HomeMy WebLinkAboutPA2023-0062_20230315_CC&R'sRECORDING REQUESTED BY
First American Tille Insurance Company
National Commercial Services
WIIEN RECORDED MAIL TO:
Stead/ ast Properties
20411 S. W. Birch Street
Suite 200
Newpo11 Beach, CA 92660
Attn: James Pal,da
Recorded In Offlclal Records, Orange County
Tom Daly, Clerk-Recorder
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2004001048318 01 :56pm 11/23/04
203 59 D02 42
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Tl/IS SPACE FOR RECORDER'S USE ONLY
BIRCH BAYVIEW PLAZA II, LP
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS AND GRANT OF EASEMENTS
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Doc: OR:2004 01048318
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
(ADDITIONAL RECORDING FEE APPLIES)
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BIRCH BAYVIEW PLAZA 11, LP
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRJCTIONS
AND GRANT EASEMENTS
November 22, 2004
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TABLE OF CONTENTS
ARTICLE
ARTICLE I PRELIMINARY ......................................................................................................... 1
1.1
1.2
1.3
Parties: ..................................................................................................................... 1
Puxpose: ................................................................................................................... I
Definitions: ............................................................................................................. 1
ARTICLE II BUILDING AND COMMON AREA DEVELOPMENT ........................................ 3
2.1 Building Location: .................................................................................................. 3
2.2 Common Area: ........................................................................................................ 4
2.3. Type and Design of Building: ................................................................................. 5
2.4. Construction Requirements: .................................................................................... 6
2.5 Temporary License: ................................................................................................ 7
2.6 Indemnity: ............................................................................................................... 7
ARTICLE III EASEMENTS .......................................................................................................... 8
3.1 Ingress, Egress and Parking: ................................................................................... 8
3.2. Utility Lines and Facilities: ..................................................................................... 8
3.3 Signs: ....................................................................................................................... 9
3.4 Drainage Easement: ................................................................................................ 9
3.5 Dedication to Public Entities: ................................................................................. 9
3.6 No Merger ............................................................................................................. 10
ARTICLE IV OPERATION OF COMMON AREA ................................................................... 10
4.1 Parking: ................................................................................................................. 10
4.2. Signs: ..................................................................................................................... 10
4.3 Protection of Common Area: ................................................................................ 11
4.4 Common Area -Zone of Control: .......................................................................... 11
ARTICLE V RESTRICTIONS ON USE ..................................................................................... 11
5.1. No portion of the Business Center shall be used for a hotel or motel. ................. 11
5.2. Business Center Restrictions: ............................................................................... 11
5 .3 Reserved Parking: ................................................................................................. 12
ARTICLE VI MAINTENANCE STANDARDS ......................................................................... 12
6.1
6.2
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Maintenance Obligations: ..................................................................................... 12
Exclusions from Common Area Maintenance Obligations: ................................. 14
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6.3 Obligation to Keep Parcels Lien Free: .................................................................. 15
ARTICLE VII LIGHTING ........................................................................................................... 15
ARTICLE VIII PAYMENT OF TAXES ..................................................................................... 16
8.1
8.2
Taxes and Assessments: ........................................................................................ 16
Failure to Pay Taxes and Assessments: ................................................................ 16
ARTICLE IX MAINTENANCE DIRECTOR ............................................................................. 16
9.1
9.2
9.3
9.4
Appointment: ........................................................................................................ 16
Removal of the Maintenance Director: ................................................................. 16
Resignation of the Maintenance Director: ............................................................ 17
Transfer of Records and Equipment: .................................................................... 17
ARTICLE X BIDS FOR COMMON AREA MAINTENANCE WORK; SERVICE CHARGE 17
10.1 Bids: ...................................................................................................................... 17
10.2 Service Charge: ..................................................................................................... 17
ARTICLE XI REIMBURSEMENT OF MAINTENANCE DIRECTOR; BILLING FOR
EXPENSES ......................................................................................................... 18
11.1 Reimbursement: ..................................................................................................................... 18
11.2 Pro Rata Share: ..................................................................................................... 18
11.3 Audit Rights: ......................................................................................................... 18
ARTICLE XII EFFECT OF SALE BY OWNER ........................................................................ 19
ARTICLE XIII DEFAULT ........................................................................................................... 19
13.1 CAM Costs: .......................................................................................................... 19
13.2 Non-Monetary Default: ......................................................................................... 19
13.3 Default By The Maintenance Director: ................................................................. 20
13.4 Self-Help: .............................................................................................................. 20
13.5 No Waiver: ............................................................................................................ 20
13.6 Remedies Cumulative: .......................................................................................... 20
ARTICLE XIV LIEN FOR EXPENSES OR TAXES ................................................................. 20
14.1. Effectiveness of Lien: ........................................................................................... 20
14.2 Priority of Lien: ..................................................................................................... 21
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ARTICLE XV RIGHT TO MAINTAIN PARCEL SEPARATELY ........................................... 21
15.1 Withdrawal from Common Area Maintenance by Consenting Owner: ............... 21
15.2 Withdrawal from Common Area Maintenance: ................................................... 21
ARTICLE XVI RESPONSIBILITY IF NO MAINTENANCE DIRECTOR .............................. 22
AR TI CLE XVII LIABILITY INSURANCE; INDEMNIFICATION ......................................... 22
17 .1. Liability Insurance: ............................................................................................... 22
17.2 Common Area Liability Insurance: ...................................................................... 23
17.3. Insurance Coverage During Construction: ............................................................ 24
17.4 Indemnification by Owners: ................................................................................. 26
1 7 .5 Indemnification by the Maintenance Director: ..................................................... 26
17.6 Mutual Release: .................................................................................................... 26
17.7 WaiverofSubrogation: ......................................................................................... 27
ARTICLE XVIII PROPERTY DAMAGE AND EMINENT DOMAIN ..................................... 27
18.1 Damage to Buildings: ........................................................................................... 27
18.2 Casualty Damage to Common Area: .................................................................... 27
18.3 Property Insurance: ............................................................................................... 28
18.4 Eminent Domain: .................................................................................................. 28
ARTICLE XIX GENER.AL PROVISIONS ................................................................................. 28
19.1
19.2
19.3
19.4
19.5
19.6
19.7
19.8
19.9
19.10.
19.11
19.12
19.13
19.14
19.15
19.16
19.17
19.18
19.19
19.20
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Covenants Run With the Land: ............................................................................. 28
Successors and Assigns: ....................................................................................... 28
Duration: ............................................................................................................... 29
Injunctive Relief: .................................................................................................. 29
Modification and Termination: ............................................................................. 29
Method of Approval: ............................................................................................. 29
Multiple Owners: .................................................................................................. 30
Not a Public Dedication: ....................................................................................... 30
Breach Shall Not Permit Termination: ................................................................. 30
Notices: ................................................................................................................. 30
Waiver: .................................................................................................................. 31
Attorneys' Fees: ..................................................................................................... 31
Severability: .......................................................................................................... 31
Not a Partnership: ................................................................................................. 31
Third Party Beneficiary Rights: ............................................................................ 32
Captions and Headings: ........................................................................................ 32
Interpretation: ........................................................................................................ 32
Entire Agreement: ................................................................................................. 32
Joint and Several Obligations: .............................................................................. 32
Recordation: .......................................................................................................... 32
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19.21 Lienholder Protection: .......................................................................................... 32
19.22 Variances: ............................................................................................................. 32
19.23 Time of Essence; Force Majeure: ......................................................................... 32
EXHIBITS
EXHIBIT A -SITE PLAN
EXHIBIT B -LEGAL DESCRIPTION OF BUSINESS CENTER
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DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS
AND GRANT OF EASEMENTS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND GRANT OF EASEMENTS (this "Declaration") is made as of the 22nd day of November,
2004, by and between Birch Bayview Plaza II, a California limited partnership ("Declarant") and
all future owners and users thereof ("Owners").
ARTICLE I
PRELIMINARY
1.1. Parties: Declarant is the Owner of Parcels 1 through 3 of Parcel Map 2003.203,
as shown on a map file in Book 340, pages 6 and 7 of Parcel Maps. The Parcels are located
between and bordering each of Birch and Acacia Streets in the City of Newport Beach, County
of Orange, State of California as shown on the Site Plan.
1.2. Purpose: Declarant, defined below, plans to develop the Business Center as an
integrated office complex for the mutual benefit of all real property in the Business Center and,
therefore, does hereby fix and establish the Restrictions, upon and subject to which all of the
Business Center, or any part thereof, shall be improved, held, leased, sold and/or conveyed. Such
Restrictions shall run with the land and inure and pass with such property and shall apply to and
bind the respective successors and interests thereof, and all and each thereof is imposed upon
such property as a mutual equitable servitude in favor of such property and any portion thereof.
1.3. Definitions: For the purposes of this Declaration, the terms defined in this
Declaration shall have the meanings set forth below whenever such terms are used in this
Declaration, unless the content clearly indicates a different meaning.
(a) "Building Area": All those areas on each Parcel shown as Building Area on
the Site Plan attached hereto as Exhibit A and incorporated herein by this reference. The
aggregate Floor Area of buildings within a Parcel's Building Area may not exceed the maximum
square footage a11ocated thereto on the Site Plan.
(b) "Business Center": Collectively, Parcels I through 3. The legal description of
the Business Center is more particularly described in Exhibit B attached hereto and incorporated
herein by this reference.
(c) "Common Area": All those areas on each Parcel that are not Building Area,
together with those portions of the Building Area on each Parcel that are not from time to time
actually covered by a building or other commercial structure or which cannot under the terms of
this Declaration be used for buildings. The Common Area is shown in Exhibit A hereto and
incorporated herein by this reference, and is more particularly indicated by the cross-hatching on
Exhibit A. Canopies that extend over the Common Area, together with any columns or posts
supporting same, shall be deemed to be a part of the building to which they are attached and not
a part of the Common Area. The improvement or use of any portion of the Building Area for
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portion within the Common Area, and such portions may, at any time thereafter, be improved
with buildings and appurtenances as contemplated by this Declaration. Perimeter Sidewalks are
a part of the Common Area. The skin surface of the Building Areas shall not be considered a
Common Area and shall not be maintained by Maintenance Director.
(d) "Consenting Owners": The Owners of Parcels I through 3; provided,
however, that in the event any such Owner sells its Parcel and becomes the Prime Lessee
thereon, such Prime Lessee shall be deemed appointed as the entity to cast the vote or give the
consent for the Parcel on behalf of the Owner so long as it is the Prime Lessee of said Parcel.
(e) "Declarant": Birch Bayview Plaza II, LP, a California limited partnership, its
successors and assigns.
(f) "Declaration": This Declaration of Covenants, Conditions and Restrictions
and Grant of Easements.
(g) "Default Rate": The greater of (i) ten percent (10%) per annum or (ii) five
percent (5%) per annum plus the discount rate prevailing on the twenty-fifth (25th) day of the
month preceding the date such payment was due, as established by the Federal Reserve Bank of
San Francisco on advances to member banks under Sections 13 and 13a of the Federal Reserve
Act as is now or hereafter in effect from time to time.
(h) "Governmental Regulations": Any or all laws, statutes, ordinances, codes,
decrees, rulings, regulations, writs, injunctions, orders, rules, conditions of approval or
authorization of any governmental entity, agency or political subdivision whether now in force or
that may hereafter be in force. Governmental Regulations shall include that certain Santa Ana
Heights Specific Plan District #7 (the "Specific Plan") affecting the Business Center.
(i) "Land Area": The total number of square feet of land within a Parcel or the
Business Center, irrespective of whether actually occupied or improved. Land Area shall be
measured from the exterior line of the perimeter;
(j) "Lienholder": Any mortgagee under a mortgage or a trustee or beneficiary
under a deed of trust constituting a lien on any Parcel.
(k) "Maintenance Director": The Person responsible for the maintenance of the
Common Area under the provisions of Section 6.
(1) "Occupant": Any Person or Prime Lessee from time to time entitled to the use
and occupancy of any portion of a building in the Business Center under an ownership right or
any lease, sublease, assignment, license, concession, or other similar agreement.
(m)"Owner" or "Owners": The record holder of fee simple title to a Parcel, its
heirs, personal representatives, successors and assigns.
(n) "Parcel" or "Parcels": Individually or collectively, Parcels 1 through 3 as
shown on the Site Plan and more particularly described in Exhihit B.
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(o) "Party" or "Parties": The parties set forth in Section 1.1 above, their
successors and assigns.
(p) "Perimeter Sidewalk": The sidewalks directly adjacent to the buildings and
parking lots.
(q) "Pennittee": All Occupants and the officers, directors, employees, agents,
contractors, customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and
concessionaires of Occupants insofar as their activities relate to the intended use of the Business
Center. Among others, Persons engaging in the following activities on the Common Area will
not be considered to be Permittees: (i) exhibiting any placard, sign, or notice; (ii) distributing any
circular, handbill, placard, or booklet; (iii) soliciting memberships or contributions; (iv)
parading, picketing, or demonstrating; and (v) failing to follow regulations relating to the use of
the Business Center.
(r) "Person": Individuals, partnerships, firms, associations, corporations, limited
liability companies, trusts, governmental agencies, administrative tribunals or any other form of
business or legal entity.
(s) "Prime Lessee": An Owner of a Parcel who sells its Parcel to an unaffiliated
third party and thereafter enters into a lease for the Parcel with such third party or its lessee or
sublessee and its successors and assigns.
(t) "Restrictions": The easements, covenants, restrictions, liens and
encumbrances fixed and established upon the Business Center pursuant to this Declaration.
Restrictions can include, without limitation, government regulations and rules and regulations
imposed on the Business Center from time to time.
(u) "Service Facilities": Loading docks, trash enclosures and other similar service
facilities.
(v) "Site Plan": The site plan of the Business Center shown on Exhibit A attached
hereto.
(w) "Utility Lines": Those facilities and systems for the transmission of utility
services, including, but not limited to, water drainage systems or structures, water mains, sewers,
water sprinkler system lines, telephones, electrical conduits or systems, gas mains, other public
or private utilities, and drainage and storage of surface water.
ARTICLE II
BUILDING AND COMMON AREA DEVELOPMENT
2.1. Building Location: All buildings and other structures ( except those permitted in
Section 2.2 below) shall be placed or constructed upon the Parcels only in the Building Areas;
provided, however, that canopies, eaves and roof overhangs (including columns or posts
supporting any such canopies, eaves and roof overhangs), normal foundations, utility cabinets
and meters, signs and doors for ingress and egress may project from the Building Area into the
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Common Area. All of the foregoing shall be constructed and maintained in accordance with all
Governmental Regulations thereto.
2.2. Common Area: The Common Area is hereby reserved for the sole and exclusive
use of all Owners and Occupants of the Business Center, their Permittees and the subtenants,
contractors, employees, agents, customers, licensees and invitees of such Permittees. The
Common Area may be used for vehicular driving, parking, pedestrian traffic, directional signs,
sidewalks, walkways, landscaping, perimeter walls and fences, parking lot lighting, utilities and
Service Facilities and for no other purpose unless otherwise specifically provided in this
Declaration. No buildings or structures not shown on the Site Plan shall be placed or constructed
in the Common Area except pylon, monument and directional signs (as provided in Article IV),
paving, bumper guards or curbs, landscape planters, lighting standards, perimeter walls and
fences, utility pads and equipment, or sidewalks. The Common Area shall be constructed in
accordance with the Site Plan and shall be kept and maintained as provided for in Article VI
below. All portions of a Building Area that cannot be used for buildings shall be developed by
the Owner thereof, at said Owner's sole cost and expense, in accordance with the Site Plan
approved by the City on behalf of the Declarant and maintained as improved Common Area. The
sizes and arrangements of the Common Area improvements, including, without limitation,
service drives and parking areas, striping, traffic directional arrows and signs, concrete bumpers,
parking lot lighting, perimeter walls and fences, and landscaped areas, together with necessary
planting, may not be changed without the prior written consent of the Declarant or, as applicable,
by a majority of the Owners, and in each instance pursuant to Governmental Regulations, as
applicable. The Owners acknowledge and agree that incidental encroachments upon the
Common Area may occur as a result of the use ofladders, scaffolds, store front barricades and
similar facilities in connection with the construction, maintenance, repair, replacement, alteration
or expansion of buildings, signs and Common Area improvements located in the Business
Center, all of which are permitted under this Declaration so long as all activities requiring the use
of such facilities are expeditiously pursued to completion and are performed in such a manner as
to minimize any interference with use of the improved Common Area or with the normal
operation of any business in the Business Center.
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2.3. Type and Design of Building:
(a) Each building in the Business Center, now and in the future, shall be of first-
class quality construction and architecturally designed so that its exterior elevations (including,
without limitation, signs and color) will be architecturally and aesthetically compatible and
harmonious with all other buildings in the Business Center. No building may be constructed nor
the exterior of any existing building changed in any way (including, without limitation, signs and
color) without the prior written approval of the Declarant as to the exterior elevations (including,
without limitation, signs and color) of the building to be constructed or modified. Before the
construction of any building or any modification of an existing building that requires approval is
commenced, sufficient information shall be sent to the Declarant or Owners, as applicable to
enable them to make a reasonable determination as to the architectural and aesthetic
compatibility of the proposed building or modification with all other buildings in the Business
Center. Recipient of the proposal must approve or disapprove the proposal within forty-five (45)
days after receipt of the proposal, and, if such recipient disapproves the proposal, it shall provide
a written explanation of its general reasons for disapproval. lfrecipient rejects or disapproves the
proposal and fails to provide such explanation within the forty-five (45) day period, recipient
shall be deemed to have approved the same provided that, when the approval was sought, the one
seeking the approval stated in writing to the one whose approval was sought that, if a disapproval
with explanation was not made within the forty-five (45) day period, approval would then be
deemed to have been given. If the proposal is disapproved as provided herein, then an alternate
proposal may be submitted, which alternate proposal shall be handled in the same manner as the
initial proposal and subject to Government Regulations.
(b) Subject to Section 2.3(£) below, every building shall be either equipped with
automatic sprinkler systems that meet all the standards of the Insurance Services Office ( or other
similar local organization having jurisdiction) or shall be constructed in such a manner as not to
adversely affect the fire rating as determined by local governing agencies of any building built
upon any other Parcel.
(c) No building shall be built in such a manner as to adversely affect the structural
integrity of any other building in the Business Center.
( d) No Building shall exceed the height set forth in the Governmental
Regulations.
( e) Each Owner shall maintain or cause to be maintained the exterior of any
building located on such Owner's Parcel(s) in a quality and condition comparable to that of
business centers of comparable size and nature located in the same geographic area as the
Business Center.
(f) The Declarant or, as applicable, any Owner or the Maintenance Director,
shall not be liable in damages or otherwise for any reason, including any mistake in judgment,
negligence or nonfeasance, arising out of or in connection with the approval or disapproval or
failure to approve or disapprove any proposal submitted pursuant to this Declaration. Each
Owner agrees that, by acquiring title to its Parcel and submission of such plans, drawings and/or
specifications, it will not bring any action or suit against the Declarant to recover any such
damages. In addition, each Owner shall indemnify, defend, protect and hold the Declarant, the
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other Owners and their respective officers, directors, shareholders, employees and agents
harmless for, from and against any and all causes of action, claims, liabilities, losses, damages,
costs and expenses (including reasonable attorneys' fees and court costs and reasonable attorneys'
fees and court costs on any appeal) arising out of or related to the approval or disapproval of any
plans, drawings and/or specifications submitted to the applicable parties by or on behalf of such
Owner or its Occupants. No approval by the Declarant or the other Owners shall be considered
an approval of the plans, drawings and/or specifications from an engineering perspective or a
detennination that they meet building, environmental, engineering design standards, or the
Specific Plan standards, or that any such buildings or improvements have been built in
accordance with such plans, drawings and/or specifications.
2.4. Construction Requirements:
(a) All work performed in the construction, maintenance, repair, replacement,
alteration or expansion of any building, sign or Common Area improvements located in the
Business Center ( collectively, "Improvements") shall be effected as expeditiously as possible and
in such a manner as not to unreasonably interfere, obstruct or delay (i) access to or from the
Business Center, or any part thereof, to or from any public right-of-way, (ii) customer vehicular
parking in that portion of the improved Common Area located in front of any building
constructed in the Business Center, or (iii) the receiving of supplies, equipment, or furniture by
any business in the Business Center including, without limitation, access to Service Facilities.
Staging for the construction, replacement, alteration or expansion of any building, sign or
Common Area improvements located in the Business Center including, without limitation, the
location of any temporary buildings or construction sheds, the storage of building materials, and
the parking of construction vehicles and equipment shall be limited to that portion of the
Business Center approved in writing by the Declarant or Owners. Unless otherwise specifically
stated herein, the person contracting for the performance of such work ("Contracting Party")
shall, at its sole cost and expense, promptly repair and restore or cause to be promptly repaired
and restored to its prior condition all buildings, signs and Common Area improvements damaged
or destroyed in the performance of such work.
(b) The Contracting Party shall not permit any liens to stand against any Parcel
for any work done or materials furnished in connection with the performance of the work
described in subparagraph (a) above; provided, however, that the Contracting Party may contest
the validity of any such lien, but upon a final determination of the validity thereof, the
Contracting Party shall cause the lien to be satisfied and released of record. The Contracting
Party shall, within thirty (30) days after receipt of written notice from the Owner or Prime Lessee
of any Parcel encumbered by any such lien or claim oflien, (i) cause any such outstanding lien
or claim of lien to be released of record or transferred to bond in accordance with applicable law,
or (ii) give such assurance as would enable a title insurance company to insure over such lien or
claim of lien, failing which the Owner or Prime Lessee of said Parcel shall have the right, at the
Contracting Party's expense, to transfer said lien to bond. The Contracting Party shall indemnify,
defend and hold harmless the Owners and Occupants and the Maintenance Director for, from and
against any and all liability, claims, damages, expenses (including reasonable attomeys1 fees and
costs and reasonable attorneys' fees and costs on any appeal), liens, claims oflien, judgments,
proceedings and causes of action, arising out of or in any way connected with the performance of
such work.
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( c) Unless specifically approved in writing by all Owners, the grading of any
Parcel shall not be modified, altered or otherwise changed. There shall be no interference with
the established drainage pattern and system over any portion of the Parcels unless adequate
provision is made for property drainage and all Owners approve such interference in advance in
writing. All drains, gutters, downspouts, berms, swells, and other drainage facilities and systems
shall be maintained by the Maintenance Director of such items in a neat, orderly, safe and
sanitary condition, and in such a manner as to facilitate the orderly discharge of water by means
thereof.
(d) Each Owner, as grantor, hereby grants to the other Owners, for the benefit of
each Parcel belonging to the other Owners, as grantees, an easement for any portion of any
building or structure located on any such Parcel that may encroach into or over the grantor's
adjoining Parcel(s); provided the easement for footings, piers, piles, grade beams and building
encroachments does not exceed two (2) feet, and the easement for canopies, eaves and roof
overhangs does not exceed four (4) feet. The easements granted in this Section 2.4(d) shall
survive this Declaration and shall last so long as the encroaching building is standing following
its initial construction or following its reconstruction where such building is substantially
restored to its prior condition following a casualty or condemnation subject to City approval.
2.5. Temporary License: Each Owner hereby grants to the other Owners a temporary
license for access and passage over and across the Common Area located on the granting
Owner's Parcel, to the extent reasonably necessary for such Owner to construct and/or maintain
improvements upon its Parcel; provided, however, that such license shall be in effect only during
periods when actual construction and/or maintenance is being performed, and provided further
that the use of such license shall not unreasonably interfere with the use and operation of the
Common Area or adjacent to the granting Owner's Parcel. Prior to exercising the rights granted
herein, an Owner shall provide each granting Owner with a written statement describing the need
for such license, and shall furnish a certificate of insurance showing that its contractor has
obtained the minimum insurance coverage required by this Declaration. The Owner shall
promptly pay all costs and expenses associated with such work, shall complete such work as
quickly as possible, and shall promptly clean and restore the affected portion of the Common
Area on or adjacent to the granting Owner's Parcel to a condition that is equal to or better than
the condition that existed prior to the commencement of such work. Notwithstanding the
foregoing, if a dispute exists between the contractors, laborers, suppliers and/or others connected
with such construction activities, the granting Owner shall have the right to prohibit the
contractors, laborers, suppliers and/or others working for an Owner from using the Common
Area on the granting Owner's Parcel.
2.6. Indemnity: In addition to the indemnification provided in Section 17.4 below,
each Owner shall indemnify, defend, protect and hold every other Owner, the Declarant and the
Maintenance Director, their respective officers, directors, shareholders, employees and agents
harmless for, from and against any and all causes of action, claims, liabilities, losses, damages,
costs and expenses (including reasonable attorneys' fees and court costs and reasonable attorneys'
fees and court costs on appeal) arising out of or related to injury to or death of any person or
damage to or destruction of any property occurring on any Parcel and arising out of or resulting
from any construction activities performed by or at the request of an Owner or its occupants,
unless caused by the grossly negligent or willful act or omission of the indemnified Owner.
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ARTICLE Ill
EASEMENTS
3.1. Ingress, Egress and Parking: Each Owner, as grantor, hereby grants to the other
Owners and their respective Permittees for the benefit of each Parcel belonging to the other
Owners, as grantees, a nonexclusive easement for ingress and egress by vehicular and pedestrian
traffic and vehicular parking upon, over and across that portion of the Common Area located on
the grantor's Parcel(s), and except for those areas devoted to Service Facilities or drive up or
drive through customer service facilities. The reciprocal rights of ingress and egress set forth in
this Section 3.1 shall apply to the Common Area for each Parcel.
3.2. Utility Lines and Facilities:
(a) Each Owner, as grantor, hereby grants to the other Owners and their
respective Permittees, for the benefit of each Parcel belonging to the other Owners and their
respective Permittees, as grantees, a nonexclusive easement under, through and across the
Common Area of the grantor's Parcel(s) for the installation, operation, maintenance, repair and
replacement of Utility Lines. All such Utility Lines shall be installed and maintained below the
ground level or surface of such easements except for ground mounted electrical transformers and
such other facilities as are required to be above ground by the utility providing such service
(including temporary service required during the construction, maintenance, repair, replacement,
alteration or expansion of any buildings or improvements located in the Business Center). The
easement area shall be no wider than necessary to reasonably satisfy the requirements of a
private or public utility, or five (5) feet on each side of the centerline if the easement is granted to
a private party. The installation, operation, maintenance, repair and replacement of such
easement facilities shall not unreasonably interfere with the use of the improved Common Area
or with the normal operation of any business in the Business Center. The grantee shall bear all
costs related to the installation, operation, maintenance, repair and replacement of such easement
facilities, shall repair to the original specifications any damage to the Common Area resulting
from such use and shall provide as-built plans for all such facilities to the Owners of all Parcels
upon which such utility lines and facilities are located within thirty (30) days after the date of
completion of construction of the easement facilities.
(b) At any time and from time to time the Owner of a Parcel shall have the right
to relocate on its Parcel any Utility Line installed pursuant to the foregoing grant of easement
which is then located on the Parcel of such Owner, provided that any such relocation (i) shall be
performed only after sixty (60) days notice in writing of the Owner's intention to undertake the
relocation shall have been given to the Owner of each Parcel served by the Utility Line, (ii) shall
not unreasonably interfere with or diminish utility service to the Parcels served by the Utility
Line, (iii) shall not reduce or unreasonably impair the usefulness or function of the Utility Line,
(iv) shall be performed without cost or expense to the Owner or Occupant of any other Parcel,
(v) shall provide for the original and relocated area to be restored using materials and design
standards that equal or exceed those originally used, and (vi) shall not interfere with the business
operation of the Owners or Occupants served by the Utility Line. The Owner performing such
relocation shall provide as-built plans for all such relocated Utility Lines to the Owners of all
Parcels served by such Utility Lines within thirty (30) days after the date of completion of such
relocation.
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(c) Subject to obtaining the prior written consent of the Owner of the grantor
Parcel as to location, which consent shall not be unreasonably withheld, each Owner agrees to
grant such additional easements as are reasonably required by any public or private utility for the
purpose of providing the Utility Lines described herein provided such easements are not
otherwise inconsistent with the provisions of this Declaration.
(d) The tenns and provisions of this Section 3.2 shall survive the expiration or
earlier termination of this Declaration.
3.3. Signs: Each Owner, as grantor, hereby grants to the other Owners and their
respective Permittees, for the benefit of each Parcel belonging to the other Owners and their
respective Permittees, as grantees, a non-exclusive easement under, through and across the
Common Area of the grantor's Parcel(s) for the installation, operation, maintenance, repair and
replacement of the free-standing signs referred to in Section 4.3 of this Declaration and all utility
lines and facilities appurtenant thereto. Except where otherwise specifically stated herein to the
contrary, the grantee(s) shall bear all costs related to the installation, maintenance, repair and
replacement of its free-standing sign and appurtenant facilities, shall repair to the original
specifications any damage to the Common Area resulting from such use and shall provide as-
built plans for all such facilities to the Owners of all Parcels upon which such facilities are
located within thirty (30) days after the date of completion of construction of same pursuant to
Government Regulations.
3.4. Drainage Easement: Each Owner grants to the other Owners a non-exclusive
easement over its Parcel for surface water drainage over and through the drainage patterns and
storm water drainage systems that are established from time to time among the Parcels and
approved by Purchaser as part of the Plans and Specifications. Nothing herein shall prevent an
Owner from relocating the drainage patterns established upon such owner's Parcel, provided such
relocation does not unreasonably interfere with the surface water drainage of other Parcels nor
interfere with the orderly discharge of surface water from such other Parcels.
3.5. Dedication to Public Entities: No Owner shall grant any easement for the benefit
of any Property not within the Business Center (except, however, each Owner acknowledges and
agrees that Declarant may or has as of the date of this Declaration entered into an easement
agreement with Birch Bayview Plaza, LLC, a Delaware limited liability company, or its
successor [the owner of the business center to the west of the Business Center] consistent with
the Business Center's possible need to have ingress and egress through and over the parking area
and driveways located in the southeast comer of the Business Center); provided, however, that
the foregoing shall not prohibit the granting or dedicating of easements by an Owner on its
Parcel to governmental or quasi-governmental authorities or to public utilities. Nothing
contained in this Declaration shall be deemed to be a gift or dedication of any portion of the
Business Center or of any Parcel or portion thereof to the general public, or for any public use or
purpose whatsoever. Except as specifically set forth in this Declaration, no right, privileges or
immunities of any party shalt inure to the benefit of any third-party Person, nor shall any third-
party Person be deemed to be a beneficiary of any of the provisions contained in this
Declaration.
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3.6. No Merger. The easements granted hereunder shall burden and benefit each
Parcel individually, without merger as a result of such common ownership, and upon conveyance
of a Parcel so that such Parcel ceases to be under common ownership, neither the owner
conveying said Parcel nor the Owner acquiring said Parcel shall need to execute additional
documentation to evidence the existence of said easements, and said easements shall relate back
to and shall be deemed to have been created as of the date this Declaration is recorded in the
office of the recorder of the county in which the Business Center is located.
ARTICLE IV
OPERATION OF COMMON AREA
4.1. Parking: Except for the payment of"CAM Costs" (as such term is defined in
Section 6.2 below), there shall be no charge for parking in the Common Area without the prior
written consent of the Declarant or a majority of the Owners or unless otherwise required by law.
The parking area on each Parcel shall contain sufficient ground level parking spaces to comply
with Governmental Regulations.
In the event of a condemnation of part of a Parcel or sale or transfer in lieu thereof
that reduces the nwnber of usable parking spaces below that which is required in this Section 4.1,
the Owner whose Parcel is so affected shall use its best efforts (including using proceeds from
the condemnation award or settlement) to restore and/or substitute parking spaces to comply with
the parking requirements set forth in this Section 4.1. If such compliance is not possible, the
Owner whose Parcel is so affected shall not be deemed in default hereunder, but such Owner
shall not be permitted to expand the amount of Floor Area located upon its Parcel. If such Floor
Area is thereafter reduced other than by casualty, then the Floor Area on such Parcel may not
subsequently be increased unless the parking requirement is satisfied.
4.2. Exterior Signs:
(a) Subject to Governmental Regulations, a free-standing sign (the "Center Sign")
may be erected by Declarant or, upon approval of a majority of the Owners, by the Owners. Such
sign shall display the designation of Owners and, provided the amount of signage otherwise
permitted by Governmental Regulations to Declarant is not adversely affected thereby,
designations for not more than [ten (10)] other businesses in the Business Center. Any such
business, in order to display its designation on the Business Center Sign, must occupy not less
than One Thousand (1,000) square feet of Floor Area. The cost of installing, maintaining,
repairing and replacing the Business Center Sign structure (excluding electrical hookup to the
Common Area meter) shall be paid by the Owners of all Parcels entitled to display designations
thereon in the proportion that the total square footage of each Owner's designation or
designations bears to the total square footage of all designations entitled to be displayed thereon.
Each person displaying a designation on the Business Center Sign shall supply and maintain its
own sign fascia and can. The design of the Business Center Sign structure shall be subject to the
approval of the Declarant or a majority of the Owners, as shall be the size, design and location of
the sign fascia used.
(b) Except as set forth in subsection (a) above, there shall be no other signs,
except directional signs and signs on buildings, in the Business Center.
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(c) Except as set forth in subsection (a) above, all signs shall conform with the
following standards:
(i) All exterior building signs on Parcels shall be restricted to
identification of the business or service located or provided therein.
(ii) No exterior building or free-standing sign shall utilize
flashing, moving or audible lights or appurtenances.
4.3. Protection of Common Area: Each Owner and Occupant shall have the right to
take such steps as it deems necessary to prevent those Persons not authorized by this Declaration
to use the Common Area from using the Common Area for ingress, egress, parking or any other
purpose. Such steps shall include, without limitation, the construction of fences, walls or
barricades along the boundary lines of any portion of the Business Center except along the
common boundary line of any Parcel with any other Parcel subject to Government Regulations.
4.4. Common Area -Zone of Control: The layout and design of the Business Center
shall be as substantially set forth on the Site Plan.
ARTICLE V
RESTRICTIONS ON USE
5.1. No portion of the Business Center shall be used for a hotel or motel.
5.2. Business Center Restrictions:
(a) No portion of the Business Center shall be used for any retail use or for any of
the following purposes: a flea market or a business selling so-called "second hand" goods;
cemetery; mortuary; bookstore or establishment engaged in the business of selling, exhibiting or
delivering pornographic or obscene materials; a so-called "head shop"; video or other type of
gameroom or arcade; off-track betting parlor; junk yard; flea market; recycling facility or
stockyard; motor vehicle or boat dealership, repair shop (including lubrication and/or service
center), body and fender shop, car wash facility or gasoline station, or motor vehicle or boat
storage facility; a laundromat or dry-cleaning facility; a warehouse; theater, auditorium; adult
entertainment facility; bowling alley; skating rink; massage parlor (except when massages are an
incidental part of a medical practice), game parlor or video arcade (which shall be defined as any
store containing more than three (3) electronic games); a beauty school, barber college, reading
room, industrial, residential or manufacturing uses, school or house of worship. Notwithstanding
the foregoing, an Owner or lessee may operate a delicatessen, subject to Governmental
Regulations.
(b) The following shall not be allowed to operate in the Business Center or
Common Area: traveling carnivals, fairs, auctions, shows, sales by transient merchants utilizing
vehicles or booths and other promotions of any nature. In the event that unauthorized Persons,
including without limitation tenants or invitees or tenants occupying buildings now or at any
future time located in the Business Center, utilize the parking area for other than temporary
parking by customers while conducting business at or in the Business Center, the Declarant or
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the Maintenance Director may take whatever action as shall be reasonably necessary to prevent
said unauthorized utilization.
(c) No portion of the Business Center shall be used for a business or use that
creates strong, unusual or offensive odors, fumes, dust or vapors; emits noise or sounds that are
objectionable due to intermittence, beat, frequency, shrillness or loudness; creates unusual fire,
explosive or other hazards; or materially increases the rate of insurance for any other Parcel,
Owner or Occupant.
( d) Excepting administrative operations, no oil development operations, oil
refining, quarrying or mining operations of any kind shall be permitted upon or in any portion of
the Parcels, nor shall oil wells, tanks, tunnels, or mineral excavation or shafts be permitted upon
the surface of any portion of the Parcels, or within five hundred ( 500) feet below the surface of
any of the Parcels (to the extent a title matter existing on the day this Declaration is recorded is
contradictory to this language, the title matter will control). No derrick or other structure
designed for use in boring for water, oil, natural gas or other minerals shall be erected,
maintained or permitted on any portion of the Business Center.
(e) For purposes of this Declaration, all Perimeter Sidewalks shall be Common
Area. Exterior stairwells of the Buildings, however, shall be the exclusive property of the
Owners of the buildings associated with such stairwells. Each Owner shall have the obligation to
maintain the Perimeter Sidewalk on its Parcel in good repair and condition in accordance with
the standards set forth herein for the maintenance of the Common Area.
(f) The Declarant or any applicable Owners shall each provide the Owners with
written notification with any proposed change in use (and each subsequent change in use) from
the initial use of any business operation located on said Parcels, and any such change shall be
subject to the prior written approval of the Consenting Owners, which approval shall not be
unreasonably withheld or delayed and pursuant to Government Regulations. It shall be
reasonable for any of the Consenting Owners to withhold its approval if, by way of example
only, the stated change in use (i) violates this Declaration or any Governmental Regulations, (ii)
conflicts with an existing primary use of another Owner or Occupant in the Business Center, or
(iii) violates any Occupant's exclusive use agreement with an Owner.
5.3. Reserved Parking: Notwithstanding any provision to the contrary in this
Declaration, the Declarant may designate a number of spaces for each Parcel that shall be
reserved spaces, consistent with prudent planning and Governmental Regulations. No more than
twenty percent of each parcels spaces can be reserved subject to Government Regulations.
ARTICLE VI
MAINTENANCE STANDARDS
6.1. Maintenance Obligations: On or before ninety (90) days prior to the date the first
Owner or Occupant is scheduled to open its building for business, and at least ninety (90) days
prior to the beginning of each calendar year thereafter, the Maintenance Director shall submit to
the Declarant, or as applicable, the Owners an estimated budget ("Budget") for the projected
CAM Costs and administrative fee for operating and maintaining the Common Area of the
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Business Center for the remaining/ensuing calendar year. Except as hereinafter provided, the
Maintenance Director shall maintain the Common Area at all times in good and clean condition
and repair, the maintenance to include, without limitation, the following:
(a) Maintaining, repairing and resurfacing, when necessary, all paved surfaces in
a level, smooth and evenly covered condition with the type of surfacing material originally
installed or such substitute as shall in all respects be equal or superior in quality, use and
durability; and restriping, when necessary;
(b) Removing all sand, papers, debris, filth and refuse and thoroughly sweeping
the area to the extent reasonably necessary to keep the area in a clean and orderly condition;
(c) Maintaining, repairing and replacing, when necessary, all traffic directional
signs, markers and lines;
(d) Operating, maintaining, repairing and replacing, when necessary, such
artificial lighting facilities as shall be reasonably required ( except for the " After Hours Lighting"
described in Article 7 below);
(e) Maintaining all landscaped areas (including, without limitation, those on the
perimeter of the Business Center); maintaining, repairing and replacing, when necessary,
automatic sprinkler systems and water lines; and replacing shrubs and other landscaping as is
necessary;
(f) Maintaining, repairing and replacing, when necessary, all Common Area walls
(including, without limitation, all fences, walls or barricades constructed pursuant to Section 4.3
above);
(g) Maintaining, repairing and replacing, when necessary, all storm drains, sewers
and other utility lines and facilities not dedicated to the public or conveyed to any public or
private utility that are necessary for the operation of the buildings and improvements located in
the Business Center (with the cost of all such items being allocated between the Owners of all
buildings and improvements serviced or to be serviced by said facilities on the basis of their
respective Building Areas);
(h) Maintaining, repairing and replacing, when necessary, the Business Center
Sign ( except for the sign fascia and cans that shall be supplied and maintained by the businesses
designated thereon). Notwithstanding the other provisions of this Declaration, the costs of
maintaining, repairing and replacing the Business Center Sign shall be paid as set forth in
Sections 4.2(a) above;
(i) Performing itself or contracting with a third party or parties to perform any of
the services described herein; provided, however, that the Maintenance Director shall remain
responsible and liable for the performance of all of said services in accordance with the terms of
this Declaration and for the performance of any such third party or parties under any such
contract or contracts; and
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(j) Maintaining comprehensive general liability insurance as set forth in Article
XVII hereof.
6.2. Exclusions from Common Area Maintenance Obligations: The Maintenance
Director shall expend only such fWlds as are reasonably necessary for the operation, maintenance
and insurance of the Common Area and shall promptly pay such costs ("CAM Costs") when
incurred. For the purpose of this Declaration, CAM Costs shall not include:
(i) any late charges or fees, unless caused by an Owner or Occupant's
delinquent payment of its monthly fee, in which case the late charges or fees shall be paid by the
delinquent Owner or Occupant;
(ii) any costs to clean or repair the Common Area resulting from
promotional activities or from construction, maintenance or replacement of buildings, which in
each case should be charged to the responsible party;
(iii) real property taxes and assessments;
(iv) the Maintenance Director's profit, administrative and overhead
costs (such as rent, legal, supplies, utilities and wages or salaries paid to management or
supervisory personnel), it being further agreed that if a person is involved with other than
Common Area operational and maintenance matters at the Business Center, then the
Maintenance Director shall allocate such person's time to properly reflect his/her varied duties;
(v) entertainment, transportation, meals and lodging of anyone;
(vi) depreciation and amortization, except as provided herein and
except on materials, tools, supplies and vendor-type equipment purchased by the Maintenance
Director to enable the Maintenance Director to supply services the Maintenance Director might
otherwise contract for with a third party and where such depreciation and amortization would
otherwise have been included in the charge for such third party's services and when depreciation
or amortization is permitted or required, the item shall be amortized over its reasonably
anticipated useful life;
(vii) costs incurred by the Maintenance Director for alterations that are
considered capital improvements and replacements (other than landscaping expenses) unless the
prior written approval of the Declarant or, as applicable, of a majority of the Owners, has first
been obtained, which approval shall not be unreasonably withheld;
(viii) expenses in connection with services or other benefits that are
offered to one or more Owners and/or Occupants of the Business Center and who are charged
directly for such services or other benefits.
(ix) Interest, points and fees on debt or amortization on any mortgage
or mortgages encumbering the Common Area of the Business Center;
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(x) all items and services for which an Owner and/or Occupant in the
Business Center reimburses the Maintenance Director or which the Maintenance Director
provides selectively to one or more Owners and/or Occupants without reimbursement;
(xi) electrical power costs for which any Owner and/or Occupant
directly contracts with the local public service company;
(xii) any penalties incurred as a result of the Maintenance Director's
negligence, inability or unwillingness to make any payments when due to the extent not caused
by an Owner's and/or Occupant's failure to make timely payments; and
(xiii) the cost of acquisition of new land or construction of new
buildings;
(xiv) costs exceeding those obtainable through competitive bidding;
(xv) any expense representing an amount paid to a related corporation,
entity, or person that is in excess of the amount which would be paid in the absence of such
relationship; and
(xvi) earthquake and/or flood insurance, unless such coverage is
available at commercially reasonable rates.
6.3. Obligation to Keep Parcels Lien Free: The Maintenance Director shall keep the
parcels free from any and all liens arising out of any work performed, materials furnished to or
obligations incurred by the Maintenance Director in connection with the operation and
maintenance of the Common Area. The Maintenance Director shall, within thirty (30) days after
the date of imposition of any such lien, pay the lien claim in full, unless The Maintenance
Director contests such lien claim in good faith, in which case the Maintenance Director shall,
within such thirty (30) day period and as a condition precedent to the Maintenance Director's
right to so contest, records a bond of a responsible corporate surety in such amount and in such
manner as may be required by applicable law to release the lien from the affected Parcel or
Parcels. The Maintenance Director shall indemnify, defend, protect and hold all Owners and
Occupants harmless from any and all claims, liability, losses, damages, injuries, costs or
expenses (including reasonable attorneys' fees) in connection with any such lien claim or in
connection with the injury or death of any Person or damage to property caused by the negligent
or willful misconduct of the Maintenance Director and its employees, agents and contractors.
ARTICLE VII
LIGHTING
Commencing at least ten (10) days prior to the date the first Owner first opens its
building for business, the Maintenance Director shall (i) keep the Common Area fully
illuminated each day from dusk until at least 11 :00 p.m., unless the Owners agree upon a
different time schedule, and (ii) if artificial lighting for a time later than the foregoing ("After
Hours Lighting") is needed by any Owners or Occupants, then such artificial lights to service
such Owners or Occupants shall be separately metered or otherwise measured or reasonably
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estimated and all expenses thereof shall be paid by such Owners or Occupants to the extent
appropriate. Such Owners or Occupants shall pay a reduced proportion of the expense of lighting
the balance of the Common Area according to the extent to which such Owners or Occupants are
lighting the Common Area by separately metered lights. Each Owner and Occupant agrees to
keep any exterior building security lights on from dusk until dawn.
ARTICLE VIII
PAYMENT OF TAXES
8.1. Taxes and Assessments: Each Owner shall pay direct to the tax collector, prior to
delinquency, the real property taxes and other special taxes and assessments levied and assessed
against the Owner's Parcel, including the portion of the Common Area on such Owner's Parcel;
subject, however, to the right of any such Owner to contest the amount or validity of all or any
part of said taxes and assessments.
8.2. Failure to Pay Taxes and Assessments: In the event an Owner fails to pay prior to
delinquency, all taxes and assessments described in Section 8.1 above (such Owner being herein
called a "Defaulting Owner"), which failure continues for a period of ten (10) days after receipt
of written notice thereof, such failure shall constitute a default and the Declarant or, as
applicable, the other Owners may thereafter pay (but shall not be obligated to pay) such taxes if
such taxes are delinquent and the owing Owner has not commenced and is not duly prosecuting
any contest of such taxes. The paying party(ies) shall then bill the Defaulting Owner for the
expenses incurred. The Defaulting Owner shall have fifteen (IS) days within which to pay the
bill. If the Defaulting Owner does not so pay, paying party(ies) shall have a lien on the Parcel of
the Defaulting Owner for the amount of the bill, which amount shall bear interest at the Default
Rate from the date of expiration of said fifteen ( 15) day period until paid; provided, however,
that ifthere be a bona fide dispute as to the existence of such default or of the amount due and all
undisputed amounts are paid, there shall be no right to place a lien on the Defaulting Owner's
Parcel until such dispute is settled by final court decree or mutual agreement.
ARTICLE IX
MAINTENANCE DIRECTOR
9 .1. Appointment: The Owners hereby initially appoint Steadfast Commercial
Management ("Steadfast") as the Maintenance Director of the Business Center Common Area
from and after the earlier of the date an Owner or Declarant first obtains a certificate of
occupancy for any one of the buildings through a period ending on the earlier of one ( 1) year
from the sale of the last building by Steadfast to a third party or one year from receipt by
Declarant of a certificate of occupancy on all the Building Areas. Declarant hereby accepts the
appointment as the Maintenance Director and assumes the obligations associated with such
appointment.
9.2. Removal of the Maintenance Director: A majority of the Consenting Owners may
remove the Maintenance Director without cause upon written notice to the Owners of the
remaining Parcels, in which event the Consenting Owners shall appoint another Person to be the
Maintenance Director except as promised in 9.1, Owners shall appoint new Director to replace
Steadfast within thirty (30) days after Steadfast's term.
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9.3. Resignation of the Maintenance Director: The Maintenance Director shall have
the right, upon giving ninety (90) days prior written notice to the Owners of the Business Center,
to resign as the Maintenance Director, in which event a majority of the Consenting Owners ( or in
the event such a majority cannot be reached, the Owners of a majority of the Floor Area within
the Parcels) shall appoint another Person to be the Maintenance Director.
9.4. Transfer of Records and Equipment: Upon assumption by a new Maintenance
Director of the Common Area Maintenance duties, the previous Maintenance Director shall
transfer to the new Maintenance Director all applicable books and records relating to such duties
and shall provide any and all other information and documentation to effectuate the transfer of
responsibility hereunder, including notification to insurers and transfer of insurance policies. The
previous Maintenance Director shall also transfer to the new Maintenance Director any and all
equipment and machinery (but not including the equipment and machinery used by the
Maintenance Director within its office(s)) used by the previous Maintenance Director in
connection with the operation and maintenance of the Common Area hereunder.
ARTICLEX
BIDS FOR COMMON AREA
MAINTENANCE WORK; SERVICE CHARGE
10.1. Bids: If a Consenting Owner determines that the costs of services for maintaining
the Common Area are not competitive, then upon thirty (30) days prior written notice from any
Consenting Owner, the Maintenance Director shall have the Common Area maintenance work,
or any portion thereof designated by the Owner, bid out to at least two bidders approved in
writing by the Declarant or, as applicable, any Owner. The Owners' shares of said Common
Area maintenance work shall thereafter be adjusted to reflect the amount of the lowest bid for all
or a portion of such work unless the prior written consent of the approving party to award the
contract to a higher bidder is first obtained by the Maintenance Director. The foregoing
notwithstanding, the Maintenance Director shall not be required to rebid any item before the
expiration of the term of the applicable contract. In no event shall the Maintenance Director enter
into any contract that cannot be terminated upon thirty (30) days prior written notice, without the
prior written approval of the Declarant or, as applicable, a majority of the Owners.
10.2. Service Charge: Each Owner shall reimburse the Maintenance Director for its
pro-rata share of all of the CAM Costs plus a service charge of fifteen percent (15%) of said
expenses (exclusive ofreal estate taxes, insurance premiums and utilities), but in no event less
than One Thousand Dollars ($1,000) per month, increasing by not less than Two Hundred
Dollars ($250) every five (5) years, to cover management and administration costs
("Maintenance Fee"). The CAM Costs shall not include any costs incurred by the Maintenance
Director for the services of a manager or management company or for office overhead or
compensation of its employees except to the extent included in the Maintenance Fee. For all
purposes herein other than determining the Maintenance Fee, CAM Costs include the
Maintenance Fee.
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ARTICLE XI
REIMBURSEMENT OF
MAINTENANCE DIRECTOR; BILLING FOR EXPENSES
11.1. Reimbursement: The Maintenance Director shall contract for and pay for all of
the items enumerated as CAM Costs provided, however, that the Maintenance Director shall not
be entitled to reimbursement for all or any portion of an Owner's pro rata share of any individual
item of CAM Costs, the pro rata share of which for said Owner's Parcel exceeds Ten Thousand
and No/100 Dollars ($10,000.00), without the prior written approval of the Owner of said Parcel,
which consent shall not be unreasonably withheld, conditioned or delayed.
11.2. Pro Rata Share: The Owner of each Parcel ( or its respective Occupants, as it may
direct) shall be billed monthly in arrears for its pro rata share of all CAM Costs incurred by the
Maintenance Director in maintaining and insuring the Common Area as provided in Article VI,
with the first billing date being the last day of the first full calendar month following the date an
Owner first closes escrow to purchase its building in the Business Center or the date the
Declarant obtains the first certificate of occupancy. Each bill shall be due and payable within
thirty (30) days after receipt, and if requested in writing, copies of all invoices, statements or
other docwnents supporting same shall be provided by the Maintenance Director within ten (10)
business days. An Owner's pro rata share shall be determined by multiplying all of the CAM
Costs by a fraction, the numerator of which shall be the Land Area of each Parcel, and the
denominator of which shall be equal to the aggregate of the Land Area of all the parcels within
the Business Center. The Maintenance Director shall not be entitled to reimbursement from any
Owner (or its Occupants) for any item of CAM Costs for which a bill is not submitted to the
Owner (or its Occupants, as it may direct) within two (2) year after the end of the calendar year
in which said expense is incurred.
11.3. Audit Rights: Any Owner may, upon not less than ten (10) business days prior
written notice to the Maintenance Director, inspect the Maintenance Director's records for all
Common Area maintenance and insurance expenses incurred during the preceding calendar year
at the Maintenance Director's general offices or at such other location reasonably designated by
the Maintenance Director at any time during reasonable business hours within two (2) years after
the end of said calendar year. If said inspection reveals an overpayment of CAM Costs, the
Maintenance Director shall reimburse the Owner of each Parcel (or its respective tenants or
agents, as it may direct) its proportionate share of any such overpayment together with accrued
interest at the Default Rate within thirty (30) days after receipt of a notice of determination, and
of the amount, of such overpayment. If the inspection reveals an underpayment of CAM Costs
(including the Maintenance Fee but excluding all expenses for which a statement was not timely
submitted pursuant to Section 11.2 above), the Owner of each Parcel shall reimburse the
Maintenance Director its proportionate share of any such underpayment within thirty (30) days
after receipt of proper billing in accordance with Section 11.2. If the inspection reveals that the
Maintenance Director misstated CAM Costs by more than three percent (3%), the Maintenance
Director shall also reimburse the Person making such inspection for all costs reasonably incurred
in making such inspection within thirty (30) days after receipt of notice of determination, and of
the amount, of any such misstatement.
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ARTICLE XII
EFFECT OF SALE BY OWNER
In the event an Owner sells all or any portion of its interest in its Parcel, such
Owner shall thereupon be released and discharged from any and all obligations as Owner in
connection with such Parcel ( or portion thereof) arising under this Declaration after the sale and
conveyance of title but shall remain liable for all obligations arising under this Declaration prior
to the sale and conveyance of title. provided both the Owner and the new Owner give written
notice of the sale to all other Owners and the Maintenance Director, which notice shall contain
addresses and billing contacts for the new Owner and the selling Owner. The subsequent Owner
of any such Parcel or any portion thereof (including, without limitation, any Owner who acquires
its interest by foreclosure, trustee's sale or otherwise) shall be liable for all obligations arising
under this Declaration with respect to such Parcel or portion thereof after the date of sale and
conveyance of title.
ARTICLE XIII
DEFAULT
13.1. CAM Costs: In the event any Owner fails or refuses to pay when due its share of
any bill for the CAM Costs described above, which failure continues for a period of ten ( 10) days
after receipt of written notice thereof from the Maintenance Director, such failure shall constitute
a default and legal action may thereafter be instituted against the Defaulting Owner by the
Maintenance Director or other person paying the Maintenance Costs (including the Maintenance
Fee) of the Defaulting Owner ("Curing Party") for reimbursement plus interest from and after the
date the bill was due and payable to and including the date the bill is paid at the Default Rate.
Furthermore, the Curing Party shall have a lien on the Parcel of the Defaulting Owner for the
amount of the unpaid CAM Costs plus accrued interest at the Default Rate. Notwithstanding the
foregoing, if there is a bona fide dispute as to the existence of such default or of the amount due
and all undisputed amounts are paid, there shall be no right to place a lien on such Owner's
Parcel until such dispute is settled by final court decree or mutual agreement.
13.2. Non-Monetary Default: In the event any Owner or Occupant fails to perform any
other provision of this Declaration, which failure continues for a period of thirty (30) days after
receipt of written notice specifying the particulars of such failure, such failure shall constitute a
default and any other Owner or Prime Lessee may thereafter institute legal action against the
defaulting Owner or Occupant for specific performance, declaratory or injunctive relief,
monetary damages or any other remedy provided by law; provided, however, that the defaulting
Owner or Occupant shall not be deemed to be in default if such failure to perform cannot be
rectified within said thirty (30) day period and such Owner or Occupant is diligently proceeding
to rectify the particulars of such failure, not to exceed sixty (60) days; provided further, however,
that in the event of an emergency, such failure shall be deemed a default if such failure is not
rectified in a period reasonable for the nature and circumstances of such emergency. By way of
example, but not as a limitation, the failure to otherwise maintain the Common Area such that
Owners, Occupants and Permittees can utilize the reciprocal easements granted in Section 3.1
above.
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13.3. Default By The Maintenance Director: In the event the Maintenance Director
fails to perform any of the provisions of this Declaration, which failure continues for a period of
thirty (30) days (ten [ 1 O] days in the event of failure to pay money) after receipt of written notice
from any Owner or Prime Lessee specifying the particulars of such failure, such failure shall
constitute a default and any Owner or Prime Lessee may thereafter institute legal action against
the Maintenance Director for specific performance, declaratory or injunctive relief, monetary
damages or any other remedy provided by law and/or may perform the obligations of the
Maintenance Director specified in said notice of default and offset the costs thereof from
amounts due the Maintenance Director; provided, however, that the Maintenance Director shall
not be deemed to be in default if such failure to perform ( excluding the payment of money)
cannot be rectified within said thirty (30) day period and the Maintenance Director is diligently
proceeding to rectify the particulars of such failure.
13.4. Self-Help: If an Owner or Occupant fails to perform any provision of this
Declaration, then, upon the expiration of the cure period provided in Section 13.2, and upon an
additional ten (10) days prior written notice ( except that no additional notice shall be required in
an emergency), the Declarant or, as applicable, any Owner shall have the right, but not the
obligation, to enter upon the defaulting Owner's or Occupant's Parcel to cure such default for the
account of and at the expense of the Owner or Occupant of such Parcel, unless in a non-
emergency situation, the Owner and/or Occupant of such Parcel commences to cure such default
within such ten (10) day period and thereafter diligently pursues such cure to completion. If the
Declarant or an Owner exercises its self-help right, then, within ten (10) days after receipt of an
invoice from such party, the defaulting Owner and/or Occupant shall reimburse to such party all
costs reasonably incurred by it in curing such default, plus an administrative fee equal to fifteen
percent ( 15%) of such costs. Furthermore, the party that advanced such costs shal 1 have a lien on
the Parcel of the defaulting Owner and/or Occupant for the amount of the unpaid costs incurred
by the party pursuant to this Section 13.4, together with accrued interest at the Default Rate.
13.5. No Waiver: The failure of a Person to insist upon strict performance of any of the
terms, covenants, conditions or agreements contained herein shall not be deemed a waiver of any
rights or remedies that said Person may have, and shall not be deemed a waiver of any
subsequent breach or default in the performance of any of the terms, covenants, conditions or
agreements contained herein by the same or any other Person.
13.6. Remedies Cumulative: In addition to the remedies set forth in this Declaration,
each Person entitled to enforce this Declaration shall have all other remedies provided by law to
the same extent as if fully set forth herein word for word. No remedy herein conferred upon, or
reserved to any Person shall exclude any other remedy herein or by law provided, but each shall
be cumulative.
ARTICLE XIV
LIEN FOR EXPENSES ORT AXES
14.1. Effectiveness of Lien: The liens provided for in Sections 8.2, 13.1 and 13 .4 above
shall only be effective when filed for record by the Declarant or, as applicable, an Owner as a
claim of lien against the defaulting Owner or Occupant in the office of the recorder of the county
in which the Business Center is located, signed and acknowledged, which shall contain at least:
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(a) An itemized statement of all amounts due and payable pursuant hereto;
(b) A description sufficient for identification of that portion of the real property of
the defaulting Owner that is the subject of the lien;
(c) The name of the Owner or reputed Owner of the property that is the subject of
the lien; and
(d) The name and address of the Curing Party.
The lien shall attach from the date a claim of a lien is recorded and may be
enforced in any manner allowed by law, including, but not limited to, by suit in the nature of an
action to foreclose a mortgage or mechanic's lien under the applicable provisions of the laws of
the State in which the Business Center is located. The Curing Owner shall release the claim of
lien once the costs and expenses secured by the lien have been paid in full.
14.2. Priority of Lien: The claim of lien, when so established against the real property
described in the claim of lien, shall be prior and superior to any right, title, interest, lien or claim
that may be or has been acquired or attached to such real property after the time of filing the
claim oflien. The claim of lien shall be for the use and benefit of the Curing Owner curing the
default of the Defaulting Owner.
ARTICLE XV
RIGHT TO MAINTAIN PARCEL SEPARATELY
15.1. Withdrawal from Common Area Maintenance by Consenting Owner: In addition
to its other rights herein, but subject to any contradictory provision herein (e.g. the right of
Declarant to maintain the Business Center for a minimum period ohime following the date of
this Declaration) a Consenting Owner shall have the right to remove the Maintenance Director
with respect to its Parcel upon thirty (30) days written notice to the Maintenance Director. In the
event of such removal, the Consenting Owner shall manage, maintain, repair, replace and insure
such Consenting Owner's portion of the Common Area on its Parcel, and such Consenting
Owner shall not be liable for any share of the costs of managing or maintaining the balance of
the Business Center, except for its proportionate share of the cost of maintaining any Business
Center sign in a Common Area on which its name appears and which it is not itself maintaining
and paying its continued pro rata share of CAM Costs. Any Consenting Owner may also elect to
terminate its option to maintain, repair, replace and insure its portion of the Common Area by
providing thirty (30) days prior written notice to the Maintenance Director, in which event the
Maintenance Director shall resume its duties with respect to said parcel and the Consenting
Owner will thereafter resume paying for its pro rata share of all CAM Costs thereafter incurred
by the Maintenance Director in accordance with this Declaration.
15.2. Withdrawal from Common Area Maintenance: If in an Owner's reasonable
opinion the Maintenance Director is not adequately managing and/or maintaining the Business
Center in the manner required herein and consistent with the level of management reasonably
expected in business centers of the quality and type of similar business centers in the same
metropolitan area, such Owner may upon at least sixty (60) days prior written notice to the
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Maintenance Director and the other Owners, elect to assume the obligations of the Maintenance
Director to maintain, repair, replace and insure such Owner's portion of the Common Area,
except for resurfacing, lighting, insurance and other costs that cannot be practicably segregated
or allocated between the Parcels, which costs shall continue to be proportionately paid for by
each Owner (or its respective Occupants, as it may direct) pursuant to the fonnula in Article XI
above. In the event of any such asswnption by any Owner, such Owner agrees to maintain, repair
and replace its portion of the Common Area at its sole cost and expense and in a manner and at a
level of quality at least comparable to that of the balance of the Common Area. Any such Owner
may also elect to terminate its obligation to maintain, repair, replace and insure its portion of the
Common Area by giving at least sixty (60) days prior written notice to the Maintenance Director,
in which event the Maintenance Director shall resume its duties with respect to said Parcel and
the Owner will thereafter resume paying for its pro rata share of all CAM Costs thereafter
incurred by the Maintenance Director in accordance with this Declaration. Anything in the
preceding sentence to the contrary notwithstanding, the Owner electing to terminate its
obligation to maintain, repair, replace and insure its portion of the Common Area shall return
said Common Area to the Maintenance Director in the same quality and condition as the balance
of the Common Area, any failure of which shall be corrected at the sole cost and expense of said
Owner.
ARTICLE XVI
RESPONSIBILITY IF NO MAINTENANCE DIRECTOR
In the event there should at any time cease to be a Maintenance Director, each
Owner shall be responsible for the maintenance, insurance and lighting of its own Parcel as if
each such Owner had the responsibilities of the Maintenance Director enumerated in Section 6.1
above. All such maintenance of the Common Area shall be consistent with other first-class
business centers in the Newport Beach, California area. In the event any Owner defaults in the
performance of such obligations, any other Owner may cause the performance of the obligations
of the defaulting Owner and bill the defaulting Owner for the expenses incurred. In such event,
the provisions and remedies of Sections 13 .2, 13 .4, 14.1 and 14.2 shall apply.
ARTICLE XVII
LIABILITY INSURANCE; INDEMNIFICATION
17.1. Liability Insurance:
(a) Each Owner shall maintain or cause to be maintained commercial general
liability insurance with broad form coverage endorsement (including broad form property
damage endorsement) insuring against claims on account of loss of life, personal injury or
property damage that may arise from, or be occasioned by the condition, use or occupancy of
each Owner's building, including the Service Facilities on such Owner's Parcel, by each Owner
and its Occupants (the "Owners Liability Insurance"). The insurance required pursuant to this
Section 17. l(a) shall include the following provisions: (i) shall provide that the policy may not
be canceled or reduced in amount or coverage below the requirements of this Declaration,
without at least thirty (30) days prior written notice by the insurer to each insured and to each
additional insured; (ii) shall provide for severability of interests; (iii) shall provide that an act or
omission of one of the insured or additional insureds that would void or otherwise reduce
coverage, shall not reduce or void the coverage as to the other insureds; (iv) shall provide for
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contractual liability coverage, naming all other Owners as additional insureds, endorsed to cover
said Owner's agreement to indemnify as set out in Section 17.4 below; and (v) shall be primary
and non-contributory. Each Owner agrees to furnish to any other Owner requesting same a
certificate affirming that: (i) such insurance is in full force and effect; (ii) the premiums have
been paid in full; (iii) the appropriate parties are designated as additional insureds as required by
this Declaration; (iv) the policy contains any required waiver of subrogation; and (v) such
insurance may not be cancelled or coverage reduced below the levels required to be maintained
hereunder without at least thirty (30) days prior written notice to all insureds and additional
insureds.
(b) The Owner's Liability Insurance shall be carried by an insurance company or
companies qualified to do business in the State in which the Business Center is located with a
Best's Key Rating Guide Property-Casualty United States rating of at least an A-and a financial
rating of XII, and having limits for bodily injury to or personal injury to or death of any person,
or more than one (1) person, or for damage to property, in an amount of not less than Two
Million and No/100 Dollars ($2,000,000.00) combined single limit per occurrence/aggregate,
such coverage to be in a commercial general liability form with at least the following
endorsements: (i) deleting any employee exclusion on personal injury coverage; (ii) including
coverage for injuries to or caused by employees; (iii) providing for blanket contractual liability
coverage (including an Owner's indemnity obligations contained in this Declaration), broad form
property damage coverage and products completed operations, owner's protective and personal
injury coverage; (iv) providing for coverage of employers automobile non-ownership liability;
and (v) host liquor liability. The Owner's Liability Insurance shall be made on an "occurrence"
basis and not on a "claims made" basis. The insurance referenced in this Section 17 .1, may be
provided under (i) an individual policy covering this location, (ii) a blanket policy or policies that
includes other liabilities, properties and locations of such Owner; so long as the amount and
coverage of insurance required to be carried hereunder is not diminished, (iii) a plan of self-
insurance satisfying the criteria set forth in Section 17(c) below, or (iv) a combination of any of
the foregoing insurance programs. To the extent any deductible is permitted or allowed as a part
of any insurance policy carried by an Owner in compliance with Article 17, such Owner shall be
deemed to be covering the amount thereof under an informal plan of self-insurance; provided,
however, that in no event shall any deductible exceed $50,000.00 unless such Owner complies
with the requirements regarding self-insurance pursuant to Section 17.1 (c) below.
( c) Any insurance required to be maintained by a Consenting Owner hereunder
may be maintained in whole or in part either under a plan of self-insurance, or from a carrier that
specializes in providing coverage to or for such Consenting Owner or its affiliates, or firms in the
same or related businesses, if such Consenting Owner's net worth exceeds $100,000,000, as
shown on an audited financial statement, or if such Consenting Owner's financial statements are
reported on a consolidated basis with a parent corporation, then as certified by an officer of such
Consenting Owner.
17 .2. Common Area Liability Insurance: In addition to the foregoing insurance to be
maintained by the Owners, the Maintenance Director (or, for purposes of this Section 17.2, if
there is no Maintenance Director, then the individual Owners) shall provide and maintain
commercial general liability insurance with broad form coverage endorsement (including broad
form property damage endorsement) insuring the Maintenance Director against claims for loss of
life, personal injury, or property damage, occurring in, on or about the Common Area ("Common
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Area Liability Insurance"). All Owners shall be named on the policy as additional insureds
without limitation as to the scope of coverage or terms of the policy applicable to such party.
Any Owner shall have the right to require that such insurance name any other Person as an
additional insured, but only if any increase in premiums caused by such other Person is borne
entirely by the requesting Owner, and not included in CAM Costs. The Common Area Liability
Insurance shall be carried by an insurance company or companies qualified to do business in the
State in which the Business Center is located with a Best Key Rating Guide Property-Casualty
United States rating of at least an A-and a financial rating of Xll, and having limits for bodily
injury to or personal injury to or death of any person, or more than one (I) person, or for damage
to property, in an amount of not less than Two Million and No/100 Dollars ($2,000,000.00)
combined single limit per occurrence/aggregate, such coverage to be in a commercial general
liability form with at least the following endorsements: (i) deleting any employee exclusion on
personal injury coverage; (ii) including coverage for injuries to or caused by employees; and (iii)
providing for blanket contractual liability coverage (including the Maintenance Director's
indemnity obligations contained in this Declaration), broad form property damage coverage and
products completed operations, owner's protective and personal injury coverage. The Common
Area Liability Insurance shall be made on an "occurrence basis" and not on a "claims made
basis. 11 The Maintenance Director shall furnish to all Owners, on or before each effective date of
the policy of insurance required to be carried under this Section, a certificate stating that: (i) such
insurance is in full force and effect; (ii) the premiums have been paid in full; (iii) all Owners (and
any other Person requested in accordance with this Section) are designated as additional
insureds; and (iv) such insurance may not be cancelled or coverage reduced below the levels
required to be maintained herewider without at least thirty (30) days prior written notice to all
insureds and additional insureds.
17.3. Insurance Coverage During Construction:
(a) Prior to commencing any construction activities within the Business Center,
each Owner, Occupant and/or the Maintenance Director shall obtain or require its contractor to
obtain and thereafter maintain so long as such construction activity is occurring, at least the
minimum insurance coverages set forth below:
(i) Workers' compensation and employer's liability insurance:
(a) Worker's compensation insurance as required by any
applicable law or regulation.
(b) Employer's liability insurance in the amount of $1,000,000
each accident for bodily injury, $1,000,000 policy limit for bodily injury by disease and
$1,000,000 each employee for bodily injury by disease.
(ii) General liability insurance: Commercial General Liability
insurance covering all operations by or on behalf of the general contractor, which shall include
the following minimum limits of liability and coverages:
(a) Required coverages:
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(1) Premises and operations;
(2) Products and Completed Operations;
(3) Contractual Liability, insuring the indemnity
obligations assumed by Contractor under the Contract Documents;
(4) Broad Form Property Damage (including
Completed Operations);
(5) Explosion, Collapse and Underground Hazards; and
(6) Personal Injury Liability.
(b) Minimum limits ofliability:
(1) $1,000,000 each occurrence (for bodily injury and
property damage)
(2) $1,000,000 for Personal Injury Liability,
(3) $2,000,000 aggregate for Products and Completed
Operations (which shall be maintained for a three (3) year period
following final completion of the work),
(4) $2,000,000 general aggregate applying separately to
this Business Center.
(iii) Automobile Liability Insurance: Any automobile liability
insurance (bodily injury and property damage liability) including coverage for owned, hired, and
non-owned automobiles, shall have limits of liability of not less than $1,000,000 combined
single limit each accident for bodily injury and property damage combined. The general
contractor shall require each of its subcontractors to include in their liability insurance policies
coverage for Automobile Contractual Liability.
(iv) Umbrella/Excess Liability Insurance: The general contractor shall
also carry umbrella/excess liability insurance in the amount of $2,000,000. If there is not per
project aggregate under the Commercial General Liability policy, the limit sha11 be $10,000,000.
(b) If the construction activity involves the use of another Owner's Parcel, then
the Owner of such Parcel shall be an additional insured and such insurance shall provide that the
insurance shall not be canceled, or reduced in amount or coverage below the requirements of this
Declaration, without at least thirty (30) days prior written notice to the additional insureds and
each additional insured. If such insurance is canceled or expires then the construction Owner
shall immediately stop all work on or use of the other Owner's Parcel until either the required
insurance is reinstated or replacement insurance obtained. The general contractor shall supply
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,.
each Owner and the Maintenance Director with Certificates with respect to all insurance required
by this Section 17 .3.
(c) Effective upon the commencement of construction of any building on its
Parcel and so long as such building exists, an Owner shall carry, or cause to be carried, or may
self-insure with respect to (subject to the requirements set forth in Section 17.2 above) property
insurance with "all-risk" coverage, in the amount of 100% of full insurable replacement cost
thereof (excluding footings, foundations or excavations).
17.4. Indemnification by Owners: To the extent not covered by any insurance required
to be maintained by the Maintenance Director pursuant to this Declaration, each Owner shall
defend, indemnify and hold every other Owner and its Permittees harmless for, from and against
any and all damages, liabilities, losses, actions, claims, costs and expenses (including reasonable
attorneys' fees and court costs and reasonable attorneys' fees and court costs on appeal) (i) in
connection with the loss oflife, personal injury and/or damage to property arising from or out of
any occurrence in or upon the indemnifying Owner's Parcel, or occasioned wholly or in part by
any grossly negligent or willful act or omission of the Owner or its Occupants; (ii) occurring in
the interior of any building constructed on the indemnifying Owner's Parcel, unless caused by the
grossly negligent or willful act or omission of the indemnified Owner or its Permittees; (iii) in
connection with the failure to comply with the provisions of this Declaration; (iv) in connection
with any act or omission of such Owner or its Permittees.
1 7 .5. Indemnification by the Maintenance Director: The Maintenance Director agrees
to indemnify, defend and hold harmless the Owners and Permittees of all Parcels for, from and
against any and all damages, liabilities, losses, actions, claims, costs and expenses (including
reasonable attorneys' fees and court costs and reasonable attorneys' fees and court costs on
appeal), judgments, proceedings and causes of action, for injury to or death of any person or
damage to or destruction of any property occurring in, on or about the Common Area (exclusive
of any Service Facilities or driveup or drive through customer service facilities) and arising out
of the perfonnance or nonperformance of any of the obligations of the Maintenance Director set
forth in this Declaration, unless caused by the grossly negligent or willful act or omission of the
indemnified Owner or its Permittees. If a Consenting Owner shall, without fault, be made a party
to any litigation commenced by or against another Owner or its Permittees, or if a Consenting
Owner shall, in its reasonable discretion, determine that it must intervene in such litigation to
protect its interest hereunder, then the indemnifying Owner shall defend such Consenting Owner
using attorneys reasonably satisfactory to such Consenting Owner and shall pay all costs,
expenses and reasonable attorneys' fees and costs in connection with such litigation. The
Consenting Owners shall have the right to engage its own attorneys in connection with any of the
provisions of this Section 17 .5 or any of the provisions of this Declaration, including, but not
limited to, any defense of or intervention by such Consenting Owner, notwithstanding any
contrary provisions of the laws or court decisions of the state in which the Business Center is
located.
17.6. Mutual Release: Each Owner (the "Releasing Party") hereby releases and waives
for itself, and each Person claiming by, through or under it, each other Owner (the "Released
Party") from any liability for any loss or damage to all property of such Releasing Party located
upon any portion of the Business Center, which loss or damage is of the type covered by the
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