 of File 52 of Parcel
Maps of Xxxxx County Nevada Records;
AND
Parcel 1 (containing 1,050.058 acres) and Parcel 4 (containing 353.340
acres) as shown on Page 09 of File 54 of Parcel Maps of Xxxxx County
Nevada Records;
AND
Parcel 2 (containing 303.947 acres) shown on Page 09 of File 54 of Parcel
Maps of Xxxxx County Nevada Records;
AND
Parcel 1 (containing 487.136 acres) and Parcel 2 (containing 22.934 acres)
and Parcel 3 (containing 18.65 acres) as shown on Page 82 of File 54 of
Parcel Maps of Xxxxx County Nevada Records;
AND
Parcel 1 (containing 488.428 acres) shown on Page 28 of File 63 of Parcel
Maps of Xxxxx County Nevada Records;
AND
Parcel 1 (containing 29.686 acres) shown on Page 30 of File 62 of Parcel
Maps of Xxxxx County Nevada Records;
AND
Parcel 3 (containing 502.091 acres) shown on Page 57 of File 78 of Parcel
Maps of Xxxxx County Nevada Records;
AND
Parcel 2 (containing 10.813 acres) shown on Page 9 of File 73 of Parcel
Maps of Xxxxx County Nevada Records;
AND
Parcel 1 (containing 44.768 acres) shown on Page 94 of File 76 of Parcel
Maps of Xxxxx County Nevada Records;
AND
Page 23
24
ATTACHMENT "B"
Parcel 2 (containing 14.545 acres) shown on Page 01 of File 82 of Parcel
Maps of Xxxxx County Nevada Records;
AND
Parcel 1 (containing 5.230 acres) shown on Page 59 of File 73 of Parcel
Maps of Xxxxx County Nevada Records;
AND
Parcel 1 (containing 585.577 acres) and Parcel 3 (containing 18.315 acres)
shown on Page 14 of File 74 of Parcel Maps of Xxxxx County Nevada Records.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part of
Xxxxxxxxx Village 1 North subdivision (containing 388.411 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon the
"AMENDED PLAT OF XXXXXXXXX VILLAGE 1 NORTH," as recorded in Book 045 of Plats,
Page 0010, in the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 8 subdivision (containing 197.476 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon "THE
CROSSING AT XXXXXXXXX VILLAGE 8 UNIT NO.1-PHASE 3", on file in Book 63 of Plats,
Page 92, in the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 8 subdivision (containing 114.344 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon "THE
CROSSING AT XXXXXXXXX VILLAGE 8 UNIT NO. 2", on file in Book 64 of Plats, Page
67, in the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 8 subdivision (containing 150.153 acres more or less) situated
in the City of Las Vegas, Xxxxx County, Nevada; as shown upon "THE CROSSING AT
XXXXXXXXX VILLAGE 8 UNIT NO. 3", on file in Book 69 of Plats, Page 99, in the
Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 8 subdivision (containing 94.754 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon "THE
CROSSING AT XXXXXXXXX VILLAGE 8 UNIT NO. 1-PHASE 2", on file in Book 59 of
Plats, Page 73, in the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 8 subdivision (containing 10.631 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon "THE
CROSSING AT XXXXXXXXX VILLAGE 8 UNIT NO. 1-PHASE 1", on file in Book 58 of
Plats, Page 84, in the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 1 South subdivision (containing 11.577 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon
"XXXXXXXXX VILLAGE 1-PARCEL 10", on file in Book 48 of Plats, Page 39, in the
Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 1 South subdivision (containing 37.921 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon
"XXXXXXXXX VILLAGE 1 SOUTH-UNIT NO. 1", on file in Book 48 of Plats, Page 42, in
the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 1 South subdivision (containing 117.333 acres more or less)
situated in the City of Las Vegas,
Page 24
25
ATTACHMENT "B"
Xxxxx County, Nevada; as shown upon "XXXXXXXXX VILLAGE 1 SOUTH-UNIT NO. 2", on
file in Book 49 of Plats, Page 96, in the Office of the County Recorder, Xxxxx
County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 1 South subdivision (containing 98.790 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon
"XXXXXXXXX VILLAGE 1 SOUTH-UNIT NO. 3", on file in Book 50 of Plats, Page 33,
in the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 1 South subdivision (containing 21.157 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon
"XXXXXXXXX VILLAGE 1 SOUTH PARCEL 1", on file in Book 51 of Plats, Page 26, in
the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 1 South subdivision (containing 40.994 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon
"XXXXXXXXX VILLAGE 1 SOUTH-UNIT NO. 5", on file in Book 51 of Plats, Page 29,
in the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 1 South subdivision (containing 45.815 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon
"XXXXXXXXX VILLAGE 1 SOUTH-UNIT NO. 4", on file in Book 51 of Plats, Page 86,
in the Office of the County Recorder, Xxxxx County, Nevada.
FURTHER EXCEPTING FROM SAID PARCEL OF LAND; all of that land being a part
Xxxxxxxxx Village 1 South subdivision (containing 318.072 acres more or less)
situated in the City of Las Vegas, Xxxxx County, Nevada; as shown upon
"XXXXXXXXX VILLAGE 1 SOUTH-UNIT NO. 6", on file in Book 54 of Plats, Page 44,
in the Office of the County Recorder, Xxxxx County, Nevada.
26
ATTACHMENT "C"
TO DEVELOPMENT DECLARATION
AND OPTION TO REPURCHASE
INITIAL PROJECT CONCEPTUAL DEVELOPMENT PLAN
27
[The Resort at Xxxxxxxxx Photo]
28
[Landscape Site Plan Photo]
29
[Exterior View At Porte Cochere Photo]
30
[Club and Lounge Photo]
31
[Guest Room Photo]
32
[Restaurant Pavilion/Shops Photo]
33
[Photo Omitted]
34
[Exterior Finishes Photo]
35
[Exterior Finishes Photo]
36
[Casino Lobby Photo]
37
[Interior Casino Photo]
38
[Showroom/Lounge Photo]
39
[Health Club Lobby Photo]
40
[The Lifestyle Center Photo]
41
[Buffet Photo]
42
[Hotel Lobby Photo]
43
[Mini Suite Photo]
44
ATTACHMENT "D"
TO DEVELOPMENT DECLARATION
AND OPTION TO REPURCHASE
DESCRIPTION OF XXXXXXXXX
That parcel of land situated in the County of Xxxxx, State of Nevada, described
as portions of particular Townships and Ranges of M.D.B.& M., as follows:
Township 20 South, Range 60 East, M.D.M.
All of Sections 19 and 30;
AND
The West 1/2 of Section 29;
TOGETHER WITH AND INCLUDING
Those certain portions of Sections 17, 18, 20 and 21, as shown in File 54 of
Parcel Maps, at Page 82.
Official Records, Xxxxx County, Nevada.
Township 20 South, Range 59 East, M.D.M.
All of Sections 15, 21, 22, 25, 26, 27, 28, 29, 33, 34, 35 and 36;
AND
The South 1/2 of Section 16;
AND
The Southeast 1/4 of Section 17;
AND
The South 1/2 and the Northeast 1/4 of Section 20;
TOGETHER WITH AND INCLUDING
That portion of Section 13, being a part of Parcel 4 as shown in File 54 of
Parcel Maps, at Page 82, Official Records, Xxxxx County, Nevada;
AND
That portion of Section 13, being a part of Parcel 4 as shown by an Amended
Plat in File 78 of Parcel Maps, at Page 57, Official Records, Xxxxx County,
Nevada;
AND
That portion of Section 14, being a part of Parcel 2 and Parcel 4 as shown by
an Amended Plat in File 78 of Parcel Maps, at Page 57, Official Records, Xxxxx
County, Nevada;
AND
All of Sections 23 and 24, except Parcel 3 as shown by an Amended Plat in File
78 of Parcel Maps, at Page 57, Official Records, Xxxxx County, Nevada;
AND
That portion of Section 32, being Parcel 3 as shown in File 58 of Parcel Maps,
at Page 27, Official Records, Xxxxx County, Nevada.
EXCEPTING FROM THE ABOVE DESCRIBED PARCEL OF LAND those certain portions of
land more particularly described as follows:
Township 21 South, Range 59 East, M.D.M.
All of Sections 1, 2, 12, 13, 14, 23, and 24;
AND
The North 1/2 of the North 1/2 of Section 3;
AND
The North 1/2 of the Northeast 1/4 of Section 4;
AND
Page 27
45
ATTACHMENT "D"
The East 1/2, and the East 1/2 of the West 1/2, and the East 1/2 of the West 1/2
of the West 1/2, and the West 1/2 of the Southwest 1/4 of the Southwest 1/4, and
the Northwest 1/4 of the Northwest 1/4 of the Northwest 1/4 of Section 11;
AND
All of Section 25, except the West 1/2 of the Southwest 1/4 of the Southwest
1/4, and also excepting the Southwest 1/4 of the Northwest 1/4 of the Southwest
1/4 of said Section 25;
AND
The North 1/2 of the Northeast 1/4, and the North 1/2 of the South 1/2 of the
Northeast 1/4, and the East 1/2 of the Northeast 1/4 of the Northwest 1/4 of
Section 36;
TOGETHER WITH AND INCLUDING
That portion of Section 4, being Parcel 4 as shown in File 58 of Parcel Maps,
at Page 27, Official Records, Xxxxx County, Nevada.
Page 28
46
ATTACHMENT "E"
TO DEVELOPMENT DECLARATION
AND OPTION TO REPURCHASE
DESCRIPTION OF XXXXXXXXX NORTH
That parcel of land situated in the County of Xxxxx, State of Nevada, described
as portions of particular Townships and Ranges of M.D.M.& M., as follows:
Township 20 South, Range 60 East, M.D.M.
All of Sections 19 and 30;
AND
The West 1/2 of Section 29;
TOGETHER WITH AND INCLUDING:
Those certain portions of Sections 17, 18, 20 and 21, as shown in File 54
of Parcel Maps, at Page 82, Official Records, Xxxxx County, Nevada.
Township 20 South, Range 59 East, M.D.M.
That portion of Section 13, being a part of Parcel 4 as shown in File 54 of
Parcel Maps, at Page 82, Official Records, Xxxxx County, Nevada; AND All of
Section 24, except Parcel 3 as shown by an Amended Plat in File 78 of
Parcel Maps, at Page 57, Official Records, Xxxxx County, Nevada; AND Those
certain portions of Sections 26 and 35, being a part of Parcels 1, 3 and 4
as shown in File 84 of Parcel Maps, at Page 70, Official Records, Xxxxx
County, Nevada; AND
That portion of Section 23, being a part of Parcel 1 as shown in File 84 of
Parcel Maps, at Page 70, Official Records, Xxxxx County, Nevada, excepting
that portion lying North of the proposed centerline of Xxxxxxxxx Parkway.
XXXXX COUNTY, NEVADA
XXXXXX X. XXXXXXXX, RECORDER
RECORDED AT REQUEST OF:
XXXXXX XXXXXX PROPERTIES LIMITED
08-15-96 11:41 ESP 29
BOOK: 960815 INST: 01189
FEE: 35.00 RPTT: .00
OP DECLARATION
CONFORMED COPY HAS NOT BEEN COMPARED TO THE ORIGINAL
47
AMENDMENT NO. 1 TO DEVELOPMENT DECLARATION
AND OPTION TO REPURCHASE
THIS AMENDMENT NO. 1 TO DEVELOPMENT DECLARATION AND OPTION TO REPURCHASE
(this "Amendment") is dated for reference purposes only as of May ___, 1997 and
is made by and between Xxxxxx Xxxxxx Properties, Limited Partnership, a Delaware
limited partnership ("Declarant") and The Resort at Xxxxxxxxx, Limited
Partnership, a Nevada limited partnership ("RASLP").
PRELIMINARY STATEMENTS
A. Declarant and RASLP are parties to that certain Development Declaration
and Option to Repurchase dated as of August 15, 1996 (the "Development
Declaration"). Capitalized terms not otherwise defined herein shall have the
same meanings as set forth in the Development Declaration.
B. Declarant and RASLP desire to amend and modify the Construction
Commencement Deadline as set forth in the Development Declaration.
AGREEMENT
In consideration of the foregoing and intending to be legally bound,
Declarant and RASLP hereby agree that the Development Declaration shall be
amended as follows:
1. Section 1.3 of the Development Declaration shall be amended to delete
the reference to "the one year anniversary of the date of Recordation of this
Declaration" and to insert "October 15, 1997" in lieu thereof.
2. All other terms and conditions of the Development Declaration shall
remain unchanged.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date set forth above.
DECLARANT: RASLP:
Xxxxxx Xxxxxx Properties, Limited The Resort at Xxxxxxxxx, Limited
Partnership, a Delaware limited Partnership, a Nevada limited
partnership partnership
By: The Xxxxxx Xxxxxx Corporation, a By: The Resort at Xxxxxxxxx, Inc., a
Delaware corporation, its sole Nevada corporation, its general
general partner partner
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxx
____________________________ ____________________________
Xxxx X. Xxxxxxx, Executive Xxxx X. Xxxxxx, Senior Vice
Vice President President
1
48
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on May 13, 1997 by Xxxx X.
Xxxxxxx as Executive Vice President of The Xxxxxx Xxxxxx Corporation, a
Delaware corporation, the sole general partner of Xxxxxx Xxxxxx Properties,
Limited Partnership, a Delaware limited partnership.
[seal] OFFICIAL SEAL
X.X. XXXXXXXX /s/ X.X. Xxxxxxxx
XXXXXX PUBLIC -- NEVADA -------------------------
PRINCIPAL OFFICE IN
XXXXX COUNTY
No. 00-0000-0 My Comm. Exp. Aug. 1, 2000
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
This instrument was acknowledged before me on May 16, 1997 by Xxxx X.
Xxxxxx, as Senior Vice President of The Resort at Xxxxxxxxx, Inc., a Nevada
corporation, the general partner of The Resort at Xxxxxxxxx, Limited
Partnership, a Nevada limited partnership.
/s/ Xxxxxx X. Xxxx
-----------------------------
Commission Expires: 1/11/2000
[Notary Public Seal]
2
49
AMENDMENT NO. 2 TO DEVELOPMENT DECLARATION
AND OPTION TO REPURCHASE
THIS AMENDMENT NO. 2 TO DEVELOPMENT, DECLARATION AND OPTION TO REPURCHASE
(this "Amendment") is dated for reference purposes only as of December __, 1997
and is made by and between Xxxxxx Xxxxxx Properties, Limited Partnership, a
Delaware limited partnership ("Declarant") and The Resort at Xxxxxxxxx, Limited
Partnership, a Nevada limited partnership ("RASLP").
PRELIMINARY STATEMENTS
A. Declarant and RASLP are parties to that certain Development
Declaration and Option to Repurchase dated as of August 15, 1996 as modified by
that certain Amendment No. 1 to Development Declaration and Option to
Repurchase dated as of May 19, 1997 (collectively, the "Development
Declaration"). Capitalized terms not otherwise defined herein shall have the
same meanings as set forth in the Development Declaration.
B. Declarant and RASLP desire to amend and modify the Construction
Commencement Deadline as set forth in the Development Declaration.
AGREEMENT
In consideration of the foregoing and intending to be legally bound,
Declarant and RASLP hereby agree that the Development Declaration shall be
amended as follows:
1. Section 1.3 of the Development Declaration shall be amended to delete
the reference to "October 15, 1997" and to insert "February 28, 1998" in lieu
thereof.
2. All other terms and conditions of the Development Declaration shall
remain unchanged.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date set forth above.
DECLARANT: RASLP:
Xxxxxx Xxxxxx Properties, Limited The Resort at Xxxxxxxxx, Limited
Partnership, a Delaware limited Partnership, a Nevada limited
partnership partnership
By: The Xxxxxx Xxxxxx Corporation, a By: The Resort at Xxxxxxxxx, Inc.,
Delaware corporation, its sole a Nevada corporation, its
general partner general partner
By: /s/ Xxxx X Xxxxxxx By:
------------------------------- ------------------------------
Xxxx X. Xxxxxxx, Executive Vice Xxxx X. Xxxxxx, Senior Vice
President President
1
50
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on December 4, 1997 by Xxxx X.
Xxxxxxx as Executive Vice President of The Xxxxxx Xxxxxx Corporation, a
Delaware corporation, the sole general partner of Xxxxxx Xxxxxx Properties,
Limited Partnership, a Delaware limited partnership.
[SEAL] OFFICIAL SEAL /s/ X.X. Xxxxxxxx
X.X. XXXXXXXX ----------------------------------
NOTARY PUBLIC - NEVADA
PRINCIPAL OFFICE IN
XXXXX COUNTY
No. 00-0000-0 My Comm. Exp. Aug. 1, 2000
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on December __, 1997 by Xxxx X.
Xxxxxx, as Senior Vice President of The Resort at Xxxxxxxxx, Inc., a Nevada
corporation, the general partner of The Resort at Xxxxxxxxx, Limited
Partnership, a Nevada limited partnership.
----------------------------------
2
