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FRESNO County Recorder
Paul DictosI C.P,R.
DDC— 2017-0062709
RECORDING REQUESTED BY: Acct 8017-First American Title - Fresno SPL
Island Airwaves, Inc. Monday, MAY 22, 2017 08:00:00
c/o WILD,CARTER&TIPTON Tt 1 Pd $157.00 Rcpt # 0004771541
246 W.Shaw Ave. CRR/R7/1-47
Fresno,California 93704
Attn: Bruce Brown
i
WHEN RECORDED.RETURN TO:
Island Airwaves,Inc.
c/o WILD,CARTER&TIPTON
246 W.Shaw Ave.
Fresno,California 93704
Attn: Bruce Brown
SPACE ABOVE THIS LINE RESERVED FOR RECORDERS USE
DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS, AND
RECIPROCAL EASEMENTS
OF
KINGS CANYON AND PEACH SHOPPING CENTER
DATE: MAY 1 , 2017
�.Wuss
DECLARATION OF COVENANTS,
CONDITIONS,RESTRICTIONS,AND
RECIPROCAL EASEMENTS
THIS DECLARATION OF COVENANTS,CONDITIONS, RESTRICTIONS, AND RECIPROCAL
EASEMENTS("Declaration")is dated MA y 1 ,2017,by ISLAND AIRWAVES, INC.,a Hawaii
corporation("Declarant").
RECITALS
A. Declarant is the owner in fee title of certain real property which is located in the City of Fresno,
County of Fresno, State of California,and more particularly described in Exhibit"A"("Property").
B. The Property is more particularly described as Parcels A through D,and together with Outlot"A",
per Parcel Map No.2015 - ob' ,according to the map thereof recorded on V"4q 2-2-,201 1 , in Book 1q
of Parcel Maps at Pages j and, Fresno County Records,California.
C. Declarant declares that Parcels A through D(the"Parcels")(as depicted on Exhibit"B"hereto)
may hereafter be sold, leased,and/or used for retail,office and other commercial uses,and that Outlot"A"shall be
conveyed,by grant deed,to the below described Association at such time as any of Parcels A, B,C and D are not
owned by Declarant.
As portions of the Property are developed, further subdivided,or Parcels are reconfigured,one or more
supplementary declarations of covenants,conditions,and restrictions or agreements of supplementary covenants,
conditions, and restrictions("Supplementary Declarations")may be imposed on the such portion or portions of the
Property,provided that such Supplementary Declarations shall not adversely impact(a)a Parcel Owner's normal
operations on its Parcel as permitted herein,(b)access to or parking for such Parcel,(c)the visibility of the Building
located on such Parcel from public streets,or(d)an Owner's rights or obligations under this Declaration,without
the written consent of such Owner.
D. Declarant desires and intends that the Property and each of the Parcels are developed and shall be
developed pursuant to a general and common plan of improvement to form an integrated commercial shopping
center as depicted on the site plan attached as.Exhibit"C" hereto(the"Shopping Center")and,that to this end,the
Property and each of the Parcels shall be subject to certain protective provisions,covenants,conditions,and
restrictions hereinafter described for the mutual benefit of each of the Parcels and all subsequent owners and lessees
of the Parcels,or space within any of the Parcels.
E. Specifically, Declarant desires to impose on the Property the terms of this Declaration,for the
following purposes,among others: (i)to provide a general plan for the development, improvement,operation,and
use of the Project as an integrated development,(ii)to ensure proper use and maintenance of the Common Area of
the Property,(iii)to protect each Owner of a Parcel from improper development and use of other Parcels that would
depreciate the value of such Owner's Parcel,(iv)to prevent the erection on the Property of structures built of
improper design,(v)to ensure the maintenance of Buildings and Improvements located on the Property,and(vi) in
general,to provide for a high quality of development and maintenance of the Project.
F. It is also the desire and intention of Declarant to establish certain non-exclusive easements in,to,
over,under,and across certain common areas located as set forth herein.
ARTICLE 1
DECLARATION
NOW,THEREFORE, for and in consideration of the promises, easements, covenants, conditions,
restrictions,and encumbrances contained herein,the sufficiency of which is hereby acknowledged, Declarant hereby
establishes,covenants and declares that the Property,and each of the Parcels or interest therein,shall be owned,held
and shall hereafter be held,transferred,sold, leased,rented,conveyed,divided,encumbered, developed,improved,
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graded, landscaped, maintained,occupied and used subject to the covenants,conditions,restrictions,easements,
rights,and rights of way herein set forth,each and all of which is and are for,and shall inure to the benefit of and
pass with, each Parcel and every portion of or interest in the Property and shall apply to every Occupant thereof and
their successors and assigns. These covenants,conditions,restrictions,and easements shall run with the Property and
every part thereof.
ARTICLE 2
DEFINITIONS
The capitalized terms used in this Declaration shall have the definitions set forth in this Article 2 unless
otherwise.defined herein.Capitalized terms that are not defined in Article 2 shall have the meanings set forth by the
capitalized term in this Declaration.
2.1. Affiliate. Any entity that controls, is directly or indirectly controlled by, or is under common
ownership or control with Declarant.
2.2. Approving Agent. "Approving Agent"shall mean in the following order of precedence:
2.2.1. Declarant,until the date of formation of the Association pursuant to Article 6 or the date
Declarant assigns its rights and obligations hereunder in accordance with Subsection 2.2.2. below,
whichever event occurs earlier;
2.2.2. Prior to the date of formation of the Association,any person,partnership,corporation or
association to whom Declarant shall expressly assign in writing, its rights,duties,and obligations
hereunder,provided such person,partnership, corporation or association(other than the
Association)shall be the Owner of one or more of the Parcels("Declarant's Successor"),provided
that if Declarant does not appoint Declarant's Successor or form the Association prior to the date
Declarant no longer owns a Parcel,then the Approving Agent shall be represented by the vote of
Owners owing at least three Parcels; and
2.2.3. The Association, upon its formation,provided that the Association may thereafter
designate a Manager(as defined in Section 2.28).
2.3. Assessment. Assessment shall mean the following:
2.3.1. "Regular Assessment"shall mean the amount which is to be paid by each Owner to the
Approving Agent for such Owners' share of Common Expenses.
2.3.2. "Special Assessment"shall mean a charge against any particular Owner and such
Owner's Parcel to reimburse the Approving Agent for costs incurred in bringing said Owner
and/or such Owner's Parcel into compliance with the provisions of this Declaration and any other
charge designed as a Special Assessment in this Declaration,together with attorneys' fees, interest
and other charges payable by such Owner pursuant to the provisions of this Declaration.
2.4. Association. Association is defined in Article 6.
2.5. Association Rules. Association Rules are defined in Section 6.3 of Article 6.
2.6. Benefited Parcel. Any Parcel that is benefited by(i)any easement in, over, or on the Common
Area or a Building Area, or(ii)any restrictions on use and/or operation of a Burdened Parcel as specified herein.
2.7. Building. The structure or structural improvements on any Parcel which are enclosed by exterior
walls, floors and roof, which are designed for the conduct therein of the activities and business of the Owner or
occupant of said Parcel, or structures to be constructed within a Building Area.
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2.8. Building Area. Those portions of the Project designated by Declarant as a"Building Area",upon
which a Building will be or is built as shown on the Site Plan attached hereto as Exhibit"C,"which Building Area
may be reconfigured or expanded as set forth in Section 5.20 below. To the extent that Building limit lines are
shown on the Site Plan,any Building may extend to such Building limit lines,except that while a Building is
existing within an area,then the Building Area shall be delimited by the exterior walls of the existing Building.
2.9. Burdened Parcel. Any Parcel burdened by and subject to(i)any easement in,over,or on the
Common Area or a Building Area in favor of another Parcel,or(ii)any restriction on use and/or operation of a
Burdened Parcel as specified herein.
2.10. City. The City of Fresno and any other local government entity now having or hereafter acquiring
jurisdiction over any portion of the Property.
2.11. Common Area. The Common Area is comprised of(i)Outlot"A";(ii)on each of the Parcels A
through D,the area outside of the Buildings and Building Areas, including all areas,space, equipment and special
services provided or caused to be provided by an Owner for the common use and joint benefit of the occupants of
the Shopping Center,their employees,agents,servants,customers and other invitees, including without limitation,
parking areas,access roads, driveways,retaining walls, landscaped areas,truck service ways or tunnels, loading
docks,pedestrian malls,courts,ramps and sidewalks,comfort and first aid stations and parcel pick-up stations,not
including areas immediately adjacent to a Building for truck parking and unloading or trash storage, supports and
appurtenances that extend from a Building;and(iii)areas underneath the overhang areas of a building that are
improved with sidewalks and walkways. The Common Area shall be available for pedestrian and/or vehicular access
by Owners,Occupants,and Permittees in accordance with the easements granted in Article 4 and subject to the
Rules and Regulations promulgated from time to time by the Declarant or the Association.
2.12. Common Utility Lines. Conduits and/or facilities for Utilities that serve Improvements in the
Common Area and/or Buildings on more than one Parcel.
2.13. Consent of Declarant or Approval of Declarant."Consent of Declarant"or"Approved by
Declarant"shall mean the written agreement or consent of the Declarant. At such time as Declarant no longer is the
Owner of any Parcel within the Project the terms"Consent of Declarant"or"Approved by Declarant"shall mean
approval or consent of the Approving Agent or by seventy-five percent(75%)of the then Owners.
2.14. Consent of Manager or Approved by Manager."Consent of Manager"or"Approved by
Manager"shall mean the written.agreement or consent of the Manager.
2.15. Consent of the Owners."Consent of the Owners"means the written agreement or consent of
seventy-five percent(75%)of the Owners. Notwithstanding anything to the contrary contained herein, if the matter
requiring the"Consent of the Owners"would.adversely impact(a)a Parcel Owner's normal operations on its Parcel
as permitted herein,(b)access to or parking for such Parcel,(c)the visibility of the Building located on such Parcel
from public streets,or(d)an Owner's rights or obligations under this Declaration,then the prior written consent of
such Owner shall also be required.
2.16. Declarant. Island Airwaves, Inc.,a Hawaii corporation.
2.17. Driveways.The term"Driveway"shall mean those driveways and related driveway
improvements,paving, curbing, entrances,and exits, in the location on the Parcels as shown on the Site Plan.
2.18. Easements. The"Easements" are collectively the Easements described in Article 4.
2.19. Effective Date. The date of recordation of this Declaration.
2.20. Encumbrance; Mortgagee. Any deed of trust,mortgage,or other written security device or
agreement affecting an Owner's interest in one or more Parcels,and the note or other obligation secured by it,that
constitutes security for the payment of a debt or performance of an obligation.The term"Mortgagee"refers to a
mortgagee or trustee and beneficiary under an Encumbrance.
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2.21. Expenses. Expenses.means the total reasonable cost and expense incurred in operating and
maintaining the Common Area of the Shopping Center,actually used or available for use by an Owner or Occupant,
and the employees, agents,servants,customers,tenants,and other invitees of an Owner or Occupant. Specifically,
included,without limitation,are the costs of gardening and landscaping, real property taxes and assessments of Out
Lot A,governmental or other surcharges. If any,the cost of public liability and property damage insurance for the
Common Area. Line painting, sanitary control,removal of trash,rubbish,garbage and other refuse,the cost of
repair,replacement.and maintenance of Common Area Improvements,cost of Common Area lighting,the cost of
lighting and electrical,repair for signs,clock towers,fountains and/or monuments located within the Common Area
of the Shopping Center,the cost of utilities which service the Common Area,reasonable reserves for maintenance,
repairs and replacements of Common Area Improvements,reasonable market competitive property management
fees,bookkeeping, governmental or other surcharges, if any and the cost of personnel to implement such services,to
direct parking,and to police the Shopping Center,and a percentage of the foregoing costs incurred to provide the
Approving Agent with an administrative fee not to exceed ten percent(10%)of such Expenses per annum(the
"Administrative Fee"); all personal property taxes assessed for any reason and levied on.any personal property for
use on the Common Area, subject to the limitations set forth below;the cost of capital improvements incurred in
connection with the Common Area; with respect to all equipment and machinery used to maintain or operate the
Common Area,any depreciation of the cost(including financing)thereof, if owned,or any rental paid, if leased;the
cost of necessary tools,supplies, machinery,or equipment;adequate public liability insurance for the Approving
Agent's operation of the Common Area; all risks insurance on the Common Area(with earthquake and flood
damage endorsements if. the Approving Agent deems appropriate);maintenance, or operation of the Common Area.
The Approving Agent may cause any or all of said services to be provided'by an independent contractor or
contractors.
Notwithstanding the foregoing, Expenses shall not include depreciation, interest,and amortization on
Encumbrances, or ground lease payments, if any;legal fees incurred in negotiating and enforcing tenant leases;real
estate brokers' leasing commissions; initial Improvements or alterations to tenant spaces;cost of the initial
construction and installation of the Common Area and Buildings of the Project and of any repairs of the same
covered by construction warranty;costs of any items to the extent the Approving Agent receives reimbursement
from insurance proceeds or from a third party(such proceeds to be credited to Expenses in the year in which
received,except that any deductible amount under any insurance policy shall be included within Expenses);costs
incurred by the Approving Agent outside of the ordinary course of business due to the violation by the Approving
Agent or any Occupant of the Project of the terms and conditions of any lease of space in the Project or violation of
applicable law;or the costs of acquiring and installing signs in or on the Project, selectively identifying any specific
tenant of the Project costs exceeding those reasonably obtainable through competitive bidding;the costs of
providing any service directly to and paid directly by any Owner and Occupant;costs,fees and compensation paid to
Declarant or Approving Agent or to subsidiaries or affiliates thereof for services to the extent they exceed the
changes for comparable services rendered by an unaffiliated third party of comparable skills,competence,stature
and reputation; advertising and promotional expenses;and all other costs and fees necessary or beneficial in the
Approving Agent's reasonable judgment for the repair; and any administrative,processing or other similar fee paid
to the Approving Agent, other than the Administrative Fee.
2.22. Floor Area. The total number of square feet of floor space in a Building available for use by an
Occupant,excluding basement,subterranean,balcony and mezzanine space unless such areas are utilized for retail
sales or services, irrespective of whether actually occupied. Floor Area shall be measured from the exterior line of
the exterior walls and from the center line of any party or common interior walls without deduction for columns,
walls or other structural or non-structural components.
2.23. Governing Documents. This Declaration,any Supplementary Declaration and/or deed restrictions
relating to the subject portion of the Property,any exhibits hereto,and any Rules and Regulations. Provided,
however, if there be any inconsistency between the provisions of this Declaration and those of any of the other
Governing Documents(except any Supplementary Declaration or separate agreement by and between Declarant and
an Owner or tenant),the provisions of this Declaration shall govern to the fullest extent allowed by law. In the event
of any inconsistency between the provisions of any Supplementary Declaration and any other Governing Documents
(including the Declaration),the provisions of such Supplementary Declaration shall govern to the fullest extent
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allowed by law. In the event of any inconsistency between the provisions of any lease and the Governing
Documents,the provisions of the Governing Document shall govern to the fullest extent allowed by law.
2.24. Grantee. Any Owner(including Declarant)of a Benefitted Parcel in which Parcel's favor a
Grantor has reserved or granted any easement,covenant,condition,or restriction herein, whether by a separate grant
or conveyance or by virtue of taking title subject to this Declaration.
2.25. Grantor. Any Owner(including Declarant)of a Burdened Parcel that is subject to any easement,
covenant, condition,or restriction reserved or granted herein,whether by a separate grant or conveyance or by virtue
of taking title subject to this Declaration.
2.26. Hazardous Material. Any hazardous or toxic substance,material,or waste which is or becomes
regulated by, subject to,or governed under any local governmental authority,any agency of the State of California,
or any agency of the United States, including,without limitation,any material or substance which is(i)defined as a
"hazardous waste,""extremely hazardous waste,""restricted hazardous waste,""hazardous substance,""hazardous
material,""toxic material,"or"toxic substance"under any federal,state,or local governmental rule,regulation,
ordinance, statute,or act now or hereafter enacted,(ii)petroleum and any petroleum byproducts,(iii)asbestos,(iv)
urea formaldehyde foam insulation,or(v)polychlorinated biphenyl.
2.27. Improvements. All landscaping and improvements of any type or kind, including,but not limited
to,Common Utility Lines and facilities,curbs, gutters,drives, Driveways,parking facilities,fences,screening walls,
trash enclosures,retaining walls, plantings,planted trees and shrubs, lighting standards and fixtures,poles,and
signs,but excluding all Buildings.
2.28. Manager.The Approving Agent's designee that shall operate, manage, maintain,and repair the
Common Area as provided in Article 3 and Article 8.
2.29. Occupant. Any Person from time to time entitled to the use and occupancy of any portion of a
Building in the Project under an ownership right or assignment or any lease, sublease, license,concession(or other
similar agreement),and employees,contractors,assigns, licensees and invitees of Owner,and others who utilize
Owner's Parcel under claim of right or with the Owner's consent.
2.30. Owner. The"Owner"of the fee title to a Parcel.
2.31. Parcel. Any legal lot or parcel into which the Property has been(at the time of reference)
subdivided pursuant to the California Subdivision Map Act, including all Buildings and Improvements now or
hereafter constructed thereon. Notwithstanding anything to the contrary contained in this Declaration,each Owner
and Occupant,by taking title subject to this Declaration,hereby approves of the processing and recording by
Declarant of,and agrees to execute and acknowledge,an amendment.to the existing parcel map for the Property to
reflect any such.subdivisions or any reconfiguration of the existing Parcels; provided,however, (a)the shape and
size of Parcel D may not be revised without the consent of the Owner thereof, which may be withheld in its sole
discretion, and(b)the shape and configuration of Out Lot A may not be revised so as to adversely affect(i)a Parcel
Owner's normal operations on its Parcel as permitted herein, (ii)access to or parking for such Parcel,(iii)the
visibility of the Building located on such Parcel from public streets,or(iv)an Owner's rights or obligations under
this Declaration,without the prior written consent such Owner.
Declarant anticipates that such amendment to the existing parcel map will take the form of lot line adjustments
intended to conform Building Areas with the actual location of the Buildings and Improvements constructed on such
Parcel. Such lot line adjustments processed by Developer may also be undertaken to decrease the number of Parcels
or to relocate Parcels to other areas within the Property. Such an amendment of the parcel map(including pursuant
to any such lot line adjustment)shall not constitute and shall not require an amendment of this Declaration.
2.32. Parking Area. All vehicular parking spaces, Driveways, loading areas, and including any areas
shown as"Parking Area"on the Site Plan plus any Building Areas not then used for Buildings or Improvements and
designated by Declarant as a temporary parking area.
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2.33. Party or Parties. The"Party"or"Parties"shall be Declarant and such other persons who,by
reason of becoming Owners of Parcels in the Shopping Center,are subject to this Declaration.
2.34. Permittees. Owners and all Occupants and their respective officers, directors,employees,agents,
contractors,customers,vendors, suppliers,visitors, invitees, licensees,and concessionaires insofar as their activities
relate to the intended use of the Project.Among others, Persons engaging in the following activities on the Common
Area will not be considered to be Permittees,except to the extent such activity is protected under the United States
Constitution or State Constitution as a free speech activity: (i)exhibiting any placard, sign,or notice;(ii)distributing
any circular,handbill, placard,or booklet;(iii)soliciting memberships or contributions in or for any organization;
(iv)parading,picketing, or demonstrating;and(v)failing to follow regulations relating to the use of the Common
Area.
2.35. Person. Any individual,partnership,firm,association,corporation,trust,or any other form of
business or government entity.
2.36. Pro Rata Share. The"Pro Rata Share"for each Parcel shall be a fraction expressed as a
percentage: (i)the numerator of which is,with respect to each Parcel on which no Building has been constructed
(herein, "Land Parcel"),the square feet of Building Area within such Parcel and, with respect to all Parcels within
the Project which have been improved with a Building for which a certificate of occupancy has been issued, shall be
the square feet of Floor Area contained within the Buildings constructed upon such Parcel, and(ii)the denominator
of which shall be the square feet of Floor Area contained within all Buildings constructed within the Center plus the
square feet of Building Area within the Parcel in which a Building is yet to be constructed,the current calculation of
which is as follows:
Parcel A 22.78%
Parcel B 22.78%
Parcel C 38.45%
Parcel D 15.99%
Total 100%
2.37. Project. The Property and all of the Buildings and Improvements constructed thereon. The
Project is also referred to herein as the Shopping Center.
2.38. Property. That land described on Exhibit"A."
2.39. Rules and Regulations. Any non-discriminatory rules or regulations promulgated from time to
time by the Approving Agent and approved as provided in Section 6.3 of this Declaration regarding use of the
Common Area.
2.40. Sign Plan. The written program for the Project which is dated of even date with this Declaration.
A copy of the Sign Plan will be kept at Manager's office.
2.41. Site Plan. The Site Plan attached hereto as Exhibit"C"and incorporated herein by this reference,
as may be amended from time to time by Declarant,which amendment must be approved as provided in Section
13.9 of this Declaration.
2.42. Supplementary Declaration. As defined in Recital D above.The terms and requirements of this
Declaration may be modified or added to with respect to all or a portion of the Property through the recordation'of a
Supplementary Declaration, which must be approved as provided in Section 13.9 of this Declaration.
2.43. Utilities. Any or all of the following: facilities for the supply and/or return of sanitary sewer,
storm water drainage,domestic, and fire protection water,electricity,power, natural gas,telephone service,cable
TV,data transmission,and any similar service.
ARTICLE 3
MANAGER
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The Approving Agent shall be the party described in Section 2.2 of this Declaration. Except as otherwise
provided, from and after the date of recordation of this Declaration,the provisions of this Declaration are
enforceable. The Approving Agent may designate a Manager who shall operate,manage, maintain, and repair the
Common Area for the mutual benefit of all Owners and shall assume all those rights and duties of Declarant and/or
Approving Agent set forth elsewhere in this Declaration. Manager shall have a reasonable.amount of professional
experience in the management of commercial developments similar to the Project. The Approving Agent may
designate itself or one of its Affiliates as Manager. In addition,the Approving Agent shall have the right to change
the designation of Manager from time to time. Manager shall operate,manage,maintain, and repair the Common
Area in accordance with Article 8. If the Approving Agent does not designate a Manager,then the Approving Agent
shall perform the.duties and obligations of the Manager as set forth herein.
ARTICLE 4
EASEMENTS
4.1. Ingress, Egress,and Parking. Declarant reserves for itself and grants to each present and future
Owner,Occupant and Approving Agent, for the benefit of each Parcel owned and occupied by such Owner or
Occupant a nonexclusive easement on, over,and through Outlot"A"and.each Parcel, including, without limitation,
the Parking Area and the Driveways located within the Common Area of the Project for(i)vehicular access, ingress,
and egress by Permittees from public streets at the location of all curb cuts(when established),passage of
Permittees' vehicles over established circulation elements(when constructed),and parking of Permittees' vehicles
within designated parking stalls(when constructed),subject to the restrictions of Section 8.4 of this Declaration,and
(ii)pedestrian access, ingress, and egress, and passage by Permittees. Each future Owner, by taking title to its Parcel
subject to this Declaration, shall be deemed to have granted such.easement with respect to the Parking Area on its
Parcel to all other Owners and their Occupants. Such easement rights shall be subject to the following reservations
as well as other provisions contained in this Declaration:
4.1.1. Except for situations specifically provided for in the following subparagraphs,no fence
or other barrier which would unreasonably prevent or obstruct the passage of pedestrian or
vehicular travel for the purposes herein permitted shall be erected or permitted within or across the
Driveways or easement areas; provided,however,that the foregoing provisions shall not prohibit
the installation of(i)convenience facilities(such as mailboxes,public telephones,benches,or
public transportation shelters); (ii)kiosks,merchandising carts, stands,booths,or other similar
enclosures for retail use on a Parcel owned by Declarant;(iii) landscaping,beams,or planters;.(iv)
curbing and other forms of traffic controls;or(v)outside sales area permitted by the Approving
Agent pursuant to Section 5.21.
4.1.2. In connection with any construction,reconstruction,repair,or maintenance on its Parcel,
each Owner reserves the right to create a temporary staging and/or storage area in the Parking
Area,subject to the Approving Agent's reasonable approval, on or adjacent to its Parcel at such
location as will not unreasonably interfere with access between such Parcel and the other areas of
the Project and the public streets or roadways adjacent to the Project.
4.1.3. Subject to the provisions of this Declaration,the Approving Agent reserves the right to
close off a portion of the Common Area for such reasonable period of time as may be legally
necessary, in the opinion of its counsel,to prevent the acquisition of prescriptive rights by anyone;
provided,however,that prior to closing off any portion of the Common Area as herein provided,
the Approving Agent shall give written notice to each other Owner of its intention to do so,and
shall attempt to coordinate such closing with each other Owner so that no unreasonable
interference in the passage of pedestrians or vehicles shall occur.
4.1.4. The Approving Agent reserves the right,but shall have no obligation,at any time and
from time to time,to exclude and restrain any Person who is not a Permittee from using the
Common Area to the extent such action can be lawfully taken.
4.1.5. Subject to the provisions of Sections 8.4 and 8.6 of this Declaration,the Approving
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Agent may grant exclusive or non-exclusive parking use easements in designated spaces or the
right to use outside sales area to particular Owners or Occupants,provided such designated spaces
or outside sales area is in close proximity to the Building it is to be used in conjunction with. All
such grants in existence on the date of this Declaration are deemed approved.
4.1.6. The Driveways as they appear on the Site Plan shall not be blocked,closed,altered,
changed,or removed and shall at all times remain in place as shown on the Site Plan. There shall
be maintained between the Driveways a smooth and level grade transition to allow the use of the
Driveways for pedestrian and vehicular ingress and egress as set forth in Section 4.1 above.No
facility within the Property for vehicular drive-up or drive-through in which the stopping or
standing of motor vehicles in line at a location for drop-off and/or pickup(as,for example,at a
restaurant, car wash, or bank)shall be assigned, constructed, used, or operated in any manner such
that motor vehicles in line at such facility stop or stand onto any of the Driveways for any material
amount of time,or otherwise materially interfere with the normal pattern and flow of pedestrian or
vehicular traffic on and across the Driveways. Approving Agent hereby approves the drive-thru
lane constructed on Parcel D and as delineated on the Site Plan as of the date of this Declaration
and agrees that such drive-thru lane shall be for the exclusive use of the Owner or Occupant of
Parcel D. For purpose of clarity,this exclusivity shall not apply to that portion of the common
driveway providing access from Kings Canyon Avenue to the drive-thru lane before branching off
into Parcel D and continuing on to Peach Avenue.
4.1.7. A common driveway on Parcel D and Outlot"A" from Kings Canyon Avenue shall be
maintained by the Approving Agent.
4.1.8. An internal roadway from Peach Avenue over Parcel D to Outlot"A"providing vehicular
ingress and egress shall be maintained by the Approving Agent.
4.2. Utilities.
4.2.1. Declarant reserves for itself and grants to each Owner,Occupant and the Approving
Agent for the benefit of each Parcel of the Project a nonexclusive easement in,to,over, under,
along, and across any Burdened Parcel necessary for the installation,use,maintenance,repair,
relocation, and removal of Utilities. Each future Owner,by taking title to its Parcel subject to this
Declaration,shall be deemed to have granted such easement with respect to the Common Area on
its Parcel to all other Owners and their Occupants, if any. Except with respect to ground-mounted
electrical transformers at the rear of a Building or as may be necessary during periods of
construction,repair,or temporary service,all Utilities shall be underground unless required to be
aboveground by the utility company providing such service, and to the extent practical shall be
located along the perimeter of the Parcel,and shall otherwise be located so as to not unreasonably
interfere with the use and enjoyment of any Parcel by Owners or their Occupants. Prior to utilizing
the easement and exercising the rights granted herein,the Grantee shall first provide the Grantor
with a written statement describing the need for such utilization and shall identify the proposed
location of the Utility line. Any Owner installing Utilities pursuant to the provisions of this
Section 4.2.1 subsequent to the initial development of the Common Area shall pay all costs and
expenses with respect thereto and shall cause all work in connection therewith(including general
cleanup and proper surface and/or subsurface restoration)to be completed as quickly as possible
and in a manner so as to minimize interference with the use of the Common Area.The Grantee
benefiting from a Utility easement across another Owner's Parcel shall,subsequent to the initial
installation of the Utility lines, indemnify and hold harmless the Grantor from and against all
demands,damage,claims, loss, liability,or expense in connection with the use, installation,
maintenance,and removal of such Utility line. If any Owner elects to install a Common Utility
Line,all costs and expenses thereof shall be treated as an Expense.
4.2.2. The initial location and width of any Utilities shall be subject to the prior written
approval of the Grantor, such approval not to be unreasonably withheld.The easement area shall
be no larger than whatever is necessary to reasonably satisfy the utility company as to a public
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utility or five feet(5')on each side of the centerline as to a private line. Upon request,the Grantee
shall provide to the Grantor a copy of an as-built survey showing the location of such Utility. The
Grantor shall have the right at any time to relocate a Utility line upon thirty(30)days' prior
written notice to the Grantee,provided that such relocation:(i)shall not interfere with or diminish
the Utility services to the Grantee;(ii)shall not reduce or unreasonably impair the usefulness or
function of such Utility;(iii)shall be performed without cost or expense to Grantee;(iv)shall be
completed using materials and design standards which equal or exceed those originally used;(v)
shall have been approved by the utility company and the appropriate governmental or quasi-
governmental agencies having jurisdiction thereof,and(vi)shall not unreasonably interfere with
the conduct,or operation,of the Occupants of the Grantee's Parcel.
Documentation of the relocated easement area shall be at the Grantor's expense and shall be
accomplished as soon as possible.Grantee shall have a right to require an as-built survey of such
relocated Utility be delivered to it at Grantor's expense.
4.2.3. Each Owner and the Approving Agent shall,to the extent necessary and to the extent the
same shall not result in the loss of compensation otherwise obtainable from condemnation,join in
the execution of such instruments, in a form acceptable to such Owners, as may be required in
order to effectuate the installation(subject to the restrictions thereon contained in this Declaration)
for the sole benefit of the Project or Owners' Parcels,of public utilities and similar easements
under and across portions of their respective Parcels.
4.3. Construction. Maintenance and Reconstruction.
4.3.1. In order to accommodate any footings, foundations,columns, or walls which may be
constructed or reconstructed immediately adjacent to a common boundary line and which may
overlap that common boundary line, Declarant hereby grants and each Owner shall grant and, by
taking title to its Parcel subject to this Declaration,shall be deemed to have granted,to each other
Owner a nonexclusive easement in,to,over, under,and across that portion of its Parcel adjacent to
such common boundary line in space not theretofore occupied by any then-existing structure for
the construction, maintenance,and replacement of subterranean footings to a maximum distance
of five feet(5')onto the Grantor's Parcel and for the construction,replacement, and maintenance
of foundations,columns,or walls to a maximum distance of six inches(6")onto the Grantor's
Parcel.The easement shall continue in effect for the term of this Declaration and thereafter so long
as the Building utilizing the easement area exists(including a reasonable period to permit
reconstruction or replacement of such Building if the same shall be destroyed, damaged,or
demolished)and shall include the reasonable right of access necessary to exercise and enjoy such
grant.
4.3.2. Prior to utilizing the easement right set forth in Section 4.3.1.above,the Grantee shall
advise the Grantor Owner of its intention to use the same,shall provide plans and specifications
and proposed construction techniques for the Improvements to be located within the easement
area,and shall give the Grantor an opportunity to commence any construction activities which
such Owner contemplates undertaking at approximately the same time to the end that each Owner
involved shall be able to utilize subterranean construction techniques which will permit the
placement aboveground of a Building on each Parcel immediately adjacent to the common
boundary line. If a common subterranean construction element is used by Owners, it is specifically
understood that each shall assume and pay its Pro Rata Share of the cost and expense of the initial
construction and,so long as both Owners are benefiting therefrom,subsequent maintenance
thereof. In the event any Building utilizing a common subterranean element is destroyed and not
replaced or is removed,the common subterranean construction element shall be left in place for
the benefit of any Building utilizing the same located on the adjoining Parcel.
4.4. Surface Drainne Easement. Declarant reserves for itself and grants to each existing and future
Owner and the Approving Agent for the benefit of each Parcel(the"Benefited Parcel")and Outlot"A",a
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nonexclusive easement for surface drainage over the Common Area and Outlot"A"(the"Burdened Parcel")through
the drainage patterns and systems as are established from time to time within the Common Area of the Project.To
the extent an Owner's Parcel includes Common Area,nothing herein shall prevent an Owner from relocating the
drainage patterns established upon such Owner's Parcel provided such Owner first provides the Approving Agent
with plans respecting such relocation,such relocation does not unreasonably interfere with the drainage of other
Parcels within the Project nor interfere with the orderly discharge of water by means of same,and the Approving
Agent's approval to the change is obtained. By taking title subject to this Declaration,each Owner shall be deemed
to have joined in this grant of easement. Any alteration in the water flow which may occur as a natural consequence
of normal construction activities and the existence of an Owner's Improvements shall be permitted,so long as the
Owner constructing the Improvement provides at its own cost for the proper disposition of water flow to the storm
drainage system located outside of the Project.
4.5. Easement in Favor of Manager. Declarant hereby reserves to itself and its successors and
assigns and the Approving Agent, and grants to Manager a nonexclusive easement under,on,and over the Common
Area for ingress,egress,passage,and performance of Manager's rights and duties under this Declaration.
4.6. Sign Easement. Subject to the provision of Section 5.5 of this Declaration,Declarant hereby
reserves to itself and to its successors and assigns(including the Approving Agent)an easement in the Common
Area for the installation and maintenance of monument,directional,and/or pylon signs identifying all or any portion
of the Project in locations determined by Declarant(and/or the Approving Agent);provided,however, no
monument, pylon or any other type of sign(such as flag signs)may be placed upon Parcel D that advertises the
name of any business or product not located on or sold from Parcel D. The designated locations of all monument,
directional, and/or pylon signs as they appear on the Site Plan are approved without the need of further consent from
any party.
4.7. Restriction on Grant of Easements.No Owner shall grant any easements over any land within
the Project for the benefit of any land outside the Project;provided,however,that the foregoing shall not prohibit
the granting or dedicating of Utility easements by an Owner on its Parcel to governmental or quasi-governmental
authorities or to public utilities. The Approving Agent may grant easements in the Property in favor of the property
adjacent to the Property owned by the Approving Agent or its Affiliates if the Approving Agent determines the same
are reasonable and will not interfere with the use of the Project or if the Approving Agent determines the same are
necessary to obtain access from such neighboring property for the benefit of the Project.
4.8. Term and Limitation of Easements,Covenants,and Conditions.The easements referred to in
Sections 4.11 4.2,4.3,4.4,4.5,and 4.6 and shall continue in favor of the respective Grantees for the term of this
Declaration and for so long afterwards as each such Grantee shall continuously utilize such easement.
4.9. City Right of Access. City and all Emergency Vehicles, including Non-City Owned Vehicles,
shall have the right of immediate access to enter the Project or any portion thereof for the purpose of preserving or
providing for public health,safety,and welfare and for the purpose of collecting solid waste.
4.10. Benefit and Burden to Run With the Land.The easements granted pursuant to the provisions of
this Article 4 and all other covenants,conditions,and restrictions contained in this Declaration shall be deemed and
construed to be covenants running with the land, for the benefit of the Benefited Parcels,which Parcels shall be the
dominant estate,and the Parcels on which such easement is located or as to which such covenant is appurtenant shall
be the servient estate.
4.11. .Intended Use of Easements. The easements hereinabove granted shall be used and enjoyed by
each Owner,Occupant, and the Permittees in such a manner so as not to unreasonably interfere with,obstruct,or
delay the conduct and operations of the business of any other Owner or Occupant at any time conducted on its
Parcel, including,without limitation,public access to and from said business,and the receipt or delivery of
merchandise in connection therewith.
ARTICLE 5
DEVELOPMENT; PERMITTED USES; RESTRICTIONS
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5.1. Permitted Uses. Subject to the limitations and restrictions of this Article 5,the Project and all
Parcels shall be used only for those purposes permitted by law.
5.2. Development and Operation of Project.
5.2.1. The Project shall be developed,operated,and maintained by the Approving Agent in
accordance with the Site Plan as an integrated commercial center which(i)efficiently utilizes and
does not exceed the capacity of the available Parking Area or any portion thereof;and(ii)
fixturizes,decorates,and maintains their respective store premises in a tasteful and decorous
manner,having regard for the general standards of appearance prevailing in the Project.
5.2.2. The Approving Agent agrees that everything done or installed or constructed by it or with
its permission or consent to or on the Project shall conform to,and the Approving Agent shall use
commercially reasonable efforts to cause every Owner and Occupant of the Project to conform to,
every applicable requirement of law and-governmental authority, including,but not limited to,
requirements pertaining to health,welfare,or safety of employees.or the public.
5.2.3. The Approving Agent shall use commercially reasonable efforts to cause every Owner
and Occupant of the Project to conduct its activities in such a manner as not to constitute a
nuisance or create unreasonable interference with other Owners or Occupants,their customers and
Permittees.
5.2.4. The Approving Agent may designate an employee parking area in the Common Area. In
such event,the Approving Agent and all Occupants shall use commercially reasonable efforts to
cause all employees in the Project to park in the designated area.
5.2.5. No Improvements may be built or maintained in the Common Area of the Project other
than parking spaces, Driveways, walkways,sidewalks,curbs, loading docks and ramps,service
areas,trash receptacles, lights, signs, landscaping,convenience facilities(such as mailboxes,
public telephones,benches,or public transportation shelters),retail uses including automatic teller
machines,kiosks, stands,booths,or other similar enclosures, provided the same are installed by
the Approving Agent or with the Approving Agent's consent. Except as specifically depicted on
the Site Plan or as may be approved in writing by the Approving Agent,no fence,division,
partition, rail,or obstruction of any type or kind shall ever be placed, kept,permitted,or
maintained between the Parcels or between any subsequent division thereof or upon or along any
of the common property lines of any portion thereof,except within the confines of a Building
Area, and except as may be required at any time and from time to time in connection with the
construction, maintenance,and repair of the Common Area or construction within a Building
Area.
5.2.6. After commencement of construction of any Building or Improvement,the Owner thereof
shall diligently prosecute the work thereon to completion,to the end that the Building or
Improvement shall not remain in a partly finished condition any longer than reasonably necessary.
Promptly upon completion of construction,each Owner shall provide the Approving Agent with a
copy of all"as-built"plans for any sewer,drainage,telephone,electrical,gas, cable TV,or any
other concealed Utilities,conduits,and facilities such/shall have caused to be installed in the
Common Area.
5.2.7. Except as specifically depicted on the Site Plan or.as may be approved in writing by the
Approving Agent no alterations or additions shall be made to the Driveways or to those portions
of the Property cross-hatched on the Site Plan and labeled"No-Build Areas"thereon(or to any
Buildings or other Improvements within such area).
5.3. Use Restrictions. The Approving Agent shall comply with and enforce the following restrictions:
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5.3.1. Exterior Signs and Merchandise. Except as otherwise permitted in this Declaration and as
permitted in the Sign Plan, an Owner shall not permit in the Project any display or sale of
merchandise, or any storage or placement of merchandise,portable signs,or other objects
belonging to an Occupant of the Project outside the defined exterior walls,roof,and permanent
doorways of any Building on that Owner's Parcel.
5.3.2. Cancellation of Insurance.No Owner shall have or permit any merchandise or substance
in or about that Owner's Parcel or any act in or about that Owner's Parcel which will(i)cause or
threaten the cancellation of any insurance covering any Parcel or on the Buildings and
Improvements on any Parcel,or(ii)increase the insurance rates applicable to any Building or
Improvements on a Parcel in the Project over the rates which would otherwise apply,unless that
Owner agrees to pay the increased cost.
5.3.3. Commercial Purposes,General Restrictions. The Shopping Center will be used for
commercial purposes of the type usually found in retail shopping centers.No portion of the
Shopping.Center may be used for any of the following uses or purposes or any like them:
5.3.3.1. A cemetery.
5.3.3.2. A mortuary.
5.3.3.3. An adult book store,adult novelty shop,adult theatre,adult movie
rental store or other adult business engaged in exhibiting or delivering
pornographic or obscene materials.To qualify as"adult",at least fifteen percent
(.15%)of the inventory displayed,exhibited,delivered or sold is not available for
sale or rental to children under 17 years old because such inventory explicitly
deals with or depicts human sexuality.
5.3.3.4. A so-called"head-shop" for the sale of illicit drug-oriented
paraphernalia.
5.3.3.5. An off-track betting parlor(the sale of government-sponsored lottery
tickets is expressly permitted).
5.3.3.6. A pawnshop.
5.3.3.7. A flea market.
5.3.3.8. Traveling carnivals, fairs, auctions,parking lot sales(except as
permitted herein),sales by transient merchants utilizing vehicles or booths;
provided,however,that up to two(2)kiosks of not more than one hundred fifty
(150)square feet each will be permitted in the Shopping Center.
5.3.3.9. Sleeping quarters or lodging.
5.3.3.10.The outdoor housing or raising of animals.
5.3.3.11.The storage of automobiles,boats or other vehicles.
5.4. Building Restrictions; Subdivision; Approvals; Maintenance.No Building shall be constructed
or located on any part of the Project other than on Building Areas or within the Building limit lines shown on the
Site Plan. Prior to commencing or allowing construction of any Building and prior to remodeling or rebuilding any
existing Building,the Approving Agent shall cause the architectural design of the exterior of such Building to be in
c6nformance with the approved Building elevations for such Building. Except as otherwise provided in this
Declaration,each Owner,at its sole cost and expense,shall maintain,repair,replace,restore,rebuild(to the extent
required by the terms of this Declaration including,but not limited to,ADA compliance), and decorate the exterior
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of all buildings and improvements situated in the Building Area within its Parcel in as neat, sanitary,and attractive
condition as may be reasonably necessary to protect and preserve the integrity,appearance and value of the
Shopping Center. In the event an Owner fails to perform its obligation under this Section 5.4,the Approving Agent
is granted the unilateral right, after first having satisfied the notice and cure provisions provided in Section 8.10
below, to maintain,repair,replace,restore,rebuild and construct any item it deems necessary to cure such failure
and bill the applicable Owner directly for the cost and expense related to the work required hereunder. Each Owner
shall be liable for any damage resulting from its failure to property repair,maintain, replace,restore,rebuild and
decorate as required.
5.5. Sian Plan.
5.5.1. No exterior sign,picture,advertisement,or notice of any kind that would normally be
visible from the neighboring Parcels,properties,or public streets shall be displayed, inscribed,
painted on,or affixed to any part of the outside of any Building in the Project unless it is in
conformance with the Sign Plan or has been approved by the Approving Agent or is required by
law(e.g., handicap parking.signs). Declarant shall provide in all leases and agreements affecting
the Project a prohibition.of all signs except those in conformance with the requirements of this
paragraph. In exercising its reasonable discretion,the Approving Agent or Manager shall
reasonably consider whether the proposed signage complies with such signage standards
respecting design,type, and location of signage.Notwithstanding anything to the contrary in this
Declaration,the exterior signage installed on the Building and monument signage on Parcel D as
of the-date of this Declaration have been approved by the Approving Agent.
5.5.2. Except as otherwise permitted in this Declaration,an Owner shall not permit any display
or sale of merchandise,or any storage or placement of merchandise,portable signs,or other
objects belonging to an Occupant of the Project outside the defined exterior walls,roof, and
permanent doorways of any Building on that Owner's Parcel.
5.6. Limited Permitted Uses. Operations and uses that are neither specifically permitted by this
Declaration nor specifically prohibited by this Declaration shall be permitted to be conducted on any Parcel or any
part thereof, as the Approving Agent shall permit in writing,subject to all applicable governmental regulations. Any
Owner desiring to conduct such operations and/or uses shall submit to the Approving Agent such Owner's written
request for such use.
5.7. Noninterference with Common Area.The Common Area is intended for the non-exclusive use
by the Occupants and Permittees of the Project. Except for any outside sales area or staging or storage area approved
by the Approving Agent in writing and any retail kiosk, merchandising cart,stand,or booth permitted under Section
5.2 above, in order to provide for the orderly development and operation of the Project,no Occupant shall be
entitled to the use of any outside sales area, and no Occupant shall stage,display,store,or sell any merchandise or
place portable signs or other objects outside the defined exterior walls,roof,and permanent doorways of its store or
premises. The Approving Agent's approval of an Occupant's use of outside sales area or staging or storage area
may be conditioned upon such Occupant's assumption of certain Expenses or maintenance duties related to such
use.
5.8. Nuisances.No Person shall conduct any noxious or offensive trade or activity on any Parcel or
any part of the Property that may be,or become,an annoyance,nuisance,or interference with quiet enjoyment. In
this regard, all noises,sounds, and vibrations emanating from a Parcel shall be appropriately muffled so as not to be
objectionable with respect to intermittent beat, frequency,shrillness,or volume. Furthermore,every use shall be
operated so that the vibration, heat,and glare inherently and recurrently generated from such use are not perceptible
beyond the Building in which said use is located. Electrical reflectors,spotlights,floodlights,and other types of
lighting may be used to illuminate Buildings, landscaping areas,signs,and Parking Area,provided that such devices
are equipped with the proper lenses which concentrate the light on such structures and areas so as to prevent any
bright light or illumination being cast onto adjacent Parcels,or any street(whether public or private),without
Manager's prior approval to the contrary. The operation of the Lube Tech business under the November 17,2008
lease, or during any extension thereof,or the sale of business,does not constitute a nuisance. The operation of a
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Popeyes Louisiana Kitchen or similar fast food restaurant on Parcel D does not constitute a nuisance under this
Declaration.
5.9. Hazardous Material. No Person shall produce,release,use,store,transport, handle,or dispose
of any Hazardous Material within the Project or otherwise permit the presence of any Hazardous Material on, under,
or about the Property,except in accordance with all applicable laws,ordinances,rules,and regulations now or
hereafter promulgated by any governmental authority having jurisdiction thereof. In the event an Owner shall fail to
ensure compliance with the foregoing prohibitions with respect to such Owner's Parcel, Manager shall have the
right,but not the obligation,to cure said Owner's failure in that regard after Manager shall have given said Owner
reasonable notice and an opportunity to cure such failure. Any Owner in violation of this Section 5.9 shall
indemnify,defend,and protect the Approving Agent, Manager,and all other Owners and Occupants from any and
all claims,judgments, damages,penalties, fines,costs, losses,expenses,and liabilities arising from said violation.
5.10. Undeveloped Building Area. Any undeveloped Building Area may,at the Approving Agent's
option, until developed be Common Area, in which event it shall be so improved and operated only as provided in
and in accordance with the applicable provisions of this Declaration,or it may remain undeveloped, in which event
it will be rough graded and maintained by the Owner,at such Owner's cost, in a clean,attractive,and safe condition.
5.11. Loading and Unloading.The Approving Agent shall designate areas of an Owner's Parcel,as
appropriate, for delivery areas, for the loading and unloading of service vehicles, which areas shall be sufficient to
serve the business conducted thereon without using the adjacent Common Area or publicstreets therefore. Except as
Manager shall have otherwise determined, loading and unloading operations shall be conducted only during non-
business hours,as more particularly prescribed in the Rules and Regulations. Any loading docks shall be set back
and screened to the extent necessary to minimize any unsightly visual effect from external public streets and
neighboring properties.
5.12. . Storage; Screening. Unless specifically approved in writing by the Approving Agent, materials,
supplies, inventory,equipment,or any other personal property shall not be stored on any portion of a Parcel except
inside a Building. All mechanical equipment, Utility meters, storage tanks,air conditioning equipment,and similar
items shall be screened and located in such a manner so as not to be visible from the various ground levels of the
Project or from the streets,walkways,and Driveways within the Project and so as to comply with any architectural
and landscaping standards promulgated by the Approving Agent or otherwise acceptable to the Approving Agent.
All roof-mounted mechanical equipment, Utility installations,duct work, radar equipment, radio or television
antennas(see Section 5.14),or any-other devices that project vertically more than one and one-half feet(1-1/2')
above the roof or.roof parapet,unless otherwise approved by the Approving Agent,shall be screened by a solid
visual barrier that, in the reasonable judgment of the Approving Agent, is detailed consistently with the design of the
Building.
5.13. Modification of Grades.The grade of any Parcel shall not be substantially modified, altered,or
otherwise changed without the Approving Agent's prior approval.No grade of a Parcel may be changed if such new
grade would change or impact the drainage of such Parcel or that of any other Parcels.
5.14. Utility Lines and Antennas.No sewer,drainage,or Utility lines, or wires or other devices for the
communication or transmission of electric power, including telephone,television,radio, or microwave signals, shall
be constructed, placed,or maintained anywhere in or upon any portion of the Property unless the same shall be
contained in conduits or cables constructed, placed,or maintained underground or concealed in or under
Improvements or unless otherwise permitted by the Approving Agent in accordance with standards adopted by the
Approving Agent and any ordinances pertaining to the subject devices adopted by the City, if any.No antenna,
satellite dish,or similar item used for the transmission or reception of telephone,television,radio,or microwave
signals shall be installed on any Building or Improvement within the Project unless the same shall be located so as
not to be visible from any point at the ground level on the Project,from anywhere in adjacent Buildings,or from the
streets,walkways,and Driveways within the Project,unless the Approving Agent shall have otherwise permitted
such installation in accordance with Section 4.1 and with standards the Approving Agent shall have promulgated
from time to time and with any ordinances of the City.
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5.15. Unsightly Items. All weeds,rubbish, debris,or unsightly materials or objects of any kind shall be
regularly removed from the Parcels and shall not be allowed to accumulate thereon. Except as the Approving Agent
shall have otherwise approved,all refuse containers,trash cans,storage areas,machinery,and equipment are
prohibited upon any Parcels unless contained in an enclosed, fenced side yard in a location approved by the
Approving Agent and not visible from the street towards which the Building and Improvements located on such
Parcel face.
5.16. Mechanic's or Construction Lien. If, because of any act or omission(or alleged act or omission)
of any Owner or its Occupant or a contractor,employee,or agent of either,any mechanic's or construction lien shall
be filed with respect to any portion of the Project(whether or not such lien is valid or enforceable as such), such
Owner shall cause the same to be discharged of record,or bonded, with respect to such portion of the Project not
owned by such Owner, within thirty(30)days after the filing thereof;and such Owner shall indemnify and save
harmless all Owners, and all ground and underlying lessors and Mortgagees,with respect to any portion of the
Project affected by such lien from and against any and all costs, liabilities,suits,penalties, claims,and demands;
including reasonable attorneys' fees resulting from such lien. If such Owner fails to comply with the foregoing,any
other Owner or the Approving Agent shall have the option of discharging or bonding any such lien,and if such
option is exercised,the Owner who has the obligation under this Section 5.16 to cause the discharge of such lien
shall reimburse the Owner or the Approving Agent who discharged or bonded such lien for all costs,expenses,and
other sums of money(including reasonable attorneys' fees)in connection therewith promptly upon demand, and
such Owner or the Approving Agent shall have all.rights with respect to the amounts owed to it.
5.17. ' Additional Use Restrictions and Requirements. In connection with Declarant's transfer or
conveyance of a Parcel, Declarant and the Approving Agent reserve the right to impose such additional restrictions
or requirements on the operation,use, floor area, Building heights,and signage on the transferred Parcel or the
Parcels Declarant continues to own,which restrictions are consistent and not in conflict with this Declaration or
Declarant's then-existing agreements, as may be'agreed to by Declarant,the Approving Agent, and the transferee
Owner;provided,however,the provisions of this Section 5.17 shall not apply to Parcel D.
5.18. Development and Operation of Parcels. Each Owner agrees that everything done or installed or
constructed by it or with its permission or consent to or on the Project shall conform to,and each Owner shall use
commercially reasonable efforts to cause its tenants and its and their employees,agents,customers, licensees,and
invitees to conform to,every applicable requirement of law and governmental authority, including,but not limited
to,requirements pertaining to health, welfare,or safety of employees or the public.
5.19. Completion of Building. While it is acknowledged and agreed that no party shall have an
obligation to commence construction of any Building on its Parcel,the parties hereby agree that once construction
has been commenced, such Building shall be completed. If a Building Area has a maximum floor area designation
on the Site Plan, such amount shall not be exceeded.No Building shall be constructed or located on any part of the
Project other than within a Building Area.
5.20. Changes in Configuration/Expansion of Building Area. Each.Owner agrees that it may expand
or reconfigure its Building Area subject to:
5.20.1. Owner obtaining all governmental approvals and permits including, but not limited to,
parking requirements;
5.20.2. The Approving Agent's approval,which approval will not be unreasonably withheld;and
5.21. Temporary or Seasonal Sales. Declarant,the Approving Agent,or Manager may use or
authorize the use of the Common Area in the Project for temporary seasonal sales provided that(i)such sales do not
occur in the aggregate more than four(4)times per year,(ii)each such sale does not exceed two(2)weeks in
duration,(iii)such sales shall not interfere with the access, ingress,or egress of vehicular or pedestrian traffic to and
from the Common Area,(iv)the areas of such sales shall be maintained in a clean and orderly condition;and(v)are
located in close proximity to the Building it is to be used in conjunction with.
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5.22. Charges for Ingress, Egress,or Parking.No charge of any kind shall ever be made for ingress
to,egress from,or parking in the Project,unless ordered by a governmental authority. If so ordered,to the extent
permitted by law, any such charge shall not be collected from customers and invitees but shall be prorated to the
Occupants of the Project and paid by them as an Expense. If the governmental authority does not permit such a
treatment of the charge,but instead requires that it be collected from customers or invitees, the Approving Agent
shall collect such charge and shall credit the amount received, less collection expenses, against Expenses.
5.23. Existing Exclusive Uses. The Parcels shall be subject to the following exclusive use restrictions,
in addition to those otherrestrictions contained in Article 5 of this Declaration:
.5.23.1. No portion of the Project other than Parcel D shall be primarily used for the operation of
a restaurant primarily selling chicken based menu items. This grant of an exclusive use shall not
be deemed to prohibit other restaurants within the Project from conducting similar activities(i.e.,
selling chicken items)which are incidental to their primary business operations. If the business
operating on Parcel D is not operating as a restaurant primarily selling chicken based menu items
for a period of twenty-four(24)consecutive months(exclusive of closures for reasonable periods
of time due to remodeling, alterations,casualty or force majeure events), then this exclusive shall
terminate.
5.24. Future Exclusivity. For the period of time that.Declarant is the Approving Agent, Declarant may
enter into a lease that contains exclusivity so long as such exclusivity does not(a)conflict with any existing use or
exclusive held by the users of the Parcels or(b)affect Parcel D or the Owners or Occupants thereof,which shall not
be subject to any exclusives.
5.25. Limitation on Exclusivity. Any exclusivity contained in a lease or other written document shall
not continue beyond the term stated in the lease.
ARTICLE 6
ASSOCIATION
6.1. Formation of Association. Declarant presently owns Parcels A, B,C and D and Outlot"A." At
such time as Declarant transfers ownership to any Parcel,and prior to the imposition of any Assessments upon any
Owners, Declarant or Declarant's Successor,as applicable,shall cause an Association to be formed as a California
nonprofit mutual benefit corporation and shall take such steps as may be necessary or appropriate in connection
therewith(including the preparation, execution,and making of any appropriate filings), for any or all of the
following purposes: (i)assuming all of the rights and obligations of the Approving.Agent hereunder;and(ii)
exercising all of the duties and powers set forth below. The formation of the Association shall comply with the
terms of this Declaration and, if applicable,shall comply with Section 6500 et seq. of the California Civil Code.
6.2. Membership. Upon formation of the Association,every Owner shall become a Member and
thereafter each Person that becomes an Owner shall thereupon become a Member. Membership of Owners in the
Association shall be appurtenant to and may not be separated from the interest of such Owner in any Parcel. The
sole qualification for membership in the Association shall be a party's status as Owner of a Parcel.
6.3. Association Rules. The Association shall have the power to adopt, amend and repeal such non-
discriminatory rules and regulations as it deems reasonable and which are not inconsistent with the provisions of this
Declaration(the"Association Rules"),and such rules and regulations shall be binding upon Owners and other
Occupants.
6.4. Transfers. The membership in the Association held by any Owner shall not be transferred,
pledged or alienated in any way,except that such membership shall automatically be transferred to an Owner who
shall acquire all of another Owner's right,title and interest in a Parcel or Parcels within the covered Property, and
upon such transfer,the transferor shall no longer be a Member. Any attempt to make a prohibited transfer shall be
void and will not be reflected upon the books and records of the Association. The Association shall have the
consent by the transferring Owner.
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6.5. Voting Rights of Declarant. Intentionally Omitted.
6.6. Voting Rights of Members. As of the date that the voting rights for all Members become
effective in accordance with Section 6.5 hereof, there shall be a total of one-hundred(100)votes and each Member
shall be entitled to one(1)vote for each percentage of the total votes available to that Member based on the
Member's Pro Rata Share as set forth in Section 2.36 above. When more than one person owns a portion of the
interest in a Parcel required for membership,all such persons collectively shall be a Member and the vote for such
Parcel shall be exercised as they among themselves determine,but in no event shall more votes be cast with respect
to any Parcel then could be cast in such Parcel were owned by only one Owner. If any Owner casts a vote
representing his Membership it will thereafter be conclusively presumed for all purposes the he was acting with the
authority and consent of all Owners of the same Parcel. Any votes cast in violation of this provision shall be null
and void.
6.7. Approvals and Consents. Unless otherwise specifically provided in this Declaration or the
Association Rules,any provision of this Declaration or the Association Rules which requires the vote or written
consent of a specified majority of the voting power of the Association shall be deemed satisfied by the following:
6.7.1. The vote of seventy-five percent(75%) of the Members entitled to vote at a duly called
and noticed pursuant to the provisions of the Association Rules dealing with annual or special
meetings of the Members. Such percentage must include the specified number of all Members
entitled to vote at such meeting and not such a percentage of those Members present;
6.7.2. Written consents signed by the Approving Agent or seventy-five percent(75%)of the
Members entitled to vote as provided in this Declaration or the Association Rules;or
6.7.3. ..In any matter requiring the consent of the Members,but not specifically provided for in
this Declaration or the Association Rules, or any contract executed by the Association, a simple
majority of the voting power of Members entitled to vote on such matters shall suffice.
6.8. General Duties and Powers. In addition to the duties and powers enumerated in the Association
Rules, and without limiting the generality thereof,the Association shall have the specific duties and powers
specified in this Article.
6.9. Specific Powers of the Association. Without limitation on any of the terms and provisions set
forth herein,the Association, acting through the majority of the Members,shall have the power but not the
obligation to:
6.9.1. Resolve all disputed concerning membership in the Association;and
6.9.2. Exercise all rights and perform all obligations of Approving Agent hereunder which are
assigned to and assumed by the Association pursuant to Section 6.10 below and otherwise enforce
the provisions of this,Declaration.
6.10. Assignment and Assumption. Upon formation of the Association, Declarant or Declarant's
Successor, as applicable,shall(i)convey to the Approving Agent,by grant deed, Outlot"A"and(ii)grant an
easement under Section 4.5 to enable the Association to discharge its obligations. Declarant or Declarant's
Successor, as applicable,shall also assign and delegate to the Association(i)the rights of architectural approval set
forth in Article 2 hereof; (ii)the right and obligation to levy and collect Special Assessments and enforce liens
thereon pursuant to Articles 6 and 7 hereof,and(iii)such additional rights and obligations as are held by Declarant
as Approving Agent hereunder,whereupon the Association shall accept and assume all such rights and obligations
and shall execute such other instruments as are necessary to further effectuate such assignment and delegation.
When the Association has assumed any or all Declarant's rights and obligations as Approving Agent hereunder,the
Association shall,to the extent of such assignment,have the same rights and powers and be subject to the same
obligations and duties of Declarant as Approving Agent hereunder,the Declarant or Declarant'.s Successor, if
applicable, shall be relieved of any further liability with respect thereto.
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6.11. Pre-Association Governance. Whenever Declarant or Declarant's Successor,as applicable, is
an Owner at.a time when the Association has not yet been formed, Declarant or Declarant's Successor,as
applicable,shall be entitled to exercise all rights and powers of the Association accorded by law or set forth herein,
other that the right to levy and enforce the payment of Assessments to the extent the provisions of the Commercial
and Industrial Common Interest Development Act are applicable to the Property.
ARTICLE 7
ARCHITECTURAL CONTROL
7.1. Approvals.
7.1.1. No Building or Improvements of any kind or character and no exterior alterations thereof
shall be constructed,reconstructed,placed,or altered on the Property until the final plans and
specifications,elevations,a description of landscaping, and a description and samples of the
exterior building materials and colors to be used,a plot plan showing the precise boundaries of the
Building Area and the locations of the proposed Buildings and Improvements,a construction
schedule,and such other information as the Approving Agent may reasonably request
(collectively,the"Plans")have been submitted to,and reasonably approved by,the Approving
Agent. The Approving Agent shall review,and have the right to reasonably approve or disapprove
the style,exterior colors and treatments,architectural and engineering design,size, and height of
the Building or Improvements,quality and type of materials,harmony of external design with
existing structures(provided,with respect to Parcel D,the Building thereon need only be
harmonious with buildings used for similar purposes in the vicinity of the Property)or,with
respect all Parcels except Parcel D,the Approving Agent's chosen architectural theme, and
location with respect to topography and finished grade elevation. In addition, the Approving Agent
shall review,and have the right to approve or disapprove,the configuration and features of
parking,walkways, Driveways, landscaping,sprinkler systems,external lighting,and all other
Buildings and Improvements of every kind and nature.The Approving Agent's right of approval
shall also apply to the size of Parcels, setback lines,and any similar matters. Preliminary Plans
may be submitted to the Approving Agent for its tentative approval.
7.1.2. Neither the Approving Agent, Manager,nor any Owner shall be liable in damages to any
Person submitting Plans, or to any Owner or Occupant of any portion of the Project,by reason of
any actual or alleged mistake in judgment,negligence,or nonfeasance arising out of,or in
connection with,the approval, disapproval,review,or failure to approve any such Plans. Every
Person who submits Plans to the Approving Agent for approval agrees,by submission of such
Plans,and every Owner or Occupant of any portion of the Property agrees,by acquiring title
thereto or interest therein, that he will not bring action or suit against the Approving Agent.to
recover any such damages.
7.1.3. Notwithstanding anything to the contrary in this Declaration,the Approving Agent
hereby approves the Building and all other Improvements constructed on Parcel D as of the date of
this Declaration and acknowledges and agrees that all approval requirements therefor under this
Declaration have been satisfied and no other approvals are required for the Building and
Improvements on Parcel D under this Declaration. In addition,Approving Agent hereby approves
any alterations or modifications to the Building and Improvements on Parcel D or any signage
located thereon which are required by any franchisor of any franchisee operating on Parcel D.
7.2. Timing of Approval. Within thirty(30)days from its receipt of the Plans,the Approving Agent
shall reasonably approve.or disapprove the same. One(I)set of said Plans shall be.returned to the Owner submitting
them with the approval or disapproval of the Approving Agent endorsed thereon, and the other copy thereof shall be
retained by the Approving Agent for its permanent files.
7.3. Standards for Disapproval.The Approving Agent shall have the right to disapprove any Plans if
in the Approving Agent's reasonable discretion: (i)the Plans do not comply with all of the provisions of the
Governing Documents;(ii)the design, landscaping,color scheme, building materials,or elevations of the proposed
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Building or other structure are not in harmony with the general surroundings of the Project or with the adjacent
Buildings or Improvements,whether existing or planned(provided,with respect to Parcel D,the Building thereon
need only be harmonious with buildings used for similar purposes in the vicinity of the Property),or, with respect all
Parcels except Parcel D, the Approving Agent's chosen architectural theme;(iii)the Plans submitted are
incomplete; or(iv)the Approving Agent, in its reasonable discretion,deems the Plans to be contrary to the best
interests, welfare, or rights of all or any of the other Owners or inconsistent with the architectural standards and/or
design criteria described in Section 7.1 hereof.
7.4. Defects in Plans.Neither the Approving Agent nor any architect or agent thereof shall be
responsible in any way for any defects in any Plans submitted,revised,or approved in accordance with the
foregoing provisions,nor for any structural or other defects in any work done according to such Plans.
7.5. Standards and Criteria.The Approving Agent may adopt and promulgate detailed architectural
standards and design criteria from time to time that are consistent herewith.
7.6. No Modification of Rights or Restrictions.The establishment of the procedures under this
Article 7 for architectural approval shall not alter any rights of or restrictions on an Owner to maintain,repair,alter,
modify, or otherwise control its Parcel as may otherwise be specified in the Governing Documents.
7.7. Construction. Until such time as a Building is constructed on a Parcel, the Owner thereof shall
maintain its parcel in a clean and neat condition and shall take such measures as are necessary to control grass,
weeds, blowing dust,dirt, litter,or debris. Following the Approving Agent's approval of an Owner's Plans,such
Owner shall commence and diligently pursue to completion construction of the Owner's Building and/or
Improvements, in full conformance with the Plans, including,without limitation,the approved construction schedule
contained therein. At its discretion,the Approving Agent shall have the right to inspect the progress of such Owner's
construction and to enforce the approved Plans so as to correct any violations of the requirements thereof.
Landscaping approved in connection with an Owner's Plans shall be installed prior to the sooner to occur of
occupancy or completion of a Building.
7.8. Delegation of Architectural Control.The Approving Agent may delegate its architectural
approval rights under this Article 7 to a Person or Persons selected by the Approving Agent for such purpose. At
such time as the Approving Agent no longer owns a Parcel in the Project,the rights and obligations of the
Approving Agent as set forth in this Article shall be exercised by the Approving Agent or Association.
ARTICLE 8
COMMON AREA USE; PARKING; MAINTENANCE; INSURANCE; TAXES
8.1. Use of Common Area. Except for any purpose not in furtherance of the operation of the Project,
the Common Area may be used for any of the following uses:
8.1.1. Ingress and egress of delivery and service vehicles to and from the Project or any portion
thereof and adjacent public streets. Such vehicles may only be parked in unloading or truck
parking areas;
8.1.2. Delivery of goods,wares,merchandise,and the rendition of services to Occupants of the
Project;and
8.1.3. Perimeter walls and fences shown on the Site Plan.
8.1.4. The Common Area.adjacent to any Building Area may be used for the following:
Installation,removal, repair, and maintenance of Building canopies extending from any Building
Area over pedestrian sidewalks and the Common Area,together with appropriate canopy supports.
8.1.5. The uses set forth in Sections 4.1,4.2,4.3,4.4,4.5,4.6 and 4.7.
8.2. ADPCOVing Agent's Common Area Duties.The Approving Agent shall operate and maintain the
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Common Area and all Improvements thereon in good condition and repair. The Approving Agent's obligations
hereunder shall include,but not be limited to,the following:
8.2.1. Removal of all papers,debris, dirt,and refuse from the Common Area as often as
necessary to keep the Common Area in a first class clean and orderly condition. The Approving
Agent shall maintain,as an Expense,within the Project sufficient enclosed trash bins for the
storage of all trash,refuse, and waste materials. The Approving Agent shall make all arrangements
for the emptying of such containers and the removal of all trash, refuse and waste from the Project.
The cost of such removal shall be an expense;
8.2.2. Maintenance of Parking Areas properly designated and painted with directional signs and
striping;
8.2.3. Maintenance of all paving and surface areas in level and smooth condition,evenly
covered with a surfacing material of equal or superior quality to the kind originally installed
thereon;
8.2.4. Sweeping of the Common Area by mechanical sweeper as often as necessary and
steam/pressure cleaning of the sidewalks as needed;
8.2.5. Maintenance of all lights and light standards in the Common Area,and of the pylon sign;
8.2.6. Maintenance, care,and replacement of all irrigation systems(including automatic
sprinkler systems)and of shrubbery and other landscaping upon the Common Area and adjoining
parkways so that such landscaping is in a thriving condition;
8.2.7. Reasonable supervision and security in the Common Area;and
8.2.8. Repairing promptly any damage or deterioration to the Common Area(including,without
limitation,the abatement of graffiti on all Buildings,trash enclosures, and walls).
8.2.9. Maintenance of all Improvements, including Common Utility Lines located in the
Common Area.
8.2.10. Paying the real property taxes applicable to Out Lot A.
8.3. Assignment of Approving Agent's Maintenance Obligations. The Approving Agent may elect
to have certain Owners or tenants maintain all the Common Area on their Parcels in lieu of paying all or a portion of
their Expenses. The Approving Agent reserves the right at its option,subject to the Owners' or tenants' agreement to
assume the same,to delegate to those Owners or tenants whose Parcels include all of the Parking Area(other than
common drives)which'may need to be utilized by such Owner's or tenants' Permittees,the Approving Agent's
responsibility to maintain,replace,and restore the Common Area on such Owner's Parcel in accordance with the
requirements of this Article 8,all at such Owner's sole cost and expense. In connection with such delegation,the
Approving Agent may reserve the right to terminate such delegation and to have the Approving Agent take back
such Common Area maintenance work only if the subject Owner fails to perform such work in accordance with the
standards established hereunder or any higher standard observed by the Approving Agent in its performance of
Common Area maintenance work on the balance of the Common Area after reasonable prior notice of such failure
(as provided in Section 8.10 below)and the subject Owner's failure to timely correct such failure.
In accordance with the provisions of this Section 8.3,the Approving Agent elects to have the Owner of
Parcel D maintain the following portions of the Common Area on Parcel D: the trash enclosures,utility lines,the
cost of Common Area lighting located on Parcel D,drive-thru area, landscaping, lighting and signage(collectively
the Parcel D Owner's Maintenance Areas")at such Owner's sole cost and expense and the Owner of Parcel D agrees
to assume such obligations. In addition, the Owner of Parcel D shall pay all real property taxes and assessments
with respect to Parcel D directly to the taxing authority. In exchange for the performances of the Parcel D Owner's
Maintenance Obligations and payment of such real property taxes and assessments,the Owner of Parcel D shall not,
notwithstanding anything in this Declaration to the contrary,be required to pay a Pro Rata share of Expenses
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(including,without limitation,real property taxes and assessments related to Out Lot A)other than those Expenses
directly related to(a)the operation, maintenance and repair of the surface of the parking, driveway areas and curbs
located on Out Lot A and Parcel D,(b)the cost of providing security for the Common Areas,and(c)the insurance
carried by the Approving Agent with respect to the Common Area.
8.4. Parking.
8.4.1. The Approving Agent intends that parking for the use of all Owners,Occupants,and
Permittees shall be provided within the Parking Area and that no parking at the Project shall be
permitted except within the Parking Area. The Approving Agent shall construct and ensure the
continued availability of parking within the Parking Area that is sufficient to satisfy Section 8.4.2
below.
8.4.2. Each Owner agrees that at all times there shall be independently maintained on such
Owner's Parcel a parking ratio at least equal to that shown for such Parcel on the Site Plan.The
Parking Area on a Parcel combined with the allocation of parking spaces on Out Lot A shall at all
times contain at least that number of parking spaces as is necessary to comply with all City
requirements. Declarant hereby agrees that the Owner of Parcel D shall be allocated rights to at
least ten(10)parking spaces on Parcel D and twelve(12)on Out Lot A in a manner and form
sufficient and adequate to satisfy and comply with all City parking requirements.
8.4.3. Except for the use of outside sales area,storage or staging areas,drive-thru lanes,or
designated spaces, which the Approving Agent has agreed to or granted in writing,no Person shall
have an exclusive right to use any portion of the Parking Area;provided,however, in no event
shall either Manager or the Approving Agent have any responsibility for enforcing any exclusive
use or for policing the same.-
8.4.4.
ame.8.4.4. No truck,trailer,van,camper,recreational vehicle,heavy equipment,or vehicle other
than an automobile or other passenger vehicle or recreational vehicle that readily fits within a
single, standard-sized parking space shall be parked or located on the Property except(i) in
connection with the construction, maintenance,and repair of Buildings or Improvements;(ii)in
designated loading zones; and(iii)in cases of emergency.
8.4.5. In the event the City requires the Approving Agent or Manager to undertake any program
for bus,rapid transit,free,or reduced-cost transportation,each Owner and Occupant shall
participate in such transportation program under such reasonable Rules and Regulations as
Manager may, from time to time,establish with respect thereto.
8.5. Changes in Configuration of Common Area. The Approving Agent shall have the right to
relocate and/or reconfigure all Common Areas, and/or restripe parking spaces so long as(i)no Owner's easements
under Section 4.1 are impaired, (ii)Section 8.4 is complied with,(iii)the amount of parking available on the
Property is not less than that required by the City and Section 8,4.2,(iv)the Approving Agent provides all affected
Owners,Occupants,and Permittees entitled to utilize such relocated parking reasonably accessible alternative
parking that conforms with the City's zoning requirements,and(v)no Building Area shall be deprived of reasonable
access for ingress and egress from the public streets abutting the Property. Provided the Approving Agent shall have
received all required governmental approvals,the Approving Agent shall have the right to readjust the boundaries of
any Parcel the Approving Agent owns and/or to convey the same to any Owner for development consistent with this
Declaration. Notwithstanding the foregoing,the Common Area located on Parcel D may not to.be reconfigured
without the consent of the Owner thereof, which consent may be withheld in such Owner's sole discretion.
8.6. Exclusive Control of Common Area. If any Owner,with the approval of the Approving Agent,
takes exclusive control of a portion of the Common Area,that Owner shall be responsible for all maintenance under
Article 8 herein. If Owner fails to maintain as required under Article 8,the Approving Agent shall maintain and
charge Owner the amount of costs and expenses required to maintain the exclusive Common Area. Declarant
hereby agrees that the Owner of Parcel D shall have exclusive control and use of the trash area and the drive-thru
lane located on Parcel D. For purpose of clarity,this exclusivity shall not apply to that portion of the common
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driveway providing access from Kings Canyon Avenue to the drive-thru lane before branching off into Parcel D and
continuing on to Peach Avenue.
8.7. The Approving Agent Insurance Obligation. At all times during the term of this Declaration,
the Approving Agent shall maintain or cause to be maintained:
8.7.1. Commercial General Liability Insurance for the benefit of the Approving Agent and all
Owners(who shall all be named as additional insureds under such insurance)against claims for
bodily injury,death,or property damage occurring in,on,or about the Common Area but not
within any Building or within any other area within the exclusive control of any Owner or
Occupant, such insurance to afford protection with a combined single limit of liability per
occurrence of not less than Two Million Dollars($2,000,000.00);
8.7.2. Fire and casualty insurance with extended coverage in an amount equal to the full
replacement cost(including debris removal and demolition)of the Common Area and any
Improvements thereon with an"agreed amount endorsement,"or its equivalent,and clauses
waiving subrogation rights by the insurer against the Owners, Manager,the Approving Agent,and
their successors,assigns, and.Permittees, such insurance to be primary and noncontributory with
the insured's other insurance, and to afford protectionagainst loss or damage by fire and other
hazards covered by the standard extended coverage endorsement,and by debris removal,costs of
demolition,vandalism, malicious mischief,windstorm, water damage, and such other risks as are
customarily coveredwith respect to similar developments in the general area of the Project;and
8.7.3. Increased amounts of the insurance required to be carried by an Owner pursuant to this
Section 8.7, and such other reasonable types of insurance coverage and in such reasonable
amounts covering the Owner's Parcel and its Occupant(s).' operations therein as may be
reasonably requested by the Approving Agent or Mortgagee(s),but in no event shall such
increased amounts of insurance or such other types of insurance be in excess of that customarily
carried incomparable first-class projects in Fresno,California.
8.8. Owner's Insurance Obligation.Throughout the term of this Declaration,each Owner shall procure and
maintain(or cause to be procured and maintained)(i)commercial general liability insurance against claims
for personal injury, death,or property damage occurring upon such Owner's Parcel, with single limit
coverage of not less than an aggregate of Two Million Dollars($2,000,000.00) including umbrella
coverage, if any,and(ii)fire and extended coverage insurance covering the Buildings within the applicable
Parcel to the extent of not less than one hundred percent(100%)of replacement value, less foundations.
Such insurance coverage shall be procured through companies which are authorized to do business in the
state in which the Project is located and are governed by the regulatory authority which establishes
maximum rates in the vicinity, and the liability insurance described in subsection(i)above shall name each
other Owner,provided the Owner obtaining such insurance has been supplied with the name of such other
Owner in the event of a change thereof,as additional insureds. In addition to the foregoing, each Owner
shall procure and maintain(or cause to be procured and maintained)increased amounts of the insurance
required to be carried by.an Owner pursuant to this Section 8.8,and such other reasonable types of
insurance coverage and in such reasonable amounts covering the Owner's Parcel and its Occupant(s)'
operations therein as may be reasonably requested by the Approving Agent,but in no event shall:such
increased amounts of insurance or such other types of insurance be in excess of that customarily carried in
comparable first-class projects in Fresno,California.
8.9. Owner's Maintenance Duties. Each Owner or its Occupant(s)shall maintain,repair, and
replace, at its sole cost and expense, in a good,clean condition and state of repair, in compliance with all
governmental laws, rules,regulations,orders,and ordinances exercising jurisdiction thereover,and in compliance
with the provisions of this Declaration,all portions of its Parcel not part of the Common Area, including, without
limitation,all Buildings constructed on its Parcel within its Building Area, loading docks and service areas serving
its Buildings, all signage identifying its Occupant(s)and/or their businesses located thereon,and any facilities for
Utilities(other than Common Utility Lines)that serve such Buildings to the extent that such facilities are not
maintained by the Approving Agent,a utility company, sanitation district,or other governmental authority;
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provided,however,that no Owner shall be required to insure or restore its Building(s) in the event of a casualty
thereto, but any Owner electing not to restore its Building following such a casualty,thereto shall improve its
Building Area as Parking Area. Each Owner, its Occupants and Permittees, shall be responsible to see that all trash
and garbage caused by or emanating from its Building Area is stored and deposited in containers,designated as trash
and garbage receptacles, located throughout the Project.
No Owner,Occupant or Permittee shall alter, modify,reconstruct,or do anything to any party wall
or to any plumbing,electrical or mechanical fixture located along such 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.
8.10. Right of the Approving Agent to Maintain and Install. If an Owner fails to accomplish any
maintenance,repair,or replacement required by Section 8.9,the Approving Agent or a majority of the non-
defaulting Owners shall cause such maintenance,repair, and replacement to be accomplished in the following
manner:
8.10.1. ,Upon the Approving Agent's finding of a deficiency in such maintenance, repair, or
replacement, Manager shall notify said Owner of such deficiency in accordance with Section 9.4.
Said Owner shall have ten(10)days after such notice("Response Period")within which to notify
the Approving Agent of the date on or before which the Owner shall cause such maintenance,
repair,or replacement work to be accomplished to cure the deficiency.
8.10.2. Said Owner shall cure the deficiency within thirty(30)days after the end of the Response
Period;provided,however, if the nature of such deficiency is such that more than thirty(30)days
is reasonably required for its cure,then said Owner shall not be deemed to have failed to perform
such maintenance, repair,or replacement if such Owner commences such cure within said thirty
(30)-day period and thereafter diligently pursues such cure to completion.
8.10.3. If said Owner fails to complete the cure of the deficiency on or before the date the Owner
designates for the completion of such cure,the Approving Agent or a majority of the non-
defaulting Owners shall cause the deficiency to be cured and any and all costs incurred by the
Approving Agent or the non-defaulting Owners shall become a reimbursement Assessment levied
against said Owner.
8.10.4. Owner shall perform such maintenance,repair,or replacement necessary to cure the
deficiency only at such times so as to minimize any adverse impact on the conduct of businesses
operating.on the Parcels affected.
8.10.5. Notwithstanding the foregoing, in case of an emergency where immediate action is
necessary to prevent the loss of life,personal injury,or property damage, the Approving Agent is
authorized to take the required remedial action,provided the Approving Agent notifies the
affected Owner and Occupants of the situation as soon as possible.
8.11. Restoration Obligation. In each instance where this Declaration imposes a maintenance
obligation upon the Approving Agent,such obligation shall include the obligation to maintain,repair,and restore
following a casualty loss;provided,however,that the Approving Agent's obligation to replace any facility
hereunder other than the Common Area shall be limited to the extent the Approving Agent receives insurance
proceeds and/or payments of Assessments levied hereunder from Owners covering the full cost of such replacement.
8.12. Blanket Insurance. Any insurance required to be carried pursuant to this Article 8 may be carried
under a policy or policies covering other liabilities and locations of an Owner;provided,however,that such policy
or policies apply to the properties required to be insured by this Article 8 in an amount not less than the amount of
insurance required to be carried by such Owner with respect thereto,pursuant to this Article 8.
8.13. Release and Waiver of Subrogation. Each Owner hereby releases and waives for itself,and to
the extent legally possible for it to do so,on behalf of its insurer,each of the other Owners from any liability for any
loss or damage to its property located upon the Project,which loss or damage is of the type covered by the casualty
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insurance described in this Article 8, irrespective of any negligence on the part of the other Owner which may have
contributed to or caused such loss. Each Owner covenants that it will, if generally available in the insurance
industry, obtain for the benefit of the other Owners an express waiver of any right of subrogation which the insurer
of such Owner may acquire against the other Owner by virtue of the payment of any such loss covered by such
insurance. In the event any Owner is by law,statute, or governmental regulation unable to obtain a waiver of the
right of subrogation for the benefit of another Owner,then, during any period of time when such waiver is
unobtainable,said Owner shall be deemed not to have released any subrogated claim of its insurance carrier against
the other Owner,and during the same period of time the other Owner shall be deemed not to have released the
Owner who has been unable to obtain such waiver from any claims they or their insurance carriers may assert which
otherwise would have been released pursuant to this Section 8.13.
8.14. Taxes.
8.14.1. Taxes. Each Owner shall pay or cause to be paid,prior to delinquency, directly to the
appropriate taxing authorities,all real property taxes and assessments which are levied against
such Owner's Parcel,,and a Pro Rata Share of the real property taxes and assessments applicable
to Out Lot A as provided in Article 9 below. Special Assessments may be paid in installments as
they accrue.
8.14.2. Contests. Any Owner may contest,object to,or oppose(herein"Contest")any tax,
Assessment, imposition, or charge of which such Owner is required by this Declaration to pay all
or a portion,provided that prompt notice of such Contest shall be given to Manager,and such
contesting Owner may pay under protest any tax,Assessment, imposition,or charge which is the
subject of a Contest. Each Owner agrees to cooperate with the contesting Owner at no out-of-
pocket expense to the non-contesting Owner in any such Contest. The contesting Owner shall not
subject a non-contesting Owner to any penalty,fine,criminal proceeding, or increase in taxes,or
to imminent danger of final sale or seizure of an Owner's interest in the Project,as a result of any
such Contest.
8.15. Rules and Regulations. The Approving Agent may from time to time adopt reasonable Rules
and Regulations pertaining to the use of the Common Area by the Permittees of the Project and employee parking,
provided that all such Rules and Regulations and other matters affecting the users of the Common Area(i)will
apply equally and without discrimination to all Permittees,(ii)comply with City ordinances, and(iii)are otherwise
consistent with this Declaration.
8.16. The Approving Agent's Failure to Perform. If the Approving Agent fails to maintain the
Common Area and the Improvements in the manner provided in this Declaration and such failure continues for
thirty(30)days after receipt of written notice from any Owner of such failure(or if such failure is not capable of
being cured within such thirty(30)day period,then if the Approving Agent fails to promptly commence such cure
or diligently prosecute the same to completion within a reasonable time period), then the remaining Owners shall
have the right, upon ten(10)days prior written notice to the Approving Agent to remove the Approving Agent from
office in which event the Owners shall appoint a Manager(but if the Approving Agent completes the cure within
such ten(10)day period,then such removal notice shall be null and void).The Owners may also elect to perform
any Common Area maintenance,and any Expense incurred by the Owner shall be reimbursed to them by the
Approving Agent, or if the Approving Agent does not reimburse the Owner, as applicable,-the Owners shall allocate
the cost of such reimbursement in accordance with their Pro Rata Share.
ARTICLE 9
PAYMENT OF EXPENSES
9.1. Covenant for Payment of Assessments. Each Owner agrees to pay its Pro Rata Share of all
Expenses relating to such Owner's period of ownership which the Approving Agent shall assess against each Parcel
from time to time in accordance with this Declaration("Assessment"),subject to the modifications set forth in this
Declaration, including, without limitation, Section 8.3. However,notwithstanding the preceding sentence,to the
extent that an expense can be reasonably assessed to a Parcel based upon actual use,the Association shall make the
assessment based upon actual use. All other expenses shall be assessed based upon a Pro Rata Share. The
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Approving Agent makes the decision as to whether an expense can be reasonably assessed based upon Pro Rata
Share or actual use, which decision shall be made in the Approving Agents reasonable judgment and in accordance
with common practice.
9.2. Budget. On or about sixty(60)days prior to the beginning of each Fiscal Year,the Approving
Agent shall deliver to each Owner a budget("Budget")estimating the total Expenses expected to be incurred for
such year and estimating the regular Assessments,and any reimbursement assessments,required to fund the same,
together with such backup material as is reasonably necessary to substantiate the same. Each Owner shall have the
right to provide comment to the Approving Agent regarding such Budget within ten(10)business days of receipt.
Commencing on the first day of the first month of the Fiscal Year and continuing thereafter on the first day of each
succeeding month,each Owner shall pay one-twelfth(1/12)of such Owner's regular Assessment. Unless otherwise
permitted by the Approving Agent,an Owner shall pay any reimbursement or special Assessment in full within
fifteen(15)days after the Approving Agent notifies said Owner thereof. If no Budget has been delivered to an
Owner prior to the commencement of a new Fiscal Year,the Owner shall continue paying its regular Assessment
from the prior Fiscal Year until such time as the Approving Agent shall have issued a revised Budget and shall have
levied a new regular Assessment. The Approving Agent's failure to prepare and issue the Budget in a timely manner
shall not constitute the Approving Agent's waiver of its right to levy Assessments nor a release of its duties under
this Declaration. On or about ninety(90)days following the end of each Fiscal Year,the Approving Agent shall
deliver to each Owner a complete and itemized statement("Statement")which shall state the Expenses incurred or
accrued for the preceding Fiscal Year. If the amounts paid by an Owner as estimated Assessments for a Fiscal Year
exceed or are less than the amount of such Owner's actual obligations shown on such annual Statement, any such
overpayment or underpayment shall, as the case may be,be delivered by the Approving Agent to such Owner or by
such Owner to the Approving Agent,as the case may be,within thirty(30)days after the Approving Agent's
delivery of such Statement. The Approving Agent shall maintain complete books, invoices and records in
accordance with generally accepted accounting principles and in such a manner as to accurately cover and reflect
separately all costs incurred for the maintenance,repair and operation of the Common Area and all items affecting
or entering into determination of the respective Pro Rata Share of Expenses of each Owner for each Fiscal Year and
shall keep the same for a period of at least two(2)years after the end of such Fiscal Year.
9.3. Interest; Late Charge; Costs. If an Owner fails to pay any Assessment within fifteen(15)days
of the date said Assessment becomes due,such Assessment shall thereupon be delinquent and shall include, and the
Approving Agent shall have the right to recover from said Owner,all of the following additional amounts:
9.3.1. Reasonable costs incurred in collecting the delinquent Assessment, including reasonable
attorneys' fees;
9.3.2. A late charge equal to the greater of Ten Dollars($10.00)or ten percent(10%)of the
delinquent Assessment;and
9.3.3. Interest on all sums due under this Section 9.3,calculated at an annual percentage rate
equal to the lesser of(i)five percent(5%)per annum in excess of the prime rate from time to time
publicly announced by Bank of America NT&SA or its successor,or(ii)the highest rate permitted
by law, accruing from the date the Assessment became due until said Owner has paid in full the
delinquent Assessment and all of the foregoing costs and charges.
9.4. Adiustments of Assessments. If the Approving Agent determines, in its reasonable business
judgment that the current Assessments are,or shall become, insufficient to meet all Expenses,the Approving Agent
may revise the Budget and levy revised Assessments in support thereof upon thirty(30)days'prior notice to the
Owners.
9.5. Creation of Lien and Personal Obligation for Assessments. By acceptance of a deed,
assignment of lease,ground lease,or other conveyance of an interest in a Parcel to an Owner,each Owner shall be
deemed to covenant and agree to pay to the Approving Agent any and all Assessments levied against such Owner's
Parcel. From delinquency until paid,all Assessments shall constitute a continuing lien upon the Parcel affected,
subject to recordation in accordance with Section 10.1,and may be enforced by lawsuit,by trustee's sale under
power of sale(such power being hereby granted to the Approving Agent as trustee),by judicial foreclosure,or by
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any other method allowed by law. Each such Assessment shall also constitute the personal obligation of the Owner
of each Parcel affected at the time that the Assessment becomes due;provided,however,the personal obligation to
pay an Assessment shall not pass to the successors and assigns of an Owner unless the same shall have expressly
assumed such personal obligation.
9.6. Certificate of Payment. Upon request,the Approving Agent shall certify to any Owner liable for
an Assessment,or to its Mortgagee,the amount of any delinquency with respect thereto. The Approving Agent may
collect a charge for its actual costs incurred in providing such certificate.
9.7. Audit. At its sole cost,any Owner shall have the right,exercisable on thirty(30)days' notice to
the Approving Agent,to audit the Approving Agent's books and records of the Budget and Expenses during normal
business hours and so as not to interfere unreasonably with the Approving Agent's conduct of its duties hereunder. If
said audit discloses that such Owner's proper Assessment for the accounting period involved should have been at
least six percent(6%) less than the Assessment which Manager levied on said Owner, the Approving Agent shall
reimburse the auditing Owner for its reasonable costs in conducting the audit(excluding travel and lodging). Within
thirty(30)days after such audit,the Approving Agent and Owner shall make the appropriate payments and
reimbursements, as the case may be,to each other,as are determined to be owing pursuant to such audit. In the event
any Owner has not challenged the Expenses within one(1)year after the receipt of any Statement,such Owner shall
have no further right to inspect or challenge the accuracy of such Statement.
ARTICLE 10
REMEDIES
10.1. Default of Owner and Remedy. An Owner will be deemed to be in default upon the expiration
of fifteen(15)days(in the case of a monetary default),or thirty(30)days(in the case of a non-monetary default)
from receipt of written notice from the Approving Agent or any other Owner specifying the particulars in which such
Owner has failed to perform its obligations hereunder(the"Defaulting Owner")unless the Defaulting Owner,before
the expiration of the fifteen(15)days or thirty(30)days, as the case may be,has remedied the default specified in the
notice. In the case of a non-monetary defauli only,such Defaulting Owner will not,however,be deemed to be in
default if such failure cannot be rectified within the thirty(30)day period despite the Defaulting.Owner's reasonable
and good faith efforts to do so,and such Defaulting Owner shall have commenced to cure the default within said
period and diligently pursues such cure until completed. In the event of a default that is not curable or not cured as
provided in the preceding two(2)sentences,each non-Defaulting Owner of the Shopping Center shall have all of the
rights and remedies hereinafter set forth.
10.2. Failure to Pay Expenses. If any Owner fails or refuses at any time to pay when due its share of
the Expenses or sums payable as provided herein(a"Delinquent Assessment"), which default continues for a period
of fifteen(15)days after receipt of written notice of same,then legal action,may be instituted against the Defaulting
Owner by the Person paying the Delinquent Assessment(the"Curing Party")for reimbursement plus interest at the
rate of ten percent(10%)per annum or the maximum rate allowed by law,whichever is less,from the original due
date until paid. Furthermore,the Curing Party shall have the right to record a lien on any one or more Parcels of the
Defaulting Owner for the amount of the Delinquent Assessment, which amount shall bear interest at the rate of ten
percent(10%)per annum or the maximum rate allowed by law,whichever is less, until paid. If,however,there is a
dispute as to the existence of such default or of the amount due and all undisputed amounts are paid,then there will
be no right to record a lien on such Defaulting Owner's Parcel, with respect to the disputed amounts, until the dispute
is settled by final court decree,referee or arbitrator's binding decision or mutual agreement. The Curing Party's right
to record a lien as provided herein shall not be impaired by an intervening sale or other disposition of the Defaulting
Owner's Parcel by the Defaulting Owner. For all purposes of this section,a Delinquent Assessment includes Curing
Parry's cost(including actual and reasonable attorneys' fees and costs incurred,whether or not suit or a foreclosure
action is filed or brought)of curing and of collection of the Delinquent Assessment from the Defaulting Owner.
10.3. Failure to Pay Taxes. If an Owner fails to pay Taxes assessed against its Parcel before such
Taxes become delinquent and before any interest or penalty shall be due as provided herein(also"Defaulting
Owner"),then following thirty(30)days written notice to such Defaulting Owner,the Approving Agent or any other
Owner(also"Curing Party")may pay such Taxes, if such Taxes are delinquent and the Defaulting Owner has not
commenced and is not duly prosecuting a contest of such Taxes.The Curing Party will then bill the Defaulting
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Owner for the expenses incurred,which bill may include interest at the lesser of the prime rate plus three points or the
maximum.rate allowed by law from the date of payment by the Curing Party until paid by the Defaulting Owner. The
Defaulting Owner shall have fifteen(15)days within which to pay the Curing Owner. If the Defaulting Owner does
not so pay,the amount of such Taxes will be considered a Delinquent Assessment to which the Provisions of Section
10.2 will apply, and the Curing Party will have the rights and remedies therein set forth. If,however,there is a bona
fide dispute as to the existence of such default or of the amount due and all undisputed amounts are paid, then there
will be no right to record a lien on the Defaulting Owner's Parcel,with respect to the disputed amounts, until such
dispute is settled by final court decree,or arbitrator's binding decision or mutual agreement, provided that such
dispute is settled diligently or prosecuted to resolution.
10.4. Other Remedies. In addition to the foregoing, if any Owner defaults in the performance of any
other material provision of this Declaration as described in Section 10.1,the Approving Agent or other Owners,as
the case may be, may institute legal action against the Defaulting Owner for specific performance, declaratory relief,
damages or other suitable legal or equitable remedy. In addition to the recovery of damages and of any sums
expended on behalf of the Defaulting Owner,the prevailing party in the action shall be entitled to receive from the
other party its actual and reasonable attorneys' fees and costs for services rendered to the prevailing party in any such
action(including any appeal thereof). The remedies and liens provided in Sections 10.2 and 10.3 and the enforcement
of them as provided in this Declaration will be in addition to and not in substitution for,or exclusion of,any other
rights and remedies which the Parties may have under this Declaration or at law or in equity.
10.5. Liens. The liens provided for in Section 10.2 and Section 10.3 will only be effective when filed.
for record by the Curing Party as a claim of lien against the Defaulting Owner in the Office of the County Recorder
of Fresno County, California, signed and acknowledged,which claim of lien will contain the following,as well as,
any other information required by law in order to make the lien effective: (a)a statement of the unpaid amount of
costs and expenses;(b)a description sufficient for identification of that portion of the property of the defaulting
Owner which is the subject of the lien; (c)the last known name and address of the Owner or reputed Owner of the
Parcel that is the subject of the alleged lien;and(d)the name and address of the lien claimant.The lien when so
established against the real property described in the lien, will be prior and superior to any right,title, interest, lien or
claim which may be or has been acquired or attached to Defaulting Owner's Parcel after the time of filing of the lien.
The lien shall be for the use and benefit of the Curing Party curing the default of the Defaulting Owner,and may be
enforced by any remedies afforded lien claimants under applicable law or otherwise, including,without limitation,
causing a Notice of Default to be recorded against the Defaulting Owner's Parcel and thereafter causing the
Defaulting Owner's Parcel to be sold in the manner provided by Section 2924 and 2924a-2924h of the California
Civil Code(as may be amended from time to time). Any such sale will.be held as promptly as possible.The Curing
Party will have the power to bid on the Parcel of the defaulting Owner at such foreclosure sale and thereafter to hold,
lease, mortgage and convey the same. Upon payment in full (prior to such a foreclosure)of the Delinquent
Assessment together with all applicable interest due thereon,the Curing Party will promptly cause to be recorded a
further notice stating the satisfaction and release of the lien against the Defaulting Owner's Parcel. In the event of the
formation of the Association,then the Association shall have the rights to enforce the claim of lien for the non-
payment of Assessments provided under Civil Code Sections 6800 through 6826.
10.6. No Waiver. No delay or omission of the Approving Agent or any Owner in the exercise of any
right accruing upon any default of any other Owner will impair any such right to be construed to be a waiver thereof,
and every such right may be exercised at any time during the continuance of such default.A waiver by the Approving
Agent or any Owner of the breach or a default hereunder by any other Owner shall not be construed to be a waiver of
any subsequent breach or default of the same or any other provision of this Declaration. Except as otherwise
specifically provided in this Declaration,no remedy provided in this Declaration will be exclusive,but each shall be
cumulative with all other remedies provided in this Declaration and at law or in equity.
10.7. No Termination for Breach. It is expressly agreed that no breach,whether or not material,of the
provisions of this Declaration by the Developer or Manager,or any Owner will entitle any other Owner to cancel,
rescind or otherwise terminate this Declaration,but such limitation will not affect, in any manner,any other rights or
remedies which any Person may have hereunder by reason of any breach of the provisions of this Declaration.
10.8. Breach Shall Not Defeat-A Mortgage. Breach of any of the covenants or restrictions contained
in this Declaration shall not defeat or render invalid the lien of any mortgage made in good faith,but all of the
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foregoing provisions,restrictions,and covenants shall be binding and effective against any Owner who acquires title
by foreclosure or trustee's sale or by deed in lieu of foreclosure or trustee's sale; provided, however,that any such
Owner who acquires title by foreclosure or trustee's sale or by deed in lieu of foreclosure or trustee's sale shall take
title free of any liens created or provided for hereunder,though otherwise subject to the provisions hereof.
Notwithstanding any other provision in this Declaration for notices of default,the mortgagee of any Owner in default
hereunder shall be entitled to notice of said default,given in the same manner that other notices are required to be
given under this Declaration; provided,however,that said mortgagee shall have,prior to the occurrence of the
default, notified each Owner and the Approving Agent of the mortgagee's interest and mailing address. If any notice
shall be given of the default as provided in this Declaration,then the party giving notice of default shall give such
mortgagee(which has previously given the above-stated notice)under any mortgage affecting the Parcel of the
defaulting Owner an additional notice given in the manner provided above,that the defaulting Owner has failed to
cure such default and that such mortgagee shall have thirty(30)days after said additional notice to cure any such
default. Giving or failing to give any notice of default to any mortgagee shall in no event create any liability on the
part of any Person.
10.9. Release of Lien. Upon the timely curing of any default for which a notice of claim of lien was
filed, Manager is hereby authorized and shall file for recordation an appropriate release of such lien, upon payment
by the defaulting Owner of a fee,to be determined by the lien claimant,to cover the costs of preparation and
recordation of such release,together with the payment of such other costs, interest,attorneys' fees, or other fees as
shall have been incurred in connection therewith.The Assessment lien and the rights to foreclose thereunder shall be
in addition to;and not in substitution for,all other rights and remedies that the Approving Agent may have hereunder
and by law, including a suit to recover a money judgment for any unpaid Assessment.
10.10. Abatement and Suit. The continued violation or breach of any covenant,condition, or restriction
herein contained or granted,by reference or otherwise,after expiration of any applicable period of notice and
opportunity to cure prescribed hereunder,shall-afford the Approving Agent the right(i)to take all steps permitted by
applicable law to cause the abatement or removal,at the expense of the Owner or Occupant thereof,of any
improvement or condition that exists thereon contrary to the intent and meaning of the provisions hereof(by
reference or otherwise), or(ii)to sue at law or in equity the Person(s)who have violated or are attempting to violate
any of these covenants, conditions,or restrictions to enjoin them from doing so,to.cause the violation to be remedied,
and/or to recover damages for said violation. In addition,and without waiving any of the foregoing rights,the
Approving Agent shall also be entitled to reimbursement from the Owner of the Parcel subject to such abatement of
the expenses incurred by the Approving Agent in entering upon such Parcel and abating and/or removing an
improvement or condition as aforesaid. If such expenses are not reimbursed promptly upon demand,then such
expenses shall become a reimbursement Assessment levied against such Owner and its Parcel. If the Approving
Agent fails to act under this Section 10.10 within ninety(90)days of an alleged violation or breach,any Owner may
enforce the rights set forth in this Section 10.4 on their behalf.
10.11. Nuisances. The result of every action or omission whereby any covenant,condition,or restriction
herein contained,by reference or otherwise, is violated in whole or in part is hereby declared to be and to constitute a
nuisance, and every remedy allowed by law or equity against any Owner,either in public or in private,shall be
applicable against every such nuisance and, subject to Section 10.4 hereof,may be exercised by the Approving
Agent,or by any Owner.The right of enforcement shall not be extended to Occupants who are not also Owners.
10.12. Attorneys' Fees. In any legal or equitable proceeding(including any appeal)for the enforcement
of, or to restrain the violation of,or otherwise pertaining to any dispute concerning this Declaration or any provision
hereof,by reference or otherwise,the prevailing party shall be entitled to an award of reasonable attorneys' fees in
such amount as may be fixed by the court in such proceedings. All remedies provided herein at law or in equity shall
be cumulative and not exclusive
10.13. Failure to Enforce Not a Waiver of Rights.The failure of the Approving Agent or any Owner to
enforce any covenant,condition, or restriction herein contained,by reference or otherwise,shall in no event be
deemed a waiver of the right to do so thereafter,nor of the right to enforce any other covenant,condition,or
restriction.
10.14. All Lep_al and Equitable Remedies Available to Owners. In the event of a breach or threatened
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breach by any Owner or its Permittees of any of the terms, covenants,restrictions, or conditions hereof,the other
Owner(s), shall be entitled forthwith to full and adequate relief by injunction and/or all such other available legal and
equitable remedies from the consequences of such breach, including payment of any damages and/or specific
performance.
10.15. Self-Help. In addition to all other remedies available at law or in equity, upon the failure of a
defaulting Owner to cure a breach of this Declaration within thirty(30)days following written notice thereof by an
Owner,(unless, with respect to any such breach the nature of which cannot reasonably be cured within such thirty
[30]-day period,the defaulting Owner commences such cure within such thirty [30]-day period and thereafter
diligently prosecutes such cure to completion),the non-defaulting Owner(s)(provided they are not the defaulting
party)shall have the right to perform such obligation contained in this Declaration on behalf of such defaulting
Owner and be reimbursed by such defaulting Owner upon demand for the reasonable costs thereof together with
interest at the same interest rate permitted under Section 10.2 above.Notwithstanding the foregoing, in the event of
(i)an emergency and/or(ii)blockage or material impairment of the easement rights, any Owner, may immediately
cure the same and be reimbursed by the other Owners upon demand for the reasonable cost thereof together with such
above-described rate,of interest.
ARTICLE 11
DAMAGE AND DESTRUCTION,CONDEMNATION
11.1. Common Area Destruction. In the event of any damage or destruction to the Common Area and
any Improvements thereon during the term of this Declaration,from any cause,the Approving Agent shall restore
the damaged Common Area and any Improvements subject to the limitation of such obligation set forth in Article 8
of this Declaration. If the Approving Agent is not obligated to perform the restoration of any damage to the
Common Area and any Improvements then each Owner will,promptly after the occurrence of the destruction to the
Common Area or Improvements on such Owner's Parcel,restore such Common Area or Improvements. All
restoration shall be to a condition'equal to or better than the condition existing before the event of damage or
destruction; in accordance with the concept of an integrated Shopping Center;and in accordance with the provisions
of this Declaration applicable to the Shopping Center. All restoration shall be undertaken in a manner that will cause
as little disruption of and interference with the use of the remainder of the Common Area and Building Areas;as is
reasonably possible and in accordance with the applicable requirements of this Declaration.
1 1.2. Building Areas-Destruction. In the event of any damage to or destruction of any building in the
Building Area.of the Shopping Center from any cause for which insurance is required to be carried hereunder, or
actually carried by the affected Owner or Owners or its or their tenant or tenants,or in the event of a casualty of a
type not required to be insured under this Declaration where the damage is less than twenty percent(20%)of the
replacement cost thereof(exclusive of foundation and excavation costs and other items not normally insurable),the
affected Owner shall repair such damage or destruction and reconstruct the building in accordance with(i)the
concept of an integrated Shopping Center,and(ii)the provisions of this Declaration.The affected.Owner will
commence restoration and reconstruction as soon as possible after receipt of the insurance proceeds therefore and
will use all due diligence to repair or reconstruct within a reasonable period of time thereafter. In the event damage
to a building in the Building Area for which a Owner is not obligated to rebuild under the terms of this Declaration
(i.e.greater than twenty percent(20%)), if such Owner elects not to rebuild,the Owner will cause the building to be
torn down and all rubble and debris removed.
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11.3. Condemnation.
11.3.1. Taking. If a Parcel or the Building or other Improvements on the Parcel in the Shopping
Center,or any part of any of them, is taken by condemnation or eminent domain proceedings or by
a deed in lieu of such proceedings or by a sale under threat of condemnation,the Owner of the
affected Parcel will repair and restore the Parcel or Building or other Improvements to as near the
condition in which it existed before the condemnation as is practicable under the circumstances at
the time. The affected Owner will complete this repair and restoration in the manner described in
Section 1 1.1 or Section 11.2,whichever is applicable. The affected Owner shall repair and restore
the same,except as such is excused under Section 11.1 or Section 1 1.2,whichever is applicable,or
to the extent that,given the size of the remaining portion of such Parcel that was not condemned,
the affected Owner would not be able to operate its business on the remaining portion of the Parcel
substantially in the format in which such business operated before the condemnation. In this latter
case,the affected Owner will notify the Approving Agent and other Owners in writing that it
considers repair and restoration impracticable and will not do so. In the case of Building Areas on
which buildings are not rebuilt,the remainder of the building will be torn down, all rubble and
debris shall be removed and the Building Area will be graded by the Owner of the Parcel on which
the Building Area is located to the level of the adjoining property and in such manner as not to
affect adversely the draining of the Shopping Center;the Parcel will then be covered by grass or
an asphalt dust cap, and be maintained and used in accordance with the provisions of this
Declaration concerning the Common Area.
.11.3.2. Condemnation Award. Nothing contained in this Declaration entitles any Owner to share
in any award made to any other Owner whose Parcel,or any part of it, is taken by condemnation
or eminent domain proceedings or by a deed in lieu of such proceedings or by a sale under threat
of condemnation except to the extent an award is made for the interests of the other Owner in the
Parcel taken.
ARTICLE 12
APPROVAL,DEEMED APPROVAL
12.1. Approval. Except as specifically otherwise provided in this Declaration,whenever the consent or
approval of an Owner, Declarant,or the Approving Agent is required under this Declaration,such consent or
approval shall not be unreasonably withheld,conditioned or delayed. Whenever in this Declaration an Owner,
Declarant,or the Approving Agent is given the right to approve or consent to in its sole discretion, or words of like
meaning, it may disapprove without giving any reason.
12.2. Response for Approval or Disapproval. Any Owner,Declarant,the Approving Agent or
Manager,or other Person requesting consent or approval("Requesting Party")under any provision of this
Declaration shall deliver a written request, including all background data as may be necessary to make an informed
decision on such request(the"Request')to the Owner,Declarant,the Approving Agent, or Person having the right
to give or withhold such consent or approval("Receiving Party"). If the Receiving Party fails to communicate,in
writing,such consent or approval,or denial of such consent or approval,to the Requesting Party,within thirty(30)
days of receipt of such written request,then in the case of matters effecting or concerning the Shopping Center
generally,or the Owners,the Requesting Party shall send a second request. If within ten(10)days of receipt of the
second request such Receiving Party fails to communicate in writing such consent or approval, or denial of such
consent or approval,to the Requesting Party the Receiving Parry will be deemed to have given its consent or
approval. All notices and requests provided for in this section shall be made in accordance with Section 13.15.
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ARTICLE 13
GENERAL PROVISIONS
13.1. Non-Liability of Declarant/Manager.To the fullest extent permitted by law, Declarant, nor the
Approving Agent, nor any of its agents,employees,successors,or assigns shall be liable to any Owner for any
damage or loss suffered or claimed on account of any decision,course of action,act,omission, error,negligence,or
the like made in good faith and reasonably believed to be within the scope of its duties;provided, however,the
foregoing to shall not(a)be deemed to waive any claims against the Declarant or Approving Agent relating to
personal injury or property damage to the extent caused by the negligent or willful act or omission of Declarant or
the Approving Agent or their agents,employees,contractors or anyone claiming by,through or under any of them,
or(b)prevent an Owner from seeking injunctive or declaratory relief. To the fullest extent permitted by law,each
and every Owner and Occupant,by accepting its interest or title to its interest in any Parcel, agrees to indemnify,
defend,and protect Declarant and the Approving Agent against and from all claims arising out of the construction,
use,possession, and/or operation of the Parcel occupied by,owned by,or under the control of such Owner or
Occupant; provided, however, that the foregoing release and indemnity shall not be applicable to either events or
circumstances to the extent caused by the negligent or willful act or omission of such indemnified party or its agents,
employees,contractors or anyone claiming by,through or under any of them.
13.2. Constructive Notice and Acceptance. Every Person who now or hereafter owns or acquires any
right,title,or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and
agreed to every covenant,condition,restriction,and easement contained herein, by reference and otherwise,whether
or not any reference to this Declaration is contained in the instrument by which such Person acquired an interest in
the Project.
13.3. Rights of Mortgagees.
13.3.1. Notwithstanding any other provision in this Declaration for notices of default,the
Mortgagee of any Owner in default hereunder shall be entitled to notice of said default, in the
same manner that other notices are required to be given under this Declaration;provided,however,
that said Mortgagee shall have,prior to the time of the default,notified the Approving Agent,
Manager,or Owner giving said notice of default of the Mortgagee's interest and mailing address.
In the event that any notice shall be given of the default of an Owner and such defaulting Owner
has failed to cure or commence to cure such default as provided in this Declaration,then and in
that event the Owner giving such notice of default covenants to give such Mortgagee(which has
previously given the above-stated notice to such Owner)under any Encumbrance affecting the
Parcel of the defaulting Owner an additional notice given in the manner provided above,that the
defaulting Owner has failed to cure such default and such Mortgagee shall have thirty(30)days
after said additional notice to cure any such default,or, if such default cannot be cured within
thirty(30)days,diligently to commence curing within such time and diligently pursue such cure
to completion within a reasonable time thereafter.Giving of any notice of default or the failure to
deliver a copy to any Mortgagee shall in no event create any liability on the part of the Owner so
declaring a default.
13.3.2. No breach of the covenants,conditions,or restrictions herein contained,nor the
enforcement of any lien provision herein,shall affect, impair,defeat, or render invalid the lien or
charge of any Encumbrance made in good faith and for value encumbering any Parcel, but all liens
and Encumbrances of said covenants, conditions,and restrictions(including,without limitation,
the lien to secure Assessments provided in Article 9)arising from and after foreclosure of such
Encumbrance shall bind the foreclosing Mortgagee and any Owner whose title is derived
therefrom.
13.3.3. A Mortgagee,or the immediate transferee of such Mortgagee, who acquires title by
judicial foreclosure, deed in lieu of foreclosure,or trustee's sale under an Encumbrance made in
good faith and for value,shall acquire title free of any lien or claim for unpaid Assessments
against such Parcel(s)that accrued prior to the time such Mortgagee or transferee takes title to
such Parcel,except for liens or claims for a share of such Assessments resulting from a pro rata
31
reallocation of such Assessments to all Parcels within the Property. In addition, such Mortgagee or
transferee shall not be obligated to cure any breach of the provisions of this Declaration which is
not curable or of a type that is impractical or infeasible to cure. Manager's reasonable
determination,made in good faith,as to whether a breach is not curable or infeasible to cure shall
be final and binding on all Mortgagees.
13.4. Mutuality; Reciprocity, Runs With Land. All restrictions,conditions,covenants,and easements
contained herein,by reference or otherwise(i)are made for the direct, mutual, and reciprocal benefit of each and
every portion of the Project,(ii)shall create mutual,equitable servitudes upon each portion of the Project in favor of
every other portion,(iii)shall create reciprocal rights and obligations between the respective Owners of all portions
of or interests in the Project and privity of contract and estate between all Grantees of said portions or interests
therein,their heirs,successors, and assigns,and(iv)shall,as to each Owner and the heirs, successors,and assigns of
said Owner,operate as covenants running with the land for the benefit of all other portions of the Project.
13.5. Term of Declaration. This Declaration shall continue in full force and effect until modified,
amended as provided in Section 13.9, or canceled or terminated by the written consent of the then Owners.
13.6. Abandonment of Easements in Common Drives. After this Declaration is no longer of any
force or effect, if and to the extent that any of the Parcels are afforded direct access to adjacent surface streets,the
easements granted pursuant to Article 4 for the benefit of each such Parcel so afforded direct access shall terminate
and be of no further force or effect.
13.7. Article and Section Headings.The Article and Section headings used herein are inserted for
convenience only and are not intended to be a part of this Declaration or in any way to define, limit,or describe the
scope and intent of the respective Articles and Sections to which they refer.
13.8. Effect of Invalidation. If any provision(by reference or otherwise)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.
13.9. Amendments. Except as otherwise provided in this Declaration,from and after the date that this
Declaration is executed,this Declaration shall be amended or terminated only by a written document signed and
acknowledged by at least the specified majority of all the Owners determined in accordance with the voting rights
set forth in Section 6.6. Any such amendment or termination will be recorded in the Official Records of Fresno
County. Notwithstanding anything contained herein to the contrary,this Declaration shall not be amended(whether
through a Supplemental Declaration or otherwise)so as toadversely impact(a)a Parcel Owner's normal operations
on its Parcel as permitted herein,(b)access to or parking for such Parcel,(c)the visibility of the Building located on
such Parcel from public streets,or(d)an Owner's rights or obligations under this Declaration,without the written
consent of such Owner.. To be effective,any amendment that affects or purports to defeat or render invalid the lien
of any Encumbrance made in good faith and for value must be approved in writing by the record holders of all such
Encumbrances encumbering the affected portions of the Project at the time of such amendment.
13.10. Construction of Declaration.The provisions of this Declaration shall be liberally construed to
accomplish its purpose of creating a uniform plan for the development of the Property,as set forth in the Recitals
hereto. This Declaration and the obligations of the Owners hereunder shall be interpreted,construed,and enforced in
accordance with the laws of the State of California.
13.1 l. Estoppel Certificates. Upon thirty(30)days' prior notice,given upon the transfer, financing,
and/or refinancing of a Parcel and otherwise no more than once a year,the Approving Agent, Manager or applicable
Owner shall provide to any requesting Owner and/or its existing or prospective Mortgagee an estoppel certificate
stating, to the actual knowledge of the certifying party: (i)whether the certifying party knows of any defaults under
this Declaration and, if so,the nature thereof,(ii)whether this Declaration has been assigned,modified, or amended
in any way and, if so,the nature thereof, and(iii)that this Declaration is in full force and effect as of the date of the
estoppel certificate. For such statement,the Approving Agent Manager or such other certifying Owner shall be
entitled to charge a fee based upon its actual administrative expenses in rendering the same.
32
13.12. Release. If an Owner shall sell,transfer,or assign its entire Parcel or its interest therein, it shall,
except as provided in this Declaration,be released from its unaccrued obligations hereunder from and after the date
of such sale,transfer,or assignment,but only to the extent such interest is transferred to the subsequent Transferee.
Anything in this Section 13.12 to the contrary notwithstanding, it is expressly understood and agreed that no such
sale,transfer, or assignment or written acknowledgment by the transferee of its obligations hereunder shall
effectuate a release of its transferor with respect to obligations which accrued hereunder prior to the subject transfer.
13.13. Leases. All agreements for the leasing or rental of a Parcel or any Building or portion thereof
(referred to as a"lease" in this Section 13.13)shall be in writing and shall provide that the terms of such lease shall
be subject in all respects to the provisions of this Declaration,any Supplementary Declaration and deed restrictions
affecting the Parcel subject to such lease. Any Owner who shall lease its Parcel or Building thereon shall be
responsible for assuring its tenant's compliance with the Governing Documents.
13.14. [Intentionally Deleted]
13.15. Notices. Any notice,demand, communication,certification,approval, consent, invoice,and/or
request(individually referred to as"Notice")required or allowed hereunder to be given to or by Declarant,the
Approving Agent, Manager,an Owner,or a Mortgagee, shall be made in writing and shall be delivered personally or
by reliable,receipted courier service or certified mail(with postage prepaid,return receipt requested)to the address
most recently given by such party or, if no such address shall have been furnished,then to the street address of such
Owner's Parcel.Notice shall be deemed given when actually received or rejected.
13.16. Good Faith. Manager shall at all times act in good faith and shall not take any action that is
materially detrimental to one Owner while at the same time benefiting other Owner(s), without first obtaining the
written consent of the Owner who is adversely affected.
13.17. Uniform Buildine Code. Common Area,as defined in Article 8 above,shall be considered
"yards" under the Uniform Building Code("UBC")for purposes of(i)allowable floor area of Buildings(as such
terms are defined in the UBC)and(ii)exterior wall construction and protection of openings(as such terms are
defined in the UBC).The foregoing is intended to eliminate any requirement that individual easements be recorded
around each individual Building within the Project.
13.18. Transfers of Interest.
13.18.1. Transfer of Entire Interest. In the event of the assignment,transfer,or conveyance of the
whole of the interest of any of the parties in and to a Parcel in which such party presently has an
interest,without retaining any beneficial interest other than under the terms of a deed of trust or
Encumbrance,or without simultaneously acquiring a new interest by way of leasehold, life estate,
or other possessory interest,then the powers,rights,and interest conferred on such party will be
deemed assigned,transferred,or conveyed to such transferee,assignee,or grantee,and the
obligations will be deemed assumed by such transferee,assignee,or grantee with the interest so
acquired. Any instrument of transfer,assignment,or conveyance of the whole of the interest of
any of the parties in and to the Parcel in which such party has an interest shall state that the
transfer,assignment,or conveyance is subject to this instrument, and shall refer to and incorporate
by reference this instrument. Any such reference shall recite the recording information for this
instrument, including the date and location of recordation,and the instrument number.
13.18.2. Creation of New Interest. In the event the whole of the interest of a party in and to the
Parcel in which it has a present interest be assigned,transferred,or conveyed,but a new interest is
created in such party simultaneously with the assignment,transfer, or conveyance of such interest
by way of leasehold, life estate,or similar possessory arrangement, or in the event such party
conveys its interest in the Parcel or any part by deed of trust or other security instrument as
security for indebtedness,then none of the powers or obligations conferred on such party pursuant
to this instrument will be deemed assigned,transferred,or conveyed with-the interest assigned,
transferred,or conveyed by such party,but all of the powers, rights, interests,and obligations
provided for herein will remain in such party so long as it retains any possessory interest in and to
33
the Parcel other than as a beneficiary under the terms of a deed of trust or Encumbrance. In the
event the party referred to in this Section 13.18.2 dies or is dissolved,then on such termination,
the powers,rights, interests,and obligations of such party will immediately vest in accordance
with Section 13.18.1 above,subject,however,to the provisions of Section 13.18.3.
13.18.3. Transfer of Vested Interest. Whenever the rights,powers,and obligations conferred on
any of the parties are vested in another or successor party or parties pursuant to the provisions of
Section 13.18.1 or 13.18.2 above,the transferor will be released or discharged from the
obligations thereafter accruing under the terms of this Declaration(but will not be released as to
any then matured and outstanding obligations).
13.19. Negation of Partnership.None.of the terms or provisions of this Declaration shall be deemed to
create a partnership between or among the parties in their.respective businesses or otherwise,nor shall this
Declaration cause them to be considered joint venturers or members of any joint enterprise. Each party shall be
considered a separate Owner, and no party shall have the right to act as an agent for another party, unless expressly
authorized to do so herein or by separate written instrument signed by the party to be charged.
13.20. Construction and Interpretation.
13.20.1. Whenever required by the context of this Declaration, (1)the singular shall include the
plural,and vice versa,and the masculine shall include the feminine and neuter genders, and vice
versa,and(ii)use of the words"including,""such as,"or words of similar import,when following
any general term, statement, or matter, shall not be construed to limit such statement,term, or
matter to specific items,whether or not language of non-limitation, such as"without limitation'or
"but not limited to," is used with reference thereto,but rather such words shall be deemed to refer
to all other items or matters that could reasonably fall within the broadest scope of such statement,
term,or matter.
13.20.2. The captions preceding the text of each Article and Section are included only for
convenience of reference. Captions shall be disregarded in the construction and interpretation of
this Declaration. Capitalized terms are also selected only for convenience of reference and do not
necessarily have any connection to the meaning that might otherwise be attached to such term in a
context outside of this Declaration.
13.20.3. Invalidation of any of the provisions contained in this Declaration,or of the application
thereof to any Person by judgment or court order,shall in no way affect any of the other
provisions hereof or the application thereof to any other Person,and the same shall remain in full
force and effect.
13.20.4. This Declaration maybe executed in several counterparts,each of which shall be deemed
an original. The signatures to this Declaration may be executed and notarized on separate pages,
and when attached to this Declaration shall constitute one complete document.
13.21. Not a Public Dedication.Nothing herein contained shall be deemed to be a gift or dedication of
any portion of the Shopping Center or of any portion of any Parcel,to the general public, for the general public or
for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Declaration
is strictly.]imited to,and for the exclusive benefit of,all Owners of the Shopping Center and their successors,
assigns, mortgagees and tenants("Owner Affiliates"),as well as their customers and invitees,and nothing in this
Declaration,express or implied,confers upon any person other than the Owners and Owner Affiliates any rights or
remedies by reason of this Declaration.Notwithstanding any other provision to the contrary in this Declaration,any
Owner has the right from time to time to prevent or prohibit the use of any portion of its Parcel to such extent as
may be necessary to prevent a dedication of the affected Parcel to the public or the accrual of any rights in any
person or entity not expressly granted in this Declaration.
34
13.22. Excusable-Delays. Whenever performance is required of any Person hereunder,such Person shall
use all due diligence to perform and take all necessary measures in good faith to perform;provided,however,that if
completion of performance shall be delayed at any time by reason of acts of God, war,civil commotion,riots,
strikes,picketing or other labor disputes, unavailability of labor or materials,damage to work in progress by reason
of fire or other casualty,or any cause beyond the reasonable control of such Person,then the time for performance
as herein specified shall be appropriately extended by the amount of the delay actually so caused. The provisions of
this Section 13.22 shall not operate to excuse any Person from the prompt payment of any moneys required by this
Declaration.
13.23. Mitigation of Damages. In all situations arising out of this Declaration,all parties shall attempt to
avoid and mitigate the damages resulting from the conduct of any other party. Each party hereto shall take all
reasonable measures to effectuate the provisions of this Declaration.
13.24. Declaration Shall Continue Notwithstanding Breach. It is expressly agreed that no breach of
this Declaration shall(i)entitle any party to cancel,rescind,or otherwise terminate this Declaration,or(ii)defeat or
render invalid the lien of any Encumbrance or deed of trust made in good faith and for value as to any part of the
Project. However, such limitation shall not affect in any manner any other rights or remedies which a party may
have hereunder by reason of any such breach.
13.25. Time.Time is of the essence of this Declaration.
13.26. No Waiver.The failure of any party to insist upon strict performance of any of the terms,
covenants,or conditions hereof shall not be deemed a waiver of any rights or remedies which that party may have
hereunder,at law or in equity, and shall not be deemed a waiver of any subsequent breach or default in any of such
terms,covenants, or conditions. No waiver by any party of any default under this Declaration shall be effective or
binding on such party unless made in writing by such party, and no such waiver shall be implied from any omission
by a party to take action in respect to such default.No express written waiver.of any default shall affect any other
default or cover any other period of time other than any default and/or period of time specified in such express
waiver. One or more written waivers of any default under any provision of this Declaration shall not be deemed to
be a waiver of any subsequent default in the performance of the same provision or any other term or provision
contained in this Declaration.
13.27. Attorneys' Fees. In any dispute between the parties,whether or not resulting in litigation,the
prevailing party shall be entitled to recover from the other party all reasonable costs, including, without limitation,
reasonable attorneys' fees. "Prevailing Party"shall include,without limitation,a party who dismisses an action for
recovery in exchange for sums allegedly due,performance for covenants allegedly breached or considerations
substantially equal to.the relief sought in the action,or which receives, in connection with any dispute,performance
from the other party substantially equivalent to any of these.
13.28. City Aimroval.No amendment to any section of this Declaration which is included at the request
of the City,or which, includes provisions that are intended to comply with City requirements shall be made without
the prior written consent of the City.
35
13.29. Termination of Declarant's Responsibility. At such time as Declarant has conveyed all of its
right, title and interest in Out Lot"A"to Declarant's Successor or the Association, as applicable, Declarant shall be
relieved of the performance of any further duty or obligations hereunder with respect to Out Lot A,and Declarant's
Successor or the Association, as applicable,shall be obligated to perform all such duties and obligations of
Declarant.
13.30. Rights of the City of Fresno.
13.30.1. (Condition of Approval#2)Notwithstanding anything in this Declaration to the contrary,the
following provisions are hereby incorporated into the Declaration for the benefit of the City:
13.30.1.1. All applicable laws which the Association is required to comply with;
13.30.1.2. The City shall be granted the right of immediate access to all portions of the Common
Areas for the purpose of preserving the public health,safety,and welfare;
13.30.1.3. The Association shall have the duty to maintain and repair all on-site sewer,water,and
storm drainage facilities serving the Common Areas,unless the City or Flood Control
District have determined that a particular facility should be public to provide necessary
system completion or otherwise protect public health,safety, and welfare;
13.30.1.4. The Association shall have the duty to pay all utility and waste collection charges which
are not separately metered and billed, including,but not limited to,charges for sewer,water,
gas,solid waste,sanitation,and electric service;
13.30.1.5. Should public utilities, including, but not limited to, sewer and water be located
underneath private streets,or should the street be public while said utilities be private,the
City shall not be responsible for private pavement repairs beyond the minimum amount this is
directly related to the future utility main repair work.
13.30.1.6. No Owner shall alter, modify, reconstruct,or do any other thing to any party wall or to
any plumbing, electrical, or mechanical fixture located along such wall which will impair
the integrity of the wall as a fire separation without the review and approval of the City
Building Official;
13.30.1.7. Landscaping shall be provided and maintained by the Association in those
Common Areas adjacent to public streets and highways. The Association shall provide
and maintain the landscaping in such areas in a manner compatible with the
requirements of the City Development Code, and shall not decrease the amount of
assessments charged against members of the Association if such decrease will adversely
affect the ability of the Association to perform this maintenance; and
13.30.1.8. The Association shall be responsible to provide street sweeping/cleaning within the
Common Areas.The Association shall be responsible for the cost(s).
13.30.1.9. Any amendment by the Association to the above provisions or any other provision
specifying any right of the City shall require the prior written consent of the City.
13.30.2. (Condition of Approval#4) The easements granted in Sections 4.1,4.2,4.4 and 4.9 may not be
amended,terminated or modified without the prior consent of the City.
The terms of this Section 13.30 may not be amended or modified without the consent of the City.
36
IN WITNESS WHEREOF,the undersigned has executed this Declaration as of the date first above written.
"Declarant"
ISLAND AIRWAVES,INC.,
a Hawaii corporaa4on
By:
Name:
L 1
Its: 1 j!f �t• ��T
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
I
State of Ca ' rnia
County of Fr M� )
On AMWO fC' 11 befo a me, � AAM a Notary Public,personally appeared
C, 111 'ay-z , who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies)and that by his/her/their signature(s)on the instrument the
person(s),or the entity upon behalf of which the person(s)acted,executed the instrumen .
I certify under PENALTY OF PERJURY under the laws of the State of C!11 that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
y
WYA410
Signature: L �OTARy•
up ® -
PUBL\G
No 04 507.
Of NP���`��\
37
EXHIBIT"A"
PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO, STATE OF CALIFORNIA,AND IS DESCRIBED AS FOLLOWS:
PARCEL B OF PARCEL MAP NO. 86-47, IN THE CITY OF FRESNO,
COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE
MAP THEREOF RECORDED IN BOOK 46, PAGE 65 OF PARCEL MAPS,
FRESNO COUNTY RECORDS.
APN:463-060-20
38
EXHIBIT"B"
PARCELS
2015-05
PARCELS A, B, C ANDD AND OUTLOT "A" OF PARCEL MAP NO. 'V RECORDED
h'I�+Y 2Z , 201 , IN BOOK'Iq OF PARCEL MAPS AT PAGE AND S
FRESNO COUNTY RECORDS, CALIFORNIA.
39
EXHIBIT"C"
SITE PLAN
Building Area Parking Area
�\ J
so
r
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f,.
1j
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I
9 0——
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40
Table of Contents
RECITALS....................................................................................................................................................................
ARTICLE1 (Declaration)............................................................................................................................................
ARTICLE2(Definitions).............................................................................................................................................
2.1 Affiliate ................................................................................................................................................................
2.2 Approving Agent ...................................................................................................................................................
2.3 Assessment ...........................................................................................................................................................
2.4 Association ...................................................................................................................................:.......................
2.5 Association Rules .................................................................................................................................................
2.6 Benefited Parcel ...................................................................................................................................................
2.7 Building ...........................................................................................................................................................:....
2.8 Building Area .......................................................................................................................................................
2.9 Burdened Parcel ...................................................................................................................................................
2.10 City .....................................................................................................................................................................
2.11 Common Area ....................................................................................................................................................
2.12 Common Utility Lines.........................................................................................................................................
2.13 Consent of Declarant or Approval of Declarant..................................................................................................
2.14 Consent of Manager or Approved by Manager ..................................................................................................
2.15 Consent of the Owners .......................................................................................................................................
2.16 Declarant ............................................................................................................................................................
2.17 Driveways...........................................................................................................................................................
2.18 Easements............................................................................................................................................................
2.19 Effective Date ...........................................................................................................................................:.........
2.20 Encumbrance; Mortgagee...................................................................................................................................
2.21 Expenses :.........................:..................................................................................................................................
2.22 Governing Documents .......................................................................................................................................
2.23 Grantee................................................................................................................................................................
2.24 Grantor ...............................................................................................................................................................
2.25 Hazardous Material ..........................................................:.................................................................................
2.26 Improvements ........................................................................................................................................'.............
2.27 Manger ...............................................................................................................................................................
2.28 Occupant ............................................................................................................................................................
2.29 Owner .................................................................................:...............................................................................
2.30 Parcel ..................................................................................................................................................................
41
Z]\ Parking Area ......................................................................................................................................................
2.]2Party or Parties........................................................................................................... ........................................
2]3Permittees............................................................................................................................................................
2.34Person ..................................................................................................................................................................
2]5Pro Rata Share -------------------------------------------------.
�
2.36Project ................................................................................................................................................................
2.37Property ..............................................................................................................................................................
2.38Rules and Regulations ........................................................................................................................................
2.30Sign Plan ............................................................................................................................................................
2/0Site Plan..............................................................................................................................................................
2.4) Supplementary Declaration ................................................................................................................................
2.42Utilities ...............................................................................................................................................................
ARTICLE 3(N0umuger)..--.---------._------- -'----.-----.---_--..--'
ARTICLE4(0uwemeo$)...............................................................................................................................................
4] Ingress, Egress, und.Purkng .................................................................................................................................
42Utilities .................................................................................................................................................................
4.3Construction, Maintenance,and Reconstruction ...................................................................................................
4.4Surface Drainage Easement ..................................................................................................................................
4.5 Easement bnFavor o[Manager --------------------_--------------------
4.6SignEuoement ----------------------------------------_---------
4JReutrictiononGrunoy8ux«ments ---------------------------------------'
4.8Term and Limitation o[Easement,Covenants and Conditions ............................................................................
4.0City Right o[Access ----------------------------------------------'
4JOBenefit and Burden»oRun With the Land ................................................................................................
---
4]\ Intended Use o[Easements ................................................................................................................................
ARTICLE5(0evelopmeot; Permitted Uses; Restrictions).......................................................................................
l\ Permitted Uses .....................................................................................................................................................
i2Development and Operation oyProject ................................................................................................................
5.3 Use Restrictions...................................................................................................................................................
5.4Building Restrictions; Subdivision; Approvals; Maintenance.............................................................................
5..5Sign Plan.................................................................................................................................... ..........................
5.0Limited Permitted Uses........................................................................................................................................
5.7 Noninterference With Common Area..................................................................................................................
5.8Nuisances.............................................................................................................................................................
I9Hazardous Material...............................................................................................................................................
l\OUndeveloped Building Area...............................................................................................................................
42
�
i\\ Loading and Unloading......................................................................................................................................
l\2Storage; Screening.............................................................................................................................................
5]3Modification u[Grades......................................................................................................................................
5]4Utility Lines and Antennas.................................................................................................................................
5]5Unsightly Items..................................................................................................................................................
5]0Mechanic's o,Construction Lien.......................................................................................................................
5.[7Additional Use Restrictions and Requirements..................................................................................................
ll8Development uodDporubonofParcels...............................................................................................................
5JVCompletion oyBuilding .....................................................................................................................................
52OChange bu of Building Arma --------------------------...—'
�
521 Temporary oySeasonal Sales ............................................................................................................................
522Charges for Ingress, Egress,urParking .............................................................................................................
5.23Existing Exclusive Uses ....................................................................................................................................
5.24Future Exclusivity .............................................................................................................................................
i25Limitation onExclusivity -------------_---------'
ARTICLE —.—.----.--.--...---.----..-------.—_--_.—.-----_--.--.-.
6] Formation o[Association ....................................................................................................................................
6.2Membership ---------_-----------------------------------------
d.] /\smociu1ionBu|em -------------------------------_—_--------------
h.4Trunxfer --------------------------------------------------_—'
6.5 Voting Rights o[Declarant -------------------------------------------.
6.6 Voting Rights ofMembers ....................................................... ...........................................................................
6.7Approvals and Consents...................................................................................................................... .................
� 6.8General Duties and Powers -------------------------------------------.
6.ASpecific Powers o[the Association ......................................................................................................................
6]OAssignment and Assumption ..............................................................................................................................
0] 1 Governanoe ----------'-------------------------------.
ARTICLE7(Architectural Control)............................................................................................................................
?] Approvals ........................................................................ ........................................ ..........................................
72Timing o[Approval ..............................................................................................................................................
7.] Standards for Disapproval .....................................................................................................................................
7/4Defects inPlans .............................................................. .....................................................................................
7.5Standards and Criteria ..........................................................................................................................................
7.0NoModification oCRights o,Restrictions ...........................................................................................................
7JConstruction..........................................................................................................................................................
7.8Delegation ofArchitectural Control .....................................................................................................................
43
ARTICLE 8(Common Area Use; Parking; Maintenance; Insurance; Taxes)........................................................
8.1 Use of Common Area ..........................................................................................................................................
8.2 Approving Agent's Common Area Duties ...........................................................................................................
8.3 Assignment of Approving Agent's Maintenance Obligations ............................................................................
8.4 Parking .................................................................................................................................................................
8.5 Changes in Configuration of Common Area ........................................................................................................
8.6 Exclusive Control of Common Area.....................................................................................................................
8.7 Approving Agent's Insurance Obligation ............................................................................................................
8.8 Owner's Insurance Obligation ............................................................................................................................
8.9 Owner's Maintenance Duties ...............................................................................................................................
8.10 Right of Approving Agent to Maintain and Install.............................................................................................
8.11 Restoration Obligation .......................................................................................................................................
8.12 Blanket Insurance ...............................................................................................................................................
8.13 Release and Waiver of Subrogation....................................................................................................................
8.14 Taxes...................................................................................................................................................................
8.15 Rules and Regulations ........................................................................................................................................
8.16 Approving Agent's Failure to Perform ..............................................................................................................
ARTICLE9.(Payment of Expenses)..............................................................................:.............................................
9.1 Covenant for Payment of Assessments ...............................................................................................................
9.2 Budget ..................................................................................................................................................................
9.3 Interest; Late Charge; Costs ................................................................................................................................
9.4 Adjustments of Assessments ................................................................................................................................
9.5 Creation of Lien and Personal Obligation for Assessments..................................................................................
9.6 Certificate of Payment ..........................................................................................................................................
9.7 Audit................:....................................................................................................................................................
ARTICLE10(Remedies)..............................................................................................................................................
10.1 Default of Owner and Remedy ..........................................................................................................................
10.2 Failure to Pay Expenses .....................................................................................................................................
10.3 Failure to Pay Taxes ..........................................................................................................................................
10.4 Other Remedies ..................................................................................................................................................
10.5 Liens ...................................................................................................................................................................
10.6 No Waiver ..........................................................................................................................................................
10.7 No Termination for Breach.................................................................................................................................
10.8 Breach Shall Not Defeat A Mortgage ................................................................................................................
10.9 Release of Lien ..................................................................................................................................................
10.10 Abatement and Suit ..........................................................................................................................................
44
lO.i| Nuisances..........................................................................................................................................................
�
l(ll2&�omeyx' Fees ------------------------------------------------
10.13 to Enforce Not uWaiver nfRights .......................................................................................................
\0]4All Legal and Equitable.Remedies Available ouOwners..................................................................................
)0.|5Self-Help...........................................................................................................................................................
ARTICLElI (Damage and Destruction,Condemnation).............................................. ...........................................
\LlCommon Area Destruction ................................................................................................................................
11.2 Building -------------_--_---_------'--------------.
1i3Condemnation ...................................................................................................................................................
� ARTXCLE 12(Approval,Deemed Approval).............................................................................................................
12.1 Approval .............................................................................................................................................................
\22Responses for Approval orDisapproval..............................................................................................................
ARTICLE13(General Provisions)...............................................................................................................................
111 Non-liability of --------------------------------------
|32ConotruuivoY4otioeund Acceptance ..-----_----_---------,_---------------.
133Rights ofMortgagees ................................................................................................ .......................................
13.4 Mutuality; Reciprocity; Runs With Lund ----------------------------------'..'
� 8jTenn o[Declaration ...................................................... .................................................................... ...............
\3.6Abandonment o[Easement buCommon Drives .................................................................................................
l37Article and Section Headings ........................... .........................................................................
il8Effect oCInvalidation...........................................................................................................................................
\l0Amendments ......................................................................................................................................................
\l\OConstruction o[Declaration ..............................................................................................................................
B]lEstoppel Certificates.........................................................................................................................................
\3.l2Release ........................................................................................................... .................................................
BJ3Leases ...............................................................................................................................................................
B]4Construction onProject bythe Approving Agent.............................................................................................
|3.|5Notices..............................................................................................................................................................
B]6Good Faith ........................................................................................................................................................
B]7Uniform Build ingCode......................................................................................................................................
i3J8Transfers ofInterest ---------------------------------------------'
lll0Negation ofPartnership ...................................................................................................................................
\I20Construction and Interpretation..........................................................................................................................
B2\ Not uPublic Dedication....................................................................................................................................
B22Excusable Delays .............................................................................................................................................
l323Mitigation ofDamages .....................................................................................................................................
z@
�
13.24 Declaration Shall Continue Notwithstanding Breach........................................................................................
13.25 Time..................................................................................................................................................................
13.26 No Waiver ........................................................................................................................................................
13.27 Attorneys' Fees..........................................................:......................................................................................
13.28 City Approval.....................................................................................................................................................
13.29 Termination of Declarant's Responsibilities.....................................................................................................
46