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2016/09/20 Easement Stater Bros - Declaration of Restrictions and Grant of Easement
FpR RECORDER's 46E owL Yi. FOR In REdDR!MG DATE: RIVERSIDE COUNTY RECORDER 09/],/2016 IIIIAl1111111111181 printed: 2016.09.12 @ 14.27.11 NUMBER a �B First American - NCS Ontario Kim Delpolito Documents will be recorded in the order submitted ")r ,A( d WCUMEENNNT NN�UUMM.BEERR� 2 3 4 s ,ae a 9 1P 1r 11 13 14 15 1& 17 a 727719 727719 SEE SPECIAL RECORDING INSTRUCTIONS 609121010004128001 For: Kim Delpolito First American - NCS Ontario 909.510.6202 kdelpolito@firstam.com Im =1i Prepared by: Jeff Oriero (joriero@firstam.com 909.510.6205) f ; Ww � �I%�,�llyi -11� 64k V� 3 I EXAMINER jrh4 Recording Requlcste First American Title Company RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: STATER BROTHERS MARKETS Attn: Real Estate #197 301 South Tippecanoe Avenue P. O. Box 50 San Bernardino, California 92402-0150 DOCUI3ENTARY TRANSFER TAX: -0- R & T CODE: 11911 CONSIDERATION & VALUE 2016-0408202 09/20/2016 01:02 ply ***Customer Copy Label*** The paper to which this label is affixed has not been compared with the filedirecorded document Peter Aldana County Of Riverside Assessor -County Clerk -Recorder R A Exam: Page DA PCOR Mist; Long RFD 1st Pg Adtl Pg Cert CC SIZE NCOR SMF NCHG T: LESS THAN $100.00 DI ARATION OF RESTRICTIONS AND GRANT OF EASEMENTS DATED: August 26, 2016 (Menifee, California) First American Title company has recorded this instrument by ,equosi as an accom- modation only and ha i of examined it for regularity and sutfic; lf:' cr as to its effect upon the title to any rani property that may be described baron M531-013 -- 22563101 5ECTION1. DEFINITIONS......................................................................................................I SECTION2. USE IN GENERAL..............................................................................................7 2.1 Use as a Shopping Center..................................................................................... 7 2.2 Building Area; Common Area..............................................................................7 SECTION3. BUILDING AREA...............................................................................................7 3.1 Buildings within Building Areas .......................................................................... 7 3.2 Building Square Footage Limitations...................................................................7 3.3 Height; Exterior Appearance; Sign Criteria.......................................................... 8 3.4 Completion of Construction.................................................................................. 8 3.5 Drive-Through...................................................................................................... 9 3.6 Maintenance of Iraprovements.............................................................................9 3.7 Insurance; Damage to Improvements...................................................................9 SECTION4. COMMON AREA..............................................................................................10 4.1 Use of Common Area.........................................................................................10 4.2 Additional Uses of Common Areas ....................................................................14 SECTION 5. COMMON AREA EASEMENTS......................................................................15 5.1 Reciprocal Easements.........................................................................................15 5.2 Nonexclusive Easements for Parking, Pedestrians and Vehicles .......................15 5.3 Limitation on Easement or License....................................................................16 SECTION 6. COMMON AREA ROPROVEMENTS AND BUILDING UTILITY LINES.................................................................................................................16 6.1 Construction of Common Area Improvements...................................................16 6.2 Construction of Sidewalks and Parking Areas ....................................................17 6.3 Temporary Storage of Construction Materials and Equipment ..........................17 6.4 No Fences............................................................................................................17 6.5 No Changes in Common Areas...........................................................................17 6.6 Maintenance of Building Utility Lines...............................................................17 SECTION 7. COMMON AREA OPERATION AND MAINTENANCE...............................18 7.1 Operator Responsible for Common Area Maintenance......................................18 7.2 Public Liability Insurance...................................................................................18 7.3 Minimization of Expenses..................................................................................19 7.4 Common Area Expenses.....................................................................................19 7.5 Successor Operator.............................................................................................23 7.6 Liability of Former Operator..............................................................................23 7.7 No Operator........................................................................................................23 7.8 Rules and Regulations.........................................................................................23 7.9 Neglected Maintenance.......................................................................................23 7.10 No Admission Fees............................................................................................. 24 M531-013--2256310.1 Pa e s 7.11 2014 Entitlements Conditions of Approval........................................................24 SECTION 8. REALTY TAXES AND ASSESSMENTS........................................................25 8.1 Payment of Taxes................................................................................................24 SECTION 9. OTHER RESTRICTIONS..................................................................................25 9.1 Prohibited Uses...................................................................................................25 9.2 No Excavation.....................................................................................................27 9.3 No Flashing Signs...............................................................................................27 9.4 No Exterior Sound Systems................................................................................27 9.5 No Nuisance........................................................................................................27 9.6 No Residential Uses............................................................................................29 9.7 No Trailers.......................................................................................................... 28 9.8 No Overnight Parking.........................................................................................29 9.9 No Changes in Grade.......................................................................................... 29 9.10 Special Restrictions - Foods...............................................................................29 9.11 Special Restrictions - Pharmacy.........................................................................29 9.12 Equitable Remedies............................................................................................30 9.13 Antennae and Roof Mounted Equipment........................................................... 30 9.14 Additional Phase II Restrictions......................................................................... 30 SECTION 10. MISCELLANEOUS PROVISIONS...................................................................31 10.1 Binding Covenants, Restrictions, Conditions and Provisions ............................ 31 10.2 Legal Description................................................................................................31 10.3 No Termination of Declaration...........................................................................31 10.4 Partial Invalidity of Declaration..........................................................................32 10.5 Privity of Contract and Estate............................................................................. 32 10.6 No Merger...........................................................................................................32 10.7 Attorneys' Fees...................................................................................................32 10.8 Condemnation.....................................................................................................32 10.9 Captions.............................................................................................................. 33 10.10 Appurtenant.........................................................................................................33 10.11 No Public Dedication..........................................................................................33 10.12 California Law....................................................................................................33 SECTION 11. TERMS AND AMENDMENTS........................................................................33 11.1 Terms..................................................................................................................33 11.2 Amendments....................................................................................................... 33 SECTION 12. APPROVALS, RECORDATION AND NOTICES...........................................34 12.1 Approval Not to be Unreasonably Withheld or Delayed....................................34 12.2 Recordation.........................................................................................................34 12.3 Notices................................................................................................................34 M531-013 - 2256310.1 EXHIBITS: Exhibit "A" - Legal Description of Shopping Center Exhibits `B-1"- Site Plans of Shopping Center, Showing Locations " B-2" and "B-3" of All Buildings and Common Areas Exhibit "C" - Sign Criteria Page(s) GV) M531-013 -- 2256310.1 DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS THIS DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS ("Declaration') is made as of the 26th day of August 2016 by STATER BROS. MARKETS, a California corporation ("Stater"). RECITALS A. Stater is the owner of that certain real property located in the City of Menifee, County of Riverside, State of California, more particularly described in EXHIBIT "A", attached hereto, and by this reference made a part hereof, which real properly together with the improvements constructed thereon is hereinafter called the "Shopping Center" (as defined in Section 1.22). The property comprising the Shopping Center is delineated on the Site Plan (as defined below in Section 1.26). B_ Stater desires to subject each and every portion of the Shopping Center to the covenants, conditions and restrictions hereinafter set forth, pursuant to a general plan of improvement, protection, maintenance and development of the Shopping Center as an integrated retail shopping center for the mutual benefit of all such property and of the owners of any and all portions thereof and their respective heirs, successors, assigns, grantees, mortgagees, tenants and subtenants. C. Stater does hereby establish the covenants, conditions and restrictions hereinafter set forth, and grants, reserves, and establishes the easements hereinafter described: SECTION 1. DEFINITIONS As used herein, the following words and terns shall have the following meanings: 1.1 "2014 Entitlements" means: (a) Plot Plan No. 2014-091, (b) Conditional Use Permit No. 2014-092; (c) Tentative Parcel Map 36728, No. 2014-093; (d) Variance (Signs) No. 2014-195; (e) Shoppes at the Lakes Sign Program 10/27/2014 Rev. 9 (comer monument sign, public gathering areas, and sight lighting will be revised per approved COA by Administrative Minor Plot Plan), and (f) all conditions of approval associated with any of the foregoing. 1.2 `Building Area(s)" means those areas upon which buildings are constructed, from time to time, and shall include any exclusive drive -through area, enclosed entry foyers, trash compactor pad(s), exclusive trash enclosures, telecommunications pad(s), generator pad(s), loading and unloading dock(s), loading zone(s), truck well(s) or truck apron(s), transformer(s) pad(s) or vaults(s) (provided that the secondary electrical feed from the transformer services only the contiguous Building Area thereto), Demised Patios, ramps exclusively serving a single Building Area and truck receiving ramps serving a Building Area. The maximum allowable ground floor square footage for buildings within each Building Area is set forth in Section 32 below, which allowable square footage does not include floor area in any mezzanine, basement, Demised Patio, drive -through areas, trash compactor pad(s), trash enclosures, telecommunications pad(s), generator pad(s), loading and unloading dock(s), loading zone(s), 1]cr* 020 M531-013—2256310.1 truck well(s) or truck apron(s), transformer(s) pad(s) or vaults(s), ramps exclusively serving a single Building Area or truck receiving ramps. 1.3 `Building Area Temporary Improvements" means lawn, landscaping or asphalt paving which shall be of a type and grade compatible with the Common Area Improvements constructed or to be constructed on the Common Area pursuant to Section 6.1. 1.4 "Building Limit Lines" means the outer perimeter boundary within which the maximum Building Area can be constructed on Parcels I through 12 as depicted on the Site Plan. 1.5 "Building Utility Lines" means all Common Area Utility Lines (as hereinafter defined) within five feet (5') of any building served by such Common Area Utility Lines, and that portion of any utility line(s) extending from the building to the junction of the Common Area Utility Lines serving other buildings within the Shopping Center, or that portion of any utility line(s) extending from the building to a perimeter boundary of the Shopping Center. The portion of a secondary electrical feed for a transformer which services only one (1) Building Area shall be deemed to be a Building Utility Line. 1.6 "Common Area" means those areas within the Shopping Center used in common, and includes all areas within the Shopping Center other than the Building Areas. The Common Area of the Shopping Center is depicted on the Site Plan, and includes the Retention Basin and Shopping Center Patios (as hereinafter defined). To the extent required by law, and notwithstanding anything herein to the contrary, for the benefit of the Shopping Center and at the sole discretion of the Occupant of the Supermarket Building, there shall be permitted within the Common Area, a single Recycling Facility (as Section 4.1(m) defines Recycling Facility) or a reverse vending machine in an area as designated on the Site Plan, which cannot be relocated without the approval of the Parties, which does not unreasonably impede the ingress or egress of vehicles or pedestrians and such Recycling Facility shall be maintained in a clean and orderly manner. Notwithstanding the foregoing, the Occupant of the Supermarket Building may locate a reverse vending machine for recycling purposes adjacent to the Supermarket Building, without the prior written consent of the Developer Party. 1.7 "Common Area Expenses" means all costs and expenses for Common Area Maintenance set forth in Section 7.4. 1.8 "Common Area Improvements" means all roadways, sidewalks, parking sites and stalls, utility improvements (except Building Utility Lines), graded surfaces, lighting, striping, planters, fences, walls, vaults, manholes, meters, pipelines, valves, hydrants, sprinkler controls, conduits, sewage facilities, storm drainage and storm water treatment facilities, landscaping, site amenities (e.g., benches or seating areas not associated with a particular Occupant's Building Area), trash receptacles, sign monuments, sign pylons, Shopping Center signs (as opposed to individual occupant signs), the Shopping Center Patios, and any and all other improvements which may from time to time be installed, constructed or located on the Common Area, as required by law (including, without limitation, compliance with the Americans with Disabilities Act and all similar laws, regulations and rules applicable within the State of California, each, as amended) or with the consent of both the Stater Party and Developer Party, and all replacements, rearrangements, and reconstruction thereof. -2- M531-013 - 2256310.1 1.9 "Common Area Maintenance" means the operation, maintenance, repair, and replacement of the Common Area and Common Area Improvements in accordance with the standards generally observed in other first-class grocery store anchored neighborhood shopping centers located in Southern California including, without limitation, the following: (a) Maintenance of all surface areas, asphalt parking lot and sidewalks in a level, smooth, and evenly covered manner with the type of surfacing material originally installed, or with substitute material of equal quality, appearance, and durability. The asphalt parking lot and concrete planters shall be repaired as required and the asphalt parking lot shall be overlayed as required with a seal coat and re -stripe not less than once every four (4) years, unless otherwise as agreed to by the Parties; (b) Removal of all papers, trash, debris, filth, and refuse from the Shopping Center, and washing, steam cleaning and thoroughly sweeping paved areas as required to maintain the Common Area in a good, clean condition; (c) Maintenance of such appropriate parking area entrance, exit and directional signs, markers, and lights in the Shopping Center as may be reasonably required from time to time, which at a minimum shall be in accordance with the practices then prevailing in the operation of first class grocery store anchored neighborhood shopping centers in Southern California; (d) Cleaning and repairing all lighting fixtures of the Shopping Center (except those appurtenant to the Building Areas, including but not limited to lighting fixtures in building canopies as authorized in Section 4.2(a) herein and floodlights as authorized in Section 4.2(c) herein which shall be maintained by the respective Owner), including relamping as required; (e) Cleaning and repainting of all striping, markers, directional signs, and similar improvements, as necessary to maintain the same in a condition comparable to similar improvements in other first-class grocery store anchored neighborhood shopping centers in Southern California; (f) Maintenance of landscaping as necessary to keep the same in a condition comparable to similar improvements in other first-class grocery store anchored neighborhood shopping centers in Southern California and to maintain the general effect contemplated by such improvements, including without limitation, watering, weeding, fertilizing and pruning or otherwise controlling trees, bushes and shrubbery to prevent overgrowth and replanting in conformity with originally approved landscaping plans, excepting herefrom any landscaping contiguous to a developed Building Area which includes irrigation provided from such building's plumbing system; (g) Cleaning and repairing all signs of the Shopping Center (except those within the Building Areas, those individual Occupant signs and those individual Occupant sign panels in any monument or pylon sign) including relamping as required. Maintenance, operation, repair, and replacement of Building Area and occupant signs shall be the responsibility of their respective Owners; -3- W 31.013 -- 2256310.1 (h) Removal from the Common Area of any obstructions not permitted including prohibited sales or displays of merchandise outside the exterior limits of improved Building Areas, except in areas specifically designated within the Shopping Center for such purposes as provided in Section 4.1; (i) Payment of all electrical, water, and other utility charges or fees for services furnished to the Common Area; 0) Maintenance of Common Area Utilities and systems erected, constructed, or installed within the Common Area to be used in whole or part to provide service for the Common Area or to be used in common by two (2) or more buildings or on two (2) or more parcels within the Shopping Center; (k) Maintaining public liability insurance for the Common Area and fire and property damage insurance for the Common Area Improvements as provided in Section 7.2 hereof, (1) Maintaining the Retention Basin; (m) Maintenance of any Shopping Center perimeter property line fences, walls and sidewalks in good condition and state of repair; and (n) Providing all other functions deemed necessary by the Operator for the proper and customary maintenance and upkeep of the Common Area and Common Area Improvements as herein specified subject to the approval of the Parties, which approval shall not be unreasonably withheld. Common Area Maintenance specifically excludes: (i) all security services (except for security cameras as may be required by the 2014 Entitlements) and day porters, unless otherwise approved in writing by the Parties, and (ii) Building Area maintenance, including without limitation, maintenance of canopies and Building Area lighting which shall include under canopy lighting and floodlights. Additionally, Common Area Maintenance also excludes the maintenance, repair and replacement of Building Utility Lines; provided, however, nothing contained herein shall prevent Operator from performing any such maintenance, repair and replacement to such Building Utility Lines and billing the benefited Owner for such costs separate from the Common Area Maintenance costs under this Declaration. Notwithstanding anything in this Section 1.9 that may interpreted to the contrary, Demised Patio areas are not included in Common Area Maintenance and shall be maintained by and at the expense of the Owner of the Building Area contiguous to the Demised Patio. 1.10 "Common Area Utilities" or "Common Area Utility Lines" means all sewers, sewer mains, leach lines, septic tanks and distribution boxes, water lines, storm drainage and storm water treatment facilities, gas mains, electrical power lines, telephone lines, other utility lines, and all appurtenant fixtures and structures for the use of operation thereof within the boundaries of the Common Area not owned by a public or quasi -public utility which are used in common by two (2) or more buildings or on two (2) or more parcels within the Shopping Center or to service the Common Area Improvements. -4- M531-013 - 22563111 1.11 "Demised Patio' shall mean an outdoor area that is intended for customer occupancy and use by a particular Occupant of the Shopping Center, and not intended for the use by other Shopping Center occupants, their employees and/or customers, and which area may be enclosed by walls, fences or other barriers so that access to such enclosed area is restricted. Demised Patio shall be deemed to be Building Area as set forth within Section 1.2 and shall not be deemed to be Common Area. Without limiting the generality of Section 1.2 above, the square footage of a Demised Patio is not included in the maximum allowable ground floor square footage of buildings constructed within such Building Area pursuant to this Declaration. 1.12 "Drug Store" is a nationally recognized drug store operating not less than fifteen (15) stores and of not less than ten thousand (10,000) square feet on Parcel 6 on the Site Plan. 1.13 "Drug Store Building" is the Building Area on Parcel 6, during any period of time that a Drug Store is operated on Parcel 6. 1.14 "Mortgagee" means any person or entity from time to time holding a beneficial interest under a mortgage or trust deed on one (1) or more parcels in the Shopping Center. 1.15 "No Primary Building Zone" means the area designated on the Site Plan, within the Building Limit Lines, which may be improved as Building Area, but which shall not be used for the primary building structure. 1.16 "Occupant' means any person or entity from time to time entitled under this Declaration and under any lease, sublease or other ownership interest to use and occupy any portion of the Building Areas on any Parcel within the Shopping Center. 1.17 "Occupant of the Drug Store Building" means a Drug Store operated in the Drug Store Building. 1.18 "Occupant of the Supermarket Building" means Stater, for as long as Stater is operating a grocery store in the Shopping Center, and thereafter any national or regional retailer that is an occupant of substantially all of the Supermarket Building (and not only a portion). 1.19 "Operator" means the operator of the Common Area pursuant to the provisions of Section 7. 1.20 "Owner" means the individual, partnership, firm, association, corporation, limited liability company or other entity then holding record fee title to any parcel within the Shopping Center, and shall include a long-term ground lessee of a parcel. 1.21 "Parcel' or "Parcels" shall mean the legal parcels described on EXHIBIT "A" hereto. 1.22 "Parties" or "Party" shall mean the "Stater Party" and/or "Developer Party", each as hereinafter defined: -5- M531-013 - 2256310.1 (a) "Stater Party" shall mean Stater so long as it owns or leases any portion of the Shopping Center. At such time as Stater no longer owns or leases any portion of the Shopping Center, the Stater Party shall be an Owner of a portion of a Parcel 3 designated by Stater in a recorded document. If Stater does not designate any such successor Owner, the Stater Party shall be the Owner that owns Parcel 3, or the largest land area of Parcel 3 (if there are multiple Owners of Parcel 3). (b) "Developer Party" shall mean Stater until it sells a Parcel in the Shopping Center to U.S.S. Slaton, LLC, a California limited company ("U.S.S. Slaton"), at which time Developer Party shall be U.S.S. Slaton. Thereafter, the Developer Party shall be U.S.S. Slaton so long as it owns or leases any portion of the Shopping Center. At such time as U.S.S. Slaton no longer owns or leases any portion of the Shopping Center, the Developer Party shall be the Owner designated by U.S.S. Slaton in a recorded document. If U.S.S. Slaton does not designate any such successor, the Developer Party shall be the Owner that owns the largest land area of the Shopping Center, other than Parcel 3. 1.23 "Phase I" shall mean Parcels I through 8 (i.e. all of the Shopping Center, except for Phase I1). 1.24 "Phase II" means that certain real property owned by Stater and depicted as "Phase II" on the Site Plan. 1.25 "Retention Basin" shall mean the storm water detention basin to be constructed on Parcel 13 for the benefit of the entire Shopping Center. 1.26 "Shopping Center" means the real property described in EXHIBIT "A" hereto within the boundaries delineated on the Site Plan, with any improvement constructed thereon. 1.27 "Shopping Center Patios" shall mean those patio areas depicted on the Site Plan that are intended to be available for all Occupants of the Shopping Center pursuant to the 2014 Entitlements, instead of primarily for any one Occupant (i.e. a Demised Patio). 1.28 "Sign Criteria" means the Sign Criteria for the Shopping Center attached hereto as EXHIBIT "C," and by this reference made a part hereof. 1.29 "Site" means any portion of the Shopping Center which is at any given time held under a single ownership. 1.30 "Site Plan" means the Site Plans of the Shopping Center attached hereto as EXHIBIT "B-1", EXHIBIT "B-2", and EXHIBIT "B-3" and by this reference incorporated herein. 1.31 "Supermarket Building" means the Building Area depicted as "STATER BROS. MARKET MAJOR A" on the Site Plan. -6- M531-013 - 2256310.1 SECTION 2. USE IN GENERAL 2.1 Use as a Shopping Center. The Shopping Center shall be used only for the construction, operation and maintenance of lawful retail and commercial businesses of the type normally found in comparable shopping centers in Southern California and, subject to the provisions of Section 9 below, professional establishments and related facilities, including vehicular parking areas, all as more specifically described hereinafter. Development and use of the Shopping Center shall conform to the Site Plan, this Declaration and all federal, state and local laws, regulations, and ordinances, including the Menifee Municipal Code, and may not be modified without an amendment to this Declaration. 2.2 Building Area; Common Area. For the purposes of this Declaration the Shopping Center is divided into two (2) categories relating to use, each of which is delineated on the Site Plan as `Building Area" or "Common Area" as defined in Section 1.2 and Section 1.6 respectively above. SECTION 3. BUILDING AREA 3.1 Buildings within Building Areas. The construction, establishment and maintenance of buildings, improvements and other structures upon the Shopping Center shall be confined within the Building Limit Lines and shall conform to all applicable building codes, rules, regulations, and ordinances. The No Primary Building Zone shall be reserved for ancillary building structure improvements (e.g. drive thrus, patios, appurtenances); the primary building structure shall not be constructed within the No Primary Building Zone. 3.2 Building Square Footage Limitations. The building(s) constructed on the following Parcels shall not exceed the maximum square footage set forth below: (a) Parcel 1. (i) 4,500 square feet for a single food user, or (ii) 7,500 square feet for any other use (provided that no more than 3,000 square feet shall be devoted to food users). (b) Parcel 2. 8,500 square feet (provided no more than 4,000 square feet shall be devoted for food users). (c) Parcel 3. No square footage limitation (d) Parcel 4. (i) 5,000 square feet for a single food user, or (ii) 7,500 square feet for any other use (provided that no more than 3,000 square feet shall be devoted to a food user). (e) Parcel 5. 8,500 square feet (no single food user in excess of 3,000 square feet and no more than 4,250 square feet devoted to food on the east half of any building constructed on Parcel 5). (f) Parcel 6. (i) 7,500 square feet for a single food user, or (ii) 15,000 square feet for any other use -7- M531-013 - 2256310.I (g) Parcel 7. (i) 3,500 square feet for a single food user, or (ii) 6,000 square feet for any other use (provided that no more than 2,500 square feet shall be devoted to a food user). (h) Parcel 8. (i) 6,000 square feet for a single food user, so long as such single food user maintains a parking ratio equal to ten (10) spaces for each 1,000 square feet of building space on Parcel 8 (as Parcel 8 may be configured from time to time), or (ii) 8,000 square feet for any other use (provided that no more than 4,000 square feet shall be devoted to a food user). 3.3 Height Exterior Appearance,• Sign Criteria. All buildings erected, constructed, or placed on any part of the Shopping Center shall be limited in height to one story plus the mezzanine, but in no event shall any building or improvement, or any part thereof, exceed thirty (30) feet in height from the finished floor elevation to the top of any parapet, exclusive of architectural elements and/or playlands. The design exterior appearance and coloring of all buildings located within the Shopping Center shall conform to the design criteria and architectural theme for the overall Shopping Center established by the 2014 Entitlements ("Architectural Theme"). Any changes to the Architectural Theme of the Shopping Center shall be subject to the approval of the Parties. Any Owner constructing or reconstructing a building in the Shopping Center shall provide a copy of its construction plans to the Stater Party. for informational purposes; the Stater Party shall have no approval rights with respect to any such plans. The 2014 Entitlements are incorporated herein solely for the purpose of establishing the Architectural Theme, and for no other purpose (i.e. the 2014 Entitlements shall not restrict layout, use, or otherwise). Except for the typical signs of the Occupant of the Supermarket Building or other major tenants of the Shopping Center (as "Major Tenant" is defined in the Sign Critera), and except for "For Sale", "Coming Soon" or other similar temporary signs announcing a new tenant (signs announcing a new tenant shall not be erected or placed for longer than sixty (60) days and shall be maintained to the maintenance standards of first class shopping centers in Southern California), and except for "For Lease" signs (which such shall be maintained to the maintenance standards of first class shopping centers in Southern California), no billboards, advertising or identification signs shall be erected, constructed, or placed on any portion of a Building Area, building or building projection unless its design and placement is first approved by the Parties. Notwithstanding the foregoing, the Parties hereby approve signs conforming to that basic design and having substantially the same location as specified in the Sign Criteria attached hereto as EXHIBIT "C" and by this reference incorporated herein. Notwithstanding the foregoing, no approval shall be required for typical signs of the Occupant of the Supermarket Building and those typical signs for other Occupants of the Shopping Center, if such signs comply with the Sign Criteria. Additionally, the foregoing approvals shall not be required for any standard building sign of a nationally or regionally recognized chain occupying any building located in the Shopping Center. Except as otherwise provided herein all signs shall comply with the Sign Criteria. 3.4 Completion of Construction. Except as otherwise approved by the Parties, after commencement of construction of any building, Common Area Improvements or other structure or improvements on any Site, the Owner of such Site shall diligently prosecute the -8- M531-013 - 225631 CA work thereon to completion subject to delays beyond the reasonable control of the Owner, financial inability excluded. All Building Areas under construction shall be fenced or otherwise barricaded and such construction shall be controlled so it does not unreasonably interfere with other Shopping Center construction, operation or functions. 3.5 Drive -Through. Any drive -through type facility shall be located entirely within the Building Limit Lines designated for such facility as shown on the Site Plan, unless otherwise approved by the Parties. No drive -through facility shall be located on Parcel 5. In addition, any drive -through facility located on Parcel 2 shall be configured so that the entrance to the drive -through facility is located on the south side of the Building Area on Parcel 2. 3.6 Maintenance of Improvements. The exteriors (including windows and drive - through areas, if any) of any building, improvement or structure and the Building Area shall be kept in good condition and repair, clean and free from rubbish and weeds by the Owner of the Site upon which such Building Area, building, structure or improvement is located to the reasonable satisfaction of the Operator and the Parties. If the Operator or either of the Parties determines that a building, improvement, or structure is not being maintained as required by this Section 3.6, the Operator, Developer Party, or Stater Party shall have the right to give notice of such deficiency to the Owner of the Site specifying the particular deficiency, and corrective action required. If the Owner does not correct such deficiency within thirty (30) days of the receipt of such notice, the Operator, Developer Party, or Stater Party shall have the right to give a second notice to such Owner. In the event that the Owner of the Site does not correct such deficiency within thirty (30) days of the receipt of such second notice, the Operator, Developer Party, or Stater Party, as the case may be, shall have the right to undertake the completion of such repair and/or maintenance, at the sole cost and expense of the Owner of the Site on which such repair and/or maintenance is performed. In such event, the Owner of the Site shall reimburse the Party undertaking such repair and/or maintenance within fifteen (15) days of the receipt of an invoice for such work, which invoice shall be accompanied by reasonable back-up documentation. 3.7 Insurance, Damage to Improvements. Each Owner, at no cost to the other Owners of the Shopping Center, shall deliver to the Operator a current Certificate of Insurance evidencing that it maintains fire and extended coverage policies of insurance in a reasonable amount equal to the replacement value, exclusive of foundation and excavation costs, of the Owner's own building, structure and/or improvements on such Owner's parcel. Each fire and extended coverage policy of insurance shall include a provision that such fire and extended coverage policy of insurance shall not be canceled except upon thirty (30) days prior written notice to the Operator. Notwithstanding anything that could be deemed contrary herein, for as long as an Owner maintains a tangible net worth of no less than One Hundred Million Dollars ($100,000,000.00) ("Self Insurance Threshold"), such Owner shall have the right to provide all or any portion of the coverage(s) specified herein by a program of self-insurance. Upon mutual consent of the Parties, the Self Insurance Threshold may be increased to an amount which represents the industry standard for similarly situated shopping centers. If such Owner elects to implement a self-insurance program, such Owner shall provide evidence of such net worth to Operator no later than December lst of each calendar year. If any Owner's building, structure and/or improvements are damaged or destroyed by a cause insured, as required hereunder, the proceeds of such insurance shall be applied to repair or reconstruction of such damage or -9- M531-013 -- 2256310.1 destruction or to the cost of razing and removing the damaged building, structure and/or improvement, at the election of the Owner of the affected Site. In the event of any damage to, or destruction of, any building, improvement or structure, whether interior or exterior, or both, the Owner of the Site on which such building, structure or improvement is located shall promptly commence and diligently prosecute completion of such repair or restoration as is necessary to restore the building, structure or improvement so damaged or destroyed to its former condition, and until such repair or reconstruction is completed the Owner shall cause the Building Area to be maintained in a safe and hazard free condition. In the event that the said Owner elects not to rebuild or repair any building, structure or improvement so damaged or destroyed, such building, structure or improvements shall be promptly razed, the Site graded and that portion of the Building Area on such Owner's Site shall be improved with Building Area Temporary Improvements at such Owner's sole cost and expense and shall be maintained by the Owner or Operator as provided in Section 6.6 hereof. The Owner shall commence the restoration or razing of such Building Area within six (6) months from the date of any damage or destruction, excepting reasonable delays caused by governmental agencies, insurance companies, or similar causes of force majeure delay, all of which shall toll such six (6) month period; provided that the affected Owner shall diligently pursue the restoration or razing of such Building Area to its completion. SECTION 4. COMMON AREA 4.1 Use of Common Area. Except as otherwise approved in writing by the Parties, Common Area(s) shall provide for and shall be limited to the following pursuant to the easements granted in accordance with the terms of Section 5 and the Rules and Regulations promulgated under Section 7.8 hereof - (a) Unimpeded and unhindered pedestrian and vehicular traffic, and parking of passenger vehicles in areas designated for such purposes, for all persons or other entities who may own or hold interest in the real property within the Shopping Center or any leasehold estate, or any security interest therein, or building space thereon, the respective heirs, executors, administrators, successors, assigns, grantees, Mortgagees, tenants and subtenants thereof, and the officers, directors, concessionaires, agents, employees, customers, visitors, and other licensees and invitees of any of them; (b) The unimpeded and unhindered ingress and egress of any of the persons or entities designated in Subsection 4.1(a) above, including vehicles to and from any portion of the Common Area and the public streets adjacent to the Shopping Center; (c) Vaults, manholes, meters, pipelines, valves, sprinkler controls, conduits and related improvements, sewage facilities, septic tanks, leach lines and distribution boxes which uses shall be even with or below the surface, provided that the Parties may, by way of a joint written consent, permit any such uses to be above the surface. Any of the above permitted uses which are located above the surface shall be located to allow unimpeded access for all vehicles including trucks to and from public streets and Building Areas, and all cross - arms, pole racks and similar improvements shall be at least twenty-five feet (25') above the surface except as required by governmental or utility company requirements. In no event, however, shall any of the improvements described above be located in such a manner as to -10- M531-013 - 2256310.1 hinder or impede the other uses and/or maintenance of any portion of the Common Area or Common Area Improvements provided for in this Declaration nor shall any such improvements be located upon any parcel of the Shopping Center without the prior written consent of the Owner thereof, which consent shall not be unreasonably withheld or delayed; (d) The unimpeded and unhindered pedestrian and vehicular movement by the persons described in Subsection 4.1(a) to and from adjacent streets and between Building Areas and the Common Area; (e) Subject to the provisions of Section 3.2 hereof, to applicable laws and regulations and to the conditions precedent hereinafter described, the construction, maintenance, repair, replacement and reconstruction of signs and other exterior advertising media, signs, including pylons, towers and monuments. No signs (including pylon signs, monument signs and towers, but excluding signs permitted under Section 3.2), billboards or advertising media visible from outside any Building Area that do not conform to the Sign Criteria shall be erected or placed within the Shopping Center except as otherwise provided herein. A "Temporary Sign" is defined as a sign, billboard or other advertising media relating directly to the business or a promotion by an Occupant, which is displayed for not more than fifteen (15) days, shall not require the consent of the Parties. Every other sign, billboard or other advertising media proposed to be placed within the Shopping Center shall require the prior consent of the Parties as to the location, size, height, design, color and other dimensions thereof, which consent shall be evidenced by endorsement of the consenting Parties on the applicable plans. Notwithstanding the foregoing and subject to applicable laws and regulations and compliance with the Sign Criteria, the following signs shall be maintained at the following location depicted in the Site Plan and as set forth in the Sign Criteria: Two (2) monument signs not to exceed twenty feet (20') in height, (with appropriate underground electrical service) at the locations shown on the Site Plan as Monument Sign M.1, and Monument Sign M.2 along with three (3) secondary monument signs, not to exceed eight feet two inches (8' 2") in height, (with appropriate underground electrical service) at the locations shown on the Site Plan as Secondary Monument Sign SM.1, Secondary Monument Sign SM.2 and Secondary Monument Sign SM.3, along with one (1) comer monument sign, not to exceed six feet (6') in height, (with appropriate underground electrical service) at the location shown on the Site Plan as Corner Monument Sign CM.1. Such monument signs shall display the advertisements only of those tenants within the Shopping Center, which such advertisements shall conform to the restrictions set forth in this Declaration. The identification of the Occupant of the Supermarket Building shall occupy the top position on Monument Sign M.1, Monument Sign M.2 and Secondary Monument Sign SM.3, which position shall not be changed without the prior written consent of the Occupant of the Supermarket Building. The identification of the Occupant of the Drug Store Building shall occupy the second position from the top on Monument Sign M.1, Monument Sign M.2 and Secondary Monument Sign SM.3, which position shall not be changed without the prior written consent of the Occupant of the Drug Store Building. The Occupant of the Supermarket Building and the Occupant of the Drug Store Building shall share equally the Corner Monument Sign CM. l No other monument sign shall be erected, placed, maintained, or altered on any part of the Shopping Center without the consent of the Parties first being obtained in writing, -11- M531-013 - 2256310.1 but nothing herein shall be construed to require the Parties to consent to the erection of any other monument sign, such consent being within the sole discretion of the Parties. Any monument signs to which the Parties consent shall also be subject to approval of the Parties as to the location, size, height, design, and other dimensions thereof, to be evidenced by endorsement on the plans for such monument signs. The maintenance and repair of each single tenant monument sign shall be paid by the corresponding tenants utilizing such sign. The Occupant of the Supermarket Building shall have the right to remove its signage if it no longer occupies the Supermarket Building or no longer has an interest in the Shopping Center; (f) The unimpeded and unhindered ingress and egress of delivery and service trucks and vehicles to and from the Building Areas or any portion thereof and the public streets adjacent to the Shopping Center, for the delivery of goods, wares, merchandise and the rendition of services to all Building Areas and the Occupants thereof, (g) Parking for automobiles of the employees of Occupants of any Building Area, subject to the provisions of Sections 7.8 and 7.10; (h) The use by the Occupant of the Supermarket Building of those certain parking stalls designated "Seasonal Sales Area" on the Site Plan, for the sale by the Occupant of the Supermarket Building of certain seasonal and/or promotional merchandise, and the use by the Occupant of the Supermarket Building and the Occupant of the Drug Store Building of the sidewalks adjacent to such Occupant's Building Area for seasonal and/or promotional merchandise, so long as such use does not materially interfere with the use of such sidewalks. In addition, the Developer Party shall have the right, in its sole discretion, to designate other Occupants in the Shopping Center that may use the sidewalks adjacent to such Occupant's Building Area for seasonal and/or promotional merchandise (each an "Approved Occupant") provided that: (i) no Approved Occupant shall use the sidewalks adjacent to its Building Area for a continuous period in excess of fifteen (15) days, with a break after such use of at least fifteen (15) days, (ii) no Approved Occupant shall use the sidewalks adjacent to its Building Area for a period in excess of sixty (60) days per year, in the aggregate, (iii) each Approved Occupant shall insure that such use of the sidewalk does not materially interfere with the use of such sidewalks by other Occupants, (iv) each Approved Occupant shall maintain that portion of the sidewalk area occupied by it at its cost, in a neat, clean condition, and in a manner consistent with a First Class Shopping Center, and (v) no Approved Occupant shall use the sidewalks in violation of the terms and conditions of this Declaration. The Developer Party shall immediately revoke an Approved Occupant's right to use of the sidewalk for seasonable and/or promotional merchandise if the Developer Party or Stater determines that the Approved Occupant's use is not in compliance with the foregoing requirements, or if the Developer Party determines that such use is not beneficial for the Shopping Center; (i) The provision of other facilities such as mail boxes and benches for the comfort and convenience of customers, visitors, invitees, licensees, and patrons of mercantile, business and professional establishments and Occupants to be located upon the Building Area or any portion thereof, as the Owners and their respective heirs, successors, assigns or grantees may, from time to time, deem appropriate. Vending machines and similar facilities customarily found in retail shopping centers from time to time (i.e. Redbox DVD vending, propane canister -12- M531-013 - 2256310.1 exchange cages) shall be permitted on or adjacent to the Supermarket Building Area and the Drug Store Building, and no other vending machines shall be permitted on the balance of the Common Area without the approval of the Parties. There shall be no phones placed in front of the Supermarket Building without the prior written consent of the Stater Party. In no event, however, shall any such facilities be located in such a manner as to hinder or impede the other uses and/or maintenance of any portion of the Common Area provided for in this Declaration, nor shall any such facilities be located upon any parcel of the Shopping Center without the prior written consent of the Owner thereof which consent may be withheld for any reason whatsoever; 0) The construction, maintenance, repair, replacement and reconstruction of any landscaped area, including planters, planting boxes, edgers, decorative walls and sprinklers and valves, all as may be depicted on the Site Plan or required by competent local authority or if otherwise desired by the Operator; provided that the prior written approval of the Stater Party shall be required with respect to the construction of new planters, planting boxes, or decorative walls, or the replacement thereof in a manner materially different than as originally constructed; (k) Subject to applicable laws and the foregoing provisions of this Section, the Operator may from time to time use, or permit the use of, the portion of the Common Area (provided Operator's use or permission to use such Common Area is in an area which does not interfere with the Occupant of the Supermarket Building's use and operation thereof) for promotional, charitable and civic activities, including without limitation, bloodmobiles, activities of charitable organizations such as Boy Scouts, Girl Scouts, and other charitable and civic organizations on the condition that the proposed user obtains and maintains general public liability insurance with the same coverage and limits as required of the Operator pursuant to Section 7.2 hereof, which name each of the Occupant of the Supermarket Building, Owner of the Supermarket Building, the Parties and Operator, as additional insured, and furnishes to each of them a certificate of insurance evidencing such insurance. Additionally, the organization using such portion of the Common Area shall indemnify, defend and hold harmless each person or entity who owns or holds portions of the Shopping Center, including building space, a leasehold estate, or any substantial interest therein, from any loss or liability arising out of such use. Either the Parties or the Operator shall each have the right to disapprove, eject or cause to be ejected, and remove any civic activities that are considered offensive or harmful to its business, in its reasonable determination, provided such disapproval and/or removal is legal. Notwithstanding anything deemed to be contrary herein, unless otherwise agreed to in advance and in writing by the Parties, soliciting alms and contributions, protesting, campaigning for election to any public office, collecting private debts, soliciting and vending for commercial purposes (including, but not limited to, the vending of newspapers and other publications), displaying or distributing commercial advertising, collecting signatures on petitions, polls, or surveys, are prohibited in the Common Area. Except as part of activities associated with those consented to in advance and in writing by the Parties, no tables, chairs, freestanding signs or posters, structures, or ftuniture of any type may be placed in lobbies or on walkways, steps, plazas, lawns or landscaped areas, driveways, parking lots, or other exterior spaces; (1) The exclusive use by the Occupant of the Supermarket Building Area of the sidewalks adjacent to such Building Area for merchandising fixtures, including without limitation, newspaper racks, bottled and other water dispensers, and grocery sales, and the -13- M531-013 - 2256310.1 exclusive use by the Occupant of the Drug Store Building of the sidewalks adjacent to such Building Area for merchandising fixtures, including without limitation, newspaper racks, bottled and other water dispensers; (m) The exclusive use by the Occupant of the Supermarket Building of that portion of the Common Area designated "Recycling" on the Site Plan as a recycling location or recycling center (the "Recycling Facility") for recycling and related purposes, provided such Occupant shall (i) maintain the Recycling Facility in a neat and orderly condition in accordance with the standards of maintenance required hereunder for the Common Area and in a manner which does not interfere with any Occupant's business operation; (ii) be responsible for all costs of maintaining and operating the Recycling Facility; and (iii) maintain public liability insurance insuring against claims for personal injury, death or property damage occurring upon or about the Recycling Facility; (n) The installation and use of "cart corrals" in the Common Area in the approximate locations depicted on the Site Plan; (o) The non-exclusive use by an Occupant of sidewalks adjacent to such Occupant's Building Area for outdoor seating, provided that such outdoor seating shall comply with the provisions of Section 9.10) below and provided further that the Owner of such Building Area(s) with outdoor seating shall (i) be obligated to maintain and pay for all costs of maintaining the sidewalk in a neat and orderly condition in accordance with the maintenance standards required by Common Area under this Declaration and such area shall be of quality required by this Declaration, (ii) ensure that the such outdoor seating area does not interfere with any other Occupant's business operation, (iii) ensure that the outdoor seating does not violate any laws, ordinances or regulations, (iv) ensure that the outdoor seating does not unreasonably impede pedestrian traffic, and (v) maintain and pay for public liability insurance insuring against claims for personal injury, death or property damage occurring upon or about the sidewalks containing the outdoor seating area with the same coverage and limits required to be maintained by the Operator for the Common Area; and (p) Except as expressly provided herein, no part of the Common Area shall be used for any sales or sales related activities. 4.2 Additional Uses of Common Areas. Notwithstanding the foregoing, portions of the Common Area adjacent to a particular Building Area may be used for: (a) The installation, removal, repair, replacement and maintenance of building canopies including canopy support columns from any Building Area upon and over pedestrian sidewalks and other Common Areas to a distance not exceeding eighteen (18) feet, except that building canopies on the Supermarket Building may extend to the edge of the sidewalk at the "A" curb in front of the Supermarket Building (but at all times compliant with the requirements of the Americans With Disabilities Act, as amended); (b) Subject to the provisions of Section 3.2 above, such advertising or identification signs of Building Area Occupants as such Occupants may from time to time attach or mount upon the canopies projecting from their respective Building Area; -14- M531-013 - 2256310.1 (c) The installation, removal, replacement, repair, use, and maintenance of fire hose connections, downspouts, hose bibs, standpipes, yard or floodlights, subsurface building foundations, and signs or shadow boxes of Occupants as may be attached to or form an integral part of a building at any time situated upon any portion of a Building Area; (d) Provided it would not prevent a reasonable flow of vehicular traffic, the construction, repair, reconstruction, and operation of trash or bottle storage rooms and/or trash bins adjacent and to the rear of the Building Areas to be serviced thereby; provided, however, that any of the same shall only be permitted in the location depicted on the Site Plan; (e) The outward opening of doors of buildings located on contiguous Building Areas which open outward; and (f) The temporary erection of ladders, scaffolding and store front barricades during periods of construction, reconstruction, remodeling or repair of buildings and building appurtenances, upon the condition, however, that the construction, reconstruction, remodeling or repair is diligently performed and upon completion such ladders, scaffolding and barricades are promptly removed. SECTION 5. COMMON AREA EASEMENTS 5.1 Reciprocal Easements. The easements hereinafter granted shall remain in perpetuity for the period of the duration of the effectiveness of this Declaration, unless sooner terminated as provided in Section 11.1, and shall be appurtenant to each designated Building Area of the grantee of such easement. In each instance the easements hereafter granted shall be nonexclusive and for the use and benefit, in common with grantor and others, of such grantee, its heirs, executors, administrators, successors, assigns, grantees, Mortgagees, tenants and subtenants thereof, and the officers, directors, concessionaires, agents, employees, customers, visitors, and other licensees and invitees of any of them. 5.2 Nonexclusive Easements for Parking Pedestrians and Vehicles. Stater hereby grants, reserves, and establishes the easements set forth herein and, each Owner upon acceptance of any interest in the Shopping Center hereby grants to all other Owners and to any Occupant of any Building Area within the Shopping Center, the following reciprocal easements: (a) Nonexclusive easements appurtenant to grantee's property for the purpose of parking vehicles of grantee and grantor, their tenants, subtenants, concessionaires, customers, licensees and invitees limited, however, for purposes connected with or incidental to any such uses then being made of any portion of grantor's property by grantor (as permitted under this Declaration). The foregoing parking area easements are easements on each and all of the one or more portions of the Shopping Center property improved by any Owner from time to time for the parking or accommodation of vehicles, provided, however, there shall be no overnight parking, (excluding overnight employees and contractors of Occupants, provided that any additional lighting required by such Occupants shall be borne solely be the Occupant requesting additional lighting) no long term parking (over ten (10) hours) in the Shopping Center, the parking areas shall be appropriately marked to legally enforce the parking restrictions and the Parties and Operator shall have the right, but not the obligation, to enforce the parking -15- M531-013 -- 2256310.1 restrictions in the Shopping Center. The parking spaces depicted on the Site Plan (outside the Building Limit Lines), including the number, size and configuration shall not be materially altered without the prior written consent of the Parties. (b) Nonexclusive easements appurtenant to grantee's property for the purpose of vehicular and pedestrian traffic of grantee and grantor, their customers, invitees, licensees, tenants, subtenants and concessionaires limited, however, for purposes connected with or incidental to any such uses then being made of grantor's property by grantor. The foregoing Common Area easements are easements on each and all of the one or more portions of the Shopping Center property improved or available for general use and the convenience of tenants of the Shopping Center and concessionaires, employees and customers of the Shopping Center as such portions are available and designated for these purposes. (c) Nonexclusive easements appurtenant to grantee's property for the purpose of furnishing pedestrian and vehicular access, ingress and egress and the right of pedestrian and vehicular access, ingress and egress (i) between grantee's property and the public streets, and any parking areas situated within the Shopping Center property, (ii) between the public streets and parking areas, and (iii) between grantee's and grantor's property, excluding any and all buildings or structures from time to time located on or in grantor's property. (d) Nonexclusive easements appurtenant to grantee's property for the purpose of Building Utility Lines and Common Area Utility Lines, subject to the provisions of Section 6.7 hereof. (e) Nonexclusive easements for surface run-off and to drain storm water into the Retention Basin. 5.3 Limitation on Easement or License. An Owner shall not grant an easement or license for the benefit of any person or entity not an Owner or Occupant or for any property which is a part of the Shopping Center, without the prior written consent of the Parties, which shall not be unreasonably withheld, conditioned or delayed. SECTION 6. COMMON AREA IMPROVEMENTS AND BUILDING UTILITY LINES 6.1 Construction of Common Area Improvements. Except for improvements constructed in compliance with the 2014 Entitlements, all Common Area Improvements shall be approved in advance and in writing by the Parties. If no building has been constructed and completed or is in the process of being constructed upon any Building Area within one (1) year from the later of the date of the recording of this Declaration, and completion of initial Sitework improvements for the Shopping Center, then in such event, the Owners of such Building Areas upon which no building has been completed or is in the process of being constructed (provided such construction is diligently pursued to completion) shall construct or shall cause to be constructed Building Area Temporary Improvements of a type approved in writing by the Parties which right of consent may be delegated. All Building Area Temporary Improvements shall be completed within sixty (60) days after the date such Owners are required to commence construction of such Building Area Temporary Improvements and thereafter maintained by the Owners of such Building Areas at their own cost and expense in a manner equal to the other -16- M531-013 - 2256310.1 Common Area Improvements until buildings are constructed thereon. In the event that the Building Area Temporary Improvements and/or maintenance provided for in this Section 6.1 is not undertaken and reasonably completed, upon not less than thirty (30) days prior written notice to such Owner, either of the Parties shall have the right to undertake and complete the Building Area Temporary Improvements and/or maintenance; provided, that such Party first provides a second notice to such Owner, and such Owner fails to undertake such Building Area Temporary Improvements and/or maintenance, then such Owner shall reimburse the reasonable costs and expenses undertaken by the Party performing such work. 6.2 Construction of Sidewalks and Parking Areas. All sidewalks within the Shopping Center shall be of concrete construction. All areas for vehicular use shall be paved with a suitable base and surfaced with a bituminous or asphaltic wearing surface, provided that the Owner of any Building Area, at its option, may pave portions of the Common Area to the rear of such Building Area with concrete, at its sole expense. The Owner of any Building Area may pave portions of the Common Area outside Building Limit Lines with decorative paving only with the prior written consent of the Parties, except as otherwise may be required by the 2014 Entitlements. 6.3 Temporary Storage of Construction Materials and Equipment. Subject to the limitations and restrictions herein provided and with the consent of the Parties during the course of any initial or subsequent construction or any reconstruction of any buildings which may hereafter be constructed upon a Building Area, portions of the Common Area immediately adjacent to such Building Area may be used by the Owner thereof for the temporary storage of construction materials and equipment used and to be used in connection therewith, provided that such use thereof does not unreasonably interfere with the normal use of any Common Area or Common Area Improvements in the Shopping Center or adversely affect the occupancy or use of any other building or Building Area. The temporary storage area shall be fenced and the Owner assumes all liability for the materials and equipment stored therein. Such consent is hereby given during any initial construction on any Building Area to all Owners of the Shopping Center and during any subsequent construction or any reconstruction. 6.4 No Fences. Except during the course of construction and except for a fence surrounding a Demised Patio, no fence, division, rail or obstruction of any type or kind shall ever be kept, placed, permitted or maintained between (i) the properties of any Owners of any portions of the Shopping Center, (ii) between any subsequent divisions of the Shopping Center, or (iii) upon or along any of the common property lines of any Occupant of the Shopping Center. 6.5 No Changes in Common Areas. Those areas designated as Common Area outside the Building Limit Lines shall not be materially altered from that as shown on the Site Plan without the prior written consent of the Parties, which right of consent may be delegated and which consent may be withheld in each Party's sole discretion. Alterations to landscaped planters, flatwork, etc. shall not be considered materially alterations for purposes of this Section 6.5. 6.6 Maintenance of Building Utility Lines. The Owner of the Building served by any Building Utility Lines shall install, repair, maintain and remove Building Utility Lines at its sole cost and expense. The location, size, depth and tie-in of Building Utility Lines with the -17- M531-013 - 2256310.1 Common Area Utility Lines shall be subject to the prior written approval of the Parties. The Owner or any Occupant of a Building Area located on the parcel on which Common Area Utility Lines are located may at its sole cost and expense relocate on its parcel such Common Area Utility Lines after at least thirty (30) calendar days prior written notice delivered to the Operator and all other Owners, provided that: (a) any such relocation shall not be performed (except in the case of emergency): (i) until the written notice required by this Section 6.6 is delivered to the Operator and all other Owners, (ii) during business hours, and (iii) during the one (1) week period immediately prior to and including Easter Sunday, Labor Day, or the Fourth (4a') of July of any year or during the period from November fifteenth (150') to the end of the calendar year of any given year, and (b) such relocation shall not diminish or unduly interrupt utility service for the parcels served by such Common Area Utility Lines and shall not reduce or impair the usefulness or function of any such Common Area Utility Lines. Any Owner or Occupant who has exercised any of the rights provided for in this Section shall, within thirty (30) calendar days after completion of any work performed pursuant hereto, famish the Operator and all other Owners, if any, with a survey prepared by a surveyor or civil engineer duly licensed by the State of California showing the new location of such Common Area Utility Lines upon the request of the Operator or any of the other Owners. SECTION 7. COMMON AREA OPERATION AND MAINTENANCE 7.1 Operator Responsible for Common Area Maintenance. Subject to the terms and conditions hereinafter set forth, an Operator shall be appointed by the Parties, and shall be responsible for and perform all Common Area Maintenance. The Operator shall have the right to delegate, contract or subcontract out some or all of its duties hereunder; provided, however, that Operator shall retain the right to terminate (a) any such delegation, contracting or subcontracting of less than all of its duties on not more than thirty (30) days notice and (b) any such delegation, contracting or subcontracting of all or substantially all of its duties on not more than thirty (30) days notice. 7.2 Public Liability Insurance. The Operator shall obtain and maintain general public liability insurance insuring the Operator and all persons or entities who may own or hold portions of the Shopping Center or building space within the Shopping Center, or any leasehold estate or other substantial interest therein as their respective interests may appear (including, without limitation, any Mortgagee on all or any portion of the Shopping Center), provided that the Operator is notified in writing of such interest against claims for personal injury, death or property damage occurring in, upon or about the Common Area, including contractual liability. Such insurance shall be written with a financially responsible insurer licensed to do business in the State of California, which shall have a rating of A-X or better in Best's Key Rating Guide, and shall contain an endorsement requiring thirty (30) days written notice from the insurance carrier to any named insured before cancellation or change in coverage, scope or amount of policy. The limits of liability of all such insurance shall not be less than One Million Dollars ($1,000,000.00) general liability limit for both personal injury and property damage per occurrence, Two Million Dollars ($2,000,000.00), in the aggregate, plus an umbrella/excess policy for total coverage of Six Million Dollars ($6,000,000.00) per occurrence, Seven Million Dollars ($7,000,000.00) in the aggregate. If the limits of such insurance become inadequate due to actual experiences in the overall amount or the size of claims being experienced, the Operator, and the Parties shall negotiate in good faith new limits based on then existing shopping industry -18- M531-013 -- 2256310.1 practices. Upon the written request of any person having an insurable interest hereunder, the Operator shall cause to be issued certificates of insurance evidencing the insurance required to be maintained hereunder. The Operator shall cause each Owner and the Occupant of the Supermarket Building to be additional insureds under the policy or policies required to be maintained hereunder. 7.3 Minimization of Expenses. The Operator shall expend only such amounts reasonably necessary for Common Area Maintenance in order to keep the Common Area in good repair and clean condition of a first-class shopping center (but in no event shall the Operator perform less than the obligations for operation, maintenance, repair, and replacement set forth in Section 1.9 above), and shall maintain the same on a non-profit basis; provided however, the Operator shall be entitled to charge the management fee set forth in Section 7.4 herein which may include profit. 7.4 Common Area Expenses. (a) Annual Budget. Within ninety (90) days of the end of each calendar year, the Operator shall prepare and submit to each Owner and the Stater Party a proposed budget for the costs and expenses of Common Area Maintenance, including a management fee not exceeding ten percent (10%) of such costs (collectively "Common Area Expenses"), estimated for the next calendar year. The proposed budget shall be subject to approval by the Parties within thirty (30) days from receipt thereof, which approval shall not be unreasonably withheld. Until such time as the proposed budget is approved by the Parties (except for the Parties, the Owners do not have approval rights over the annual budget), each Owner shall pay monthly its Pro Rata Share (as defined below) of the greater of- (i) the amount set forth in the previously approved budget, or (ii) the actual Common Area Expenses within thirty (30) days following receipt of a billing from the Operator for such expenses together with a reasonably detailed statement of all expenses included within the billing. If during the course of a calendar year the Operator determines that unexpected Common Area Expenses are required to be expended in order to perform the Common Area Maintenance, Operator may revise the then - approved budget, if any, and submit to each Owner a newly proposed budget for the Common Area Expenses estimated for the remainder of the calendar year. The newly proposed budget shall be subject to approval by the Parties within thirty (30) days from receipt thereof, which approval shall not be unreasonably withheld. In the event the newly proposed budget is not approved, the Owners shall continue to make payments based on the prior budget until the new budget is approved by the Parties in their reasonable discretion. The Common Area Expenses shall not include any charges for accounting and administration expenses incurred by the Operator except as provided for in this Declaration, and any management fees paid to a third party together with any management fee paid to Operator shall not exceed ten percent (10%) of the Common Area Expenses. Any such expenses shall be paid from the Operator's management fee. The Common Area Expenses shall include attorneys' fees and court costs necessarily incurred by the Operator to enforce the provisions of this Section 7. Additionally, Christmas decorations for the Common Area may be included within the Common Area Expenses except that without the prior approval of the Parties, the total cost of any such Christmas decorations shall not exceed Twenty Five Thousand Dollars ($25,000.00) per year. The Operator's management fee of ten percent (10%) shall not be applicable to that portion of the cost of (i) any single capital expenditure, or single maintenance expense item, in excess of Twenty Five -19- M531-013 - 2256310.1 Thousand Dollars ($25,000.00), or (ii) the cost of any real property taxes or assessment and depreciation. Any single capital expenditure in excess of Ten Thousand Dollars ($10,000.00), exclusive of normal and customary utility charges and insurance premium, shall be subject to the approval of the Parties, which approval shall not be unreasonably withheld or delayed. Each Owner shall pay to the Operator each month, in advance, one -twelfth (1/12'h), or another applicable fraction if Operator has delivered a revised budget to the Owners in accordance with this Section during the calendar year and such revised budget is approved by the Parties, of the Owner's "Pro Rata Share" (as defined in Section 7.4(d)) of the estimated Common Area Expenses for the calendar year. (b) Expense Statement. The Operator shall, within one hundred twenty (120) days following the last day of each calendar year, deliver to each Owner and the Stater Party a written statement of the total Common Area Expenses actually incurred during the prior calendar year ("Actual Expense Statement"). Upon written request by an Owner, the Actual Expense Statement shall include reasonable back-up documentation substantiating the invoices for the Common Area Expenses contained therein. The Operator shall keep records of Common Area Expenses incurred for each calendar year for at least three (3) years after the end of the applicable calendar year. If the estimated amount payable by all Owners for a calendar year is less than the actual amount of Common Area Expenses for such year, then each Owner shall pay to the Operator such Owner's Pro Rata Share of the deficiency. If the estimated amount paid by all Owners for a calendar year is greater than the actual Common Area Expenses for such year, then each Owner shall be credited with its Pro Rata Share of the overpayment, and such credit shall be applied against the next payment of the corresponding Owner's Pro Rata Share of Common Area Expenses next due. If the Operator fails to timely deliver the Actual Expense Statement, then after thirty (30) days prior written notice expressly advising Operator that either the Owner or the Stater Party intends to exercise its rights under this Section 7.4(b), the Owner may withhold further estimated payments until the Operator delivers the Actual Expense Statement, including substantiating invoices. Either Party or their authorized representative may at such Party's sole expense examine and audit the Operator's records of Common Area Expenses no more than once per calendar year upon reasonable written notice and during reasonable business hours. If an Party's audit permitted by this Section discloses that the Actual Expense Statement for any calendar year overstates the Common Area Expenses by more than five percent (5%), then the Operator shall reimburse all reasonable costs and expenses incurred by such Party during the audit or inspection of the Operator's records which results in the determination of such overpayment. (c) Allocation of Common Area Expenses. All authorized Common Area Expenses incurred by the Operator shall be prorated and shared among the Owners of the Shopping Center by a fraction, the numerator of which is the land area of such Owner's Parcel, and the denominator of which is the land area of all of the Shopping Center. The "Prorata Share" of each Parcel shall be subject to adjustment by the Operator, from time to time, in the event of a lot line adjustment or other parcel re -configuration (based on the formula above); provided, however, that upon any such re -calculation, the Operator shall provide notice to the Parties (including back up documentation evidencing the new calculation), and each Party shall have a period of thirty (30) days to dispute such recalculation, in such Party's reasonable discretion (in the event either Party disputes such recalculation, the Parties shall diligently work together to resolve such dispute). In this regard, set forth below is the "Prorata Share" of each -20- M531-013--2256310.1 Parcel based on the current parcel configuration, subject to adjustment as Phase II is developed pursuant to Subsection (d) below: Parcel Prorata Share 6.86% 2 7.72% 3 42.68% 4 7.92% 5 6.24% 6 12.92% 7 7.47% 8 8.18% (d) Phase II. Phase 11 includes Parcel 9, Parcel 10, Parcel 11, and Parcel 12. As each Parcel in Phase II becomes CAM Eligible (as hereinafter defined), such Parcel shall be added to the denominator for the land area of the Shopping Center, and the Prorata Share of each Parcel shall be recalculated including such additional parcel. A Parcel in Phase II shall become "CAM Eligible" upon the earlier of: (i) the date such Parcel is developed and business is commenced on such Parcel, or (ii) the date that (a) a building is completed on such Parcel, (b) the Common Area is completed on such Parcel, and (c) the Operator begins maintaining the Common Area on such Parcel. During any period of time that an Owner is undertaking initial construction of improvements on a portion of Phase II, such Owner shall be responsible, at its sole cost and expense, for cleaning or repairing any portion of the Common Area that requires cleaning or repairs as a result of such initial construction (i.e. such costs shall not be included as part of the Common Area Expanses). Set forth below is the "Prorata Share" of each Parcel, as contemplated based upon full Phase II development (based upon the current parcel configuration, and based upon the fact that upon the development of each building as set forth herein the subject Parcel shall be added Common Area Prorata Share): Parcel Prorata Share 1 5.61 % 2 6.32% 3 34.91 % 4 6.48% 5 5.11% 6 10.57% 7 6.11% 8 6.69% 9 5.37% 10 2.98% 11 4.45% 12 5.39% -21- M531-013 - 2256310.1 (e) Allocation of Common Area Exyenses — For Signs Only. With respect to Shopping Center signage only, the cost of maintaining, operating, repairing and replacing each monument sign and its structure shall be shared pro rata among the Owners or entities represented on such signs based on the square footage of the sign panel area that each Owner or entity occupies on such sign in relation to the total square footage of all sign panels depicted on such sign. A sign panel generally identifying the Shopping Center (as opposed to any particular tenant) shall not be included in such prorata calculation. Each Owner shall maintain and replace such Owner's individual sign panel, at such Owner's sole and absolute cost. (1) Delinquent Payments. (i) Liens. If any of the Pro Rata Share is not paid as provided in this Section, or if any amounts expended by the Operator for the account of any Owner as provided elsewhere in this Declaration have not been paid within thirty (30) calendar days from the date of receipt of a billing from the Operator, such unpaid amount shall be deemed delinquent and shall bear interest thereafter at the prime rate then being charged by Bank of America or its successor, plus two percent (2%), or the maximum rate permitted by applicable law, whichever is lower, until paid in full. The Operator shall deliver written notice to the defaulting Owner(s) that if the delinquent amounts, including interest, are not paid within thirty (30) days such delinquent amounts including interest, shall become a lien and charge upon all of the property of the defaulting Owner(s) within the Shopping Center to secure payment by the Owner of all sums due, which lien shall become effective upon recordation of an appropriate notice of claim of lien in the office of the Riverside County Recorder. In addition to the delinquent amounts, all costs and expenses of any suit or proceedings brought by the Operator to collect the delinquent amounts shall be payable by the defaulting Owner(s) and shall also constitute a lien against the real property of any defaulting Owner(s) until paid, which lien shall be perfected as hereinabove provided. Notwithstanding any of the provisions of this Section 7.4, any liens upon property recorded pursuant to this Section shall be subject and junior to the lien or charge of any bona fide first mortgage or first deed of trust upon the property subject to the lien. (ii) Attornment. If any Owner fails to pay when due any amounts required to be paid under this Declaration, including, without limitation, all real estate taxes and assessments by public authority and/or the portion of its Pro Rata Share, and does not pay the delinquent amount within fifteen (15) days of the Owner's receipt of written notice of delinquency from Operator, Operator may notify in writing any tenant(s) under contract for the use of the Owner's property within the Shopping Center, and, upon receipt of the notice from Operator, said tenant(s) shall attorn to Operator and make all payments owed to Owner under any lease or agreement directly to Operator as if Operator were a party to the lease or agreement. If the tenant is not in default at the time of tenant's receipt of the notice, Operator shall continue to recognize the estate of said tenant created under the lease or agreement. If the tenant is not in default, the lease or agreement shall continue with the same force and effect as if delinquent Owner and said tenant had entered into a lease or agreement on the same provisions as those contained in the lease or agreement, including, without limitation, the tenant's right to extend the term of the lease or agreement. Each Owner shall incorporate into each of its leases or agreements for the use of Owner's property within the Shopping Center an obligation for its tenants within the Shopping Center to attorn to the Operator in the event that an Owner fails to pay any portion of its Pro Rata Share when due under this Declaration. _ZZ_ M531-033 - 2256310.1 (iii) Remedies. Notwithstanding any remedies available to Operator under this Declaration for the enforcement of monies required to be paid under this Agreement, including, without limitation, all real estate taxes and assessments by public authority and/or collection of an Owner's Pro Rata Share, Operator shall have available to it all other remedies under law and equity. 7.5 Successor Operator. Notwithstanding any proceeding provisions of this Section 7 which may be to the contrary: (a) The Operator may resign and relinquish its duties as Operator by providing thirty (30) days' notice to the Parties. Should the Operator desire to relinquish the duties and obligations of the Operator, the Parties shall appoint an Owner as successor Operator to assume the duties obligations, rights, and remedies of the Operator as specified above; or (b) The appointment provided for above shall be binding upon any person or entity owning or leasing any portion of the Shopping Center and shall be subject to the approval of the Stater Party. If no Party is willing to accept the appointment as Operator, then the Parties shall work together in good faith to identify a successor Operator; and (c) The successor Operator shall, (i) fully and faithfully observe, perform and discharge each and every duty and obligation of the Operator under this Section in the place and stead of the former Operator, and (ii) save and hold the former Operator harmless from any and all liability or responsibility under the provisions of this Section on account of any and all matters or'events arising, occurring or resulting from acts of the successor Operator. The Parties hereto hereby grant to the successor Operator all rights of the Operator provided for in this Section. 7.6 Liability of Former Operator. In the event an Operator ceases to serve as Operator, it shall have no liability or responsibility for any acts, events or circumstances occurring subsequent to its tenure as Operator, except for those resulting from the negligent performance or intentional nonperformance of its duties as Operator. 7.7 No Operator. During any period when no person or entity is designated as the Operator by the Parties, the Owner of the largest percentage of Building Area in the Shopping Center shall serve as the Operator to maintain the Shopping Center in accordance with the standards set forth herein. 7.8 Rules and Regulations. Subject to the approval of the Parties, which approval shall not be unreasonably withheld, the Operator may at any time promulgate reasonable and nondiscriminatory rules and regulations for the use of the Common Area, which rules may prohibit employees from parking in the Common Area except in areas designated by the Operator as "Employee Parking". 7.9 Neglected Maintenance. Either Party may serve written notice on the Operator and all the other Owners of the Shopping Center that necessary items of maintenance required hereunder are being neglected, and the Operator shall have thirty (30) calendar days following receipt of such notice (which notice shall expressly advise Operator that such Party intends to exercise its rights under this Section 7.9) within which to perform the necessary -23- M531-013 - 2256310.1 maintenance, or should the maintenance require more than thirty (30) days, a reasonable amount of time up to ninety (90) days to complete the maintenance. If the Operator does not complete the maintenance or in the event there is no Operator and an Owner does not complete the maintenance within such thirty (30) or ninety (90) day periods, that such Party may elect to do either of the following: (i) act in the place of the Operator to undertake and complete the maintenance and in such event that such Party shall be reimbursed for its cost from the other Owners in the same proportion as specified in Section 7.4 hereof as though such Party were the Operator (including, without limitation, the management fee), or (ii) designate a successor Operator utilizing the procedure specified in Subsection 7.5(b) above. The aforesaid election by such Party shall be made in writing delivered to the Operator and the other Owners of the Shopping Center and shall be effective upon delivery of such notice. 7.10 No Admission Fees. No charge, fee, toll, levy or expense shall ever be required, laid, assessed or made to or received from any business guest, invitee, licensee, visitor, customer or patron of any mercantile, business and professional establishments. The cost and expense of the operation, management, maintenance and repair of the Common Area shall be borne and discharged only as provided for in this Declaration. However, any Owner may require any tenant of such Owner, to pay a fee or charge for the management, maintenance, repair and operation of the Common Area. Notwithstanding the foregoing, in the event that any government agency imposes a surcharge or regulatory fee on customer or employee parking or based on the number of parking spaces within the Shopping Center, Operator with the approval of the Parties may institute a uniform paid parking system for the entire Shopping Center on terms and conditions acceptable to the Operator and the Parties. 7.11 2014 Entitlements Conditions of Approval. Certain of the Conditions of Approval for the 2014 Entitlements may require modifications to the Declaration. In the event that the Parties determine modifications are required to the Declaration in order to satisfy any conditions of approval for the 2014 Entitlements, the Parties agree to negotiate and execute an amendment to this Declaration to satisfy such conditions of approval. SECTION 8. REALTY TAXES AND ASSESSMENTS 8.1 Payment of Taxes. It is intended and agreed that all real estate taxes and assessments by public authority relating to any portion of the Shopping Center, and improvements thereon or the ownership thereof, shall be paid prior to delinquency by the respective Owners thereof. In the event any such real estate tax or assessment on the Common Area becomes delinquent, any Owner or the Stater Party may serve written notice on all the other Owners of the Shopping Center and the Stater Party of its intention to pay such delinquent tax or assessment and if such tax or assessment remains delinquent for a period of thirty (30) days following such written notice, the Party serving the notice may pay such tax or assessment, and the amount paid including interest thereon at the prime rate then being charged by the Bank of America, plus two percent (2%), or the maximum rate permitted by applicable law, whichever is lower, shall be reimbursed by the Party responsible for payment of such delinquent tax or assessment. Such amount with interest thereon shall be subject to all of the terms of Subsection 7.4(e) above, including, without limitation, shall be a lien and charge upon the real property owned by the defaulting Owner(s) in the Shopping Center to secure payment of all amounts due, -24- M531-013 - 2256310.1 which lien shall be effective upon recording a notice of a claim of lien in the office of the County Recorder of the County of Riverside. SECTION 9. OTHER RESTRICTIONS 9.1 Prohibited Uses. Without prior written consent of both the Parties (in each of their sole and absolute discretion), no portion of the Shopping Center shall be occupied or used, directly or indirectly, for any of the following: (a) As an office building or for office purposes except on Phase II, and except for offices which are strictly incidental to a use otherwise permitted hereunder, and so long as any such use permitted under this Subsection does not conflict with any other restriction of this Section 9; provided, however, nothing in this Section 9.1 shall prohibit the operations of dentists, doctors, medical offices, realtors, tax preparation, brokers, chiropractors, insurance agency, escrow, travel,, finance, credit union, bank, savings and loan, veterinarian, optometrist, attorney and other office uses typically found in first-class shopping centers in Southern California and provided, however the square footage of all office space within the Shopping Center (excluding Phase II) shall not exceed fifteen thousand (15,000) square feet; (b) Except as an ancillary part of the Drug Store, a "Minute Clinic", which is defined as a walk-in, non -traumatic, short-term medical clinic staffed only by a nurse practitioner or physician's assistant. Notwithstanding anything to the contrary contained herein, a Minute Clinic shall not be construed to include any facility that is staffed by, or supervised by, a doctor (e.g. an urgent care facility). In addition, nothing contained herein shall be construed to prohibit medical offices; (c) For the purpose of any entertainment, amusement or recreational facility, including without limitation, a bowling alley, skating rink, adult book store, adult amusement facility, theater or cinema, any facility selling or displaying pornographic materials or having such displays, off track betting establishment, bingo parlor, pool or billiard room, children's play or party facility, pinball, video game or other entertainment or game arcade (provided, however, the incidental use of up to four (4) arcade games in a permitted food user shall be excepted herefrom), bath or massage parlor (except for a national, regional or local first class upscale massage therapy operator, such as Massage Envy), studio or gym (except on Phase II, or a gym or workout facility which shall not exceed two thousand five hundred (2,500) square feet), bar or tavern, beer bar or other place of public amusement; (d) For the purpose of an assembly hall, any training or education facility, including without limitation, a beauty school, barber college, reading room (except incident to a bookstore), place of instruction, or any other operation catering primarily to students or trainees, rather than to customers (provided that operations catering primarily to student or trainees shall be permitted on Phase II, not to exceed 25,000 square feet in the aggregate), provided however a dance studio or martial arts studio shall be permitted provided further that any such studio may not be in excess of 1,500 square feet, shall not be located within either Shops 2 as shown on the Site Plan or the northern half of Shops 1 shown on the Site Plan, and all such collective studio uses shall not exceed collectively three thousand (3,000) square feet. This provision shall not -25- M531-013 - 2256310.1 prohibit periodic classes offered to employees of an Occupant related to the goods and services offered by such Occupant; (e) Intentionally Omitted; (f) Car wash except on Phase II; (g) Funeral home or mortuary; (h) Automotive vehicle sales establishment, or the sale, leasing or storage of boats or other vehicles (except for car rental on Phase II); (i) Commercial Laundromat (dry cleaners are expressly permitted); 0) Hotel or motel (except that a multi -story hotel or motel may be located on Phase II, so long as is does not exceed four (4) floors); (k) No single food user (which shall mean any business that sells prepared foods for immediate consumption or takeout) within the Shopping Center shall exceed seven thousand five hundred (7,500) square feet. In addition: (i) Demised Patios that are exclusive and fenced shall be included in all food use area calculations for purposes of this Subsection 9.1(k), (ii) a food use not exceeding two thousand (2,000) square feet may be located in the Supermarket Building so long as it is ancillary to a supermarket use, provided that parking space to building area ratios comply with the applicable municipal code without a variance, (iii) in addition to any food use in the Supermarket Building, the aggregate square footage devoted to food users in Phase I shall not exceed thirty thousand (30,000) square feet, and (iv) in addition to any food use in the Supermarket Building, the aggregate square footage devoted to food users in the entire Shopping Center (Phase I and Phase II) shall not exceed forty thousand (40,000) square feet; (1) Liquor sales including distilled spirits, beer and/or wine except for (i) the Supermarket Building, (ii) a drug store operation on Parcel 6, (iii) the sale of alcoholic beverages for on -premises consumption as an incidental part of a food use business, and/or (iv) a high end or first class "wine shop" (which wine shop shall not sell any alcoholic beverages, except wine, and which shall not exceed 2,500 square feet); (m) As a cigarette store or "smoke shop" (not prohibited are cigarette or cigar sales by the Occupant of the Supermarket Building or a Drug Store operation on Parcel 6 and not prohibited further is one (1) "high end" cigar lounge/shop operation; (n) As a water store (not prohibited are water sales by the Occupant of the Supermarket Building or any store which sells prepackaged water as an extremely incidental part of its business); (o) For so long as Stater is the Occupant of the Supermarket Building and there is an Occupant of the Drugstore, as a business that primarily offers for sale close-outs, off - retail, over -runs or liquidations including, without limitation, a so-called Dollar Store (as defined in Section 9.5 below. Notwithstanding the foregoing, nothing contained herein shall be construed to prohibit discount stores, such as DD's, Ross Dress for Less, TJMaxx, or Nordstrom -26- M531-013- 2256310.1 Rack, provided that such discount stores shall be limited to only: (i) Phase II, and (ii) that portion of Phase I that is located east of the main drive aisle shown on the Site Plan; (p) Blood bank, except on a temporary basis and as part of a charitable or civic activity as provided for and in accordance with the terms of Section 4.1(k) above; (q) As a marijuana dispensary, hookah lounge or any type of smoke paraphernalia sales or sales of any illicit drugs in the Shopping Center (not prohibited are cigarette sales by the Occupant of the Supermarket Building or a Drug Store operating on Parcel 6); and (r) Thrift shop, Salvation Army or "goodwill" type store or similar business, excepting a "drop off' type store that is less than 2,000 square feet and located on Phase II. 9.2 No Excavation. No excavation shall be performed within the Shopping Center except in connection with construction, erection or repair of a building or Common Area Improvements, and upon completion thereof exposed openings shall be filled and disturbed ground shall be graded and leveled. 9.3 No Flashing Signs. No signs, billboards or advertising media located within the Shopping Center shall have a moving, blinking, scrolling, flashing, or animated type. An "open" non -flashing neon sign shall be permitted. 9.4 No Exterior Sound Systems. Except for any intercom system related to any approved drive -through facilities, no exterior sound system, loud speakers or devices for the production or projection of sound or noise into the Common Area shall be constructed, operated, or maintained without the prior written approval of the Parties except for music and other exterior sound systems customarily used by regional or national tenants which cannot be heard from the front door of the Supermarket Building and except for classical, jazz, soft rock, and seasonal music in the common areas at levels that shall not disturb the Supermarket Building. 9.5 No Nuisance. No use, activity or operation shall be made, conducted or permitted on or with respect to all or any part of the Shopping Center, which use, activity or operation is obnoxious to or not in harmony with the development and operation of a comparable first-class neighborhood shopping center in Southern California. Such prohibited uses or operations shall include without limitation to the following: (a) Any public or private nuisance-, (b) Any noise or sound that is objectionable due to intermittence, beat, frequency, shrillness, or loudness; (c) Any obnoxious odor, provided that this restriction shall not limit the normal operation of a food user that are operated consistently with the operations of food users typically located in first-class neighborhood shopping centers in Southern California; -27- M531-013 - 2256310.1 fuel or gas; (d) The production or manufacturing of any toxic, caustic, or corrosive (e) Any use that creates dust, dirt, or fly ash in excessive quantities; (f) Any warehouse, assembly, manufacturing, distillation (provided a microbrewery operated in conjunction with a food use shall be permitted) refining, smelting, agriculture, or mining operations; (g) Any flea market or store that engages in the sale of used or second- hand clothing or other second-hand goods, excepting a store that engages in the sale of upscale, gently used, previously owned merchandise; (h) Any trailer court, labor camp, junk yard, stock yard, or animal raising facility (other than a pet shop); (i) Any drilling for or removal of subsurface substances; 0) Any dumping, disposal, incineration, or reduction of garbage or refuse, except for permitted recycling facilities and trash containers in the areas depicted on the Site Plan; (k) Any fire or bankruptcy sale or auction house operation; (1) Animal raising facilities (excluding retail pet shops and veterinary operations) whether or not providing services in conjunction therewith or incidental thereto); (m) Gas station (except on Parcel 8 and Parcel 11 in Phase II); (n) A facility which performs on -site auto repairs (except on Phase II, provided that no transmission shop shall be permissible on Phase II); and (o) A "Dollar Store," defined as any variety store, general merchandise store, off -brand general merchandise store, discount variety store, "close-out" store, or any similar operation such as, by way of example only, "Family Dollar," "Dollar General," "Dollar Zone," "Maxway," "Allied Stores," "Bills Dollar," "Dollar Tree," "Big Lots" or "99 Cents Store." 9.6 No Residential Uses. No portion of the Shopping Center shall be used as a single or multiple dwelling house or residence. 9.7 No Trailers. No trailer, tent, shack, barn (except in conjunction with a feed store on Phase II) or other out building shall be erected or maintained within the Shopping Center. Exempted from this restriction against trailers shall be a trailer(s) for the temporary use by charitable and civic activities, recycling facilities as authorized in Section 4.1(m) of this Declaration, community orientated services, as authorized under Subsection 4.1(k) of this Declaration, and construction trailers, as authorized under, and in strict conformance with, Section 6.3 of this Declaration. _28_ M531-013 - 3256310.1 9.8 No Overnight Parking. No portion of the Shopping Center shall be used for overnight parking of motor vehicles, except as authorized under Section 5.2(a) above. 9.9 No Changes in Grade. After the initial development of the Shopping Center, the grade of any portion of the Shopping Center shall not be materially raised or lowered without the prior written consent of the Parties. 9.10 Special Restrictions — Foods. Without the prior written consent of the Stater Party and except for a Drug Store, no portion of the Shopping Center, or any building or other improvement at any time situated thereon, excepting herefrom the Supermarket Building, shall ever be occupied or used directly or indirectly as a (i) supermarket, (ii) food market, or any other grocery store (including, without limitation, any entity or group providing grocery -type products through a government program associated with or similar to the Special Supplemental Food Program for Women, Infants, and Children, a.k.a., "WIC"), (iii) a meat market, (iv) a fish market, (v) a poultry store, (vi) a fruit store and/or a vegetable store including the operation of a farmer's market in the Shopping Center, (vii) a delicatessen or commercial bakery (excepting (A) sandwich shops of no greater than two thousand five hundred (2,500) square feet per shop, which shops may have a bakery element for the preparation of bread or rolls to be used primarily in their on -site sandwich preparation, (B) one (1) bakery of no greater than two thousand five hundred (2,500) square feet and (C) one (1) food use that includes a bakery as an ancillary part of its business similar to a Panera Bread, Comer Bakery, Mimi's Cafe or a Great Harvest which such food use shall not be in excess of six thousand (6,000) square feet (which such exceptions shall be subject to all other restrictions set forth in this Declaration), or any combination thereof), (viii) for any business selling fresh or frozen meat, fish, poultry, or fresh or frozen produce or dairy products, or (ix) for any business selling fruit, vegetables or eggs or (x) a convenience store (unless associated with a gas station). The foregoing restrictions are not intended to restrict food users from selling (i) prepared meats, fish, poultry or other items for on -premises consumption or (ii) off -premises (take-out) consumption as an ancillary part of a food use. It is the intention of the foregoing restrictions that the Occupant of the Supermarket Building shall have the complete and exclusive right to operate a grocery supermarket in the Shopping Center selling items customarily sold by other supermarkets operated by the Occupant of the Supermarket, its successor or successors, or by any other supermarket operator. 9.11 Special Restrictions — Pharmacy. Except as otherwise agreed to in writing by the Stater Party in its sole discretion, a Drug Store may only sell food items as an ancillary part of its business in a cumulative two thousand five hundred (2,500) square feet of total area of the Drug Store, including but not limited to interior aisle and adjacent aisle space (the "Limited Space"); provided, however, the Drug Store shall not sell any amount of cooked, fresh or frozen meat, poultry, seafood, dairy products, eggs, produce or other perishable items, except that as long as the Drug Store Building is operated as a Drug Store, the Drug Store may sell pre- packaged luncheon meats, sandwiches and hot dogs for off -premises consumption, subject to the foregoing cumulative two thousand (2,000) square foot limitation. The rights granted to the Drug Store shall not permit the sale of food and beverage items outside the Drug Store building. For the purposes of the foregoing, food items shall not include: candies, gum, mints, nuts, baby food, baby formula, nutritional supplies, and vitamins. Without the prior written consent of the Parties (which consent may be withheld in either party's sole and absolute discretion), no portion of the Shopping Center, other than the Drug Store operating on Parcel 6, shall be occupied or -29- M531-013 - 2256310.1 used for the purposes of a business, trade or profession which requires a license or permit to conduct a pharmacy, or which employs or is required to employ a registered or licensed pharmacist; nor for the conduct of any store, business, trade, or profession which is called, labeled, named or is commonly known or referred to as a "drug store", "pharmacy" or "apothecary". Nothing in this Section 9.11 shall prevent the incidental sale of over the counter non-prescription drugs by other tenants of the Shopping Center or sales of any other pharmaceuticals that can be sold without a registered or licensed pharmacist. Notwithstanding any interpretation to the contrary, nothing in this Section 9.11 shall be construed as authorizing any activities prohibited by Section 9.1(p). 9.12 Equitable Remedies. Since remedies at law may be inadequate, remedies to enforce breaches, violations, or attempted or threatened breaches or violations of the restrictions set forth in this Section 9 shall in addition to all legal remedies include without limitation all available equitable remedies, and specifically the right to injunctive relief as provided in Section 10.5. 9.13 Antennae and Roof Mounted Equipment. Only the Parties shall have the right to place antennae, cell towers, cell equipment and roof mounted equipment on the roof of its building without the prior written consent of the Parties, provided that such antennae or roof mounted equipment shall be discretely placed and shall not materially affect the aesthetics of the Shopping Center in the discretion of the Parties. Other Occupants of all Building Areas may place antennae or roof mounted equipment on their respective buildings only with the written approval of either Party provided that such antennae or roof mounted equipment shall not be visible from the Common Area and shall not interfere with the use of antennae or roof mounted equipment on the Supermarket Building. 9.14 Additional Phase H Restrictions. The following restrictions set forth on this Section 9.14 shall be applicable to Phase II only. The following parking ratios shall be satisfied on Phase II: (a) four (4) parking spaces for each 1,000 square feet building space for retail use; (b) ten (10) parking spaces for each 1,000 square feet of building space for food use; (c) five (5) parking spaces for each 1,000 square feet of building space for office use; (d) ten (10) parking spaces for each 1,000 square feet of building space for assembly hall, any training or education facility, including without limitation, a beauty school, barber college, reading room (except incident to a bookstore), place of instruction, or any other operation catering primarily to students or trainees; and '/2 (e) one and one-half (1 1/2) parking spaces for each guest room in a hotel or motel use. -30- M531-013 - 2256330.1 In addition, all building constructed on Phase H shall be oriented so that the front door or primary entrance of such building faces its primary parking field. Any office use on Phase II shall be limited to two (2) stories in height. Nothing contained in this Declaration shall prohibit the processing of a lot line adjustment or parcel map to reconfigure the parcels on Phase ll, if determined necessary or convenient to satisfy the requirements of this Section SECTION 10. NUSCELLANEOUS PROVISIONS 10.1 Binding Covenants, Restrictions, Conditions and Provisions. Each and all of the covenants, restrictions, conditions, and provisions contained in this Declaration (whether affirmative or negative in nature): (a) are made for the direct, mutual, and reciprocal benefit of each parcel of land in the Shopping Center; (b) shall create mutual equitable servitudes upon each parcel of land in the Shopping Center in favor of every other parcel; (c) shall constitute covenants running with the land owned by the covenantor and the covenantee; (d) shall bind every person having any fee, leasehold, or other interest in any portion of the Shopping Center at any time to the extent that such portion is affected or bound by the covenant, restriction, condition, or provision in question, or the covenant, restriction, condition or provision is to be performed on such portion; and (e) shall inure to the benefit of the Owners and their respective successors and assigns as to their respective parcels of land in the Shopping Center. 10.2 Legal Description. The Parties hereto covenant with each other that the legal description of the Shopping Center as set forth on EXHIBIT "A" shall be deemed to include any and all rights, title, and interest in that portion of the street, roadway or highway abutting or bounding the Shopping Center now or hereafter owned by all persons or other entities who may own the Shopping Center or any portion thereof or any leasehold estate or any security interest therein and the respective heirs, successors, assigns, grantees, mortgagees, tenants, or subtenants thereof. Accordingly, such right, title and interest shall be in all respects subject and subordinate to the covenants, conditions and restrictions established by this Declaration. 10.3 No Termination of Declaration. Breach of any of the provisions, covenants or restrictions contained in this Declaration shall not defeat nor render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the Shopping Center or any part thereof or entitle any Party to cancel, rescind, or otherwise terminate this Declaration, and all of said provisions, restrictions and covenants shall be binding and effective against any Owner of any Building Area of the Shopping Center, or any part thereof, whose title thereto is acquired by foreclosure, trustee's sale or otherwise. -31- M531-013-2256310.1 10.4 Partial Invalidity of Declaration. Invalidation of any one of the covenants, conditions, restrictions, or other provisions herein contained by judgment or court order shall in no way affect any of the other covenants, conditions, restrictions or provisions hereof, and the same shall remain in full force and effect. 10.5 Privity of Contract and Estate. This Declaration shall create privity of contract and estate with and among all Owners, grantees and their assigns of all or any part of the Shopping Center. In the event of a breach, an attempted or threatened breach, or a violation, an attempted or threatened violation, by any Owner, or Occupant of any part of the Shopping Center of any of the restrictions, terms, covenants and conditions hereof, Stater, or its respective successors or assigns, shall have in addition to the right to damages, the right to enjoin such breach, attempted or threatened breach, or violation, attempted or threatened violation. Additionally, if there is any provision in a deed, lease, assignment, conveyance or contract made in violation of this Declaration such provision shall be void to the extent of such violation and may be set aside upon petition of Stater. All costs and expenses of any such suit or proceedings including attorneys' fees shall be awarded, as hereinafter provided, to the prevailing Party or Parties and assessed against the losing Party or Parties including the Owner of the applicable property, and shall constitute a lien against the real property or the interest therein wrongfully deeded, leased, assigned, conveyed or contracted for, until paid, effective upon recording notice thereof in the office of the County Recorder of the County of Riverside. Any such lien shall be subordinate to any bona fide mortgage or deed of trust covering any portion of the Shopping Center, and any purchase at any foreclosure or trustee's sale (as well as any grantee of deed in lieu of foreclosure or trustee's sale) under any such mortgage or deed of trust shall take title free from any such lien, but otherwise subject to the provisions hereof. The remedies permitted at law or in equity specified herein shall be cumulative. 10.6 No Merger. There shall be no merger of any easements, rights, interests or estates created by this Declaration resulting in the Shopping Center being owned or held directly or indirectly by or for the account of the same person or entity, and no such merger shall occur unless and until all persons and entities at the time having an interest in the Shopping Center (including, but not limited to, the holders of any bona fide first deed of trust or first mortgage, having an interest in, or an encumbrance on, all or any portion of the Shopping Center) shall join in a written instrument affecting such merger and shall duly record the same. 10.7 Attorneys' Fees. In the event that suit is brought for the enforcement or interpretation of this Declaration or as the result of any alleged breach thereof, the prevailing party or parties to such suit shall be entitled to recover reasonable attorneys' fees and costs of litigation as the court may award from the losing party or parties, and any judgment or decree rendered shall include any award thereof. If any such costs of enforcement are not paid within thirty (30) days of being awarded, the sum owed shall be a lien on the defaulting Owner's property in the Shopping Center in the same manner and subject to the same terms as provided for delinquent payments in Subsection 7.4(e) above. 10.8 Condemnation. In the event of condemnation by a duly constituted authority for a public or quasi -public use of all or any part of the Shopping Center, that portion of the award attributable to the value of any land within the Common Area so taken shall be payable only to the Owner thereof and no claim thereon shall be made by other Owners of any other -32- M531-013 - 2256310.1 portion of the Shopping Center, provided, however, all other Owners of the Shopping Center may file collateral claims with the condemning authority over and above the value of the land of the area to be taken, and provided fiu-ther that the Owner of each portion of the area so condemned shall promptly repair and restore the remaining portion of the area owned by such Owner as near as practicable to the condition of same immediately prior to such condemnation. No contribution from any other Owner shall be required by the terms of this Declaration for such repair or restoration. This provision shall not detract from any condemnation provision contained in a lease for property within the Shopping Center. 10.9 Captions. The captions heading the various sections of this Declaration are for convenience and identification only, and shall not be deemed to limit or define the contents of their respective sections. 10.10 Appurtenant. Each and all of the rights granted or created hereunder are appurtenant to the applicable portions of the Shopping Center and none of the rights may be transferred, assigned, or encumbered except as appurtenant to such portions. For the purposes of such rights, the property benefited will constitute the dominate estate, and the particular area in the Shopping Center which is burdened by such rights will constitute the servient estate. 10.11 No Public Dedication. The provisions of this Declaration shall not be deemed to constitute a dedication or a gift for public use or for the public, or to create any rights in the general public. 10.12 California Law. This Declaration shall be governed by and construed in accordance with the laws of the State of California. SECTION 11. TERMS AND AMENDMENTS 11.1 Terms. The covenants, conditions and restrictions contained in this Declaration shall continue for a period of sixty (60) years from the date this Declaration is recorded in the Official Records, and shall run with the land and shall be binding upon each and all of the Owners of any part thereof and upon all persons claiming under them. The easements contained in this Declaration shall remain in perpetuity unless terminated by written and recorded agreement in accordance with the terms set forth in Section 11.2 below. 11.2 Amendments. Subject to Section 12.1 below, this Declaration including without limitation the Site Plan, may be terminated, changed, modified or amended in whole or in part only by a written and recorded agreement executed by the Parties. Any termination, change, modification or amendment to this Declaration shall take effect only, upon, from and after its recording in the office of the County Recorder in the County of Riverside. The Occupant of the Supermarket Building shall cause its recordation with the County Recorder of Riverside and all Owners shall share equally in all costs of recording. This Declaration shall not be terminated, "substantially" amended, or property De -annexed therefrom, absent the prior written consent of the Community Development Director of the City of Menifee. A proposed amendment shall be considered "substantial", if it materially affects the extent, usage or maintenance of the "Common Area" established pursuant to this Declaration. -33- M531-013 - 2256310.1 SECTION 12. APPROVALS, RECORDATION AND NOTICES 12.1 Approval Not to be Unreasonably Withheld or Delayed. Whenever the approval or consent of any Owner is required hereunder, such approval or consent shall not be unreasonably withheld or delayed, provided that it is understood that any approvals or consents required or requested of the Stater Party and Developer Party are absolutely discretionary. 12.2 Recordation. This Declaration, executed as of the date hereof, shall take effect only, upon, from and after its recording in the office of the County Recorder of the County of Riverside. The Parties shall cause its recordation with the County Recorder of Riverside and shall share equally all costs of recording. 12.3 Notices. Each notice and other communication required or permitted to be given under this Declaration ("Notice") must be in writing. Notice is duly given to another Party upon: (i) hand delivery to the other Party, (ii) receipt by the other Party when sent by facsimile to the address and number for such Party set forth below (provided, however, that the Notice is not effective unless a duplicate copy of the facsimile Notice is promptly given by one of the other methods permitted under this Section), (iii) three (3) business days after the Notice has been deposited with the United States postal service as first-class certified mail, return receipt requested, postage prepaid, and addressed to the Party as set forth below, or (iv) the next business day after the Notice has been deposited with a reputable overnight delivery service, postage prepaid, addressed to the Party as set forth below with next -business -day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery -service -provider: STATER: STATER BROS. MARKETS Attention: Real Estate Department 301 S. Tippecanoe Avenue P.O. Box 150 San Bernardino, California 92402 Facsimile: (909) 733-4602 DEVELOPER: USS SLATON, LLC Attention: Joseph D. Meyer 1949 Arroyo Drive Riverside, California 92506 Facsimile: (951) 248-1210 Stater or its successor or assigns shall make a reasonable, good faith effort to ensure that it will accept or receive Notices to it that are given in accordance with this Section. A Party may change its address for purposes of this Section by giving the Owners written Notice of a new address in the manner set forth above. [Signature Page to Follow] -34- M531-013 - 2256310.1 IN WITNESS WHEREOF, THIS DECLARATION has been executed by Stater as of the date and year fast above written. "STATER" STA R 1 corpora 'on By: Peter J. Its: Pres' By: a California President — Finance and Chief Financial Officer -35- M531-013 - 2256310.1 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 C n 4 )YAW Y � COUNTY OF C�J� � W � On "-d /6 before me, aL,&1V 'I /-b�,-� (in and title of the officer) personally appeared uppylA �716'4who proved to me on the basis of sat actory evidence to be the p rsorW whose nam i are su nbed to the within instrument d acknowledge o me that hshe/the executed the same in /her/their authorized capacity, and that by er/their signatare; on the instrument the person(kor the entity upon behalf of 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..y JULIENNE MARIE OVERLAND-VILLE= SS m and and o cial Seal. Commission # 2065884 LLLLLL -e Notary Public - California San Bernardino County Signa 1) My Comm. Expires Apr 26, 2018 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 C O COUNTY OF On before me, (iniSert name and title of the officer personally appeared , who proved to me on the basis of sati ctory evidence to be the person whose name are Su 'bed to the within instrument and acknowledged me that e% he/they executed a same i is er/their authorized capacity(i0, and that by s er/their signature(con the instrument th erson W or the entity upon behalf of which the p o Xacted, 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 offici eal. GAS � JULIENNE MARIE OVERLAND-VILLEGAS Commission # 2065884 i -Al; . Notary Public - California Signature -�IL-Seal) San Bernardino County My Comm- Expires Apr 26. 2018 -36- M531-013-- 2256310.1 EXHIBIT "A" LEGAL DESCRIPTION OF SHOPPING CENTER PARCELS 1 THROUGH 13, INCLUSIVE, OF PARCEL MAP NO. 36728, IN THE CITY OF MENIFEE, RIVERSIDE COUNTY, CALIFORNIA, AS PER MAP FILED IN BOOK PAGE , OF MAPS, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXHIBIT "A" M531-013 - 2256310.1 EXHIBIT "B" SITE PLANS OF THE SHOPPING CENTER, SHOWING LOCATIONS OF ALL BUILDINGS AND COMMON AREAS (EXHIBIT "B-1", "B-2" and `B-3" Attached) EXHIBIT `B" M531-013 - 2256330.1 LEGEND PARCEL LINES EXHIBIT B-1 - -i I LEGEND � uun•u• I L BUILDING LIMIT LINE NO PRIMARY BUILDING AREA EXHIBIT B-2 Shopping Center Patios Stater Bros. 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