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0303-156 (OFC) Declaration of EasementsTvanm COUNTY) RIEUMBC BY: IT5111W TMZ (IF c XJYC KLA. INC., -a-,d moire Divisiom-cc mercW Dept. ' rR ORDER $ 5-11-167097 YOUR REF: POINT HAPPY S EPPIM CENIER AFTER RECORDING MAIL T0. MARK TIPPERMAN RE: POINT HAPPY SHOPPING CTR (CITY -LA QUI NTA, CA.) TRA S A.P. NO: ; ' „0;�.; Docura�ent Recorded :as A1o� l�-0swr WWI has not been compared %Kith original. ' - E B - 7 2001 'County Recorder RIVERSIDE COUNTY, CALIFORNIA M_ S U II ��GE SIZE OA DCCT ,CCCA SW VS.: I A COOS' LONG AEFUNO NCHG Fjtly RE-RECORD DECLARATION OF EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS (ADDING EXHIBIT'S "B" "D" AND "E" Title of Document THIS DOC(ASF U IS BEING RE-RECORDED TO ADD EXH1BIT'S "B", "D", AND „E" T H 1 S7 A R �EA, F1/0jD fa �� IML 0'0 Rt D El Y Sy U 'E ONLY - SO — THIS PAGE ADDED TO POVIDE ADEOUATE SPACE FOR RECORDING INFORMATION ::,3.00 AACftlonal Reccroinc Fee Apples) Recorded at the request of: Stewart Title of California, Inc. Return to: Mark Tipperman ®OC la 2000-510932 12/22/2000 08:00A Fee:165.00 Page 1 of 54 Recorded in Official Records County of Riverside Gary L. Orso Assessor, County Clerk d Recorder 11111111111111111111111111111111111111111111111'.11111111 — M $ U PAGE SIZE DA I PCO,NOCDR SMF I MISC. I A I R I L II I I COPY j LONG I RERMD I NCHG I UM DECLARATION OF EASEMENTS, COVENANTS, CONDITIONS, AND RESTRICTIONS T ` 1 Declaration ("Declaration") dated as of December 15, 2000, made by Madison/PTM La Quinta LLC, a California limited liability company ("Madison"), with an address c/o L. R. Wilkerson, 938 N. Mountain Avenue, Ontario CA 91762. Madison hereby declares as follows: f 1. Facts: M 1.01. Madison is: (i) the owner of certain land, more particularly described on Exhibit "A" of this Declaration; and (ii) the developer of certain buildings and improvements to be built on such land, to be commonly known as "Point Happy Shopping Center"; located in the City of La Quinta, Riverside County, California. 1.02. Madison desires to execute and record this Declaration, to among other things: (a) Provide for the orderly development of the Shopping Center Site, including the development of new retail stores; (b) Establish and create, certain easements, including without limitation intended, non-exclusive easements to use Common Area for access to and from Washington Avenue and California State Highway 111, to and from each Parcel; (c) Establish and create certain rights, obligations and limitations, to promote the development and successful operation of the Center. 2. Definitions: DECLARATION OF EASEMENTS, CAWINDOWSITEMPIDECLARATION20 68F/ENANTS, CONDITIONS, AND RESTRICTIONS _1 _ The following terms shall have the respective meanings set forth below: (a) "Anchor Store(s)" - retail Store(s) containing at least 10,000 square feet of contiguous Gross Leasable Area, which from the perspective of its customers, operate as a single retail store (for example, only one tenant or other: occupant is identified on the exterior signs of the store), even if there are concessions or licenses to operate one or more departments or areas within a single retail store. (b) "Anchor Tenant' - Any lessee or Occupant of at least 10,000 square feet of contiguous Gross Leasable Area for retail use. (c) "Bankruptcy Case" - An action, suit, proceeding or case filed under Title 11 of the U.S. Code, or under any other bankruptcy, insolvency or similar Law which confers relief from claims of creditors; and if the action, suit, proceeding or case was filed involuntarily by a third party without the consent or tacit approval of the debtor or other party which is the subject of the action, suit, proceeding or case, the case is not dismissed within 90 days after filing. (d) "Building(s)" - The building(s), which will later be located in the Center and suitable for Occupants. (e) "Building Area(s)" - All those areas of the Center in which Buildings may be erected and maintained. Building Areas are shown as building, building area or future building area on the Site Plan. (f) "Center" - The Shopping Center Site and all Buildings and improvements' thereon. (g) "Center Sign" - The sign structures) and fascia located in the Common Area advertising the name of the Center and no Occupant or Owner ("Center Sign") (h) . "Chain Store(s) - Either (i) 'a bank regardless of the number of branches; or (ii) 'a business which operates at least 25 retail units in the State of California, or at least 50 retail units nationally, which retail units shall have a standard, prototypical design and operate under the same trade name). (i) "City" - City of La Quinta, a municipal corporation organized and ` existing under California Law, or its Successor. DECLARATION OF EASEMENTS, CAWINDOWSITEMPMECLARATION20 e®'/ENANTS, CONDITIONS, AND RESTRICTIONS 2111-J1093-2 12/22/2000 : Q) "Common Area" - Those areas, including Parking Areas, of the Shopping Center Site which are open for use by the Permittees, including, without limiting the generality of the foregoing, any and all accessways, sidewalks, truckways, truck loading areas (except those which exclusively service a Anchor Store), delivery passages, walkways, exit and/or service corridors, malls (open and closed), planted areas, landscaped areas, common restrooms and maintenance rooms (except those which are located within an Anchor Store). Canopies and awnings which extend over the Common Area, together with any columns, posts or other supports, shall be deemed to be part of the building they are appurtenant to and shall not be deemed part of the Common Area. (k) "Common Area Charges" - "Common Area Charges" shall mean the reasonable costs and expenses of insuring, operating, maintaining, repairing and replacing the Common Area and Center Sign, including without limitation intended and by way of example only, electricity and other utilities, security, liability and personal property insurance, sweeping, plowing, re -striping, Common Area refuse collection, irrigating, landscaping, signage, patching, resurfacing,.management and bookkeeping services. However, Common Area Charges shall not include money for management and bookkeeping expenses, except to the extent of the greater of: (i) ten percent (10.00°/x) of all other Common Area Charges except insurance premiums and taxes; or (ii) $12,000.00 per year. (1) "Common Signs" — all monument signs authorized by this Declaration on which one or more Occupants are authorized to place their sign fascia. (m) "Common Sign Charges" — the reasonable costs and expenses of insuring, operating, maintaining, repairing and replacing the Common Signs, including without limitation intended and by way of example only, electricity and other utilities, liability, casualty and personal property insurance, management and bookkeeping services. However, Common Sign Charges shall not include money for management and bookkeeping expenses, except to the extent of ten percent (10.00%) of all other Common Sign Charges except insurance premiums and taxes. (n) "Common Utility Facilities" - Whenever installed, utility facilities and drainage facilities (open or covered), for drainage, sewage, gas (if available), water, electricity, cable television, and other forms of energy, signals or services, including, but not limited to, sanitary and storm sewers, pumping facilities, gas and water mains, fire hydrants and other fire protection installations, fiber optic cables, and electric power and telephone lines, which are available for use by the Parties for their respective Parcels, the improvements thereon and/or the Common Area thereof (including those between the Shopping Center Site and the lines or facilities of the DECLARATION OF EASEMENTS, C:\WIND0WS\TEMP\DECLARATI0N20 &6�fENANTS, CONDITIONS, AND RESTRICTIONS IIIIII IIIIII IIII IIIIIII III IIIIII IIIIII III VIII IIII II I 12 ©/2 FJ& 08:008 Government or public utility providing the utility service in question); excluding, however, laterals within five (5) feet of any Building servicing only the Building and located entirely on the Parcel on which such building is located. (o) "Consenting Parties" - (i) the Owners of at least 60.00 percent of the land area comprising the Shopping Center Site; and (ii) Manager so long as Madison is the Manager. (p) "Declaration" - This Declaration, as modified from time to time by any later amendment or other modification recorded in the. Public Records. (q) "Environmental Indemnity" - Defined in Section 13.05 below. (r) "Government" - All federal, state, county, municipal and other governments; and governmental and quasi -governmental branches, authorities, districts, courts, tribunals, boards, agencies, departments, commissions, officers, judges, agents, employees, and other instrumentalities. (s) "Grantee" - An Owner to which an easement is granted. (t) "Grantor" - An Owner granting an easement. (u) - "Gross Leasable Area" shall mean the number of square feet of enclosed floor area on all levels (excluding any mezzanines, basements or balconies, except any used for retail sales, retail services and/or accessible to all or any of an Occupant's customers), measured from the exterior face of exterior walls and of service corridor walls, the exterior building line for sidewalk or mall frontage, and the center line of party walls, with no deduction for columns, stairs, elevators, or any interior construction or equipment. With respect to the Shopping Center Site or a Parcel, the Gross Leasable Area shall be the greater of (i) the total constructed Gross Leasable Area available for exclusive use and occupancy of Occupants within the Parcel or Shopping Center Site as the case may be, whether or not actually rented or open for business, as the same exists from time to time, or (ii) the total Gross Leasable Area of the Parcel or Shopping Center Site (not including any expansion area until actually built) designed for exclusive use and occupancy of Occupants, as shown on the Site Plan, whether or not actually constructed, rented or open for business. Any change in Gross Leasable Area, whether of a Parcel or Shopping Center Site, shall be deemed in effect on the first day of the next succeeding month following such change. (v) "Hazardous Substances Contamination" - Defined in Section 13.05 below. DECLARATION OF EASEMENTS, C:\WIND0WS\TEMP\DECLARATI0N20 e6iJENANTS, CONDITIONS, At -D RESTRICTIONS �- 2888-518332 '22!2000 03: (w) "Inoperative Owner" - Defined in Section 14 below. (x) "Law" - All law, including without limitation intended, all common law, statutes, ordinances, codes, regulations, rules, orders, judgments, and other requirements of Government. (y) "Lease" - Any lease, occupancy, license, concession or other instrument or arrangement which grants a Person a legally enforceable right not revocable at will, to the use and occupancy of Gross Leasable Area. (z) "Lienholder" - Any mortgagee under a mortgage- or a trustee or beneficiary under a deed of trust or trust deed encumbering the fee simple- title to the Center or any Parcel.. (aa) "Manager" - (i) Madison unless and until the earlier of the following events: (x) Madison or any successor Manager resigns as Manager, or (y) another Person is appointed pursuant to Section 5.07, 5.08, 5.10 or 5.11 below; or(ii) if not Madison, then another Person appointed pursuant to Section 5.07, 5.08, 5.10 or 5.11 below. (bb) "Manager Replacement' - Defined in Section 5.07 below. (cc) "Mortgage" - a bona fide mortgage or trust deed encumbering the fee simple title to the Center or any Parcel. (dd) "Notice" - Defined in Section 20 below. (ee) "Occupant(s)" - (i) Any Person(s) from time to time legally entitled to the use and occupancy of Gross Leasable Area under any Lease; and (ii) the Owners. (f f) "Owner" - The record owner of fee simple title to the Center or any part of or interest in the Center. (gg) "Parcels" - (i) Parcels 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12 of the Parcel Map; (ii) any other parcel of land subject to the Declaration which is a legally subdivided lot, including any consolidated legal lot comprised of any combination of the foregoing parcels. (hh) "Parcel" one of the Parcels. (ii) "Parcel Map" - The recorded plat map which identified on Exhibit "A" of this Declaration and subdivides the Shopping Center Site into the Parcels. DECLARATION OF EASEMENTS, C:MINDOW&TEMPTECLARATION20 (?MfENANTS, CONDITIONS, AND RESTRICTIONS _5_ 111111111111 IIII 1111111 III 111111 lillll III Illll IIII IIII 12 2F�F�©©�©� t (jj) "Parking Area(s)" - All paved areas or other facilities used exclusively for parking automobiles or for access to or in such areas, and landscaped areas within or adjacent thereto, located on the Shopping Center Site. The Parking Areas shall be the parking areas shown on the Site Plan, as the Site Plan may be modified from time to time with the approval of the Consenting Parties. (kk) "Permittee(s)" - The following Persons(s): (i) Occupants; and (ii) the principals, officers, directors, partners, members, employees, agents, contractors, subcontractors, suppliers, customers, patrons, clients, and visitors of the Occupants. (II) "Person(s)" - Individuals, partnerships, firms, associations, corporations, limited liability companies, trusts, or any other form of legal entity. (mm) "Potentially Hazardous Use" - Defined in Section 13.05 below. (nn) "Proportionate Share" - a fraction, with the Gross Leasable Area of the respective Parcel as the numerator and the Gross Leasable Area of the Shopping Center Site as the denominator. (oo) "Proportionate Share of Common Area Charges" - A fraction, with the Gross Leasable Area of the Parcel as the numerator and the Gross Leasable Area of the Shopping Center Site as the denominator. (pp) "Proportionate Share of Common Sign Charges" — a fraction, with a numerator equal to the gross surface area of the sign fascia an Occupant is authorized to display on Common Signs, and a denominator equal to the gross area of the sign fascia all of the Occupants collectively are authorized to display on Common Signs. (qq) "Public Records" - the public records of Riverside County, California. (rr) "Purpose" - The Parties plan to develop the Shopping Center Site, and operate the Center as a modern integrated retail shopping center for the mutual benefit of the Shopping Center Site and the Occupants. (ss) "Refuse" - Garbage, trash, rubbish and other refuse. (tt) "Release" - defined in Section 13.05 below. DECLARATION OF EASEMENTS, CAWINDOWS\TEMP\DECLARATION20 e&�ENANTS, CONDITIONS, AND RESTRICTIONS lilllllillll IIII1111111III111111111111III IIIII IIIIIIII 1L 22/ 068 008 (uu) "Rooftop Equipment" - Building equipment and appurtenances (including without limitation intended, heating, ventilation and air-conditioning equipment and satellite communication dishes and antennas), which are located entirely upon and above a Building's. roof. (vv) "Rules and Regulations" - reasonable rules and regulations adopted, amended and repealed in accordance with this Declaration, at any time and from time to time, for the use and operation of the Common Area and Common Utility Facilities. A copy of the Rules and Regulations in effect on the date of this Declaration is attached as Exhibit "C" to this Declaration (ww) "Senior Institutional Lienholder" - the first. priority Lienholder holding one or more Mortgages which encumber more of the land comprising the Shopping Center Site, than the Mortgages held by any other first priority Lienholder; provided, however, that for the purposes of this definition, the only Lienholders which shall be considered are Lienholders which are a bank, savings and loan association, trust company, life insurance company, national broker-dealer, corporation whose secu- rities are listed on the New York Stock Exchange, Inc., or a pension fund with a net worth in excess of the assessed valuation of the Center. At the time this Declaration is recorded, Far East National Bank, N.A., is the Senior Institutional Lienholder. (xx) "Service Facilities" - shopping cart corrals, parking and accessway lighting facilities, underground utility installations, telephone pedestals, directional signs, loading docks, trash containers, trash compactors and enclosures, bottle and can storage areas, recycling facilities, exterior coolers, heat pumps, electrical and refrigeration facilities and similar service facilities in the Center. (yy) "Shopping Center Site" - (i) The land described in Exhibit "A" of this Declaration; and (ii) any other land which the Consenting Parties may approve as an addition to the Shopping Center Site, as evidenced by an amendment of the Declaration, duly recorded in the Public Records. Parcel 8 of the Parcel Map is not part of the Shopping Center Site at the time this Declaration is executed. However, Madison, without the consent of any other Person shall have the right to amend this Declaration at any time prior to the fifth year anniversary of the date of this Declaration, to add Parcel 8 of the Parcel Map to the Shopping Center Site, by recording an amendment of this Declaration to such effect, if Parcel 8 and any other Parcel(s) are consolidated into one Parcel to comprise one legal lot. (zz) "Sign(s") - any permanent or temporary sign, . price, billboard. advertisement, circular, lettering, placard, poster, pennant, flag, awning, name. insignia, trademark, logo, decoration, banner, descriptive or similar item, which is readily visible from the exterior of a Building. DECLARATION OF EASEMENTS, CAWINDOWS\TEMP\DECLARATION20 e6rVENANTS, CONDITIONS, AND RESTRICTIONS IIIIII IIIIII (III (IIIIII SII IIIIII ��IIII III VIII I II (III 12/22/200619.9 2 ?99A (aaa) "Site Plan" - The site plan of the Center which is attached to this Declaration as Exhibit "B" or any other site plan which the Consenting Parties may approve as a site plan, as evidenced by an amendment of the Declaration duly recorded in the Public Records. (bbb) "Store(s)" - All or any portion of a Building which is either: (i) segregated by walls, has at least one exterior entrance, and is otherwise physically susceptible of being leased; or (ii) is the premises demised by a Lease which grants exclusive occupancy. (ccc) "Successor" - any Person succeeding to the estate or interest held by another Person, by sale, assignment, transfer, merger, consolidation, reversion, operation of law or otherwise, excluding however, any involuntary sale or other transfer except to or at the behest of a secured creditor. (ddd) "Superfund Act" - Defined in Section 13.05 below. (eee) "Termination Date of the Declaration" - December 31, 2066; provided, however, that the Termination Date of the Declaration shall be automatically postponed for five successive ten year periods, unless the Consenting Parties and the City execute and record a written termination of this Declaration, specifying a Termination Date of this Declaration which shall not be sooner than one year after notice is given to all Owners. Despite the expiration or termination of this Declaration, the easements granted in Sections 7,'8 and 9 below shall be perpetual and remain in full force. (fff) . "Unavoidable Delay" - Defined in Section 21 below. 3. Building and Common Area Development: 3.01. Building Locations: All Buildings (except Service Facilities) shall be placed only in Building Areas; provided, however, that canopies, eaves and roof overhangs, utility cabinets, pads and meters, signs and doors for access may project from Building Area into the Common Area. No encroachments by Buildings are permitted into the Common Area; provided, however, that an easement is hereby granted for any accidental encroachment by footings or foundations not exceeding two feet in length for as long as they may stand; and for any encroachments by any awnings, trellises or similar improvements required by the City as a condition of approving the Site Plan or the Parcel Map. DECLARATION OF EASEMENTS, CAWINDOWSUEMPTECLARATION20 (?®'/ENANTS, CONDITIONS, Al D RESTRICTIONS -$- I��III IIIIII IIII IIIIIII ��I IIIIII ��liil III ('I�I I II Jill 2111-5 i^.,-_12/ 0019 08?00R 3.02. Compliance with Law Generally: All Buildings and improvements shall be designed, constructed, maintained, repaired, replaced, operated and occupied in accordance with all applicable Law. 3.03. Building Area Cover and Height: (a) All Building Area which is not covered by Buildings or other improvements, shall be covered by sod or hydro -seeded, and thereafter watered and kept weed -free and mowed at the sole cost and expense of the Owner or Occupant until the Building Area is covered by Buildings or other improvements (collectively referred to as "Dust Cap"). (b) The Shopping Center Site is subject to the following building setbacks along the perimeter of the Shopping Center Site: (i) Highway 111 - 50 feet; (ii) Washington Street - 20 feet. No Building located within 150 feet of such building setback lines or any other setbacks established for the exterior perimeter of the Shopping Center Site by Law, shall exceed 22 feet in height above the finished ground floor elevation of the respective Building, excluding Rooftop Equipment. (c) Rooftop Equipment shall not exceed 24 inches in height above the finished parapet walls of the respective Building; provided, however, that equipment which is designed and functions solely to receive and/or transmit signals or other means of communication not visible outside the respective Building, shall not exceed 36 inches in height above the finished parapet walls of the respective Building. Without the prior consent of the Manager; Rooftop Equipment shall not be visible from any Common Area nor from any street adjoining the Center. If Manager consents to Rooftop Equipment, the consent may be conditioned upon screening the Rooftop Equipment in a manner acceptable to the Manager. In such event no Rooftop Equipment shall be placed or remain upon the roof of any Building, unless screening acceptable to the Manager is first erected and thereafter continuously maintained in good condition and repair. (d) There shall be a ground floor in each Building. The finished ground floor elevation of each Building shall not exceed 12 inches above the average surface elevation of the portion of the Parking Areas located within 100 feet of the respective Building. 3.04. Common Area: The Common Area is hereby reserved for the sole and exclusive use of all Owners and their Permittees in common. The Common Area may be used for vehicular driving (in vehicular accessways), drive-through facility(ies) but only as shown on the Site Plan, parking (in the Parking Areas), pedestrian traffic, Parking Areas, accessways, sidewalks, curbs, gutters, landscaping, perimeter walls, DECLARATION OF EASEMENTS, CAWINDOW&TEMPMECLARATION20 e&F ENANTS, CONDITIONS, AND RESTRICTIONS 111111111111IIII1111111III (11111111111III IIIII IIIIIIII 1c,LJ 22/200008<00A fences and Service Facilities. The Common Area shall not be used for any other purpose except as otherwise provided in this Declaration. The Common Area size, improvements and arrangement shall be substantially as depicted on the Site Plan. Without the prior written consent of Consenting Parties, no material changes shall be made in the Common Area size, improvements and arrangement. Nothing contained in the preceding sentence shall impair the right of any Owner to construct Buildings and improvements in any Building Area, or to construct, modify or relocate Service Facilities which are immediately adjacent to and do not affect access to the Buildings. No parking space or parking area within the Shopping Center Site shall be reserved for the exclusive use of any Person; provided, however, that nothing contained in this sentence shall limit or prohibit compliance with any Law which may require that any parking spaces or parking areas within the Shopping Center Site be designated for the use of any particular Person, class of Persons or vehicles. 3.05. Type and Design of Buildings: (a) Each Building now or later in the Center, shall be of first class construction and architecturally designed so that its exterior elevations (including without limitation intended, signs and color) shall be architecturally and aesthetically compatible and harmonious with all other Buildings then in existence. No Building shall be constructed nor the exterior of any existing Building (including without limitation intended, Signs, colors and materials) changed in any material way without the prior written approval of the Consenting Parties as to the exterior elevations (including without limitation intended, Signs, colors and materials). The following exterior modifications are exempt from the requirement of obtaining the approval of Consenting Parties: opening, closing, modification or relocation of any door and/or Sign. (b) Before construction of any Building or making any change in the exterior of any existing Building which requires the approval of Consenting Parties, the Owner or Occupant shall provide the Owners, and Manager, with sufficient information for the Owners and Manager to make a reasonable determination whether the proposed Building or change is architecturally and aesthetically compatible with all other Buildings then in existence. 3.06. Fire Protection: Every Building constructed after the date of this Declaration shall either be equipped with automatic sprinkler systems or constructed in such manner, as to not adversely affect the fire insurance rating of any other Building in the Center. The purpose of this section is to allow the Buildings on separate Parcels to be rated for fire insurance purposes, without regard to the Buildings on other Parcels. DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 e&F ENANTS, CONDITIONS, AND RESTRICTIONS -10- I��III IIIIII IIII IIIIIII III IIIIII IIIIII III IIIIII III IIII i .2 / 90 08: 06A 3.07. Structural Integrity: No Building shall be constructed in a manner which adversely affects the structural integrity of any other Building. 3.08. Screening: All Service Facilities which Permittees shall be screened from the Parklitig acceptable to the Manager. 3.09. Construction Requirements, Generally: are not intended for the use of Areas in a manner reasonably (a) No Occupant shall perform or cause the performance of any work or the use or installation of any materials in or on the Center, except in strict compliance with all applicable Law. (b) Before construction of any material change in the Common Area, the Occupant proposing the change shall provide the other Owners, and Manager, with sufficient information (including without limitation intended, drawings) for the Owners and Manager to make a reasonable determination whether the proposed change is functionally and visually compatible with the continued use and operation of all Buildings and Common Area. (c) Each Occupant who performs or causes the performance of any work or the use or installation of any materials in or on the Center, shall: (i) Promptly pay all costs and expenses of all work performed and all materials furnished, including without limitation intended, all contractors, subcontractors, suppliers, materialmen, designers, architects, engineers, and laborers; (ii) Discharge of record by payment or bonding in compliance with all applicable Law, any mechanic's, materialman's or similar lien for services rendered, work performed or materials furnished at the request of or for the benefit of the Occupant, within 20 days after any such lien is claimed, recorded or filed against any portion of the Center; (iii) Indemnify and hold the other Occupants, the Manager and the Lienholders harmless from all liabilities, damages, costs and expenses, including reasonable attorneys' fees -and disbursements, arising out of any claim, demand, suit or proceeding of any nature, related to the work performed or materials furnished at the request of or for the benefit of the Occupant, except any arising out of any negligence or other tortious conduct on the part of the Occupant, Manager or Lienholder otherwise entitled to indemnification. DECLARATION OF EASEMENTS, CAWINDOWSITEMPTECLARATION20 869ENANTS, CONDITIONS, AND RESTRICTIONS -11- II�III �IIII) III �IIIII) II IIIIII ��IIII III IIIIII III IIII 12/22/2000 88:GGA (d) Whenever any Occupant performs or causes the performance of any work or the use or installation of any materials in or on the Center, the work, use or installation shall be pursued with due diligence from commencement to completion, with no delays except to the limited extent caused by Unavoidable Delays. 3.10. Construction Insurance Requirements: 3.10.1. Prior to commencing work, during any period of time that work occurs, and continuing until the date all work is completed, the Occupant performing or causing the work shall maintain the following insurance coverage, subject to the provisions of Section 4.03 below: builder's completed value risk insurance (non -reporting form) covering all of insurable improvements, in an amount not less than the full replacement cost, without any deduction for depreciation. 3.10.2. Prior to commencing work, during any period of time that work occurs, and continuing until the date all work is completed, the Occupant performing or causing the work shall cause its contractor maintain the following insurance coverage, subject to the provisions of Section 4.03 below: (a) Commercial general liability insurance covering all operations by or on behalf of the Occupant's contractor, which shall include the following minimum limits of liability and coverages: (i) Required coverages: Premises and Operations; Products and Completed Operations; Contractual Liability, insuring the indemnity obligations assumed by contractor under the contract documents; Broad Form Property Damage (including Completed Operations); Explosion, Collapse and Underground Hazards; and Personal Injury Liability. (ii) Minimum limits of liability: $1,000,000 each occurrence (for bodily injury and property damage); $1,000,000 for Personal Injury Liability; $2,000,000 aggregate for Products and Completed Operations; $2,000,000 general aggregate applying separately to the Shopping Center Site; (b) Automobile liability insurance including coverage for owned, hired and non -owned automobiles. The limits of liability shall not be less than $1,000,000 combined single limit each accident for bodily injury and property damage. The contractor shall require each of his subcontractors to include in their liability insurance policies coverage for automobile contractual liability. (c) Umbrella or excess liability insurance in the amount of $2,000,000. If there is no per project aggregate under the Commercial General Liability policy, the limit DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 e&F ENANTS, CONDITIONS, Al. D RESTRICTIONS -12- VIII I�IIII III �IIIIII ��I IIIIII IIII'I III I'I'I III ILII 12/ 222©010 09L shall be $5,000,000. 3.11. Construction Traffic: After Madison substantially completes the development of the Common Area, the following provisions shall govern the use of the Common Area by all construction equipment and traffic (collectively referred to as "Construction Traffic"): (a) Construction Traffic shall only be permitted between the hours of 6:00 A.M. and 8:00 P.M.; subject to any further limitations provided by Law. (b) Prior to any Construction Traffic, and during any period of time that any Construction Traffic occurs, the Occupant who creates or causes the Construction Traffic shall erect and maintain, adequate signage and employ and direct sufficient flagmen, to safely warn all other traffic and pedestrians and direct all traffic and pedestrians ,in a safe and orderly fashion. (c) During any period of time that Construction Traffic occurs, the Occupant who creates or causes the Construction Traffic shall clean the affected accessways and other Common Area whenever required (and in no event less often than daily) to maintain a sightly and neat appearance and safe condition for traffic and pedestrians. (d) Construction Traffic shall be employed in such manner as shall cause the least possible interference with the operation of .the Center, the business of the Occupants, access to and from the businesses being.operated in the Center, and the visibility of the signs and storefronts of the Occupants. 3.12. Drainage Indemnity: If Madison's plans for the development of the Center, contemplate the discharge of storm water directly or indirectly to the Coachella Walley Stormwater Channel, then Madison and the Occupants shall indemnify the City from: (i) all reasonable costs and expenses of any sampling and testing of the Center's drainage discharge which may be required under the City's National Pollutant Discharge Elimination System (commonly known as "NPDES") Permit or any other City or area -wide pollution prevention program, and (ii) all other obligations, liabilities and expenses (including reasonable attorneys' and other experts' fees) which may arise from such discharge. The liability of each Occupant except Madison under this Section 3.12, shall be limited to a Proportionate Share. In the absence of negligence or violation of Law on the part of Madison, or if negligence or a violation of Law on the part of Madison did not give rise to the liability asserted by the City under this Section 3.12; then the liability of Madison shall be limited to Madison's Proportionate Share, if any. If negligence or a violation DECLARATION OF EASEMENTS, CAWINDOWSITEMPMECLARATION20 L°6F/ENANTS, CONDITIONS, AND RESTRICTIONS -13- mi .,��.,P�o of Law. on the part of Madison gives rise to liability asserted by the City under this Section 3.12; then Madison shall be solely responsible for all of the liability created under this Section 3.12. 4. Insurance: 4.01. The Manager shall at all times until the Termination Date of the Declaration, as part of the Common Area Charges, keep in full force and effect, the following insurance coverage: (a) Public liability and property damage insurance policies for bodily injury, death or property damage occurring in or about the Common Area, Center Sign and Common Signs, with combined single limits of at least $2,000,000 per occurrence in the case of bodily injury, death or property damage, with the broad form of comprehensive general liability endorsement attached. If the Manager is unable to obtain such coverage, then the Manager shall obtain commercial general liability and property damage insurance policies for bodily injury, death or property damage occurring in or about the Center, with combined single limits of at least $2,000,000 per occurrence in the case of bodily injury, death or property damage; (b) Umbrella or excess liability insurance policy, with limits of not less than $3,000,000. in the aggregate. (c) Workers' compensation and employer's liability insurance: (i) Worker's compensation insurance as required by any applicable Law. (ii) Employer's liability insurance in the amount of $1,000,000 each accident for bodily injury, $1,000,000 policy limit for bodily injury by disease and $1,000,000 each employee for bodily injury by disease. 4.02. The Owner or Occupant of each Parcel, shall with respect to the Owner's or Occupant's Building(s) and Building Area(s) , at its sole cost and expense, at all times until the Termination Date of the Declaration, keep in full force and effect: (a) The insurance coverage required by Sections 4.01(a) and (c) above, together with a contractual liability endorsement to the liability insurance policy, covering the indemnification obligations of the Owner or Occupant under this Declaration; (b) Casualty insurance on an "all perils" basis, in an amount equal to 100% • of the full replacement cost of all Buildings on the Owner's Parcel, with a DECLARATION OF EASEMENTS, CAWINDOWSUEMPTECLARATION20 &69ENANTS, CONDITIONS, AND RESTRICTIONS -14- I lillll 111111111111111111111111111111111111111111111111 12 22 ?000 08`06A replacement cost endorsement, without any deduction for depreciation, and, if available in the State of California, an agreed amount clause in the insurance policy. If an agreement amount clause is available, the agreed amount clause shall be renewed annually. 4.03. All insurance required by any provision in this Declaration shall be subject to and comply with each of the following requirements: (a) In the event that a Manager, Occupant or contractor is unable to obtain li- ability insurance policies on an "occurrence basis", the Manager, Occupant or contractor shall obtain extension policies commonly referred to as "tail" policies at least 30 days prior to the expiration of any policy which will not be renewed. All ex- tension policies (i) shall include coverage for all claims made after the date of the policy not renewed, regardless of the date such claims are made; and (ii) shall have - limits equal to or greater than the policies which are not being renewed. (b) All limits of insurance coverage may increased as the Senior Institutional Lienholder may reasonably require, taking into account the limits of coverage obtained for other shopping centers in Riverside County, California. (c) So long as a Manager, Occupant or contractor is required to maintain insurance coverage by this Declaration, before any work is begun by any contractor, before any duties are performed by any Manager, and before any Occupant takes possession of or enters upon any Parcel and at least 30 days prior to the expiration or termination of the then current insurance policies, renewal or replacement policies, endorsements or certificates of insurance shall be delivered by the Manager, Occupant or contractor, to the Owners, Manager, Anchor Tenants and Senior Institutional Lienholder. (d) All insurance policies which are required to be obtained by this Declaration shall be issued by insurers admitted in California and which have or are the equivalent of an insurer having a Best's Letter Rating of at least "A-" and a financial size category of not less than Class VIII (or their then current equivalents) in the most recent edition of "Best's Key Rating Guide" or a successor or substitute publication of similar national standing. The public liability (or commercial general liability) and excess liability policies shall name all of the Owners, Manager, Senior Lienholder and Anchor Tenants as additional insureds. All insurance policies shall contain a provision that they shall not be canceled or materially modified until 30 days after written notice thereof to the additional insureds. All the limits of insurance coverage required by this Declaration are exclusive of the costs of defense of any claim. (e) All insurance may be provided under (i) an individual policy covering the DECLARATION OF EASEMENTS, CAWINDOW&TEMPTECLARATION20 (?& /ENANTS, CONDITIONS, AND RESTRICTIONS 111111111111 IN 22/2 00.08;0OR Center, (ii) a blanket policy or policies which includes other liabilities, properties and locations of the Manager, Occupant or contractor; provided, however, that such blanket policy must provide that the limits of coverage are not subject to reduction on account of any claims arising out of any premises or operations except those within the Center, (iii) a commercially reasonable plan of self-insurance, provided that any Person so self-insuring notifies the Manager, Occupants, Anchor Tenants and Senior Institutional Lienholder of its intent to self -insure and agrees that upon request it shall deliver to such other Persons each calendar year a copy of its annual report that is audited by an independent certified public accountant which discloses that such self-insuring Person has $250,000,000 in Constant Dollars of both tangible net worth and net current assets, or (iv) a combination of any of the foregoing insurance programs. To the extent of any deductible of any insurance policy carried by a Person in compliance with this Declaration, such Person shall be deemed to be covering the amount thereof under an informal plan of self-insurance; provided, however, that in no event shall any deductible exceed $50,000.00 in Constant Dollars unless such Person complies with the requirements regarding self-insurance pursuant to (iii) above. "Constant Dollars" shall mean the value of the U.S. dollar to which such phrase refers, as adjusted from time to time. An adjustment shall occur on the 1st day of June of the sixth (6th) full calendar year following the date of this Declaration, and thereafter at five (5) year intervals. Constant Dollars shall be determined by multiplying the dollar amount to be adjusted by a fraction, the numerator of which is the Current Index Number and the denominator of which is the Base Index Number. The "Base Index Number" shall be the level of the Index for the last reporting period during the year this Declaration is recorded; the "Current Index Number" shall be the level of the Index for the last reporting period in the year immediately preceding the adjustment year; the "Index" shall be the Consumer Price Index for All Urban Consumers, published by the Bureau of Labor Statistics of the United States Department of Labor for U.S. City Average, All Items (1996=100), or any successor index thereto as hereinafter provided. If publication of the Index is discontinued, or if the basis of calculating the Index is materially changed, then the Consenting Parties shall substitute for the Index comparable statistics as computed by an agency of the United States Government or, if none, by a substantial and responsible periodical or publication of nationally recognized authority most closely approximating the result which would have been achieved by the Index. 5. Common Area, Common Sian and Common Utility Facilities Maintenance: 5.01. The Manager shall operate and maintain the Common Area improvements, Center Sign, Common Signs, and Common Utility Facilities (to the extent the Common Utility Facilities are not maintained by any Government or public utility) in good condition and repair, including any necessary repairs and replacements; and maintain insurance coverage for the Common Area, Center Sign and Common Signs DECLARATION OF EASEMENTS, C:MINDOW&TEMMECLARATION20 &6F/ENANTS, CONDITIONS, Al D RESTRICTIONS -16- IIIIIIIMIIINIIIINIIIIUI�IBINlllll�llllilu .�Fm9°� : as described above. Operation, maintenance and repair shall include without limitation intended, and by way of example only, illumination, sweeping, snow plowing, restriping, Common, Area Refuse collection, irrigating, landscaping, signage, patching, resurfacing, security, management and bookkeeping services. 5.02. No later than October 31St of each calendar year, the Manager shall send each Owner and Anchor Tenant: (i) a budget listing in reasonable detail, the anticipated income and expenses for the immediately succeeding calendar year; (ii) notice of the estimated shortfall or surplus between the Common Area Charges and Common Sign Charges collected for the then current year, and the Common Area Charges and Common Sign Charges incurred for the then current year; and (iii) notice of the estimated Proportionate Share of the Common Area Charges and Proportionate Share of Common Sign Charges for the respective Owner for the immediately succeeding calendar year. 5.03. Each Owner shall pay to the Manager, the Owner=s Proportionate Share of the Common Area Charges and Proportionate Share of Common Sign Charges. Each Owner's estimated Proportionate Share of the Common Area Charges and Proportionate Share of Common Sign Charges, shall be paid to the Manager or its designee in monthly installments, in advance, on or before the first day of each and every calendar month, based on estimates prepared by the Manager from time to time, but not more often than once in any three month period. The estimated Common Area Charges and Common Sign Charges shall be subject to adjustment upon 30 days notice to the Owners, to reflect changes in anticipated or actual Common Area Charges or Common Sign Charges, or collections of Common Area Charges or Common Sign Charges. 5.04. Within 60 days after the expiration of each calendar year, the Manager shall provide the Owners, with a statement summarizing the actual Common Area Charges and actual Common Sign Charges for the preceding year, and setting forth the calculation of the Owner's Proportionate Share of Common Area Charges and Proportionate Share of Common Sign Charges. If an Owner's actual Proportionate Share of Common Area Charges or Proportionate Share of Common Sign Charges for the preceding year was more than the amount paid by the Owner, the Owner shall pay the difference to the Manager or its designee within 30 days after demand. If an Owner's actual Proportionate Share of Common Area Charges or Proportionate Share of Common Sign Charges for the preceding year is less than the amount paid by the Owner, the Owner shall receive a credit against the ensuing payments of the Owner's Proportionate Share of Common Area Charges or Proportionate Share of Common Sign Charges, as the case may be, and if the Termination Date of the Declaration occurs before the credit is exhausted; then the Owner shall receive a DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 (?69ENANTS, CONDITIONS, AND RESTRICTIONS _17_ I IIIIII IIIIII IIII IIIIIII III IIIIII IIIIII III IIIIII III IIII 12,L22/2000 08: @GA refund equal to the unrealized credit within 30 days after the Termination Date of the Declaration. 5.05. An Owner's Proportionate Share of Common Area Charges and Proportionate Share of Common Sign Charges shall not include any Proportionate Share of the following: (i) depreciation of the original cost of constructing, erecting and installing the Common Area or Common Signs; (ii) principal and interest payments pursuant to any, Mortgage debt which encumbers the Common. Area, Center Sign or Common Signs; (iii) leasing or brokerage commissions; (iv) management and bookkeeping fees in excess of the greater of ten percent (10.00%) of all other Common Area Charges or $12,000.00; (v) management and bookkeeping fees in excess of ten percent (10.00%) of all other Common Sign Charges; (vi) administrative or similar fees; and (vii) reserves for replacements. 5.06. An Owner=s Proportionate Share of Common Area Charges and Proportionate Share of Common Sign Charges shall include the Proportionate Share of: (i) the cost of correcting defects in the original work or materials employed in the construction of the Common Area, Center Sign or Common Signs; (ii) the cost of addressing violations of Law and Defaults under this Declaration on the part of the Manager, any Owner or Occupant; except (x) any arising out of the Potentially Hazardous Use or Release of Hazardous Substances, or Hazardous Substances Contamination, or the Environmental Indemnity, if (y) there is no reasonable prospect that any other Occupant or Owner will as a result thereof, incur any liability (civil or criminal) under any Law or suffer any material loss or cost; (iii) the losses, costs and liabilities arising. of the negligence or other tortious conduct, on the part of the Manager, any Owner or Occupant in the use, operation, maintenance or repair of the Common Area, Center Sign or Common Signs; provided, however, that nothing in this clause (iii) shall (x) create any rights to any indemnification or contribution in favor of the negligent or otherwise tortious Person, nor (y) create any third party beneficiary; and (iv) shortfalls in collections of Common Area Charges or Common Sign Charges by reason of any Owner=s Default or otherwise; provided, however, that in each of the cases described in the preceding clauses (i) through (iv) reasonable efforts shall be made to recover the costs, losses and/or liabilities from the Person who caused the costs, losses and/or liabilities to be incurred, and/or from the insurer providing coverage against the costs, losses and/or liabilities, and the Manager shall take the lead in coordinating efforts to recover the costs, losses and liabilities unless the Manager has an actual conflict of interest. Nothing contained in this Section 5.06 shall operate to release Madison or any other Person from any liability imposed by any other provision of this Declaration, or any other document or applicable Law, in without limitation intended, any liability on the part of Madison arising out of defects in materials or workmanship employed by Madison in the original construction of the Common Area. DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 effiJENANTS, CONDITIONS, AND RESTRICTIONS -18- I�IIII IIIIII IIII IIIIIII III IIIIII IIIIII III �lII�I SII III 12/2121/2080 fE)8:00A 5.07. If there are two or more material Defaults (as such term is defined below) within any 12 calendar month period, by the Manager, in the fulfillment of the obligations imposed by this Declaration, then the Consenting Parties (exclusive of the Manager if Madison is still the Manager) or the Senior Institutional Lienholder, may elect to relieve the Manager of its obligations and rights under this Declaration and impose such obligations on and grant such rights to an Owner or an independent manager, in either case with substantial experience operating and maintaining California retail shopping centers (`.`Manager Replacement"); provided: (a) either: (i) the Consenting Parties (exclusive of the Manager if Madison is still the Manager): (x) agree on Manager Replacement in writing, and (y) give notice of their agreement to all of the Occupants, the Senior Institutional Lienholder and the City, within six months after their right to replace the Manager accrues; or (ii) the Senior Institutional Lienholder: (x) elects Manager Replacement; and (y) gives notice of its election to Manager, to all of the Occupants, and the City, within six months after the Senior Institutional Lienholder's right to replace the Manager accrues; and (b)(i) If Consenting Parties have agreed to Manager Replacement pursuant to this Section 5.07, the City and the Senior Institutional Lienholder fail to give the Consenting Parties (exclusive of the Manager if Madison is still the Manager), notice within 20 days after the City and the Senior Institutional Lienholder are given notice of the identity, business background, shopping center management experience and current references of the Person chosen to succeed the then current Manager, specifying one or more reasonable objections to the Person chosen to succeed the then current Manager; or (ii) if the Senior Institutional Lienholder has elected Manager Replacement pursuant to this Section 5.07, and the City and the Consenting Parties (exclusive of Madison if still the Manager) fail to give the Senior Institutional Lienholder, notice within 20 days after the City and the Owners are given notice of the identity, business background, shopping center management experience and current references of the Person chosen to succeed the then current Manager, specifying one or more reasonable objections to the Person chosen to succeed the then current Manager. 5.08. If a successor Manager is not selected pursuant to the immediately preceding Subsection (b); then the successor Manager shall be chosen as follows: (i) each Owner, the City and the Senior Institutional Lienholder shall be given not less than ten days notice of the date, time and place of a meeting at the Center; (ii) at the meeting held on the date, and at the time and place noticed, each Person entitled to notice of the meeting shall be entitled to (x) nominate one successor Manager, and (y) vote for the election of one successor Manager; and (iii) the nominee who receives the largest number of votes shall be the successor Manager. Voting at such DECLARATION OF EASEMENTS, CAWINDOW&TEMPMECLARATION20 MIENANTS, CONDITIONS, AND RESTRICTIONS _19. 2/L22.,2000 �,B meeting shall be weighted as follows: (i) each Owner shall have the number of votes equal to the most recent assessed value of the Owner's Parcel; (ii) the Senior Institutional Lienholder shall have the number of votes equal to the then current Mortgage debt owed to the Senior Institutional Lienholder; and (iii) the City shall have the number of votes equal to 20.00 percent of all other votes. 5.09. Each successive Person selected under Section 5.07, 5.08 , 5.10 or 5.11 to be responsible for fulfillment of the obligations of the Manager, shall be subject to removal and replacement in accordance with Sections 5.07 and 5.08, with the same effect as if the Successor's name appeared in lieu of the name of the initial Manager. 5.10. Subject to the provisions of Sections 5.07 and 5.08 above and 5.11 below, the then current Manager shall have the right to appoint a successor Manager at any time and from time -to -time, upon 30 days prior notice to the Owners, any Anchor Tenant, the City, and the Senior Institutional Lienholder. No Person shall be appointed a successor Manager unless the Person to be appointed or a principal of the Person to be appointed has substantial experience in the management of California retail shopping centers. 5.11. If Madison remains in default after the expiration of any applicable grace period under the Mortgage or any related loan documents which are held by the Senior Institutional Lender and executed by Madison; then so long as the default remains outstanding, the Senior Institutional Lender may elect to relieve the Manager of its obligations and rights under this Declaration and impose such obligations on and grant such rights to a Manager Replacement; provided: (a) the Senior Institutional Lienholder gives notice of its election of Manager Replacement, to the Manager, all of the Occupants, and the City, anytime before the default is cured; and (b) the City and the Consenting Parties (exclusive of Madison) fail to give the Senior Institutional Lienholder, notice within 20 days after the City and the Owners are given notice of the identity,, business background, shopping center management experience and current references of the Person chosen to succeed the then current Manager, specifying one or more reasonable objections to the Person chosen to succeed the then current Manager. If a successor Manager is not selected pursuant to the immediately preceding Subsection (b); then the successor Manager shall be chosen as provided in Section 5.08 above. DECLARATION OF EASEMENTS, CAWINDOWSITEMPTECLARATION20 e69/ENANTS, CONDITIONS, At 3 RESTRICTIONS -20- II�III IIIIII IIII IIIIIII III IIIIII Ifl�tl III IIIIII �I I��I t� 2©� 2r�E0�98�a0R 5.12. No Manager shall have any liability for any breach of the obligations of the Manager arising: (i) before the date the Manager is appointed pursuant to Section 5.07, 5.08, 5.10 or 5.11 above; or (ii) after the date the Manager is (x) removed pursuant to Section 5.07 or 5.11 above, or (y) succeeded by a successor Manager designated pursuant to Section 5.10 above. 6. Easements in General: The following provisions shall be applicable in regard to any easements established and created by this Declaration: (a) A Party granting an easement is referred to as the "Grantor"; it being intended that the grant shall thereby bind such Party and its heirs, successors and assigns. (b) A Party to which an easement is granted is referred to as the "Grantee"; it being intended that the grant shall thereby benefit such Party and its heirs, successors, assigns, lessees and Permittees. (c) The word "in" in respect of an easement granted "in" a particular Parcel, shall be deemed to mean, as the context may require, "in", "to", "on "through", "upon", "across", and/or "under"; provided, however, that all utility lines and other utility installations located on the Shopping Center Site shall be installed underground to within five feet (5') of any Building, except as otherwise provided in this Declaration. (d) The word "maintain" in respect of an easement granted shall be deemed to mean install, construct, use, inspect, maintain, repair and replace. (e) The grant of a particular easement by a Grantor shall bind and burden its Parcel which shall, for the purpose of such easement, be deemed to be the servient tenement, but where only a portion of a Parcel is bound and burdened by the particular easement, only that portion thereof so bound and burdened shall be deemed to be the servient tenement. (f) The grant of a particular easement to a Grantee shall benefit its Parcel which shall, for the purpose of such easement, be deemed to be the dominant tenement, but where only a portion thereof is so benefitted, only that portion shall be deemed to be the dominant tenement. 7. Utility Easements. DECLARATION OF EASEMENTS, CAWINDOWSITEMPMECLARATION20 &®'/ENANTS, CONDITIONS, AND RESTRICTIONS -21- IIIIIII IIIIII IIII IIIIIII III VIII) VIII) III IIIIIII II IIII 1�/�2f1Fj Ol0 F�H;OF+rl 7.01. Easements for Common Utility Facilities: The Owners hereby expressly grant to each other and to their respective successors and assigns for the benefit of each Grantee's Parcel the non-exclusive right and easement to: (a) maintain Common Utility Facilities underground within the Common Area within the Grantor's Parcel at the depths approved by the Owners of the affected Parcels; (b) discharge surface water from each Owner's Parcel across the surface of the Common Area located on each other Owner's Parcel; (c) discharge surface and storm water from each Owner's Parcel into drainage pipes located on each other Owner's Parcel connecting the Parking Areas with any public (including any special district) storm water system and/or private storm water detention system or facility located within or adjacent to the Center. Without limiting the general application and authority conferred by the preceding sentence, the Owners hereby expressly grant to Madison and its successors and assigns, through the date that each Parcel is improved by a completed Building, the unilateral authority to grant easements to utility providers, to maintain: (i) Common Utility Facilities; and (ii) underground utility facilities in any portion of the Shopping Center which is not Building Area. 7.02. Right to Relocate: Any Owner of a - Parcel on which any Common Utility Facilities or other utility facilities (including any drainage pipe) shall have been installed, shall have the right, upon sixty (60) days prior notice to the other Owners, at any time or from time to time, to move and relocate such Common Utility Facilities and other utility facilities to such place on its Parcel as the Owner shall designate; provided, however, that such relocations shall be made at the sole cost and expense of the Owner requesting such relocation or relocated Common Utility Facility and shall not unreasonably interfere with, or increase the cost of, any other Occupant's utility service or unreasonably interfere with the conduct or operation of any other Occupant's business. 7.03. No Overburdening: Common Utility. Facilities may be utilized by any Occupants; provided, however, such use shall not overload or interfere with the proper operation of Common Utility Facilities and the use thereof by the Occupants then being served by the Common Utility Facilities. 7.04. Term of Easements: The easements granted by Section 7 of this Declaration shall be perpetual. 7.05. Execution..of Other Instruments: Upon request of a Grantor, the Owners shall execute such easements (with a right to relocate) as may be reasonably required with respect to the portion of the Parcel occupied by Common Utility Facilities or other utility facilities. 8. Reciprocal Common Area Easements. DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 e6F/ENANTS, CONDITIONS, AND RESTRICTIONS -22- 111111111 22.Ifllll)II Jill 12/22/2000 F�f2of 08: HA 8.01. General Grant of Easements: Commencing upon substantial completion of construction of each portion of the exterior Common Area on its Parcel, each Owner grants to each other Owner and their respective successors and assigns and Occupants, for the benefit of their respective Parcels, non-exclusive easements to use each portion of the Common Area constructed on the Grantor's Parcel for its intended purpose; such easements to be for the use of the Grantees thereof, their Occupants, and all Permittees. Included within the easements granted by this Section 8.01 are,,without limitation intended: (a) Easements to use all of Parking Areas for the parking and passage of passenger vehicles (and trucks, so long as there is no unreasonable interference with customer parking), and passage by pedestrians; (b) Easements to use all accessways and roadways to provide passage by motor vehicles (passenger and truck), non -motorized vehicles (eg. bicycles), and pedestrians between each Parcel and the abutting public roads and to provide passage between the various portions of all Parcels; (c) Easements to use the various walkways and all other portions of the Common Area designed for the general use, comfort and convenience of the Grantees, their Occupants and the Permittees. The easements granted by this Section 8.01 shall be perpetual. 8.02. Right to Suspend Access: Each Owner shall each have the right to suspend the use of the access easements encumbering their respective Parcel: (a) From time to time on not less than 30 days notice to all Occupants, for any period not in excess of 24 hours, in the event that a closing of the access is reasonably required to prevent a dedication or the creation of any adverse or prescriptive rights in favor of the public or any third party. Whenever it would serve its intended purpose, use of the access easements shall be suspended on days when a majority of the Center's Gross Leasable Area is closed for business; (b) To the most limited extent and for the briefest period of time feasible in the case of any actual or apparent emergency; (c) From time to time on not less than 30 days notice to all Occupants, to the most limited extent and for the briefest period of time feasible, in the case of any necessary inspections, maintenance, repairs, replacements or improvements. No access shall be suspended pursuant to this Subsection between November 15th and the succeeding January 15th. DECLARATION OF EASEMENTS, CAWINDOWS\TEMP\DECLARATION20 e&VENANTS, CONDITIONS, AND RESTRICTIONS -23- I IIIIII IIIIII IIII IIIIIII III IIIIII IIIIII III IIIIIII it Jill -e 1of © Q=�1��iA 8.03. Staging and Storage Area Easements: (a) Each Owner grants to each other Owner and their respective successors and assigns and Occupants, for the benefit of their respective Parcels, non- exclusive easements to use such portions of each Parcel, as may be necessary for the construction, demolition, repair, restoration and replacement of the Buildings and other improvements on the Grantee's Parcel for purposes of ingress and egress for the delivery and/or removal of construction materials and equipment to be used in such construction, and the storage of construction materials and equipment; provided, however, that each Grantee, in its exercise of the easement hereby granted, shall make diligent efforts not to interfere with Grantor's use of and construction on the Grantor's Parcel. Staging and storage areas shall be only those areas agreed to in writing by the Grantor ("Approved Staging Area"). An Approved Staging Area shall not unreasonably interfere with the access of Permittees, parking by Permittees, the visibility of the signs and storefronts of the Occupants, and the operation of the Occupants' businesses. (b) Immediately prior to construction, demolition, restoration, remodeling or alteration (collectively referred to as "Construction") of any Building on any Parcel during any period of time when other Buildings in the Center are open for business, the Occupant or Owner of the Building under Construction shall at their sole cost and expense erect and maintain in good order and condition a a sturdy fence sufficient to exclude animals, children and adults, around the Approved Staging Area and the Building (except any portion of the Building which may remain open for business) under Construction ("Construction Fence"). The Construction Fence shall be maintained during the entire period of Construction on the Occupant's Building. Promptly upon completion of Construction (including removal of all debris), the Occupant or Owner, as the case may be, shall remove the Construction Fence and repair any damage to the Common Area caused by or related to the Construction or the Construction Fence. 9. Easements for Underground Supports: While it is the intention of the Owners to confine the Buildings and improvements to the confines of their respective Parcels, it is recognized that this result is not always achieved. Accordingly, the Owners hereby expressly grant to each other Owner and to their respective successors and assigns for the benefit of each Grantee's Parcel non- exclusive easements to maintain such footings and underground supports along their respective common property lines whenever the encroachments are accidental. Such easements shall extend not more than two (2) feet under the servient tenement, as such be necessary in connection with the Buildings and other improvements. At the request of any Owner, the appropriate Owners shall enter into an agreement in DECLARATION OF EASEMENTS, CAWINDOWMTEMPMECLARATION20 L6F/ENANTS, CONDITIONS, At D RESTRICTIONS -24- II�III I�III' IIII IIIIIII III IIIIII I�I�'I III �IIII�I II II'I 12 2 2 z 0©Ge� recordable form describing the easements provided for hereby in accordance with a survey made at the expense of the Grantee(s) of such easements. Each such easement for such underground footings or supports for buildings shall continue so long as the encroaching Buildings exist. The Grantee(s) of such easements shall be responsible for any repairs required to such footings. 10. No Dedication of Easements. The easements set forth in this Declaration are not intended to dedicate and shall not be construed as a dedication of any portion of the Center for public use. The Owners shall refrain from taking any action which would cause such a. dedication, and shall take whatever steps may be necessary to avoid any such dedication, except such dedications as may be agreed upon in writing by the Consenting Parties. 11. Common Area Use: 11.01. Control, Operation, Management and Use: (a) The Common Area shall be under the control and management of the Manager. The Common Area shall be operated for the common and joint use and benefit of the Owners, the Occupants and/or Permittees and their successors and assigns. (b) The Manager may, but shall not be required to, employ a qualified resident manager and may delegate all or any of the Manager's rights and duties to the resident manager; provided, however, that no delegation shall relieve the Manager from any liability arising out of any breach of the Manager's obligations under this Declaration or applicable Law. (c) Despite any other provision in this Section 11.01 or this Declaration to the contrary, no Occupant shall offer, sell or display any goods or services on the Common Area, except: On walkways but not Parking Areas, in connection with events or promotions sponsored by any merchants' association comprised of a majority of the retail Occupants in the Center, or in connection with events or promotions open to all retail Occupants in the Center, provided: (i) such events and promotions and activities associated with such events or promotions shall not be conducted within 200 feet of any entrance to a Buildings occupied by an Anchor Tenant without the consent of the affected Anchor Tenant; (ii) such events and promotions shall not be conducted more often than six (6) times in each calendar year, and on each occasion for a period of time not exceeding five (5) consecutive days; and (iii) no Person shall offer, sell or display any goods or services on any portion of the Common Area DECLARATION OF EASEMENTS, CAWIND0WSITEMPIDECLARATI0N20 &&F ENANTS, CONDITIONS, AND RESTRICTIONS _25_ 1 1111111 iillli IIII 1111111111111111111111 III 1111111 II IIII ,.� ����� �1���� without the prior consent of the Occupant of the Parcel on which the portion of the Common Area is located. 11.02. No Charges for Use: Except as may be required by Law or agreed to in writing by the Consenting Parties, no charges shall be levied or imposed for parking in, access through or use of any of the Common Area. 11.03. Employee Parking Areas: Until the Termination Date of this Declaration, Madison so long as Madison is the Manager, and thereafter the Consenting Parties, shall have the right to designate parking spaces for use by Occupants and their employees and agents ("Employee Parking Areas"). All Occupants shall park and shall cause their employees and agents to park their motor vehicles in the Employee Parking Areas. Employee Parking Areas are not for the exclusive use of Occupants, their employees and agents. Not less than two parking spaces on each Parcel shall be designated Employee Parking Areas. The Employee Parking Areas depicted on Exhibit "D" shall be the Employee Parking Areas unless and until Madison or the Consenting Parties designate other Employee Parking Areas as provided in the first sentence in this Section 11.03. The obligation of Occupants under this Section 11.03 shall not require the employment of personnel to police the parking practices of agents and employees, termination of employment of employees who park in other areas, or the institution of litigation to cause agents and employees to park in the Employee Parking Areas. Vehicles of employees and agents parked in the Center in areas other than Employee Parking Areas may be stickered and/or towed at the sole cost and expense of the offending employee or agent or owner of the offending vehicle. 11.04. Parking Ratio. Under no circumstances shall any Person reduce the number of parking spaces, to the extent that: (i) there would be less than four and one-half (4.5) automobile parking spaces for each 1,000 square feet of Gross Leasable Area in the Center; and/or (ii) there would be fewer parking spaces in the Center than the number required by Law. The parking spaces shall be located as shown on the Site Plan; subject, however, to the right of an Owner to change the location of the parking spaces within the Owner's Parcel provided: either: (i) the Consenting Parties have approved the change; or (ii) the access to the parking spaces, including the drive aisles is not changed, and the number of parking spaces is not reduced. An involuntary appropriation. or a sale under Government threat of involuntary appropriation, of all or part of any Parcel shall not create a breach of the provisions set forth in this Section 11.04. 11.05. Lighting of Common Area. From dusk to dawn: (i) The full limit of artificial lighting for the Common Area ("Full Lighting") shall remain .on while a majority of the Gross Leasable Area in the Center is open for business ("Full Lighting Hours"); and DECLARATION OF EASEMENTS, CAWINDOWSITEMPMECLARATION20 (?®'/ENANTS, CONDITIONS, AND RESTRICTIONS -26- 1 1111111 Illlli IIII 1111111 III IIlIII 111111 III 1111111 II IIII 12/2L/2600 '8J`36A (ii) reduced artificial lighting ("After Hours Lighting") shall remain on after Full Lighting Hours ("After Hours") even if no Occupants are doing business. If Full Lighting is required by any Occupant for any period of time during After Hours ("After Hours Occupant"), then the artificial lights to service the After Hours Occupant shall be separately metered or otherwise measured or reasonably estimated and all expenses thereof which are over and above the After Hours Lighting ("Lighting Surcharge") shall be paid by the After Hours Occupant. If there is more than one After Hours Occupant, the Lighting Surcharge shall be paid by the After Hours Occupants in proportion to: (i) their respective Parcel Sizes; and (ii) the period(s) of After Hours during which the respective After Hours Occupants require Full Lighting. However, if any After Hours Occupants pay the utility provider for or otherwise supply at their sole cost and expense (without reimbursement from Common Area Charges) all of the lighting on their respective Parcel, then such After Hours Occupants shall pay an equitably reduced proportion of the expense of lighting the balance of the Common Area (including but not limited to the Lighting Surcharge) despite any other provision of this Declaration to the contrary. Any After Hours Occupant shall upon the request of the Manager or any other Person furnishing After Hours Lighting, make and maintain a deposit with the Manager or other Person entitled to payment, equal to 110.00 percent of the reasonably estimated cost of the Lighting Surcharge for a 30 day period. If any After Hours Occupant fails to pay any Lighting Surcharge within 20 days after being given notice of the Lighting Surcharge due, then: (i) the After Hours Lighting may be discontinued without further notice until full payment of the Lighting Surcharge, together with any related costs and expenses, are collected, and (ii) without further notice any deposit received may be applied to make such payment. , 11.06. Law Enforcement. City and other public law enforcement personnel shall have the right to enforce traffic and criminal Law in the Common Area, and the right of access across the Common Area for such enforcement. 12. Additional Maintenance. Each of the Occupants shall: (a) keep the inside and outside of all glass in the doors and windows of its Buildings clean; (b) not place or maintain any merchandise or other articles outside of its Buildings, except 'to the extent specifically permitted in this Declaration; (c) maintain its Buildings at its own expense in a clean, orderly and sanitary condition and free of insects, rodents, vermin and other pests; (d) keep the exterior surfaces of buildings freshly painted, plastered or otherwise appropriately treated; (e) replace broken windows and other glass surfaces promptly; (f) keep its Buildings free from graffiti; (g) except for deposits in appropriate containers, not permit the accumulation of Refuse; (h) remove Refuse at its own expense, and keep Refuse in proper containers in places designated therefor until called for to be removed; and (i) maintain one trash enclosure for each of the Occupant's Stores. DECLARATION OF EASEMENTS, CAWINDOWSITEMPMECLARATION20 (?&F ENANTS, CONDITIONS, AND RESTRICTIONS .27_ 111111111IIII 12/22/2000 `r 4GOA r: 13. Use of Shopping Center Site: 13.01. Uses: No part of the Shopping Center Site shall be utilized for: (a) Any use which would materially adversely affect the image of the Center as a wholesome place for families to shop, including without limitation intended and by way of example only, a massage parlor, adult book store, adult video store, adult novelty store, topless dancing, or escort service; (b) Any display or depiction of graphic violence or sexual organs unless contained within books, videos, recordings or similar media which are not observable to customers passing by and are not prominently displayed within the Center; (c) Any warehouse; (d) Any assembling, manufacturing, distilling, refining, smelting, agriculture or mining operation; (f) Any mortuary. 13.02. Effects: No Occupant shall create: (a) Any public or private nuisance; (b) Any noise or sound that is objectively objectionable due to intermittence, beat frequency, shrillness or loudness; (c) Any obnoxious odor; (d) Any noxious, toxic, caustic or corrosive fuel or gas; (e) Any unnecessary dust, dirt or fly ash; (f) Any unusual fire, explosion or other damaging or dangerous hazard (including the storage, display or sale of explosives or fireworks). 13.03. Signs: (a) No Occupant shall place, display or permit the placement or display of any Sign on the Occupant's Parcel, unless and then only for so long as the Sign DECLARATION OF EASEMENTS, CAWINDOWMTEMPMECLARATION20 (?& /ENANTS, CONDITIONS, At D RESTRICTIONS -28- 111111111 28_1illll1II ILII 12 22/ oEa 88: G&A conforms with the criteria which are attached to this Declaration as Exhibit "E"; and all applicable Law. (b) No pylon Signs shall be permitted on the Shopping Center Site. (c) No Signs shall identify the name of any Occupant unless the Sign is located on the exterior of the Building or Store the Occupant physically occupies or is a monument Sign authorized by Law. Each Occupant shall be permitted to have two signs on the exterior of the Building or Store the Occupant physically occupies. One Sign shall face the interior of the Shopping Center Site and one Sign shall face the exterior of the Shopping Center Site. If a Building fronts- more than one public road and the Building is occupied by only one Occupant, then such Occupant shall be permitted to have three signs on the exterior of the Building. One sign shall be on the exterior of each side of the Building fronting a public road and shall face the exterior of the Shopping Center Site, and one sign shall face the interior of the Shopping Center Site. 13.04. Exclusive Use: (a)(i) Unless and until an Owner or Manager has accrued the right to purchase Parcel 1 pursuant to Section 14 below, no Occupant except an Occupant of Parcel 1, shall operate a Quick -Service Drive -Through Mexican Restaurant in the Center which competes with a Quick Service Drive -Through Mexican Restaurant operated by an Occupant of Parcel 1. "Mexican Restaurant" shall a restaurant in which more than 40.00 percent of the entrees offered on the restaurant's menu would be commonly understood to be Mexican or Mexican -American. "Quick -Service Drive - Through" shall mean a restaurant which does not provide any order taking or food service by waiters or waitresses, serves a majority of the food intended for consumption in the Parcel on and/or in disposable foodware, and provides food service for patrons in vehicles without any requirement for the patrons to exit from their vehicles. (ii) The provisions of this subsection (a) shall have no effect: (i) unless an Occupant of Parcel 1, opens an entire Building on Parcel 1 for business as a Quick - Service Drive -Through Mexican Restaurant, adequately fixtured, signed, stocked and staffed, no later than the first year anniversary of the date title to the Parcel is conveyed by Madison to another Owner; and/or (ii) after the entire Building on Parcel 1 is opened for business as a Quick -Service Drive -Through Mexican Restaurant, an Occupant fails to keep the entire Building open for a business as a Quick -Service Drive -Through Mexican Restaurant, adequately fixtured, signed, stocked and staffed, for any period of 180 days (consecutive or non-consecutive) or more in any period of 365 consecutive days, for any reason except Unavoidable DECLARATION OF EASEMENTS, CAWINDOWSITEMPIDECLARATION20 MSIENANTS, CONDITIONS, AND RESTRICTIONS -29- 111111111 29- IIIII111I Jill 221 o �1A FIR`: Delays or actual ongoing diligently pursued replacement, restoration or renovation of the Building. (b)(i) Unless and until an Owner or Manager has accrued the right to purchase Parcel 6 pursuant to Section 14 below, no Occupant except an Occupant of Parcel 6, shall operate a Fast Food Restaurant which offers and sells Primarily Hamburgers in the Center, except the Occupant of Parcel 6. "Fast Food Restaurant" means a restaurant which: (i) does not provide any order taking or food service by waiters or waitresses; and (ii) serves no alcoholic beverages. "Primarily Hamburgers" means that in the menu and/or fare, hamburgers are found in more than 40.00 percent of the sandwiches and/or meals available to patrons. Examples of Fast Food Restaurants which offer and sell Primarily Hamburgers as of the date of this Declaration are McDonald's, Burger King, Wendy's, Carl's Jr., In -N -Out Burger, Hardees, Jack -in- the -Box, Fatburger, Rally's, Ruby's or Johnny Rockets. (ii) The provisions of this subsection (b) shall have no effect: (i) unless an Occupant of Parcel 6 opens an entire Building on Parcel 6 for business as a Fast Food Restaurant which offers and sells Primarily Hamburgers, adequately fixtured, signed, stocked and staffed, no later than the first year anniversary of the date leasehold possession of the Parcel is transferred by Madison to another Occupant or title to the Parcel is conveyed by Madison to another Owner; and/or (ii) after the entire Building on Parcel 6 is opened for business as a Fast Food Restaurant which offers and sells Primarily Hamburgers, an Occupant fails to keep the entire Building open for a business as a Fast Food Restaurant which offers and sells Primarily Hamburgers, adequately fixtured, signed, stocked and staffed, for any period of 180 days (consecutive or non-consecutive) or more in any period of 365 consecutive days, for any reason except Unavoidable Delays or actual ongoing diligently pursued replacement, restoration or renovation of the Building. (c)(i) Unless and until an Owner or Manager has accrued the right to purchase Parcel 7 pursuant to Section 14 below, no Occupant except an Occupant ,of Parcel 7, shall operate a convenience store and/or motor vehicle fuels sales area in the Center. Examples of convenience stores as of the date of this Declaration include "Circle K" and "7-11 ". Examples of motor vehicle fuel sales areas as of the date of this Declaration include retail gasoline filling stations operated under the names "Exxon", "Texaco", "Chevron", and "Mobil". For the purposes of this Subsection, the term convenience store shall not include any store, restaurant or other use which sells goods typically sold in convenience stores; provided the display and inventory of such goods which is accessible to customers, does not in the aggregate occupy more than 1,000 square feet of Gross Leasable Area accessible to customers. Despite any other provision of this Subsection to the contrary, the provisions of this Subsection governing convenience stores shall have DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 (969ENANTS, CONDITIONS, AND RESTRICTIONS -30- no application to and shall not limit the use of any retail store containing more than 35,000 square feet of floor area, including by way of example only, supermarkets such as those operated by "Safeway" or "Albertson's" as of the date of this Declaration. (ii) The provisions of this subsection (c) shall not limit or prohibit. the operation of any convenience stores: (i) unless an Occupant of Parcel 7 opens an entire Building on Parcel 7 for business as a convenience store, adequately fixtured, signed, stocked and staffed, no later than the second year anniversary of the date title to the Parcel is conveyed by Madison to another Owner; and/or (ii) after the entire Building on Parcel- 7 is opened for business as a convenience store, an Occupant fails to keep the entire Building open for a. business as a convenience store, adequately fixtured, signed, stocked and staffed, for any period of 180 days (consecutive or non-consecutive) or more in any period of 365 consecutive days, for any reason except Unavoidable Delays or actual ongoing diligently pursued replacement, restoration or renovation of the Building. (iii) The provisions of this subsection (c) shall not limit or prohibit the operation of any motor vehicle fuels sales areas: (i) unless an Occupant of Parcel 7 opens a fuel sales area on Parcel 7 for business, which contains fuel dispensers which can concurrently fuel at least 16 vehicles in the motor vehicle fuel sales area, adequately fixtured, signed, stocked and staffed, no later than the second year anniversary of the date title to the Parcel is conveyed by Madison to another Owner; and/or (ii) after the fuel sales area on Parcel 7 is opened for business and can concurrently fuel at least 16 vehicles in the motor vehicle fuel sales area, an Occupant fails to keep the fuel sales area open for a business with fuel dispensers which can concurrently fuel at least 16 vehicles, adequately fixtured, signed, stocked and staffed, for any period of 180 days (consecutive or non-consecutive) or more in any period of 365 consecutive days, for any reason except Unavoidable Delays or actual ongoing diligently pursued replacement, restoration or renovation of the fuel sales area. (d)(i) Unless and until an Owner or Manager has accrued the right to purchase Parcel 2 pursuant to Section 14 below, no Occupant except the Occupant of Parcel 2 shall operate a Family Style American Restaurant in the Center which competes with a Family Style American Restaurant operated on Parcel 2. "Family Style American Restaurant" shall mean a restaurant in which: (i) less than 40.00 percent of the menu items are identifiable with any particular culture, nation, or ethnic group, including by way of example only: Italian, Chinese, Thai, Mexican, Ethiopian, Kosher or Kosher style, German, French or Russian food; and (ii) less than 40.00 percent of the menu entree items are identifiable with any single food group, including by way of example only: hamburgers, soup, pizza, seafood, steak, DECLARATION OF EASEMENTS, CAWINDOWSITEMPIDECLARATION20 (?ffiJENANTS, CONDITIONS, AND RESTRICTIONS -31- IIIIIIIIIIIIINIIIIVIIIIpIMIIIIIIIIIIIIIBINIIIII� =,=�;d�oas= vegetarian, or pasta; and (iii) either (x) more than 50.00 percent of the tables, booths, counters and any other furniture provided for customers eating in the applicable Building, are provided with order taking and food service by waiters or waitresses; or (y) substantially all customers have the opportunity to choose from and serve themselves all or substantially all courses of lunch and dinner from a buffet; and (iv) less than 30.00 percent of the customer seating is !ocated within a bar or lounge or an area not partitioned off from a bar or lounge; and (v) there is no readily recognizable adult theme, such as scantily clad waitresses and/or waiters. Examples of Family Style American Restaurants as of the date of this Declaration are: Cocols, Allies, International House of Pancakes, Bob's Big Boy, Shoney's and Hometown Buffet. (ii) The provisions of this subsection (d) shall have no effect: (i) unless an Occupant of Parcel 2 opens an. entire Building for business as a Family Style American Restaurant, adequately fixtured, signed, stocked and staffed, no later than the first year anniversary of the date title to the Parcel is conveyed by Madison to another Owner; and/or (ii) after the entire Building on Parcel 2 is opened for business, an Occupant fails to keep -the entire Building open for a business as a Family Style American Restaurant, adequately fixtured, signed, stocked and staffed, for any period of 180 days (consecutive or non-consecutive) or more in any period of 365 consecutive days, for any reason except Unavoidable Delays or actual ongoing diligently pursued replacement, restoration or renovation of the Building. (e)(i) Unless and until an Owner or Manager has accrued the right to purchase Parcel 3 pursuant to Section 14 below, no Occupant except the Occupant of Parcel 3 shall operate a Full Service Mexican Restaurant in the Center which competes with a Full Service Mexican Restaurant operated on Parcel 3. "Full Service Mexican Restaurant " shall mean a restaurant in which: (i) more than 40.00 percent of the entrees offered on the restaurant's menu would be commonly understood to be Mexican or Mexican -American; (ii) either (x) more than 50.00 percent of the tables, booths, counters and any other furniture provided for customers eating in the applicable Building, are provided with order taking and food service by waiters or waitresses; or (y) substantially all customers have the opportunity to choose from and serve themselves all or substantially all courses of lunch and dinner from a buffet; (iii) less than 65.00 percent of the customer seating is located within a bar or lounge or an area not partitioned off from a bar or lounge; (iv) distilled spirits are sold; and (v) there is no drive-through facility. (ii) The provisions of this subsection (e) shall have no effect: (i) unless an Occupant of Parcel 3 opens an entire Building for business as a Full Service Mexican Restaurant, adequately fixtured, signed, stocked and staffed, no later than the first year anniversary of the date title to the Parcel is conveyed by Madison to DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 (?6F/ENANTS, CONDITIONS, A� ) RESTRICTIONS -32- IIIIIIII immuuu1uu1m ,,�,.�: another Owner; provided, however, that if the Owner of Parcel 3 is the Delgado Family Trust, d/b/a Las Casuelas Restaurant, then the Owner of Parcel 3 shall have until the second year anniversary of the date the Owner acquires title to Parcel 3; and/or (ii) after the entire Building on Parcel 3 is opened for business, an Occupant fails to keep the entire Building open for a business as a Full Service Mexican Restaurant, adequately fixtured, signed, stocked and staffed, for any period of 180 days (consecutive or non-consecutive) or more in any period of 365 consecutive days, for any reason except Unavoidable Delays or actual ongoing diligently pursued replacement, restoration or renovation of the Building. (f)(i) Unless and until an Owner or Manager has accrued the right to purchase Parcel 5 pursuant to Section 14 below, no Occupant except the Occupant of Parcel. 5 shall operate a Steakhouse Restaurant in the Center which competes with a Steakhouse Restaurant operated on Parcel 5. "Steakhouse Restaurant" shall mean a restaurant in which: (i) more than 40.00 percent of the menu items are beef steaks or beef cuts (including by way of example only prime rib); provided, however, that the following items shall not be considered beef steaks or beef cuts: (v) menu items made with ground beef, (w) pizzas and calzones, (y) sandwiches, and (z) menu items in which the beef steaks or beef cuts comprise less than 40.00 percent of the volume of the menu item (including by way of example only, a stir fried vegetable dish which includes beef cuts comprising less than 40.00 of the volume of the stir fry dish, but not including by way of example only, a fillet mignon served with a baked potato and vegetable because the fillet mignon is 100.00 percent of the menu item); and (ii) either (x) more than 50.00 percent of the tables, booths, counters and any other furniture provided for customers eating in the applicable Building, are provided with order taking and food service by waiters or waitresses; or (y) substantially all customers have the opportunity to choose from and serve themselves all or substantially all courses of lunch and dinner from a buffet; and (iii) less than 30.00 percent of the customer seating is located within a bar or lounge or an area not partitioned off from a bar or lounge. Examples of Steakhouse Restaurants as of the date of this Declaration are: Ruths Chris and Stuart Anderson. (ii) The provisions of this subsection (d) shall have no effect: (i) unless an Occupant of Parcel 5 opens at least 6,500 square feet of floor area within a Building for business as a Steakhouse Restaurant, adequately fixtured, signed, stocked and staffed, no later than the first year anniversary of the date title to the Parcel is conveyed by Madison to another Owner; and/or (ii) after the entire Building on Parcel 5 is opened for business, an Occupant fails to keep the entire Building open for a business as a Steakhouse Restaurant, adequately fixtured, signed, stocked and staffed, for any period of 180 days (consecutive or non-consecutive) or more in any period of 365 consecutive days, for any reason except Unavoidable Delays or actual ongoing diligently pursued replacement, restoration or renovation of the Building. DECLARATION OF EASEMENTS, CAWINDOWS\TEMMECLARATION20 (?& /ENANTS, CONDITIONS, AND RESTRICTIONS -33- I�IIII I�III! IIII IIIIII� III IIIIII IIIIII III VIII IIII IIII 12/2-&200@ _ OS: 190A 13.05. , Hazardous Substances: (a) In the Center and in the immediate vicinity of the Center, no Occupant shall: (i) cause or permit the generation, manufacture, refinement, transportation, collection, treatment, storage, handling, installation, removal, disposal, transfer, sale, production or processing (collectively "Potentially Hazardous Use") or Release of Hazardous Substances; provided, however, this clause (i) shall not prohibit any Occupant from transporting, collecting, storing, handling, installing, removing, transferring, selling or Releasing Hazardous Substances which are reasonably required for the customary operation of the Occupant's business in the Center, in compliance with all applicable Law; (ii) cause or permit the Release of any Haz- ardous Substances in any manner at the Center or any part of the Center, or in soil, groundwater, air or other elements, on, at, or under the Center or any other property, which materially adversely affects the Center, its Occupants or Permittees; (iii) cause or permit any substances or conditions, which support a claim or cause of action, whether by any Government or representative thereof, or any other. Person, under the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended ("Superfund Act"), the Resource Conservation and Recovery Act of 1976, the Toxic Substances Control Act or any other Law enacted or applied to protect the environment, wildlife, fish or human health, or other dangerous or toxic substances, or solid wastes. For the purposes of this Declaration the term "Release" shall have the following meaning: (i) the definition used in the Superfund Act; and (ii) (if not included within the definition contained in the Superfund Act) the presence of any Hazardous Substance as a result of any conduct by or on behalf of an Occupant. For the purposes of this Lease the term "Hazardous Substances" shall have the following meaning: (i) the definition used in the Superfund Act; (ii) all matter and substances which might adversely affect health, safety or the environment and is subject to any Law regulating its Release, including without limitation intended, petroleum and related by- products, fractions of petroleum products, hydrocarbons, radon, asbestos, asbestos containing materials, lead, radioactive materials, explosives, urea formaldehyde and polychlorinated biphenyl compounds (commonly known as "PCB's"); (iii) all matter and substances the presence of which in the Center is prohibited by any Law; and (v) all matter and sub- stances which by Law requires special handling in its Potentially Hazardous Use. (b) Despite any other provision of this Section 13.05 to the contrary: (i) any Occupant may in compliance with all applicable Law, stock and sell factory packaged retail containers of products designed for household use; (ii) a retail dealer in motor vehicle fuels and/or lubricants, may in compliance with all applicable Law, engage in the Potentially Hazardous Use of same to the extent reasonable required to effect retail sales of motor vehicle fuels and/or lubricants; and (iii) there DECLARATION OF EASEMENTS, CAWINDOWS\TEMP\DECLARATION20 (?69ENANTS, CONDITIONS, AND RESTRICTIONS_, -34- i I II'lll �lII�I Illi IIIIIII ��I Iillll �IIIII III IIT IIII IIII 12/22.,2 000 03`60H shall be no breach of this Section 13.05 solely on account of Hazardous Substances flowing through sewer or storm water lines which cross the Center where succi Hazardous Substances originate from outside an Occupant's Parcel. (c) If any Release or Potentially Hazsrdous Use results in Hazardous Substances Contamination, the Occupant which caused or permitted the Release or Potentially Hazardous Use shall: (i) be liable under the Environmental Indemnity' (ii) give notice to all of the Owners and Manager immediately upon acquiring knowledge of the Hazardous Substances Contamination with a full description thereof; (iii) promptly and in any event within the time periods provided by applicable Law, comply with any applicable Law requiring the reporting, investigation J remediation, removal, treatment or disposal of the Released Hazardous Substances or Hazardous Substances Contamination and provide all the Owners and Manage I with satisfactory evidence of such compliance; (iv) immediately discharge any lien which may encumber the Center or any part of the Center as a result of the Released Hazardous Substances or Hazardous Substances Contamination; and (iv) defend; indemnify and hold harmless all other Occupants, the Manager and Lienholdersr { from any and all costs, expenses, liabilities, and claims (including without limitation intended, all costs and expenses reasonably required to investigate and defend any claim, and remediate any Hazardous Substances Contamination) which may now or in the future, be asserted as a result of the Hazardous Substances Contamination (d) "Hazardous Substances Contamination" means the Release or Potentially Hazardous Use of Hazardous Substances in violation of Law, including without limitation intended, the contamination of the Center or any part of the Center, soil, - groundwater, air or other elements on, at or under the Center or any other property, as a result of Hazardous Substances at any time emanating from within or in the immediate vicinity of the Center. (e) Each Occupant's obligations under Section 13.05(c) are collectively referred to as the "Environmental Indemnity". Each Occupant's obligations under the Environmental Indemnity shall survive the sale or other transfer of any Parcel or lease, the expiration or termination of this Declaration and any other event or: circumstance. 13.06. Compliance with Law: Each Occupant shall comply with all Law applicable to the ownership, condition, use, operation or occupancy of its respective Parcel and all conduct occurring on its respective Parcel. 14. Obligation to Open for and Conduct Business: Each Owner except Madison, and each Occupant which acquires leasehold possession of a Parcel, shall make diligent efforts to: (i) obtain a building permit for a Building authorized by this DECLARATION OF EASEMENTS, CAWINDOWSUEMPTECLARATION20 &6F/ENANTS, CONDITIONS, AND RESTRICTIONS -35- i I I��III ��II�� IIII IIIIII' ��I IIIIII IIIIII III ILII IIII III 12r 2IlF] © S 0•ZF�fJ9 Declaration if there is no Building then reasonably suitable for the uses authorized by this Declaration on the Owner's or Occupant's respective Parcel; (ii) complete construction of the Building as soon as practical; and (iii) open the entire Building for a business authorized by this Declaration, adequately fixtured, signed, stocked and staffed, no later than the first year anniversary of the date the Owner acquires title to or the Occupant obtains leasehold possession of its respective Parcel. Madison shall make diligent efforts with respect to the Parcels Madison owns, to obtain a bona fide purchaser or tenant on terms acceptable to Madison, which will: (i) make diligent efforts to obtain a building permit for a Building authorized. by this Declaration; (ii) complete construction of the Building as soon as practical; and (iii) open the entire Building for a business authorized by this Declaration, adequately fixtured, signed, stocked and staffed, no later than the first year anniversary of the date the purchaser or tenant acquires title to or leasehold possession of its respective Parcel. Despite any other provision in this Article to the contrary: (i) if the Owner of Parcel 3 is the Delgado Family Trust, d/b/a Las Casuelas Restaurant, then the Owner of Parcel 3 shall have until the second year anniversary of the date the Owner acquires title to Parcel 3 (and Madison's obligations under this Section shall be modified accordingly), to open the entire Building as a Las Casuelas Mexican Restaurant, adequately fixtured, signed, stocked and staffed; and (ii) if the Owner of Parcel 7 is Tosco Corporation or any subsidiary or affiliate thereof, then the Owner of Parcel 7 shall have until the second year anniversary of the date the Owner acquires title to Parcel 7 (and Madison's obligations under this Section shall be modified accordingly), to open the entire Parcel as a convenience store and/or motor vehicle fuels sales area, adequately fixtured, signed, stocked and staffed. If any Owner or Occupant: (i) breaches its obligations under the applicable sentence in this Section; or (ii) -completes construction of a Building and opens the entire Building for a business authorized by this Declaration, but thereafter fails to keep the entire Building open for a business authorized by this Declaration, adequately fixtured, signed, stocked and staffed, for any period of 90 days (consecutive or non- consecutive) or more in any period of 365 consecutive days, for any reason except Unavoidable Delays or actual ongoing diligently pursued replacement, restoration or renovation of the Building; or (iii) is the debtor or its then current equivalent in a Bankruptcy Case (collectively "Inoperative Owner"); then the Manager or any other Owner shall have the right to purchase the Parcel of the Inoperative Owner for its then fair market value on the terms and conditions set forth in Exhibit "F" of this Declaration. If more than one Person exercises the right to purchase conferred by the preceding sentence, the first Person who exercises the right shall be the Person entitled to purchase unless and until the Person defaults in the fulfillment of their obligation to purchase. Despite any other provision of this Section to the contrary, if a Parcel is occupied by a bona fide tenant and the Owner of the Parcel makes prompt, diligent and continuing efforts to recover possession of the Parcel based at least in part on the tenant's breach of the obligations imposed by this Section and DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 (96F/ENANTS, CONDITIONS, At, ) RESTRICTIONS -36- IIIIII I�III� III IIIIIII ISI IIIIII IIIIII III ILII IIII IIII 12/22/290908;00A upon recovery of possession the Owner makes prompt, diligent and continuing efforts to fulfill the Owner's obligations under this Section; then the period of time which lapses while such efforts are made shall be deemed Unavoidable Delays for the purposes of this Section; provided, however, that under no circumstances shall this sentence authorize Unavoidable Delays which continue more than nine months after the date possession is recovered. 15. Damage and Destruction: If any Buildings are damaged or destroyed by fire, casualty or condemnation, then within nine months after the date of the damage or destruction, the Owner shall either (i) repair the damage or restore the Building or; (ii).level the Building, remove all debris, re -grade the site and install a Dust Cap. Installation of a Dust Cap shall not relieve an Owner of its obligations under Section 14 above. 16. Rules and Regulations: 16.01. Compliance: Each Person on the Shopping Center Site shall comply with the Rules and Regulations.,Any act or omission by any Occupant, in breach of the Rules and Regulations shall constitute a breach by Occupant of its obligations under this Declaration. 16.02. Revocable License: Despite any other provision of this Declaration to the contrary, use of the Common Area and Common Utility Facilities is authorized solely in accordance with the Rules and Regulations. The permission granted by this Declaration to use the Common Area is a revocable license, granted upon the condition that any use of the Common Area conforms to the provisions of the Rules and Regulations. If an Occupant is an entity, then the Occupant's license to use the Common Area is not subject to revocation unless there is a breach of the Rules and Regulations which continues after the expiration of any applicable grace period. However, if an Occupant is an entity, the license of any principal, employee, agent, contractor or supplier to use the Common Area or Common Utility Facilities, is subject to revocation upon any breach of the provisions of the Rules and Regulations affecting the Common Area or Common Utility Facilities as the case may be. 16.03. Modifications; Posting: The Consenting Owners, shall have the right to reasonably modify or repeal any of the Rules and Regulations, and/or adopt reasonable new Rules and Regulations. The Manager shall promptly give each Occupant notice of the modification or repeal of any existing Rules and Regulations, and/or the adoption of any new Rules and Regulations, and any such adoption, modification or repeal shall be binding upon the respective Occupant as if incorporated in this Declaration by reference, ten days after notice thereof is given DECLARATION OF EASEMENTS, C:\WIND0WS\TEMP\DECLARAT10N20 &®V/ENANTS, CONDITIONS, AND RESTRICTIONS _37_ IIIIII IIIIII IIII IIIIIII SII IIIIII IIIIII III IIIII IIII IIII 12122.2 09008?00R to an Occupant. A copy of the then current Rules and Regulations shall be posted by the Manager in a prominent location on each Parcel. 17. Default: 17.01. Default: The following events shall constitute a "Default" under this Declaration: (a) If any Occupant ("Defaulting Occupant") fails to fulfill its respective obligal tions under this Declaration or the Rules and Regulations, and an Owner, Manager or Occupant or the City ("Curer") gives the Defaulting Occupant notice specifying the Defaulting Occupant's failure to fulfill its obligations under this Declaration or the- Rules and Regulations ("Default Notice"), and the Defaulting Occupant fails to cure the breach within 30 days after the date the Default Notice is given; provided; however, that: (i) no Default Notice is required to be given in the case- of any emergency; and (ii) if the breach is not reasonably susceptible of being cured within 30 days after the date Default Notice is given, then the period to cure the breach shall be extended for such period of time as may reasonably be required, (not to exceed 90 days after the date the Default Notice is given if the continued existence of the breach would create a default under any Mortgage encumbering any Parcel except the Parcel of the Defaulting -Occupant), if the Defaulting Occupant. commences the cure of the breach within 30 days after the date the Default Notice is given and diligently pursues the cure of the breach to completion. (b) No Default shall give any Person the right, to terminate: (i) this Declaration; or (ii) except as otherwisespecifically provided for in this Declaration, the rights of any Owner or Occupant under this Declaration. 17.02. Other Party's Right to Perform: Upon the occurrence of any Default, the Curer shall have the right but not the obligation to fulfill the obligation of the Defaulting Occupant. In connection with the fulfillment of any such obligation and for such purpose, the Curer, its contractors, materialmen and other designees may (peacefully, not forcibly) enter upon the Defaulting Occupant's Common Area, and perform necessary work on the Common Area and the exterior walls of the Occupant's Building, without additional notice and without liability for trespass. 17.03. Indemnification: A Defaulting Occupant shall indemnify and hold the Curer, harmless from and against any liabilities, losses, damages, reasonable costs and expenses, including without limitation intended, attorneys' fees and disburse- ments, which the Curer incurs or pays in connection with the Curer's exercise of any of the rights or remedies provided for in this Declaration, including without limitation intended, the rights conferred by Section 17.02 above..A Defaulting Occupant shall DECLARATION OF EASEMENTS, CAWINDOWSITEMPMECLARATION20 (?& /ENANTS, CONDITIONS, AND RESTRICTIONS -38- 11111111111111111111111 lil 1111111111111111111111111111 12/22/2-11300 08 t FJoR indemnify and hold the Occupants not in Default, harmless from and against any liabilities, losses, damages, reasonable costs and expenses, including without limitation intended, attorneys' fees and disbursements, which the Occupants not in Default incur or pay in connection with or as a result of any failure on the part of the Defaulting Occupant, fulfill its obligations under this Declaration. 17.04. Lien: The right, title and interest of a Defaulting Occupant in the Center shall be subject to a lien securing payment of all funds reasonably incurred to cure the Default of the Defaulting Occupant. The lien shall arise upon the occurrence of the Default, but shall not be perfected nor enforceable against any Person until notice of the lien is recorded in the public records, which shall include: (i) the name• of the Defaulting Occupant; (ii) the specific circumstances giving rise to the Default (for example, failure to make repairs after being given notice, and failure to reimburse the Curer of the Default for the cost of the repairs; (iii) the amount of money required to be paid to cure the Default at the time the notice is prepared, together with a breakdown of the payments required (, for example: cost of repairs, Common Area Charges, attorneys' fees); (iv) the name and -address of the Person to whom payment should be made and requests for additional information should be addressed; and (v) a certificate of mailing of the notice to the Defaulting Occupant and any Lienholder with a Mortgage encumbering the estate of the Defaulting Occupant. If the Default is not cured within 30 days after the date such notice is recorded; then the lien may be foreclosed in the same manner as any mechanic's or- materialman's liens, or if not permitted by Law, then in the same manner as any judicial mortgage foreclosure, or in any other manner permitted .by Law. The lien created by this Section shall be superior to all subsequently recorded liens, but shall be subordinate to the lien of any Mortgage encumbering the estate of the Defaulting Occupant at the time notice of the lien is recorded in accordance with this Section. The lien created by this Section shall secure payment of all costs and expenses arising out of the Default, including reasonable attorneys' fees incurred by the Curer, and interest on the debt owed to the Curer at the rate payable on unpaid money judgments in the State of California. 17.05. Cause of Action, Standing: Each Occupant and the Manager shall have standing and the right to enforce the provisions of this Declaration against any Person in Default by commencing and prosecuting a civil action or proceeding for damages, injunctive or other equitable relief. In any action or proceeding to construe or interpret the provisions of this Declaration, all Owners, the Manager and the Senior Lienholder shall be necessary parties. 18. Dedication: Nothing contained in this Declaration shall operate to grant any rights in favor of the public. However, if at any time in the future any Government agrees to accept ownership of any Common Utility Facilities or any portion thereof DECLARATION OF EASEMENTS, CAWINDOWSJEMPTECLARATION20 e®F/ENANTS, CONDITIONS, AND RESTRICTIONS -39- 11111111111111 Jill Jill 39_ ItlIYIIIIIIVIINIIII N=��oP" for the purposes for which it was designed and for public use, then the Parties shall make reasonable efforts to effect the dedication of the Common Utility Facilities or the applicable portion to the Government, provided the terms of the dedication do not materially adversely affect the rights to access and utility services granted by this Declaration. 19. Limited Liability: Neither a Defaulting Occupant or any representative or principal of a Defaulting Occupant shall have any personal liability under this Declaration as a result of a Default, unless the Default: (i) consists of wilful misconduct or (ii) arises out of the Potentially Hazardous Use or Release of Hazardous Substances, or Hazardous Substances Contamination or the Environmental Indemnity. In the absence of personal liability, recourse shall be limited to an Occupant's right, title and interest in the Center, including the income and proceeds. 20. Notices: Any notice, demand, request, approval, consent or other communication (collectively "Notice") concerning this Declaration or any matter arising in connection with the Declaration shall be in writing and addressed to the Owners at the address set forth in the first paragraph of this Declaration and the last known address of the applicable Occupant. Any Notice shall be given by either (i) personal delivery (including delivery by overnight courier), in which event it shall be deemed given on the date of delivery, or (ii) certified mail return receipt requested in which event it shall be deemed given three business days after the date deposited in the U.S. Mail. Any Occupant may designate or change any address for the delivery of Notice to such Occupant, by giving Notice in accordance with the provisions of this Section 20 and specifying in the Notice that the purpose of the Notice is to give the addressee notice of the newly designated or changed address in the Notice. The attorneys for the Parties may give any Notice. 21. Unavoidable Dela�js. Each Occupant shall be excused from fulfilling any of its obligations in this Declaration, except any of its obligations to pay any sums of money, so long as the performance of such obligation is prevented or delayed by any cause which is beyond the reasonable control of such Occupant, including but not limited to such of the following as may be beyond the control of such Occupant: Act of God; fire; earthquake; floods; explosion; actions of the elements; war; -.invasion; insurrection; riot; mob violence; sabotage; malicious mischief; failure of transportation; shortages of or limitations on the availability of utility services, fuel or materials; strikes; lockouts; action of labor unions; condemnation; requisition; order of Government authorities; or any other cause, whether similar or dissimilar to the foregoing, not within the reasonable control of such Occupant; provided, however, that no Occupant shall be entitled to relief under this Section by reason of any event unless such Occupant shall have given the DECLARATION OF EASEMENTS, CAWINDOWMTEMPMECLARATION20 e&F ENANTS, CONDITIONS, A� ) RESTRICTIONS -40_ momuiuuuiniuiiiuuuimi�mm��uuu�� «P����� . Owners and Anchor Tenants notice of such event, the nature thereof and the delay reasonably expected to be caused, no later than 30 days after the occurrence of such event. Any delay or cause excusing fulfillment of an obligation pursuant to the terms of this Section is referred to as "Unavoidable Delay." 22. • Estoppel Certificates. Manager, each Owner and Occupant shall, from time to time upon not less than thirty (30) days' notice from an Owner, Occupant or Lienholder, execute and deliver to such other Person a certificate in recordable foram stating that the Declaration is unmodified and in full force, or, if modified, that the Declaration is in full force and effect, as modified, and stating the modifications and stating whether or not, to the best of its knowledge, any specific Owner or Occupant is in breach or default in any respect under this Declaration, and if in breach or default, specifying such breach or default. Any such certificate delivered pursuant to this Section may be relied upon by any prospective purchaser, assignee, lessee, Lienholder, or assignee of a Lienholder. 23. Transfer of Interest by Partv. (a) When used in this Section, the following capitalized terms have the meanings stated in this Section: (i) Affiliate - With respect to any Person, another Person controlled by, or controlling, or under common control with the Person in question ("control" for this purpose means in the case of a corporation or other entity the legal or beneficial ownership of, in excess of fifty percent [50%] of the equity interests of the Person controlled). Foreclosure - With respect to any Mortgage, a judicial foreclosure, a non - judicial foreclosure (sale by a trustee under any Mortgage pursuant to a power of sale), or,conveyance in lieu of foreclosure. (iii) Institutional Lienholder - With respect to any Parcel, a Lienholder which is a bank, savings and loan association, trust company, life insurance company, national broker-dealer, corporation whose securities are listed on the New York Stock Exchange, Inc., or a pension fund with a net worth in excess of the assessed valuation of the Center. (iv) Sale and Leaseback - A Transfer in which the Transferor, or an Affiliate thereof, acquires as part of the same transaction a leasehold interest in all or substantially all of the Parcel transferred which lease has an initial term which will not expire prior to the expiration of ten (10) years from the date of the commencement of the lease term. DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 MVENANTS, CONDITIONS, AND RESTRICTIONS -41 I IIIIII I�II�� IIII IIIIIII �II IIIIII III�II III ILII IIIA I��I ,� cr_kIP- Eef 9Q2�a�R (v) Transfer - A sale, assignment, grant or other conveyance (other than a condemnation) of all or any portion of the fee simple title of a Parcel (and if of less than the entire fee of all thereof, then whether by conveyance of the entire fee of any portion or of an undivided interest), including, without limitation, the sale portion of a Sale and Leaseback, but excluding the making of a Mortgage. (vi) Transferee - The purchaser, assignee, grantee or transferee in a particular Transfer. (vii) Transferor - The seller, assignor, grantor or transferor in a particular Transfer. (b) Except as otherwise provided in this Section 23, in the event of a Transfer of all or any portion of the fee simple title of a Parcel, it shall be deemed and construed, without further agreement between the Occupants and the Transferee, that the Transferee has expressly assumed and covenanted, effective upon the making of such Transfer, to perform and be bound by all the provisions of this Declaration, including all of the obligations to be performed by the Transferor; however, if such Transfer is of less than the entire fee of all such Parcel, such Transferee shall be deem' ed to be jointly and severally liable with all other Owners of interests in such Parcel in connection with all provisions of this Declaration binding the Owner(s) of such Parcel. (c) In the case of a Sale and Leaseback in which the Transferee is an Institutional Lienholder (or a Person who as part of the same transaction is procuring some or all of his funds for such purchase by means of a Mortgage loan from a Institutional Lienholder ), the Transferee, and its successors and assigns, shall, despite the provisions of the immediately preceding subsection (b) above: (i) not be deemed to have assumed any of the obligations to be fulfilled by the Transferor; and (ii) not be personally liable for any Default; but the Transferor (or an Affiliate thereof, as the case may be), or successor or assign or sublessee thereof, as holder of thE! leasehold interest under the lease which is a part of such Sale and Leaseback shall be deemed to have agreed to be bound hereby and shall, if requested by an Owner or Anchor Tenant, execute a recordable instrument binding itself hereby (if is noi: otherwise liable therefor on any other basis) for the benefit of the Owners and! Occupants. However, the Transferee, or its successor at such time as the lease termi expires or is sooner terminated, shall be deemed to have assumed the obligations of the Transferor under this Declaration with the same effect as if the Transferee had been the Transferee in a Transfer as provided in the immediately preceding subsection (b) above. DECLARATION OF EASEMENTS, CAWINDOWSUEMPMECLARATION20 e&F ENANTS, CONDITIONS, AND RESTRICTIONS -42- IIIIII IIIIII IIII IIIIIII IIIIIIIIIIIIIII IIIIIIIII IIIIIII 12/22/2000 C48: i9()A (d) In the event of the making of any Mortgage, the holder of such Mortgage shall take its interest subject to this Declaration, provided that nothing in this Declaration shall be deemed to make the holder thereof liable for the fulfillment of any obligation to be performed by the Owner who owns the Parcel in question; provided, however, that if and when title to such Parcel becomes vested in any Person as a result of'a Foreclosure under the Mortgage, or by deed in lieu of foreclosure or otherwise, or the Lienholder becomes a mortgagee in possession of such Parcel, then such Person or Lienholder shall so become liable for the fulfillment of all such obligations to be fulfilled thereafter (but shall not be liable for any Default which previously arose), and it shall remain so liable only for the fulfillment of such obligations only during the period of time when such title to such Parcel is vested in it or it has been a mortgagee in possession of such Parcel. Neither the making of such Mortgage nor its foreclosure shall release the maker thereof from any liability the Owner would have had under this Declaration had such Mortgage not been made. No Lienholder shall be deemed a mortgagee in possession if such Lienholder cures any default under such Mortgage or this Declaration or cures any default or exercises any right of self-help under the Mortgage or under Law. (e) Upon the consummation of a Transfer, unless such Transfer is of a character described in subparagraph (c) or is a transfer in connection with foreclosure by a Lienholder, or acceptance of a deed in lieu of foreclosure, where the Transfero'r Transfers its entire fee interest in such Parcel, the Transferor shall, provided it has delivered notice of such Transfer to the other Owners and Anchor Tenants, be deemed released from any and all liability whichwould thereafter arise from any, obligation to be fulfilled and any liability which would arise after such Transfer, but the Transferor shall remain responsible for all such liability arising and all obligations which accrued prior to the date of such Transfer. 24. Utilities. Except as otherwise expressly provided in the Declaration, each Occupant shall make arrangements for and pay for, or cause to be paid, all charges for utility services supplied to the respective Occupant's Building Areas. 25. Consents and Approvals: Whenever the Declaration requires the consent or approval of Owners and/or Anchor Tenants, the Owner or Occupant seeking the consent or approval shall provide the Owners and Anchor Tenants if applicable, with sufficient information for the Owners to make an informed choice. No Owner or Anchor Tenant shall unreasonably withhold, delay or condition their consent or approval. If an Owner or Anchor Tenant fails to give its consent or approval or notice of the specific reasons for withholding, delaying or conditioning its approval, within 30 days after the date the Owner or Anchor Tenant is provided with sufficient information to make an informed choice; then the Owner shall be DECLARATION OF EASEMENTS, CAWINDOWSITEMMDECLARATION20 &69ENANTS, CONDITIONS, AND RESTRICTIONS -43- I"III �IIIII IIII IIIIIII III IIIIII IIIII� I'I I�III� I'I III 2600-510932 22000 9 / J5C l2. deemed to have given its consent or approval, provided the request for consent or approval gave the Owner or Anchor Tenant notice of the contents of this Section. Any subsequent request for consent or approval shall be subject to the provisions of this Section. 26. Attorneys' Fees and Disbursement^• If any Occupant, the Manager or any Curer engages an attorney in connection with any action or proceeding to en- force or construe the Declaration, the prevailing party in such action or proceeding shall be entitled to recover its reasonable attorneys' fees and disbursements. In the event different parties are the prevailing parties on different issues, the attorneys' fees and disbursements shall be apportioned in proportion to the value of the issues decided for and against the parties. 27. Miscellaneous: 27.01. Successors: The rights and obligations of the Occupants under the Declaration, shall inure to the benefit of and be binding, upon the parties to this Declaration and all persons who succeed to their respective rights and obligations. Except for the specific rights expressly granted in this Declaration to third Persons who are not parties to this Declaration, this Declaration shall not be enforceable by any Person not a party to this Declaration or their successor in interest. 27.02. Covenants Running with Land: The provisions of this Declaration shall constitute covenants running with the land in accordance with California Civil Code Section 1462 or any successor statute of similar import. 27.03. No Termination 'of Declaration. Except as expressly provided for, no ;breach of the Declaration or Default by any Occupant shall entitle any other Person 'to terminate or cancel the Declaration. 27.04. Partial Invalidity. If any provision of the Declaration or its application to any Person or circumstances shall to any extent be invalid or unenforceable, the reminder of the Declaration shall not be affected thereby and each provision of the Declaration shall be valid and enforceable to the fullest extent permitted by Law. 27.05. Modifications[Waivers: The Declaration cannot be changed nor can any provision of the Declaration, or any right or remedy of any Occupants, be waived orally. Waivers can only be made in writing and the waiver must be signed by the Occupant against whom the waiver is sought to be enforced. Any waiver of any provision of this Declaration, or any right or remedy, given on any one or more occasions shall not be deemed a waiver with respect to any other occasion. This Declaration cannot be changed without the written consent of: (i) the Consenting DECLARATION OF EASEMENTS, CAWINDOW&TEMPTECLARATION20 (?& /ENANTS, CONDITIONS, A� ) RESTRICTIONS -44- IIIIII I II" IIII'IIIIII 111111111 HIM ISI Il11il III IIlI 12/22/ 2NO 38: Parties; and (ii) the City. No change of this Declaration shall be effective until recorded in the Public Records. No change of this Declaration shall be binding upon any Lienholder which: (i) holds a Mortgage recorded in the Public Records before the change is recorded, and (ii) did not consent to the change and subordinate the lien of its Mortgage to the change, in a writing filed in the Public Records. 27.06. Entire Agreement: This Declaration is signed by the Parties as a final expression of all of the terms, covenants and conditions of their agreement and as a complete and exclusive statement of its terms, covenants and conditions and!is intended to supersede all prior agreements and understandings concerning the subject matter of the Declaration. 27.07. Conflicts: To the extent the provisions of the Declaration conflict with the provisions of any lease or memorandum of lease executed and recorded before the execution and recording of this Declaration, the provisions of the existing lease shall govern so long as the term of the applicable lease has not expired or sooner terminated. 27.08. No Implication of Governmental Approval or Compliance with Law: No consent or approval to take any action which is granted pursuant to this Declaration and no permission granted by this Declaration to take any action, constitutes -a promise, representation or warranty that the action will be approved or otherwise authorized by any Government having jurisdiction (including without limitation intended, the City), or will comply with any applicable Law. In every consent and approval granted pursuant to this Declaration, and all permission granted by this Declaration, there shall be an implied undertaking that no action shall be taken unless all required Government approvals or other authorizations are first obtained and the action otherwise complies with all applicable Law. IN WITNESS WHEREOF, Madison has executed this Declaration as of the date first set forth above.' MADISON/PTM LA QUINTA, LLC 0y. --C R Wilkerson Manager STATE OF CALIFORNIA ) ss. DECLARATION OF EASEMENTS, (?6'/ENANTS, CONDITIONS. AND RESTRICTIONS -45- CAWINDOWS\TEMP\DECLARATION20 2@669-516930 '22,'2000 08: 1( COUNTY OF .` ) On - Z l , 2000before me, `l J appeared 4. R. Wilkerson, [ ] personally known to me - OF basis of satisfactory evidence to be the person(s).whose r to the within instrument and acknowledged to me that same i&hefftheir authorized capacity(ies) and that by on the instrument the person(s), or the entity upon beha acted, executed the instrument. DECLARATION OF EASEMENTS, e6liENANTS, CONDITIONS, AND RESTRICTIONS personally roved to me on the km ( i afe-subscribed :% ey executed the i� signature(s) of which the person(s) WITNESS my hand and official seal. Notary ublic ` tate of Californi My commission expires: .12) BETTY S. KIRBY < Comm 4 1.::?14 '10"kiiy rU°LIC _ =ORNIA �! County -46- CAWINDOWS\TEMP\DECLARATION20 miuuwiiuuii�iuiausunumiiumuaieiFj=m,= 10 9'J"C_ CONSENT AND SUBORDINATION OF LIENHOLDER The undersigned is the holder: (i) of a deed of trust dated August 18, 2000, made by Madison/PTM ,La Quinta, LLC, as grantor, for the benefit of the undersigned, as beneficiary, recorded August 30, 2000 as Instrument No. 00-340328 of the Official Records of Riverside County, California- which covers the land described as the Shopping Center Site in the attached Declaration of Easements, Covenants, Conditions and Restrictions ("Declaration"); and (ii) an assignment of rents, made by Madison/PTM La Quinta, LLC, as assignor, to the undersigned, recorded August 30, 2000 as Instrument No. 00-340329 of the Official Records of Riverside County, California (collectively referred to as the "Trust Deed"). The undersigned hereby consents to the signing and delivery of the Declaration and the easements granted by the Declaration and hereby subordinates the lien of the Trust Deed to the Declaration and the easements granted by the preceding Declaration to the same extent as if the Declaration were signed, delivered and recorded before the Trust Deed. If the undersigned takes any action as a result of any default under such Trust Deed, including any action foreclose its lien, or exercise any power of sale, such action shall not affect the validity of the Declaration,or the easements granted by the Declaration. FAR EAST NATIONAL BANK By: Its:_ Samuel Leung, Vice PrPai de r DECLARATION OF EASEMENTS, e89ENANTS, CONDITIONS, AND RESTRICTIONS CAW I NDOWS\TEMPTEC;ARATION20 II I��III IIIIiI IIII IIIIII� I'� IIIIII �IIIII III IIIIII III IIII t? r0NiPrFla)Aa? STATE OF CALIFORNIA ) ) ss COUNTY OF-� r One��saGr, , 2000,_before me, personally appeared = Ivz,,A- �u. [I] pers6 nally known to me - OR - [ ] proved--to-me-on--the--basis-eir-sa#4sfa ee.to be the person(, -7 whose name(s) is/aFe subscribed to the within instrument and acknowledged to me that he/s4ef##tey executed the same in his/hefAbeir authorized capacity(ies) and that by his/ber4heir signature.(9) on the instrument the person(s), or the entity upon behalf of which the person (sryacted, executed the instrument. NG 1189875 = gfaiti CaGfomia CourrtYps Jul 11,2002 DECLARATION OF EASEMENTS. d69ENANTS, CONDITIONS. AN RESTRICTIONS WITNESS my hand and official seal. Notary Public; State,�of California My commission expires: i CIWIND0WS\TEMP\DECLARAT10N2( 111111 HIM IIII IIIIIII 111111111111111111111111111111111111111 a �n ���p32 EXHIBIT "A" Legal Description of Shopping Center Site Parcel 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, and12 of Parcel Map No. 29736, as shown by Parcel Map on file in Book 197, Pages 28 through 30 inclusive of Parcel Maps, records of Riverside County, California. 5 DECLARATION OF EASEMENTS, CAWINDOWS\TEMPMECLARATION20 88"/ENANTS, CONDITIONS, AND RESTRICTIONS Illlll I'IItI III' �IIIII' �1I IIIIII I'I'll III II'fIl'll ILII 12: 22/ © FjIR8: WAS EXHIBIT "B" A A s X J N G r O N s r,A r S r 7"7 F I cern D :r �� �CADr i n Ali 3.,i -Pt. 9053Site25. : --.� CD 01/16!01 03:02.27 PM �iP13 CDC�i EXHIBIT "C" t Rules and Regulations These Rules and Regulations constitute the Rules and Regulations of the shopping center in La Quinta, California, known as Point Happy Shopping Center ("Center"). Each of the capitalized terms used in these Rules and Regulations and not defined in these Rules and Regulations shall have the definitions set forth in the Declaration of Easement, Covenants, Conditions, and Restrictions ("Declaration") affecting the Center. 1. Occupants shall commit or permit any action or thing which may disturb the quiet enjoyment of any other Occupant in the Center, or any person within 1,000 feet from the boundary of the Center. 2. Occupants shall not sell, distribute, or display or permit the sale, distribution, or display of any substances or liquids whatsoever, which may create a hazard or may objectively be annoying to other reasonable persons, or Occupants, in or about the Center. 3. Occupants shall not use or permit the use of any advertising or promotional media or devices which may create a hazard or may objectively be annoying to other reasonable persons or Occupants in or about the Center,, including without limitation intended, handbills, flashing lights, searchlights, loudspeakers, sound amplifiers (except to the limited extent and the limited volume necessary for the operation of any permitted drive-through facility), or any other audio or video device heard or seen outside the Store. 4. Except for Common Signs, Occupants shall not use any portion of the Center outside of the Store for the promotion or conduct of its business, including without limitation intended, for the solicitation of business, advertising, display or sales purposes. The prohibitions contained in the immediately preceding sentence shall include without limitation intended, the distribution of handbills or bumper stickers on or to motor vehicles in or about the Common Area. 5. Occupants shall severally control and regulate the use of all shopping carts and other conveniences (collectively the "CARTS") the respective Occupants provided for the use of customers or DECLARATION OF EASEMENTS, e&F ENANTS, CONDITIONS, AND RESTRICTIONS CAWINDOWSITEMPMECLARATION20 111111 lillll IIII 1111111111111111 IIIIIIIII 111111111 illi x,10 510332 others. Each Cart shall be marked as the property of the Occupant. Occupants who provide Cards shall police the Common Area and the area within 1,000 feet of the boundary of the Center, as often as and to the extent that it may be required to keep such areas free and clear of Carts and to store the Carts in their respective Building(s). In the event the Occupant fails to fulfill its obligations under the immediately preceding sentence, the Manager may elect, without notice, to police, collect, store and/or sell the Carts and the Occupant in breach of this paragraph shall pay to the Manager within ten days after demand by the Manager, liquidated damages at the rate of $10.00 for each Cart collected. Despite any other provision of this paragraph to the contrary, the Occupant shall not furnish Carts or make Carts available to -customers, without the prior written consent of the Manager. 6. The Consenting Owners may from time to time and at any time, designate an area (the "EMPLOYEE PARKING AREA") which shall be used for parking by the Occupants and any employees of the Occupants. The Employee Parking Area may or may not be within the Center. In such event, the Occupants shall not park or permit any of their employees to park any vehicles on any other portion (or any portion) of the Common Area. Occupants shall within five days after demand by the Manager, furnish the Manager with the colors, makes, models and license plates of all vehicles used by the Occupant and its employees. In the event the Consenting Owners designate an Employee Parking Area, and the Occupant or an employee of the Occupant parks a vehicle in Common Area which is outside the Employee Parking Area, the Manager or any other Occupant ("Aggrieved Occupant") may elect to tow and store such vehicle. and/or place violation stickers upon such vehicle, and the owner or operator of the offending vehicle shall pay upon demand to the Manager, the Aggrieved Occupant, or any tow truck operator engaged by the Manager or the Aggrieved Occupant, the charges incurred for the tow and storage of such vehicle. 7. Occupants shall contract for the services of a licensed pest extermination contractor approved by the Manager in writing, which shall be performed in such manner and at such intervals as the Manager may reasonably designate in writing. 8. Occupants shall (i) use metal containers for the storage of all Refuse; (ii) maintain such containers in a clean, odorless, watertight and sanitary condition; and (iii) store such containers in a location which is not visible from any portion of the Center DECLARATION OF EASEMENTS, e6i/ENANTS, CONDITIONS, A 'D RESTRICTIONS CAWINDOWS\TEMP\DECLARATION29 I IIIIII HIM 11111111111111111111 HIM 1111111111111111 ,::;�'-�f �t�nP AF)A used by customers of the Center. All Refuse shall be removed each day by the Occupant in the manner designated by the Manager in writing. Occupant shall store soiled linen in containers approved by the board of fire underwriters or other recognized fire insurance rating organization. Occupant shall not use or permit the use of any portion of the Common Area, for the storage of any Refuse. 9. No person shall park or permit the parking of any vehicles in any manner which will unreasonably interfere with access to or from any part of the Center. All loading and unloading of Improvements and inventory shall be made through the rear entrance of the Buildings and/or such other locations as the Manager may designate s in writing. 10. Occupants shall not obstruct or permit the obstruction of any portion of the Common Area, nor erect or install or permit the erection or installation of any Improvement in or about the Common Area. 11. Occupants shall install and maintain in good condition and repair all fire extinguishers and other devices required by any insurance company or Law. 12. At a minimum, Occupants shall keep their Buildings heated to a temperature sufficient to avoid the freezing of pipes. 13. Occupants shall not (i) without the prior consent of the Consenting Owners, change the exterior color or surface of their Buildings, or any improvement on the exterior of their Buildings, or otherwise change the exterior of the Buildings in any manner whatsoever; or (ii) use any of the utility systems for any purpose other than that for which they were specifically designed, or (iii) dispose of any Refuse in any plumbing system other than ordinary human waste; provided, however, that an Occupant which cooks food on its Parcel shall have the right to dispose of grease through a grease interceptor if the interceptor is installed within the Occupant's Parcel and in compliance with all applicable Law,or (iv) without the consent of the Consenting Owners, install any disposal system of any nature whatsoever; or (v) in any location except within their respective Buildings, install or operate or permit the installation or operation of any coin, token or card operated vending machines for the sale of any property or service (including without limitation intended, pay telephones, pay lockers, pay DECLARATION OF EASEMENTS, CAWINDOWSITEMMDECLARATION20 MVENANTS, CONDITIONS, AND RESTRICTIONS' • l llllll I'll" IIII III III' IIl IIIIII IIIIII III II'1III'I Jill 1 110 ?11 .32 BREI FSA:FAA toilets, scales, amusement devices and machines for .the sale of food or beverage); provided, however, that a maximum of two pay telephones may be installed within the curb line within the respective Occupant's Parcel, at locations within 15 feet of the perimeter of the Occupant's Building. 14. Any grease interceptor shall at all times be maintained in good condition and repair and in compliance with all applicable Law, including by way of example only, by regular removal and disposal of accumulated grease in compliance with all applicable Law. 15. All consents and approvals required by these Rules and Regulations are subject to the provisions of Section 25 of the Declaration captioned "Consents and Approvals". DECLARATION OF EASEMENTS, MJENANTS, CONDITIONS, AND RESTRICTIONS CAWINDOWSITEMPMECLARATION20 IllllI 111111 Jill 1111111111111111111111111 IIIIIII 11 Jill EXHIBIT D-1 Valid from now through 11/1/01 Employee may park as desired PREST VUKSIC ARCHITECTS A ►AOFl6OIOIIAL OOIIFOAATION sw �syee ne a r�i i•s�AiA � ��nssnu�• rw 1'YARD � AOL. 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This Sign Criteria is intended to allow each business room for creativity withui limits of their store front width. Conformance will be strictly enforced; any installed nonconforming or unapproved signs must be promptly brought into conformance at the expense of the Occupant, or removed. I. GENERAL REQUIREMENTS: (A) Occupant shall submit or causeto be submitted to Manager for approval before fabrication, at least three (3) copies of detailed drawings (to scale, on the storefront) indicating the location, size, layout, design and color of the proposed signs, including all lettering and/or graphics, in compliance with the specifications set forth below. Manager shall have ten (10) days after submittal to approve or reject drawings. (B) All required permits for signs and their installation shall be obtained by the Occupant or his representative and copies delivered to Manager before any installation is begun. (C) Occupant shall be responsible for the fulfillment of all requirements set forth herein and the attached City -approved criteria. (D) All signing shall be of materials compatible with exterior building colors, materials, finishes and of a high quality of fabrication. (E) Except as noted herein; no signing is permitted which does not directly relate to the primary service or function of the Occupant's activity. Sign copy will be restricted to that specified in Sections II and III below. (F) All Occupants must have sign installed prior to opening for business. (G) All signs shall be constructed and installed at Occupant's expense. (H) All signs and installation of signs must comply with all local building and electrical codes and bear the U.L. label. (I) Electrical service to Occupant signs shall be the responsibility of each Occupant. RMBCS' DEO\176632 -1- (J) All signs shall be kept in a "like new" condition. On notice by Manager, a Occupant will be required to refurbish any signing which does not qualify as being an acceptable standard. (K) Upon removal of any sign by Occupant, any damage to the sign band face will be repaired by Occupant or by Manager at Occupant's expense. (L) Exceptions to the requirements set forth herein must receive prior written approval. II. GENERAL SPECIFICATIONS: (A) No animated, flashing or audible signs will be permitted. (B) No exposed lamps or tubing will be permitted. (C) No exposed raceway, crossovers or conduit will be permitted. (D) All cabinets, conductors, transformers and other equipment shall be concealed. (E) Sign boxes and "can" signs will not be permitted. (F) Only one sign or graphic treatment per storefront elevation is permitted. (G) No illuminated signs are permitted without the express written approval of Manager, and the City of La Quinta Community Development Department. (H) Subject to II.(G) above, Occupant will be permitted to install one illuminated sign on Occupant's storefront. The maximum projection of the sign from the face of the storefront shall be six inches (F) or to the face of the adjacent neutral strip, whichever is greater. (I) No signs perpendicular to the face of the building or storefront will be permitted. (J) All signs must be prepared in a professional manner. (K) Signs may not be hand lettered or scripted presenting an unprofessional appearance. (L) No signs or posters may be placed outside the demised or leased line of the Store. (M) Advertising banners attached to the outside fascia of the Store area are not permitted without express written permission by Manager and the City. R-MBUS\DEO\176632 -2- (N) Acceptable signage on doors and windows is as follows: 1) Signage to be attached directly cn the storefront glass or to be hung in the window openings. This requirement applies to signs that may indicate the name of the store or business, professional designation, symbol -and/or logo. 2) Numbers identifying the address of the premises. 3) A sign listing the store business hours. 4) A sign or signs displaying'the credit card(s) accepted by Occupant. III. DESIGN REQUIREMENTS: (A) All Occupant storefront entrance/storefront identification designs shall be subject to the prior approval of Manager. (B) Wording of signs shall not include the product sold except as part of Occupant's trade name or insignia. No "tagline" signs are permitted as storefront signage. (C) Storefront signs may only list Occupant's name as shown on Occupant's lease. No product names are permitted. (D) Occupants are encouraged to have signs designed as an integral part of the storefront design with letter size and location appropriately scaled and proportioned to the overall storefront design. The design of all signs, including style and placement of lettering, size, color, material and method of illumination, shall be subject to prior approval of Manager. (E) Signs designed in the more traditional manner with the lettering applied to a background surface that is part of the storefront shall conform to the following requirements: 1) The sign area shall not exceed five percent (5%) of the area of the storefront or 12 square feet, whichever is larger. Sign area will be measured by circumscribing a rectangle around the main body of the sign. 2) The overall length of the sign shall not exceed two-thirds (2/3) of the width of the storefront exposure between neutral strips. 3) Signs shall be composed of individual or script lettering in a manner compatible with the storefront. 4) All storefront signs including Plexiglass signs shall be fabricated of material with matte finish. R'1Z1JS\1DE0\176632 -3- 5) Letter faces shall be Plexiglass with a 3/4" white Trim Cap molding for' securing the Plexiglass face to the metal channel letter. (F) Figures 18 and 19 of the Specific Plan for the Center (the "Specific Plan") illustrate special concept sign locations and letter styles and installation details. IV. SIGN SPECIFICATIONS: (A) Individual Illuminated Letters: 1) Individual illuminated letters will be a channel metal letter five inches - (5") deep. 2) Illumination of the letters will be with neon tubing mounted inside the: letter. The letters are to be mounted onto the building face. A metal raceway that will accommodate: -the wiring and the transformers required for the illumination of the letters shall be mounted on they inside of the walls. (B) Awning Signs. In some instances, an awning will be used as signage. Copy will be centered on the front occupying only 75% of lineal width. (C) Monument Signs. One (1) main and three (3) secondary monument signs are: proposed for the Center. Their locations are illustrated in Figure 6 of the Specific Plan, and the size: and configuration are illustrated in Figure 19 of the Specific Plan. A separate monument sign will be allowed on the service station site (Parcel 7) subject to a separate sign application. (D) Letter Sizes and Colors: 1) In -Line Shops:, Occupant signs may be a maximum letter height of 16" but no less than 9" if one line of copy is to be used. 2) Freestanding Pads: Occupant signs may be a maximum letter height of 24", but no less than 18" if one line of copy is to be used. 3) In-line Shops and Freestanding Pads: In the event of the double line signage being necessary, total height to be 25" top to bottom, or 10" character height, double line. 4) Sign length not to exceed 80% of Storefront width on both In-line and Freestanding Pad's shops and/or 50 square feet. (E) Under Canopy Signs: l) Under canopy signs are to be 12 inches high by 36 inches long double R\®US\DG0\176632 -4- faced Sandblasted signs. 2) Under canopy signs are to be hung in the breeze way in front of the store entrance. for the Center 3) The copy or logo colors as per drawings attached to the Specific Plan V. MISCELLANEOUS STANDARDS/REQUIREMENTS: (A) Occupant will be permitted to place upon each entrance of its Store not more then 144 square inches of gold leaf or decal application, lettering not to exceed two inches (2") in height, indicating hours of business, emergency telephone number, etc. (B) Except as herein provided, no advertising placards, banners, pennants, names, insignias, trademarks, or other descriptive material, shall be affixed or maintained upon the glass panes and supports of the show windows and doors, or upon the exterior walls of the building or storefront. (C) Modifications or deviations from the sign criteria will be permitted when, in Manager's opinion, they produce an outstanding sign. These modifications shall be submitted with the preliminary design drawings. Manager's decision will be final. VI. TEMPORARY SIGNAGE: (A) No advertising placards, posters, banners, product trademarks or descriptive material shall be located upon the storefront or show window, or located within ten feet (10) of the lease line. Advertising is defined as: the action of calling something to the attention of the public especially by emphasizing desirable qualities so as to arouse a desire to buy or patronize. (B) Banners located within the store must be silk-screened or professionally printed. Handmade painted banners, paper, cardboard stenciled or hand -lettered banners will not be allowed. No banners shall be used without the prior approval of Manager. (C) Interior banner size: 1) Maximum letter height: Capitals 12", Lower case: 8" 2) Sign length cannot exceed 6' - 0". 3) Sign height cannot exceed 2' - 0". RNM OS OEO\ 176632 -5- , (D) Interior Store signs: Handmade painted, stenciled or hand -lettered signs will. not be allowed. All signs located within the Store must be silk-screened or professionally printed on appropriately weighted sign stock. No paper signs will be allowed. (E) New Occupants, or existing Occupants undergoing a significant remodel will be permitted to announce their store and opening with graphics painted on their temporary construction walls, or a temporary hanging banner. Occupants are encouraged to have unique and graphic signs. Verbiage will be limited to the name of the store and opening with graphics painted on their temporary construction walls, or a temporary hanging banner. y Occupants are encouraged to have unique and graphic signs. Verbiage will be limited to the name ofthe store and the opening date. Special opening promotions will be allowed as a minor graphic solution on the temporary wall. 1) Store name and opening date: Maximum letter height-, Capitals 18", lower case 12". Special opening promotions: Maximum letter height: Capitals 8", Lower case 6". 2) Special opening promotions: Maximum Letter height; Capitals 8", Lower case 6". (F) Temporary banners announcing the opening of the Store may be attached to the exterior store front or interior show window until such time as the Store opens. Temporary opening banners must be silk-screened or professionally printed. Paper, cardboard or vinyl signs will be permitted. No banners shall be used without the prior approval of Manager. Exterior/interior opening banner size: 1) Maximum letter height: Capitals 12 Lower case 8" 2) Sign length cannot exceed 6-0" 3) Sign height cannot exceed 2"-0" Upon opening, temporary opening banners must be removed. RNM US'•DEO\ 176632 -6- EXHIBIT "F" Terms of a Sale Pursuant to Section 14 of the Declaration 1. A deposit to be paid by purchaser and held in escrow by title insurance agent, equal to 10.00 percent of the fair market value of the Parcel. 2. If the parties fail to agree on the fair market value of the Parcel .in writing within 15 days after the date the right to purchase the Parcel is exercised, then the fair market value shall be determined by arbitration conducted in accordance with the rules of an independent, nationally recognized, commercial arbitration organization, such as the American Arbitration Association. Each party shall pay 50.00 percent of the fees and expenses of the arbitrator and arbitration organization. 3. The closing shall be held 90 days after the date the right to purchase the Parcel is exercised, or 60 days after the date the fair market value of the Parcel is agreed upon or determined by arbitration award, whichever date is later. 4. The balance of the purchase price shall be paid in immediately available federal funds at the closing. 5. Title shall be conveyed by grant deed. 6. The Occupant exercising the right to purchase. the Parcel, shall have a period of 45 days after the right is exercised, to terminate its obligation to purchase the Parcel, if the results of its inspection of the Parcel or its review of the title are unsatisfactory in its sole discretion. At the closing, there shall be no encumbrances which did not exist as of the date the Occupant exercised its right to purchase the Parcel. 7. Any Lease encumbering the Parcel shall at the election of the purchaser, be terminated as of the closing. 8. The Owner of the Parcel shall discharge all monetary encumbrances at the closing of the sale. 9. Except as provided above, the Owner of the Parcel shall have no other obligation to address any other objection to title. 10. Closing costs including title insurance premiums shall be paid in accordance with the allocations then customary in Riverside County, California. DECLARATION OF EASEMENTS, CAWINDOWS\TEMP\DECLARATION20 &&�ENANTS, CONDITIONS, AND RESTRICTIONS -54- II�III IIII�� IIII �IIIII� "I IIIIII 111111111111111111 Jill ,a r]faf!-511g;Q` (ATTACH To RE i .7FnARATICK cF FASQ42TIS, covemm, c, TICKS AND WSMIGTIC K,S) CONSENT AND SUBORDINATION OF PARCEL OWNER The undersigned is the owner of fee simple title to Parcel 7, Parcel Map No. 29736, City of La Quinta, Riverside County, California as shown by Parcel Map on file in Book 197, Pages 28 through 30 inclusive of Parcel Maps, records of Riverside County, California ("Parcel 7"). Parcel 7 is one of the Parcels within the Shopping Center Site in the attached Declaration of Easements, Covenants, Conditions and Restrictions ("Declaration"). The undersigned hereby consents to the re-recording of the Declaration'. and the easements granted by the Declaration and hereby subordinates the undersigned's fee simple ownership of Parcel 7 to the Declaration and the easements granted by the Declaration to the same extent as if the Declaration were recorded and re-recorded before the undersigned acquired any right, title or interest in Parcel 7. The undersigned agrees to be bound by and subject to the Declaration with the same force and effect as if the undersigned were a party to the Declaration. All capitalized terms in this consent not defined in this consent shall have the meanings given to them in the Declaration. CIRCLE K STORES INC. a Texas corporation By: Zti Its: Vice President PAUL W. oVES, V.P. STATE OF ARIZONA ) ) ss. COUNTY OF On 7 , 2001, before me, ��tt,C_`ns `3� personally appeared personally known to me - OR _ [ ] 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 instrument. WITNESS my hand and official seal. OFFICIAL SEAL TONI JONES =MY PUBLIC - STATE OF ARQft MARICOPA.000PtT1l my Comm. Expires Sept T9, 2005 Notary Public, State f Arizona My commission expires. ' 12, )CC i i