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HomeMy WebLinkAboutPM 2002-28 - Agreement/Covenant - 3/30/2005 (3) 5 2005w�94 031221100 , �. EASEMENT DEED AND COVENANTS AFFECTING LAND USE DATE: PARTIES: SAHRAD KERKOCHIAN JR. and BERNICE KERKOCHIAN (the "KERKOCHIANS") as CO-TRUSTEES OF THE KERKOCHIAN REVOCABLE TRUST dated JUNE 30, 1998 (the "KERKOCHIAN TRUST") RECITALS: A. PROPERTY OWNER: The KERKOCHIAN TRUST, by and through the KERKOCHIANS as co-trustees is the owners of the real property located in the City of Fresno, County of Fresno, California, that is described in Parcel Map No. 2002-28,to be recorded in Fresno County Records (the "Property"). B. The Parcel Map No. 2002-28 is incorporated by reference herein as necessary. COVENANTS AFFECTING LAND USE: Section 1. Definitions: Building and lots shall mean each individual Parcels, numbers A, B, C, and D (A-D) inclusive of Parcel Map 2002-28, with each Building and lot to include Common Areas, to be managed by the Association. The address for each Building and Lot are as follows Parcel/Building A - 1855 E. Alluvial Parcel/Building B - 1885 E. Alluvial -1- Parcel/Building C - 1865 E. Alluvial Parcel/Building D - 1875 E. Alluvial Theses can also be referred to as the "Subject Prope y" as hereinafter stated. Building Pad shall mean the exact location the concrete building and structures foundations on the lot. Carports shall mean the parking area and s cture attached to or associated with each individual Building, and which are not part of the C mmon Area or Public Areas. Common Areas shall mean those areas of the Parcel or Lots, except for the Building Pads and the Public Areas as hereinafter described. The ommon Areas will be owned by each Owner as part of his or her ownership interest, but s 11 be managed by the Association. Declarants shall mean the developer the KE OCHINS, as CO-TRUSTEES OF THE KERKOCHIN TRUST. Declaration shall mean this document. Deed of Trust shall mean a deed of trust, mort age or similar interest that is given as security for the performance of an obligation and that covers all or part of the Subject Property. Drainage Easement For Parcels "A" and"C s 11 mean the drainage covenants for Parcels "A" and"C" granted by Parcels `B" and "D" s described hereinafter. Lot shall mean any of Parcels A through D, in lusive, of Parcel Map No. 2002-28, as defined above. Owner means any person or entity who is the r cord Owner of a freehold estate in a Lot. If more than one person has an interest in a freehold es to in a Lot by reason of division of the ownership into undivided interests or for any other rea on, all of such persons shall be regarded -2- collectively as the one Owner of the parcel. Multiple Owners will manage their ownership interest in a manner consistent with this Declaration. Parcel shall mean the same thing as Lot, and the terms are used interchangeably in this Declaration. Public Areas shall mean the landscaped areas, malls, walkways, and parking areas for general use by the clients, Owners, customers,and Owner employees located within any Building Lot, except for area specifically designated as a Patio Area, attached to Building Pad, which not be for general use as a Public Area. Patio Area shall mean any smaller concrete pad attached or appurtenant to a Building Pad and intended to used as a break, eating, or recreation area by a specific Building Pad. Security Holder shall mean the beneficiary under a Deed of Trust. Utility or Utilities shall mean the electrical, water, sewer, garbage disposal containers and similar services, for which each Owner shall be solely and individually responsible. Section 2. Association. (a) Association Responsibility and Membership. 1. The Association shall be responsible for the management of the Common Areas and the Public Areas of the Parcel. 2. Every Owner shall be a member of the Association. There shall be no other qualifications for membership in the Association. There will be four Association members. 3. Except as provided in Paragraphs 4 and 5 of this Section, an Owner's membership in the Association shall cease upon the termination of his/her/its status as an Owner. 4. An Owner shall be relieved of liability for assessments for which obligation -3- and payment falls due after the termination of his status as an Owner. 5. An Owner many not avoid his obligations under this Declaration for so long as he remains an Owner, and specifically, and without limitation, an Owner many not avoid his obligations to pay assessments by the abandonment of his Parcel, and such obligation shall remain due and owing even after abandonment. 6. The Association shall be further described in those documents which govern and define the Association and the operation thereof. Those documents will be incorporated by reference herein to the extent necessary to define the Association and to implement to provisions of this Declaration. Section 3. Public Areas and Common Areas (a) The Association will not own any property as the Public Areas and Common Areas will be owned by each Owner as described.in the Parcel Map or otherwise defined by the Architect. The Association will manage the Public and Common Areas as herein described. (b) Ownership of Public and Common Areas. The Owners will own the Public and Common Areas as described herein. The percentage ownership interests in the Common Area Lot expressed in this Section shall have and be of a permanent nature and shall not be altered without the consent of three (3) of four(4) or seventy- five percent(75%) of the Owners of all Building Lots to which they appurtenant. The beneficial ownership of the Public and Common Areas shall not be separated from the Building Lot to which it is appurtenant and shall be deemed to be conveyed, encumbered or released form liens with the Building Lot whether or not the beneficial interest is mentioned in the conveyance or document. -4- Section 4. Voting Rights. The voting rights of the Owners under this Declaration and in all Association matters shall be twenty-five percent (25%) for each Building Lot or undeveloped lot, with each Owner having one vote. Multiple Owners of a Building Lot will have one vote. Section 5. Actions by the Association. Whenever this.Declaration provides for action to be taken by the Association without specifying that the vote is to be by the directors or the Owners, the action may be taken pursuant to a resolution adopted: (a)By the Board of Directors as provided in the By-Laws of the Association; or (b) By the vote or written consent of Owners entitled to exercise by three (3) of the four (4) or seventy-five percent(75%) of the outstanding voting power of the Association. Section 6. Development Standards. (a) Each Parcel of the Subject Property shall be developed and used in a manner as to enable cross access between and among the Parcels for the following purposes: pedestrian and vehicular ingress and egress, cross drainage of storm water, cross access of utilities (including but not limited to, water, fire suppression systems, common sewer house branch, etc.) emergency services access,refuse enclosures,provided the entire scope of the cross access is as approved by the City of Frenso, regardless of whether the Parcels of the Subject Property are owned or leased by the same or diffenent persons. (b) Mutual easements appurtenant are hereby created and apply to each Parcel of the Subject Property as a burden and benefit to satisfy the need for cross access. (c) Any buildings or structures constructed on any Parcel of the Subject Property -5- must comply with the prevailing California Building Code. (d) It is intended that each of the Parcels and Pads will be developed so that the Subject Property will appear and function as a single integrated complex of professional, medical, dental, or similar business and related facilities. To that end, the Declarant has delivered or will deliver to the Secretary of the Association a site plan for the Subject Property, plans and specifications for the Buildings, Building Lots, sign details or specifications, and other improvements to be constructed thereon, and a landscape plan. No Building, Building Lot, sign , fence, wall or other structure shall be commenced, erected or maintained on the Subject Property, and no exterior addition to any structure on the Subject Property shall be made unless it is in conformance with the site plan review number S-01-235, architectural plans and specifications and landscape plans filed by the Declarant with the City of Fresno. Nothing herein contained shall limit an Owner's right to divide or arrange the interior of any building in any manner that does not affect the exterior dimensions or appearance of the building, or otherwise conflicts with the site plan, plans and specifications and landscape plans filed by the Declarant with the Association. (e) Notwithstanding the provisions of Paragraph(a) of this Section, the Declarant shall have the right, without the consent of the other Owners of Building Lots, to make minor deviations from the above-referenced site plan and architectural plans during the original construction of buildings on the Building Lots and specifically may construct and erect fences, walls and other improvements which do not affect the basic elevations and exterior appearance of such buildings. (f) Except as provided in Paragraph (b) of this Section, if the Owner of any of the -6- Building Lots, other than the Declarant; desires to develop his Lot in a manner inconsistent with the requirements of Paragraph (a) of this Section, he may do so,but only upon the vote or written consent of Owners holding a three (3) of four(4) or seventy-five percent (75%) of the voting rights of the Association. If any proposed change would result in a decrease in the number of motor vehicle parking spaces within Parcel 2002-28, the change shall also require the approval of the Director of The Planning and Development Department of the City of Fresno. (g) In the event any Lot is developed and such development is fully completed and a certificate of occupancy issued in violation of the requirements of Paragraph(a) of this Section, the consent of Owners required by Paragraph (c) shall be conclusively presumed to have been given unless the Association, any Owner, or the City of Fresno has filed suit to prevent the violation prior to the date on which a certificate of occupancy for the construction is issued by the City of Fresno. Nothing herein shall be intended to limit the authority of the City to Fresno to pursue violations of any applicable City of Fresno ordinance, code, or State regulation or law. (h) Until such time as each Lot is fully developed, the Owner of the Lot shall maintain the undeveloped portions of the Lot in a neat, clean and weed-free condition and in compliance with any applicable City of Fresno ordinances or similar applicable requirements. (i) The plans and specifications of the Subject Property filed by the Declarant with the Association shall include a landscape plan. Any Owner may elect to plant his Lot more heavily than required to obtain the Association's consent, but the extra or additional plants or scrubs must be from the list of approved plants included within the landscape plan. (j) The Architect for the Subject Property and/or the Association shall develop signage rules and regulations for signs, with which each Owner will be required to comply. -7- Such standards and specifications are hereby incorporated by reference to the extent necessary to implement this Declaration. Notwithstanding any contrary provision of this Declaration, no Owner shall erect,permit or maintain any sign advertising the sale or lease of a building, or any portion thereof, on any portion of a Building Lot or the Common Area, except as is consistent and complies with the signage rules and regulations to be developed by the Architect or Management Firm to be retained by the Association. The Association may designate one or more areas in which not more than four(4)previously approved signs of dimensions not larger than 18 inches by 18 inches/consistent with signage rules and regulations shall be permitted in each such area. Provided, however, that an Owner may be permitted to place a sign on his Building Lot, not exceeding 18 inches by 18 inches, which shall state "For Sale" or"Leasing Information". This Paragraph (g) shall become binding on each Owner commencing one year after the recordation of a notice of completion for a building on said Owner's Building Lot. Section 7. Further Subdivision/Merger. Further subdivision of any Building or Lot is permitted,but regardless of and subdivision of a Building or Lot, each building will only hold one(1) vote. Any Owner owning two (2) or more lots may consolidate or merge his or her lot, but only upon three (3) of four(4) or seventy-five percent(75%) vote of all Owners. Upon such consolidation or merger, the Owner will then have that number of votes as number of Building or Lots owned. Section 8. Improvement of Common Lot. The Declarant shall, at its own expense, improve the Public and Common Areas with the common improvements contemplated by the plan of development filed with the Association pursuant to Section 6 prior to the conveyance of any lot. -8- Section 9. Maintenance. The Common Areas and the Public Areas shall be maintained by the Association to assure a uniform standard of care and appearance, as hereinafter provided: (a) The Association shall be responsible for and shall have the exclusive right, authority and duty to provide the following: 1. Maintenance and repair of all Common Area and Public Area.on-site sewer, water and storm drainage facilities; 2. Maintenance, repainting and repair of parking striping, reserve parking designations, traffic direction signs, office directories, sign pylons and signs (excluding door and window signs), and landscape sprinkler system, wherever located within the project. 3. Regular landscaping service to keep the landscaping on the Subject Property attractive as determined by the Board of Directors, for both the Common Area and the Public Areas, including any fountains on the Common Areas. 4. Maintenance, regular sweeping and repair of driveways, Common and Public Area lighting, outside pedestrian walkways and parking surfaces of the Common Area and the Public Areas. 5. Provide, maintenance and repair all landscaping in the Common and Public Area areas adjacent to the public streets and highways, in a manner compatible with the City of Fresno Code, and shall not decrease the amount of assessments charged against members of the association if such will adversely affect the ability to perform the maintenance required by this section and subsection. 6. Pay all utility and waste collection charges which are not separately metered or -9- billed, including but not limited to charges for sewer, water, gas, solid waste, sanitation and electric service. 7. Workers' Compensation Insurance for Association personnel to the extent necessary to comply with any applicable laws. 8. Any other materials, supplies, furniture, equipment, labor, services, maintenance,repairs, structural alterations, insurance, taxes or assessments which the Association, or which shall be necessary or convenient for the operation of the Association, the enforcement of the provisions of this Declaration, or the use of the Common Area and the Public Areas. Reserves for such expenses shall be established in the amounts the Association shall reasonably determine to be necessary and proper. 9. Performance of any Owner's maintenance duty under this Declaration in the event of the Owner's default thereof. Provided, however, that this requirement shall in no way affect any claim against said Owner with regard to such a default. 10. The Association will not be responsible for the maintenance of any utility or utilities providing service to individual building as such are the responsibility of each individual Owner. The Association will be responsible for the maintenance of the utilities in the Common and Public Areas. 11. Any amendment by the Association of the provisions of this section, subsections governed by City of Fresno Code Section 12-1026 (a) - (e) as reflected herein in subsections 9 (a), (c), (d), (e), and(h) shall require the prior written consent of the City of Fresno. (b) The Association shall retain a Management Firm to undertake and carry out all -10- Association maintenance duties. (c) Each Owner shall maintain, repair and replace, as and when necessary, all parts of his Building Lot, including buildings , carports, or improvements thereon, for which such duties are not expressly delegated to the Association. All utilities servicing each building are separate for each Building Lot. Each Owner shall individually be responsible for the: (1) maintenance and repair of non-Common Area and non-Public Area sewer and water lines that serve each Building Pad or Lot and which are not maintained by a public agency; (2) maintenance of any other utility or facility improvement for each individual and separate Building Lot not part of the Common Area or Public Area; and (3) insurance for the full replacement value of any Building Lot, structures, buildings and related real or personal property. (d) Each Owner shall not alter, modify, reconstruct, or do anything to any party wall or to any plumbing, electrical, or mechanical fixture located along any party wall which will impair the integrity of the wall as a fire separation without the review and approval of the building official of the City of Fresno. (e) Should any Owner fail to so maintain his or her property, then the Association shall provide written notice thereof as provide herein of the need to remedy such failure by said Owner to maintain his or her property. In the event said Owner fails to repair or remedy the defect or failure to maintain within ninety (90) days, then the Association may repair the same and assess said Owner the cost of such repairs as provided herein. This provision will not apply to graffiti. All graffiti will be removed or remedied with forty-eight(48) hours. If not removed or remedied within that time, then the Association shall have the right to remove or remedy all -11- graffiti anywhere on the property after forty-eight(48)hours. (f) The Association shall maintain liability and property damage insurance in such amounts and of such nature as the Board of Directors determines is necessary and proper to protect the Association and its property from the liabilities and hazards to which it may be exposed. (g) The Association, acting through,the Board of Directors, may establish from time to time reasonable rules and regulations concerning the use of the Common Area and Public Areas and regulating the conduct of the Owners and their respective officers, employees, agents, customers, tenants, invitees and guests within the Subject Property. (h) The City of Fresno is granted a right of access to all portions of the Common Areas and Public Areas for the purpose of preserving the public health, safety and welfare. Section 10. Use of Common Areas and Public Areas. (a) All paved driveways, parking areas, and outside pedestrian walkways and mall type areas within the Public Areas within the Common Areas and Public Areas may be used for their intended purpose by all Owners of any Lot and their respective heirs, successors, assigns, grantees, mortgagees and tenants, and the respective tenants and subtenants thereof, and the officers, directors, agents, employees, customers, clients,patients, visitors and other licenses and invitees of any of them. The Owners shall, however, use their best efforts to assure that, whenever it is feasible to do so: (I) Owners, their clients, their employees and tenants shall park on the Owner's own lot or parking areas and carports; and (ii) said persons will use the parking spaces nearest individual Lot on which the building they are visiting or occupying is located. The Association may erect and maintain reasonable parking directories on any Lot consistent -12- with the purpose of this Paragraph (a). (b) Individual Building carports are not Common or Public Areas, but for the exclusive use by owners. (c) Notwithstanding any contrary provisions of this Declaration, any Owner may designate on his Building Lot private office entrances or exits and walkways thereto, access to which shall be limited as the Owner may direct. (d) The Association may direct and maintain a reasonable number of office directories at various places within the Subject Property for the information and convenience of persons lawfully upon the Subject Property. Nothing herein contained shall relieve any Owner of his obligation to erect any directory shown in the master plan as part of the work of improvement on his Building Lot or relieve the Declarant from their duty to erect any directory shown in the master plan as part of the Common Area Lot improvements, and any directory so erected shall thereafter be maintained and controlled by the Association. (e) The design, color and location of all traffic direction signs, office directories, occupant name and identification markings visible from the Common Area and Public Areas and exterior signs must be approved by both the Declarant and the Association. (f) Carports are not Common or Public Areas and the use of same shall be exclusively by each Building Owner, in a manner consistent with this Declaration. (g) The Architect shall establish sign rules and regulations. The Association will apply and enforce these rules and regulations and will regulate signs as follows: 1. Each building have one half('l2) of the available sign space on sign panels located on the wrought iron fence as follows: The two westerly buildings as to the westerly sign -13- and the two easterly buildings as to the easterly sign. There shall be a total of eight(8) sign panels, four on Maple and four on Alluvial. Such signs shall be consistent and comply with the sign rules and regulations which the Architect shall establish. 2. The Association directly or by delegation to the Management Firm may establish signage rules and regulations. (h) The Association shall,designate reserved parking spaces for each building as necessary and as agreed by the Owners. Each building's carport will be designated as reserved parking. (I) An easement for underground sewer, water, communication, drainage and utility lines is hereby established as an easement appurtenant for each Building Lot over the Public Areas of the Building Lot or Lots contiguous to it. The Association may establish reasonable regulations and procedures to govern the location of such lines and the time, manner and circumstances of the work done to install and maintain the lines, to assure that the work will not cause unreasonable interference with business within the project and to avoid unnecessary detrimental effects to the appearance of the project. (j) Cross easements are hereby established to allow and permit Owners and clients, customers or patrons of each Owner to reasonably use any Public or Common Area to allow entry into and exit from any entrance or exit to any street adjoining the property. Section 11. Maintenance Obligations of Owner. (a) Except as provided to the contrary in Section 9 above, or as otherwise set forth in this Declaration, each Owner shall have the sole duty to maintain the buildings,building lots or pads,patio areas, carports, non-Common Area and non-Public Area utilities, and other portions -14- of the Building Lot in a neat and clean'condition and in good order and repair to satisfy the uniform standard of upkeep established by the Association from time to time. (b) Each Owner shall have those maintenance obligations as set forth in Section 9 (c) above. (c) Any Owner may elect to remove his building. The removal of such building will be in a manner consistent with this Declaration and in a manner with impacts the other Owners as little as reasonably possible. At any time thereafter when a building site is not occupied by a building completed or under construction diligently pursued, the Owner with the advice and consent of the Association shall landscape the site in a manner complimentary to the landscaping of the Subject Property as a whole. Such landscaped area shall be maintained by the Association in the manner provided for the maintenance of the Common Area and Public Areas. (d) In the event the Association determines that any Owner is in default of his obligations under this Section, the Association may deliver written notice to the Owner in default specifying the nature of the work required to be done and demanding that the Owner do the work within ten days or such longer period as the Association allows and specifies within said notice. If the Owner fails to complete the work within the time specified in said notice (or, if the work is of a nature that it cannot reasonably be completed within said time, if the work is not commenced within said time and thereafter diligently pursued), the Association may do the work required to discharge the Owners' responsibility under this Section. A special assessment shall be levied against the Lot of the Owner for whom the Association does work pursuant to this Section for the costs and expenses incurred by the Association in doing the work. -15- Section 12. Maintenance Fuha Assessments. (a) On or before December 31 of each year, the Association shall estimate the cash required to meet the net charges to be paid during the next following year by the Association in the exercise of its powers in the performance of its duties (including a reasonable reserve for contingencies, less any surplus from the prior year's fund). Said estimated cash requirements shall be assessed to the Owners in the proportions provided for in Paragraph (b) of this Section. (b) The assessment shall be apportioned 25 percent (%) to each Lot. (c) If the estimated cash requirement proves inadequate for any reason, including, but not limited to, nonpayment of any assessment, the Association may at any time levy a further special assessment, which shall be assessed to the Owners in proportions as provided in Paragraph (b) of this Section, unless otherwise provided in this Declaration. Each Owner shall be obligated to pay assessments made pursuant to this Section to the Association in equal monthly installments on or before the first day of each month during the calendar year, or in such other reasonable manner as the Association may designate. (d) If the Association fails to estimate the net charges to be paid during the calendar year on or before the next preceding December 31, the assessment for such calendar year shall be in the amount of the assessment for the next previous calendar year, but only until such time as new assessments are fixed by the Association. (e) The maintenance fund, including all funds held in the reserve for contingencies or deferred major expenditures, shall at all times be held, disbursed and administered by the Association and its authorized officers and agents, in trust, exclusively for the benefit of the Owners. The beneficial interest in the maintenance fund shall be owned by the Owners in -16- proportion to their voting rights and shall only be transferred by a transfer of the Owners's Lot, and reductions of the maintenance fund pursuant to Association order including, but not limited to,reductions upon a termination of the Association's functions, shall be made by disbursements to the Owners in the same proportion. (f) The Association may retain a Management Firm to manage the property and to carry out those duties required by this section. Section 13. Enforcement of Assessments. Each assessment, including each special assessment, shall be a separate, distinct and personal obligation of the Owner against whom the same is assessed. If the Association resolves to make any assessment a lien against the Owner's Lot(including any structure located thereon), it may do so by recording and delivering to each affected Owner a Notice Of Lien For Assessments signed by any two officers or any three directors of the Association. Each such notice shall set forth with respect to each Lot affected: (I) the identify of the Lot; (ii) the amount of the assessment; (iii)the dates when payment is due, and how much of the assessment is due on each such date; (iv)that the assessment was made and the notice recorded pursuant to this Declaration; and (v) that the assessment set out in the notice is a lien against the Lot(including any structure located thereon), and includes an assignment of rents. (a) In the event any Owner is in default in the payment of any assessment, the Association may give notice to that Owner specifying the default and starting that if the default is not cured within the time stated in the notice, which must be at least ten days from the date of the notice, the Association will exercise its remedies under this Declaration. If the default is not cured within the time specified in the notice, in addition to such other remedies as may be -17- allowed by law, the Association may proceed as follows: (1) The Association may declare all remaining assessments for the calendar year then outstanding against the Owner's Lot immediately due and payable, regardless of the payment schedule called for by this Declaration or the notice of assessment for the calendar.year by the Association. (2) The Association may-sue any Owner in default for the amount of the default, and the amount of assessment declared immediately due under Paragraph (a) of this Section. Any judgment rendered in any such action shall include, except where forbidden by law, interest at the rate of ten percent(10%)per annum from the date of default and all costs incurred in obtaining judgment, including, but not limited to, a sum for reasonable attorneys' fees. (3) The Association may record a notice of lien as provided in this Section if it has not already done so. Included in such lien is an assignment of rents as follows: As additional security for the payment of assessments,including special assessments, the Association has the right, power and authority to collect the rents, issues and profits relating to each Owner's Lot(including any structures located thereon). Provided, however, that the Owner of each such Lot and structure has the right,prior to any default in the payment of assessments, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, the Association, upon giving written notification to the Owner of the assessed Lot and structure, may either in person, by agent, or by receiver to be appointed by a court, and for such obligation,enter upon and take possession of the assessed Lot and structure or any part thereof,and may in its own name sue for or otherwise collect such rents, issues and profits,including those past due and unpaid,and apply the same,less reasonable expenses,to past-due monthly assessments and -18- special assessments in such order as the Association may determine. The entering upon and taking possession of an assessed Lot and structure, the collection of such rents, issues and profits and the application thereof as set forth herein, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. The Lien established by the recorded notice of lien may be foreclosed by appropriate action in court or in the manner provided by lava for the foreclosure of a mortgage or Deed of Trust upon power of sale. In the event foreclosure is by action in court, interested and reasonable attorney's fees shall be allowed as provided in Paragraph (b) of this Section. In this event foreclosure is under power of sale,the Board of Directors,or any person designated by its resolution, shall be deemed to be acting as the agent of the Association in conducting the sale, and shall be entitled to recover its expenses incurred in connection therewith,including a reasonable allowance for attorneys' fees, and such other fees as may be allowed by law or by prevailing custom in the community at the time the sale is conducted. Section 14. Certificate of Assessment. A certificate executed and acknowledged by any two officers or any three directors of the Association setting forth the amount of any due and unpaid assessments with respect to any Lot shall be conclusive upon the Association and the Owners as to the amount of such unpaid assessments on the date of the certificate, in favor of all persons who rely on the certificate in good faith. Such a certificate shall be furnished to any Owner or any Security Holder or prospective Security Holder of a Lot upon written request to the Association, without charge by the Association. Section 15. Mortgage Protection. Any lien recorded pursuant to Section 13 shall be subordinate to all other liens and encumbrances recorded prior to the recordation of the claim of lien -19- described in said Section, and shall be prior to all other liens and encumbrances. (a) No amendment to this Section shall affect the rights of a holder of any recorded lien or encumbrance recorded prior to recordation of such amendment, unless the lien or encumbrance holder joins in the execution of the amendment, or otherwise consents thereto in writing. (b) In the event a lien or encumbrance that is prior to a lien for unpaid maintenance fund assessments is enforced by judicial foreclosure or sale under power of sale, all maintenance fund assessment liens against that Lot shall expire when the Owner's interest is terminated of record,and thereafter only the following assessments shall be valid against the subject Lot: (I) the amount determined by multiplying the current annual assessment by a percentage determined by dividing three hundred sixty-five(365)into the number of days remaining in the calendar year after the date of such termination;(ii)assessments assessed after such termination,except for any part thereof that is to cover or make up any deficiency in the maintenance fund resulting from the failure of the Owner whose Lot was the subject of such termination to pay assessments assessed prior to such termination. Section 16. Delegation to Manager. The Association may employ a manager or Management Firm to perform, any of the duties, powers or functions of the Association. Notwithstanding the foregoing, the Association may not delegate to the manager the power to conclusively determine whether the Association should make expenditures for capital additions or improvements chargeable against the maintenance fund. The members of the Board of Directors of the Association shall not be personally liable for any omission or improper exercise by the manager of any duty, power or function delegated to the manager by written contract between the manager and the Association. -20- Section 17. Right of Entry. The Association or its agents may enter any Lot when necessary in connection with any maintenance, landscaping or construction for which the Association is responsible or for the enforcement of any provisions of this Declaration. Section 18. Insurance. The Association will obtain on behalf of itself and each Owner commercial general liability insurance, property damage and casualty insurance coverages for the entire property, including the Owners building lot and buildings. The damage insurance will be for full replacement value which shall name as insureds,as their interests may appear,all Owners and tenants within the Subject Property. The insurance shall have limits of liability of not less than $1,000,000.00 with respect to injury or death to one person,not less than$750,000.00 with respect to any one accident, and not less than$100,000.00 with respect to property damages. Any such policy shall provide for not less than thirty days' advance written notice to the Owners of the effective date of cancellation thereof. Such insurance policy shall be primary and noncontributing with any other insurance which may be carried by any Owner or tenant within the Subject Property. Such insurance shall cover all Common Areas within the Subject Property including driveways, parking areas and pedestrian walkways. The Association may increase the limits of any policy pursuant to this Section in the discretion of the Association. The Association shall cause to be issued proper certificates of insurance or copies of insurance policies to any Owner or tenant upon his written request. The expense for such insurance will then equally divided among the Owners, each of whom will pay their pro rata equal share as part of the annual assessment. Section 19. Financial Statements. The Association Board shall cause to be prepared a balance sheet and operating statement for the Association as of the end of each calendar year. Each -21- operating statement shall show for the period since the last operating statement the expenses'and receipts of the Association and a schedule of assessments received and receivable, itemized by Lot and by the name of the Owner assessed. Each operating statement shall also reflect the estimated cash receipts,cash expenses and changes in the Association's reserves required by the Association in fixing assessments for the ensuing calendar year. Copies of the financial statements shall be prepared and made available to the Owners within sixty (60) days of the statement date, or within such shorter period of time as may be required by law. Section 20. Exercise of Rights by Common Owners. Whenever title to a freehold estate in a Lot stands in the names of two or more persons, the vote or written consent of such persons as , an Owner shall be given in accordance with the vote or consent of the majority of such persons. If less than all persons are present, in person or by proxy, at a meeting of the Association,the person or persons present shall be counted as an Owner and member for purposes of determining a quorum, and on all votes taken at such meeting their vote shall be entered as the majority of such persons present may direct. This Section applies to voting and consenting by two or more administrators, executors,trustees or other fiduciaries,unless the instrument or court order appointing them on file with the Secretary of the Association otherwise directs. Section 21. Creation of Easements. Easements,right of way,profits, licenses and other right to use the Common Area and Public Areas, including, but not limited to, public utility and cable television easements,may be conferred or conveyed by a deed or other document signed and acknowledged by at least a majority of the members of the Board of Directors, or upon the vote or written consent of the Owners entitled to exercise at least three out of four (4) or seventy-five percent(75%) of the total voting power of the Association. -22- Section 22. Amendment or Termination. (a)The provisions of this Declaration may be amended or terminated by three out of four(4) or seventy-five percent(75%) of the total voting power of the Association. (b)Any amendment or termination of these restrictions shall take effect upon the recordation at the office of the County Recorder of Fresno County,California,of an instrument in writing signed and acknowledged by any two officers or any three directors of the Association certifying under penalty of perjury that the amendment or termination was duly adopted as provided by the terms hereof. Section 23. Conveyance of Property Held by the Association. The Association shall not have the right to convey any real or personal property except as otherwise provided herein. Section 24. Damage and Destruction. The provisions of this Section shall govern the repair of damages to the project by fire or other casualty. (a) Damage Affecting the Common and Public Area. If any part of the Common or Public Area is materially damaged by fire,casualty or other event,the Association shall restore the damaged area with all due diligence. If the insurance proceeds available to the Association on account of the damage are insufficient to pay all of the costs of the restoration,as special assessment shall be assessed against the Owners,in proportion to their respective interests in the Common Area Lot, to make up any deficiency. The Association shall fix the time or times when the special assessments are to be paid. If any Owner fails to pay such special assessment within the time fixed by the Association, the deficiency shall be covered by a payment from the maintenance fund, but such payment shall not release the defaulting Owner from his liability for the special assessment. (b) Damage to Buildings. -23- (1) If any Building Lot, carports, patios, other improvements, are damaged or destroyed by fire, casualty or other event, the Owner, unless the Association acts as provided in Subparagraph(ii)of this Paragraph,shall promptly commence and proceed with all due diligence to complete the restoration of the improvements. The improvements shall be restored as closely as practicable to their condition existing before the damage occurred, except for such changes in exterior appearance as may be approved by the Association. (2) If an event of damage described in Subparagraph (1) of this Paragraph causes damage to any sewer, water, gas, electric or other service line passing under, through or over the damaged Building Lot for the benefit of one or more other Building Lots, the Owner of the Building Lot where the damage to the service facilities occurs shall promptly commence and shall proceed with all due diligence to complete the restoration of the damaged facilities so that service to the other Building Lots may continue, and must provide temporary y service connection to the other Building Lots until such time as the restoration of permanent service facilities is complete. (c) Damage To Owner Property. Any damage to any building or structure owned by any Owner shall be the responsibility of such individual owner. Such Owner will immediately undertake all reasonable action necessary to repair such damage within a reasonable time. Section 25. Drainage Easements For Parcels "A" and"C" Declarants hereby reserve drainage easements for Parcels "A" and "C for and on behalf of Declarants and future Owners of Parcels "A"and"B"as hereinafter set forth. Upon any conveyance of Parcels"B"and "D", Declarants reserve and grant drainage easements as to Parcels "A" and "C" and the owners -24- thereof for the benefit of Parcels"A"and"C"allowing surface water run-off to flow across Parcels "B" and"D" for drainage purposes. Section 26. Attorneys' Fees. In any action brought by an Owner or the Association to enforce the provisions hereof, whether local or equitable, the prevailing party shall be entitled to reasonable attorneys' fees as determined by the court. Section 27. Enforcement by City of Fresno. Should the Association or any Owner fail to enforce any restrictions, conditions, covenants, reservations, easements, liens, assessments and charges now or hereafter imposed by the provisions of this Declaration,the City of Fresno shall have the right, option and power to bring any action necessary for the enforcement of the restrictions, conditions, covenants, reservations, easements, liens, assessments and charges now or hereafter imposed by the provisions of this Declaration,including necessary costs of suit and attorneys' fees. Section 28. Severability. The provisions hereof shall be deemed independent and severable,and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of the remainder of such provision or of any other provision hereof. Section 29. Failure of Enforcement Not a Waiver. Failure to enforce any provision hereof shall not constitute a waiver of the right to enforce said provision or any other provision hereof. Section 30. Association Property. The Association may acquire tangible and intangible personal property for the benefit of the Owners and may dispose of the same or otherwise. The beneficial interest in such personal property shall be owned by the Owners in the same proportion as their liability for assessments pursuant to Section 11 herein above, and shall not be transferable -25- except with the transfer of a Lot. A transfer of the Lot shall transfer to the transferee ownership of the transferor's beneficial interest in such personal property. Section 31. Title of Sections. The titles of the Sections of this Declaration are for the convenience of the reader only and no presumption or implication of the intention of the parties as to the construction of this Declaration shall be drawn therefrom. Section 32. Covenants, Conditions, Restrictions Run With the Land. This declaration and the covenants, conditions, and restrictions contained herein shall run with the land and the buildings and lots as described herein, the "Property", and shall be binding upon all subsequent purchasers, successors, assigns, heirs, administrators, and subsequent holders of any legal or equitable interest. IN WITNESS WHEREOF, the Declarant have executed this Declaration of Restriction on the day and year first above written. Sahrad Kerkochian, Jr. and Bernice Kerkochian, as Co-Trustees of the Kerkochian Revocable Trust dated June 30, 1998. By: SAHRAD KERKOC ,JR., o-Trustee By: 7!2)y cC �1u�cr�c BERNICE KEPKOCHLkN, as Co-Trustee S:1Main\PatrieialMyFila\DoeaVkpllUCakochin\CC&RaUcakochian CCR rev7(Cityinpat.4).wpd -26- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT i State of California ss. County of esn D `) On`M0,rC_h 3, c-7-l!9QS before me,T bl ' C- Bal-nes AJQ tarn /� c Dat Name and Title o1 Officer(e.g.."Jane Doe,Notary Public) �� personally appeared nrack l�(./KOCf7�aj1 . Tr Qnd 13Cr/?iCf_ � -=Z,-A 2cctiL- Name(s)of igner(s) I I ❑personally known to me f _proved to me on the basis of satisfactory evidence i to be the person(s) whose name(s) is/are ) subscribed to the within instrument and } TORI C.BURNES acknowledged to me that he/she/they executed Conn.kdon#1410061 the same in his/her/their authorized Nokxy -CaNfof o capacity(ies), and that by his/her/their FrwnoC 1A* signature(s)on the instrument the person(s),or MyComrin.ExpYwApr B,Z00 the entity upon behalf of which the person(s) I acted, executed the instrument. II WIT ESS my hand a" ficial seal �' - Signatu'rW-drVoTary Public ) I i OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document i Title or Type of Document: i Document Date: Number of Pages: Signer(s)Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: ❑ Individual •Top of thumb here ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: ,) Signer Is Representing: I 0 1999 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.nationalnotary.org Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827