2017/01/23 Easement Foothill Arch- Second Superseding Declaration - 767723- ONT1T f
RECORDING REQUESTED BY:
First American Title Insurance Company
National Commercial Services
3281 E. Guost' Road, Suite 449
Ontario, California 91761
I,r1T1miWi tmele D 1/ T 91
Foothill Arch
c/o Andy Sehremelis, President
Parkcrest Construction, Inc.
2910 So. Archibald Ave., Suite A-350
Ontario, California 91761
2017-0027483
01/23/2017 12:23 PM Fee: $ 74.00
Page 1 of 9
Recorded in Official Records
County of Riverside
Peter Aldana
Assessor -County Clerk -Recorder
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SECOND SUPERSEDING DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR
PARCEL MAP NO.36998
This Second Superseding Declaration of Covenants, Conditions, Restrictions and Reservation of Easements
("Second Superseding Declaration") is made by FOOTHILL ARCH, LLC, a California limited liability
company ("FOOTHILL ARCH") and DIAMOND BROTHERS FIVE PARTNERSHIP, LP, a California limited
liability partnership ("DIAMOND BROTHERS") (jointly "Declarants").
RECITALS
A. Declarant FOOTHILL ARCH is the owner of that certain real property described as follows ("Foothill
Arch Property"):
Parcel 1 and 2 of Parcel Map No. 36998, in the City of Menifee, County of
Riverside ("County"), State of California, as per Parcel Map filed in Book
240, Page 43, of Parcel Maps, in the Office of the County Recorder of said
County
B. Declarant DIAMOND BROTHERS is the owner of that certain real property located adjacent to the
Foothill Arch Property described as follows ("Diamond Brothers Property" ):
Parcel B, in the City of Menifee, County of Riverside, State of California,
as per Notice of Lot Line Adjustment No. LLA 15-001 recorded on October
22, 2015 as Instrument No. 2016-0464315, in the Office of the County
Recorder of Riverside County
C. The Foothill Arch Property is developed as a commercial shopping center ("Center").
D. The Diamond Brothers Property is undeveloped and may be developed as a commercial business
center.
E. The Foothill Arch Property and the Diamond Brothers Property are referred to collectively herein as the
"Properties". Foothill Arch, Diamond Brothers, and any successor owners of the Foothill Arch Property
or the Diamond Brothers Property are referred to.herein, individually, as an "Owner" and, collectively, as
the "Owners".
1
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F. FOOTHILL ARCH and DIAMOND BROTHERS previously recorded a Superseding Declaration of
Covenants, Conditions, Restrictions and Reservation of Easements for Parcel Map No. 39668
("Original Superseding Declaration") on May 10, 2016, as Instrument No. 2016-0189021.
G. FOOTHILL ARCH has entered into a Lease dated as of August 19, 2015, with Thrifty Payless, Inc., a
California corporation ("Rite Aid"), pursuant to which Rite Aid leases Parcel 1 of the Foothill Arch
Property from Foothill Arch (as may be amended, restated, or assigned from time to time, the "Rite Aid
Lease"). The Rite Aid Lease requires that certain rights of Rite Aid under the Rite Aid Lease with
respect to the Center and the Diamond Brothers Property be included in a reciprocal easement
agreement or similar document, which is recorded against the Foothill Arch Property and the Diamond
Brothers Property.
H. Declarants intend by this Second Superseding Declaration to replace and supersede the Original
Superseding Declaration in its entirety and to include the requirements of the Rite Aid Lease.
I. Declarants hereby acknowledge and agree that the inclusion of any references to the County of
Riverside in Article II of the Original Superseding Declaration were a scrivener's error and the County of
Riverside did not, and does not, have any jurisdiction or other authority with respect to any of the
matters set forth in the Original Superseding Declaration or this Second Superseding Declaration.
NOW, THEREFORE, Declarants do hereby declare, for the purpose of enhancing and protecting the value,
attractiveness and desirability of the Lots constituting the Properties, that all of the Properties and each part
thereof shall be held, occupied, sold and conveyed subject to the easements, restrictions, covenants and
conditions hereinafter set forth, all of which shall constitute covenants running with the land and shall be binding
on all parties having any right, title or interest therein or in any part thereof, their heirs, successors and assigns,
and which shall inure to the benefit of each Owner thereof, and all of which are imposed upon the Properties
and every part thereof as a servitude in favor of each and every parcel of the Properties and may be enforced
by all owners thereof.
ARTICLE I
EASEMENTS
1. DIAMOND BROTHERS and FOOTHILL ARCH, each grant to the other and to each of its successors,
assigns and heirs, tenants, customers and invitees, and the customers, contractors, service providers and
invitees of such tenants, the following easements, in perpetuity:
(a) Mutual reciprocal easements for water line easements for fire line purposes, over the Foothill Arch
Property and the Diamond Brothers Property as shown in attached Exhibit "A."
(b) Mutual reciprocal easements for vehicular and pedestrian ingress and access over portions of the
Properties, as shown in attached Exhibit "B."
(c) Mutual reciprocal easements for those portions of each of the Properties, for private drainage as shown
in attached Exhibit "C."
2. FOOTHILL ARCH reserves the right to grant, in the future, a waterline easement for domestic line
purposes over Parcel 1 of the Foothill Arch Property in favor of Parcel 2 of the Foothill Arch Property as shown
in attached Exhibit "D."
3. FOOTHILL ARCH grants to DIAMOND BROTHERS, over Parcel "2" of the Foothill Arch Property, an
easement for sewer line purposes as shown in attached Exhibit "E." FOOTHILL ARCH reserves the right to
grant, in the future, for Parcel 1 of the Foothill Arch Property, an easement for sewer line purposes as shown in
attached Exhibit "E."
4. DIAMOND BROTHERS grants to FOOTHILL ARCH and its tenants, customers and invitees, and the
customers, contractors, service providers and invitees of such tenants, in favor of Parcel 1 and Parcel 2 of the
Foothill Arch Property, a non-exclusive easement for vehicular parking purposes over the portions of Parcel B
as shown in attached Exhibit "F." The foregoing parking easement area shall be maintained and repaired by the
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owners of Parcel 1 and Parcel 2 of the Foothill Arch Property who shall share in obtaining public liability
insurance.
5. DIAMOND BROTHERS grants to FOOTHILL ARCH, an exclusive easement for use by its tenant on
Parcel 1 of the Foothill Arch Property of the "Trash Area" over Parcel B of the Diamond Brothers Property as
shown in Exhibit "G." FOOTHILL ARCH is responsible for maintaining the following items in the Trash Area:
landscaping, trash enclosure walls, trellis, slab and gate, and bins.
6. No use of the Foothill Arch Property or Parcel B (the Diamond Brothers Property) shall be made which
shall interfere with the use of the easements of ingress and egress and parking that are granted in this Second
Superseding Declaration or impede the free flow of vehicular or pedestrian traffic between the Foothill Arch
Property and Parcel B (the Diamond Brothers Property). No Owner of either the Foothill Arch Property or Parcel
B (the Diamond Brothers Property) shall charge any fee for parking in the Foothill Arch Property or Parcel B (the
Diamond Brothers Property).
7. For so long as the Rite Aid Lease is in effect, the easements granted in Article I, Section 1(b) (vehicular
and pedestrian ingress and egress), Section 4 (parking) and Section 5 (Trash Area) of this Second Superseding
Declaration and the locations and size of such easements as depicted on Exhibits B, F, and G of this Second
Superseding Declaration may be reconfigured, altered or changed only with the prior written approval of the
tenant under the Rite Aid Lease in its sole and absolute discretion. For so long as the Rite Aid Lease is in
effect, the easements granted in Article I, Section 1(a) (water line easement), Section 1(c) (private drainage),
and Section 2 (future water line easement) of this Second Superseding Declaration and the locations and sizes
of such easements as depicted on Exhibits A, C, and D of this Second Superseding Declaration, each to the
extent they are located on Parcel 1 of the Foothill Arch Property, may be reconfigured, altered or changed only
with the prior written approval of the tenant under the Rite Aid Lease in its sole and absolute discretion.
8. Each Owner shall maintain its respective portions of the Properties, and any other portions of the
Properties for which such Owner is responsible for maintenance under this Second Superseding Declaration, in
first class condition at all times.
ARTICLE II
ASSOCIATION AND OWNERS RESPONSIBILITIES
1. Notwithstanding any provision in this Superseding Declaration to the contrary, the following provisions
shall apply:
(a) If the Owners of Parcels 1, 2 and B do not perform the maintenance obligations as specified in this
Second Superseding Declaration, a property owners' association shall be established to manage and
continuously maintain the 'easement areas', more particularly described as the shared parking lot, the
ingress/egress access easements, other common easement areas, and all landscaping.
(b) The property owners' association shall have the right to assess the owners of each individual parcel for
the reasonable cost of maintaining such 'easement areas', and shall have the right to lien the parcel of
any such owner who defaults in the payment of a maintenance assessment. An assessment lien, once
created, shall be prior to all other liens recorded subsequent to the notice of assessment or other
document creating the assessment lien.
(c) In the event of any conflict between this Second Superseding Declaration and the Articles of
Association, the Bylaws, or the property owners' association Rules and Regulations, if any, this Second
Superseding Declaration shall control.
(d) If the Owners of Parcels 1, 2 and B fail to implement Best Management Practices ("BMPs") as described
in the Water Quality Management Plan on file with the City of Menifee ("City") then a property owners'
association shall be created to implement and maintain such practices.
(e) If a property owners' association is established pursuant to this Article II during the time the Rite Aid
Lease is in effect the prior written consent of the tenant under the Rite Aid Lease shall be required for
any Articles of Association, Bylaws, property owners' association Rules and Regulations and any other
documents establishing and governing such property owners' association.
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2. The members of the association shall be all Owners of Parcels 1, 2 and B described above. Co -owners
of a Parcel have an indivisible interest in a single membership. Membership of each Owner shall be
appurtenant to the parcel owned, and may only be (and is automatically) transferred upon conveyance of title to
a parcel to the new Owner.
3 If a property owners' association is established, all Owners shall be assessed for an amount equal to
their reasonable pro-rata share of the expenses approved by Owners representing the majority of all parcels of
the Properties. Said expenses shall include compliance with BMPs and maintenance and repair of the mutual
easement areas.
4. If any Owner fails to make timely payment of his share of the approved expenses, then any Owner may
bring an action against the defaulting Owner(s) to enforce his or their obligation to pay such share of the
expenses. The costs and expenses incurred (including reasonable attorney's fees) by an Owner in connection
with any such legal action shall be paid by the defaulting Owner(s). The committee shall not be empowered to
record a pre judgment lien for unpaid assessments; however, it may record a lien after a court judgment is
obtained.
5. Assessments and related interest, collection costs, and reasonable attorneys' fees are the personal
obligations of the Owner, but are not the personal obligation of successors in title unless expressly assumed by
them.
ARTICLE III
MUNICIPAL PROVISIONS
1. Enforcement by the City. The City of Menifee is an express third party beneficiary of the covenants,
conditions, restrictions, easements and servitudes provided in this Second Superseding Declaration.
Accordingly, the City has the continuing right, but not the obligation, to enforce any provisions of this Second
Superseding Declaration. The City shall be entitled to an award of reasonable legal expenses in any action to
enforce the provisions of this Section or this Second Superseding Declaration.
2. Amendment to this Superseding Declaration or Other Governing Documents. This Second
Superseding Declaration shall not be terminated, 'substantially' amended, or property de -annexed there from
absent the prior written consent of the Community Development Director of the City of Menifee. A proposed
amendment shall be considered 'substantial' if it affects the extent, usage or maintenance of the 'common area'
established pursuant to this Second Superseding Declaration.
For so long as the Rite Aid Lease is in effect, any amendment to this Second Superseding Declaration
that makes any changes to the easements as set forth in Article I, Section 7 of this Second Superseding
Declaration, or reduces the rights of the owner of Parcel 1 of the Foothill Arch Property hereunder, or affects the
visibility of, access to, parking or signage on, traffic flow (vehicular and/or pedestrian) around, or business
operations conducted on Parcel 1 of the Foothill Arch Property shall also be approved and executed by the
tenant under the Rite Aid Lease, in its sole and absolute discretion.
3. City as Third Party Beneficiary. All conditions, covenants and restrictions imposed by the City per the
Conditions of Approval for Parcel Map No. 36998, which are contained in this Second Superseding Declaration,
shall be covenants running with the land, and shall in any event, and without regard to technical classification or
designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and
the favor of, and enforceable by the City, and its successors and assigns. Although the City shall be a
beneficiary of these specific conditions, covenants and restrictions and shall have the right to enforce them, the
City shall not be obligated to exercise such rights of enforcement.
4. City Maintenance at Owner's Expense. In the event an Owner, or its successors or assigns fails to
accomplish the necessary maintenance contemplated by this Second Superseding Declaration, within five (5)
days of being given written notice by the City, the City is hereby authorized to cause any maintenance
necessary to be done and charge the entire cost and expense to the Owner or Owner's successors or assigns,
DOC #2017-0027483 Page 5 of 9
including administrative costs, attorneys fees and interest thereon at the maximum rate authorized by the Civil
Code from the date of notice until paid in full. Nothing in this section or this Second Superseding Declaration
creates an obligation by the City to maintain or repair any BMP, nor does this section prohibit the City from
pursuing other legal recourse against any Owner.
5. Surety Bond. The City may require the Owners or the owner's association, if applicable, to post
security in form and for a time period satisfactory to the City to guarantee the performance of the obligations
stated herein. Should any Owner or the owner's association, if applicable, fail to perform the obligations under
this Second Superseding Declaration, the City may, in the case of a cash bond, act using the proceeds from it,
or in the case of a surety bond, require the sureties to perform the obligations of this Second Superseding
Declaration. As an additional remedy, the City's Engineer may withdraw any previous stormwater-related
approval with respect to the property on which BMPs have been installed and/or implemented until such time as
such Owner repays to City its reasonable costs incurred in accordance with the paragraph herein entitled "City
Maintenance at Owner's Expense."
6. Attorney's Fees. In event of legal action occasioned by any default or action of the Owner, or its
successors or assigns, then the Owner and its successors or assigns agree to pay all costs incurred by the City
in enforcing the terms of this Second Superseding Declaration, including reasonable attorney's fees and costs,
and that the same shall become a part of the lien against said Property.
7. Notices. Notices to the City and/or Declarant and/or Rite Aid that may be required or necessary under
this Second Superseding Declaration, if any, shall be provided to the following addresses:
City of Menifee
29714 Haun Road
Menifee, California 92586-6540
Foothill Arch, LLC
c/o Andy Sehremelis, President
Parkcrest Construction, Inc.
2910 So. Archibald Ave., Suite A-350
Ontario, California 91761
Diamond Brothers Five Partnership, LP
29875 Menifee Lakes Drive
Menifee, California 92584
Thrifty Payless, Inc.
Attn: Corporate Secretary
30 Hunter Lane
Camp Hill, PA 17011
8. Binding Effect. This Second Superseding Declaration shall be binding on and shall inure to the benefit
of the heirs, executors, administrators, successors, assigns, invitees and tenants of Declarants, and Owners,
and such covenants shall be enforceable as equitable servitudes.
9. Entire Instrument.
(a) The above Recitals form an integral part of this Second Superseding Declaration.
(b) This Second Superseding Declaration is intended by the parties as the final expression of their
agreement with respect to the construction and costs of maintenance, repair and replacement of the
improvements, and is a complete and exclusive of the terms thereof. This Second Superseding
Declaration contains all of the terms, provisions, covenants, conditions, restrictions and easements set
forth herein above. Any oral representations or modifications concerning this instrument shall be of no
force and effect excepting a subsequent modification in writing, signed by Declarant, or its successors
and/or assigns, and any other parties required to sign pursuant to the terms of this Second Superseding
Declaration, and recorded in the Office of the County Recorder of said County.
10. Term.
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(a) All of the terms, provisions, conditions and restrictions set forth in this Second Superseding Declaration
and the easements reserved herein shall be deemed in full force and effect upon recordation of this
Second Superseding Declaration in the Office of the County Recorder of said County, and shall be
binding upon all parties for sixty (60) years after the recording date.
(b) After sixty (60) years, this Second Superseding Declaration will automatically be extended for
successive ten (10) year periods, unless the Owners (heirs, successors, representatives) of a majority
of the subject Properties record a signed, written instrument: (1) At least one (1) year before the
beginning of any ten (10) year period; and (2) agreeing to terminate this Second Superseding
Declaration. For so long as the Rite Aid Lease is in effect, any termination of this Second Superseding
Declaration shall require the written consent of the tenant under the Rite Aid Lease.
11. Enforcement by Rite Aid. For so long as the Rite Aid Lease is in effect, the tenant under the Rite Aid
Lease shall have the right, but not the obligation, to enforce any provision of this Second Superseding
Declaration as if it were an Owner hereunder and to cure any default by any Declarant under this
Second Superseding Declaration or any failure of any Declarant to comply with any applicable
governmental laws, rules or regulations, including without limitation BMPs, and to charge the entire cost
and expense of such cure to such Declarant, or Declarant's successors or assigns, including
reasonable attorneys' fees and costs, and interest thereon at the maximum rate authorized by law from
the date of notice until paid in full. In the event of legal action occasioned by any default or action of a
Declarant, or its successors or assigns, then such Declarant and its successors or assigns agrees to
pay all costs incurred by the tenant under the Rite Aid Lease in enforcing the terms of this Second
Superseding Declaration, including reasonable attorneys' fees and costs.
12. Counterparts. This Second Superseding Declaration may be executed in several counterparts, each of
which may be deemed an original, but all of which together shall constitute one and the same Second
Superseding Declaration.
13. Successors and Assigns. The provisions of this Second Superseding Declaration shall bind and inure
to the benefit of the heirs, representatives, successors and assigns of the parties.
(Signatures and Notaries are on the Following Pages]
DOC #2017-0027483 Page 7 of 9
IN WITNESS WHEREOF, the undersigned, being the Declarant, has executed this Second Superseding
Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Parcel Map No. 36998.
"Declarant"
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A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document, to which this certificate is attached,
and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF Son &- ngo-M�o ) ss.
On - Cln Aotvvm [1 , 2017, before me,
Notary Public, personally appeared:
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who proved to me on the basis of satisfactory evidence to be the person(O whose nai
the within instrument and acknowledged to me thats/ty executed same in e
capacity(i4s), and that by his/her/their signature() on the instrument the person(,) or
which the person() acted, executed the instrument.
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subscribed to
authorized
entity upon behalf of
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
COMM. #20352491 A
(SEAL) ae Notary Public • California
= Los Angeles County
i N1y Comm. Exv❑es Julv X 2017
Notary Publie
DOC #2017-0027483 Page 8 of 9
IN WITNESS WHEREOF, the undersigned, being the Declarant, has executed this Second Superseding
Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Parcel Map No. 36998.
"Declarant"
DIAMOND BROTHERS FIVE PARTNERSHIP, LP
a California limited partnership
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its: General Pa ne its:
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document, to which this certificate is attached,
and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF S'dr `�err\2tdiv%6 ) ss.
which the person() acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
PANAYIOTA7TRSCommission37
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DOC #2017-0027483 Page 9 of 9
SUBORDINATION BY LIENHOLDER
SB FINCO II, L.P. a Texas limited partnership, as assignee of the beneficial interest under the following Deed
of Trust, by assignment recorded January 08, 2016 as Instrument No. 2016-0007691, which covers the Foothill
Arch Property described in the Second Superseding Declaration to which this instrument is attached, hereby
subordinates the lien of said Deed of Trust to the recording of this Second Superseding Declaration, and agrees
that the lien of said Deed of Trust shall be subordinated to and subject to each and every provision of the
Second Superseding Declaration and any future amendments not affecting the beneficial interest. The signing
of this Subordination by Lienholder shall not,constitute said Lienholder's subordination to any future Assessment
liens.
Deed of Trust recorded on November 16, 2015 as Instrument No. 2015-0501875 of the Official
Records of the Riverside County Recorder.
SB FINCO II, L.P,
a Texas limited partnership
By: Pinpoint Finco II, LLC, its General Partner
By: Arthur Holdings, LLC, its Manager
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By: Patrick Dunne
its: Authorized Signatory
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document, to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF TEXAS )
COUNTY OF TARRANT ) ss.
On U 2017, before me, (aunk,� -E
Notary Public, personally ap eared:
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL) LAURA D. MITCHELL Notary Public
(Votary Public, State of Texas
My Commission Expires
August 02, 2017