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M. Draft CC&Rs [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -i - Recording Requested By: ___________________________ After Recordation, Return To: ___________________________ ___________________________ ___________________________ ___________________________ ___________________________ 02.29.12 PRELIMINARY CONCEPT DRAFT MAIN STREET CUPERTINO DECLARATION OF COVENANTS, RESTRICTIONS AND COMMON EASEMENTS AREAS TABLE OF CONTENTS ARTICLE PAGE ARTICLE 1. DEFINITIO NS ................................................................................................... 2 ARTICLE 2. DESCRIPTI ON OF CENTER, DIVISI ON OF PROPERTY, AND CRE ATION OF PROPERTY RIGHTS ...................................................................................... 11 ARTICLE 3. CENTER AS SOCIATION - MEMBERSHIP, VOTING A ND ADMINISTRATION ............ 18 ARTICLE 4. CENTER AS SESSMENTS .................................................................................... 20 ARTICLE 5. DUTIES AND POWERS OF THE CENTER ASSOCI ATION ....................................... 28 ARTICLE 6. PARKING A ND ROADS ...................................................................................... 32 ARTICLE 7. BUILDING MAINTENANCE AND OPER ATION ...................................................... 37 ARTICLE 8. INSURANCE .................................................................................................... 38 ARTICLE 9. CONSTRUCT ION WORK ................................................................................... 44 ARTICLE 10. USE REST RICTIONS ....................................................................................... 50 ARTICLE 11. DAMAGE O R DESTRUCTION ........................................................................... 52 ARTICLE 12. CONDEMNA TION ........................................................................................... 54 ARTICLE 13. GENERAL PROVISIONS ................................................................................... 55 3/16/2012 4:03 PM [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -1 - MAIN STREET CUPERTINO DECLARATION OF COVENANTS, RESTRICTIONS AND COMMON EASEMENT AREAS THIS MAIN STREET CUPERTINO DEC LARATION OF COVENANTS, RESTRICTIONS AND COMMON EASEMENTS AREAS (“Declaration”) is made effective as of _______________________ __, 2012, by 500 FORBES, LLC, a California limited liability company (the “Declarant”), with reference to the following facts: INTRODUCTION This Declaration is made with reference to the following facts: A. Declarant is the owner of the real property located in the City of Cupertino, County of Santa Clara, State of California described on Exhibit “A” attached hereto as the “Project Site”. B. Declarant has been and will in the future developing the Project Site as a mixed -use, retail/office project known as the Main Street Cupertino Center. C. Center Approvals. The Project Site is subject to the approvals and land use regulations from the City of Cupertino incorporated by this reference (the “Land Use Approvals”). D. The Project Site is comprised of the "Retail Parcel”, the two (2) “Office Parcels”, the Senior Residences Parcel, the “Hotel Parcel”, the “Hotel -Retail Parking Garage Parcel", and “Parcel 1 – Retail/Residential/Athletic Club” and th e each of which is designated and shown on the Site Plan as Exhibit “B”. E. The Retail Parcel is subject to (i) the Public Use Vehicular Access Easement; (ii) the Public Use Pedestrian Access Easement, (iii) the Private Vehicular Access Easement; and (iv) t he Private Pedestrian Access Easements. F. The Retail Parcel is subject to the City Park Easement for the City Park . G. The Retail Parcel is subject to the Town Center Square Easement for the Town Center Square . H. Declarant desires to establish a system f or the governance and operation of the Cupertino Main Street Center, including the formation of the Cupertino Main Street Association as set forth in this Declaration. I. The Declarant desired and intends for itself and for its successors and assigns, to establish and impose certain ease ments, covenants, rights, duties, obligations and responsibilities upon each Owner and Occupant of the Project Site under a general plan of development and operation, with respect to the development, conduct, operation and maintenance of an integrated deve lopment that will be binding upon each Owner and Occupant, will run with title to all of the Project Site and every portion thereof, and provide for the operation of the Center as an integrated mixed use development consisting of retail, hotel, office, ath letic club -residential or retail and senior residences uses. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -2 - NOW, THEREFORE , the Declarant hereby declares that all and every portion of the Project Site and all interests therein, shall be held, sold, leased, mortgaged, encumbered, rented, used, occupie d, improved and conveyed subject to the following declarations, limitations, easements, restrictions, covenants, and conditions, which are imposed as covenants running with the land and equitable servitudes pursuant to a general plan for the development of the Project Site, and which shall run with the Project Site and all interests in the Project Site and be binding on the Declarant and its successors and assigns, and on all parties having or acquiring any right, title or interest in or to the described P roject Site or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof. ARTICLE 1. DEFINITIONS 1.1. "Affiliate of the Declarant" shall mean a Person which is owned or controlled by or under common control with Declarant. 1.2. “Articles” shall mean the Articles of Incorporation of the Center Associatio n, as amended from time to time. 1.3. “Assessments” shall mean the assessments to be determined and levied by the Center Association and paid by the Owners in accordance with this Declaration and shall include without limitation: (a) Base Assessments; (b) Spec ial Assessments; (c) Cost Center Assessments, and (d) Reimbursement Assessments. 1.4. “Assessment Lien” shall mean the lien in favor of the Association for collection of delinquent Assessments as set forth in Section 4.12(C) of this Declaration. 1.5. "Base Assessm ents” shall mean the portion of the Assessments levied by the Center Association in accordance with Section 4.3 for the Base Budget Common Operational Costs included in the Base Budget. 1.6. “Base Budget” shall mean the budget to be prepared annually by the Bo ard under Section 4.3.(A). 1.7. “Base Budget Common Operational Costs” are defined in Section 4.3.(B). 1.8. “Board” shall mean the board of directors of the Center Association. 1.9. “Building” shall mean the building or buildings located on or within a Building Parc el. 1.10. “Building Area” shall mean: (A) in the case of a Building Parcel upon which a Building has been completed, the Building Area of such Building shall be the gross square footage of the Building on the Building Parcel as defined by the City’s Building Co de, or if not so defined, as building area of a building as defined in the currently applicable edition of the International Building Code, at the time the building permit was issued for such Building. (B) in the case of an Undeveloped Building Parcel the Buil ding Area of such Building shall be the gross square footage of the Building planned for that Undeveloped Building [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -3 - Parcel pursuant to the Land Use Approvals and memorialized herein in Section 2.3 of this Declaration and on Exhibit “F ” attached, or upon the completion of the construction of structure(s) that constitute the Building on such Parcel, the Building Area of such Building shall be as defined by the City’s Building Code, or if not so defined, as building area of a building is defined in the currentl y applicable edition of the International Building Code, at the time the building permit was issued for such Building. 1.11. “Building Association” shall mean any association formed for a Building Parcel pursuant to a Building Declaration. 1.12. “Building Compo nents” shall mean portions of Building Parcels that are established, divided or designated as one or more Office Facilities or Retail Facilities or Portions as provided in a map or plan or otherwise designated or established by the Center Association under Construction Work Review pursuant to Section. 1.13. “Building Condominium Plan” shall mean a condominium plan of a Building Parcel filed for record in the Official Records that divides a Building Parcel into separate ownership components or portions whether filed prior to or after the date of the making of this Declaration. 1.14. "Building Declaration" shall mean any declaration of covenants, restrictions and easements for a Building Parcel, which describes, among other things, with respect to such Building Par cel: (a) the separate ownership components or portions located therein; (b) the easements of use and support among the separate Owners of the components or portions of the Building; (c) the maintenance and operation of the Building located therein; and (d) such other matters as may be required hereunder or as may otherwise be agreed by the separate Owners of the components or portions of the Building. 1.15. "Building Improvement" shall mean the Improvements for a Building located on a Building Parcel. 1.16. "Bu ilding Parcel" shall mean each of the separate parcels shown and described on the Map as Lots 1, 2, 3, 4 5, 6 and 7, and which are more particularly described on Exhibit “D” the Project Site Plan. The Building Parcels may include the Retail Parcel containi ng Retail Facilities, the Office Parcels containing Office Facilities, the Senior Residences Parcel, the Hotel Parcel, the Hotel -Retail Garage Parcel and Parcel 1 – Retail/Residential/Athletic Club that may be an athletic club, other retail or residential uses as determined by the City. 1.17. “Building Parcel Developer” shall mean and refer to an Owner who acquires a Building Parcel or a portion of a Building Parcel from the Declarant and is designated as a Building Parcel Developer by the Declarant in a written notice delivered to the Center Association for the purpose of the original construction of a Building within the Building Parcel, Building Component or other portion of the Building Parcel. 1.18. "Building Parcel Map" shall mean a subdivision map of a Buildin g Parcel filed for record in the Official Records that authorizes the division of a Building Parcel into separate Building Components or other portions or interest for separate ownership, whether filed prior to or after the date of the making of this Decla ration. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -4 - 1.19. “Bylaws” shall mean the Bylaws of the Center Association, as amended from time to time. 1.20. “Center” shall mean the Main Street Cupertino Center, the mixed use project developed or to be developed on the Project Site. 1.21. “Center Association" shall m ean the Main Street Cupertino Center Association, a California nonprofit mutual benefit corporation. 1.22. “Center Operational Standards” shall mean the standards established by the Declarant for the operation and maintenance of the improvements and facilitie s within the Center, including but not limited to the Common Easement Areas and the Buildings. 1.23. “Center Parking Facilities” shall mean collectively the Hotel -Retail Parking Garage and the exterior surface parking areas located within the Common Easement A reas of the Retail Parcel. The term Center Parking Facilities does not include the Office Parking Garage, or any surface parking or parking garages on the Office Parcels, the Senior Residence Parcel, or the Parcel 1 – Retail/Residential/Athletic Club Parc el. 1.24. “Center Roadway” shall mean all private roads designated as “PVAE” located within Center Easement Areas on Lot 4 (the Retail Parcel) now or hereafter existing in the Project Site designated on the Map as “Center Roadway” which the Center Association i s obligated to maintain and operate under this Declaration. 1.25. “City” shall mean the City of Cupertino, California, a municipal corporation. 1.26. “City Park” shall mean and refer to the park located in the City Park Easement. 1.27. “City Park Easement” shall mean and refer to that portion of Lot 4 that is designated on the Map as the City Park. 1.28. “City Park Easement Agreement” shall mean and refer to the City Park Easement Agreement between Declarant and the City which shall be binding upon the Association and each of the Owners that is [or will be] recorded on Lot 4 [the Retail Parcel]. 1.29. "Common Easement Areas” shall mean: (A) Those portions of the Project Site described and defined in this Declaration as Common Easement Areas, including (i) the Public Use Veh icular Access Easement; (ii) the Public Use Pedestrian Access Easement, (iii) the Private Vehicular Access Easement; and (iv) the Private Pedestrian Access Easements. (B) Common Easement Areas shall include the Center Roadways as defined in this Declaration which shall include the private roads and driveways within the Public Use Vehicular Access Easements and the Private Vehicular Access Easements of the Project Site, except for those that are established solely for the use of a specific Building Parcel or the Occupants thereof. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -5 - (C) Common Easement Areas shall include the Town Center Square. (D) Common Easement Areas shall include the City Park. For the purpose of this Declaration, Common Easement Area shall not include the (i) Office Parking Garage, (ii) any par king on the Office Parcels, (iii) any parking on the Senior Residences Parcel nor (iv) any parking on Parcel 1 – Retail/Residential/Athletic Club. 1.30. “Common Operational Costs” shall mean the costs and expenses incurred by the Center Association in connectio n with the operation, maintenance, equipping and repair of the Common Easement Areas, the fulfillment by the Center Association of its duties, obligations and powers set forth in this Declaration, including, but not limited to the following costs and expe nses: (a) operating, equipping, maintaining, repairing, replacing, lighting, cleaning, striping, and removing garbage, trash and debris from all Common Easement Areas; (b) all premiums, fees and other charges for insurance required to be maintained by the Center Association pursuant to this Declaration; (c) landscaping of Common Easement Areas ; (d) all replacement and improvements of or to the Common Easement Area s, including, without limitation, the Center Parking Facilities and Center Roadway s; (e) reason able amounts for capital replacements and reserves for the Common Easement Areas; (f) costs of maintenance, repair and replacement of Center Parking Facilities and for the operations and management of the Center Parking Facilities pursuant to Article 6 ; (g) machinery and equipment; (h) all license and permit fees and any and all parking surcharges; (i) employing the Manager and other personnel, including the salaries, benefits and insurance costs of the Manager and other personnel; (j) all costs of utility services provided to the Common Easement Area s; (k) operating, maintaining, and repairing the Utility Facilities to the extent such Utility Facilities are located within the Common Easement Area s; (l) costs of traffic regulation and control signs and devi ces within the Common Easement Area s ; (m) all legal, accounting and other fees and expenses incurred by the Center Association in maintaining its status and qualification as an entity in good standing and entitled to do business under the laws of the State of California and preparing any financial statements, tax returns, audits and other financial statements and documentation required to be prepared by the Center Association pursuant to this Declaration or otherwise; (n) the costs and expenses incurred by the Center Association for the administration, management and operation of the Center Association including, but not limited to, compensation for managers, accountants, attorneys, and employees, and (o) all costs and expenses paid to third parties (includ ing the Declarant) by the Center Association for providing any of the foregoing services. 1.31. “Construction Work” shall mean any construction, installation, alteration, modification or reconstruction of any Building, structure, fence, wall, obstruction, ou tside or exterior wiring, balcony, screen, patio, patio cover or other improvement of any kind, excluding installation of storefronts of Retail Spaces or improvements to the interior of a Building . 1.32. “Construction Work Review” shall mean the review by the Construction Work Review Body described in Section 9.2 of this Declaration. 1.33. “Cost Center” shall mean a designation of Building Parcels or other Building Components of the Center as to which Cost Center Assessments are to be levied for Cost Center Service s provided by the Center Association to those Building Parcels or other Components of the Center as described in this Declaration. “Cost Center” shall mean the separate designation of any type or types of costs that specifically relate to a Building Parce l, Component, user, or [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -6 - type of user in order to more specifically and directly allocate those costs to that Building Parcel, Component, user or groups thereof who are the particular beneficiary of the Cost Center Services for which the costs are incurred. Additional separate Cost Centers may be created on as needed basis with the goal of isolating those costs more directly to the beneficiaries of same upon the approval of the Board and the approval by the Declarant as long as Declarant holds Declarant’s Re served Rights. 1.34. “Cost Center Assessments” shall mean the assessments levied and assessed by the Center Association in accordance with Section 4.7 for Cost Center Services, including any such costs and expenses under a third party operating agreement ma de by the Center Association for such Cost Center Services. 1.35. “Cost Center Budget” shall mean the budgets for Cost Center Services to be prepared annually by the Board under Section 4.8(A). 1.36. “Cost Center Services” shall mean those services and activities o f the Center Association, including services provided by the Center Association from Utility Facilities that are specified herein as Cost Center Services or are determined by the Center Association to provide benefits disproportionately to one or more Buil ding Parcels, or Building Components, or portions thereof, including those Cost Center Services stated in Section 4.8 . 1.37. “County” shall mean the County of Santa Clara, California, a municipal corporation. 1.38. “Declarant” shall mean and refer to 500 FORBES, L LC, a California limited liability company, and any successors or assigns thereof that expressly assume all of the rights and duties of the Declarant under this Declaration in a recorded written document executed by the Declarant and such successor or assi gn. 1.39. “Declarant’s Reserved Rights” shall mean and refer to the rights reserved to the Declarant or Building Parcel Developers under this Declaration pursuant to Section 13.26 . 1.40. “Declaration” shall mean this Declaration as the same may be further amended or supplemented from time to time. 1.41. “First -Class Project" shall mean a mixed -use commercial retail/office project constructed, operated, maintained, restored and replaced substantially in accordance with quality standards comparable to other mixed use pro jects in the San Francisco/San Jose Bay Area. 1.42. “Hotel Parcel” shall mean and refer to Lot 3 which is the hotel parcel and the improvements built or to be built thereon that is established and operated for hotel and or retail uses under the Land Use Appro vals and this Declaration. 1.43. “Hotel -Retail Parking Garage Parcel” shall mean and refer to Lot 5 which is the Building Parcel upon which the Hotel -Retail Parking Garage has been or will be constructed and operated under the Land Use Approvals and this Decla ration. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -7 - 1.44. “Hotel -Retail Parking Garage” shall mean and refer to the hotel/retail parking garage situated on Lot 5 [including, without limitation, all garages, ramps, drive aisles and entranceways]. 1.45. "Improvements" means all Buildings, Center Parking Fac ilities , and Common Easement Area improvements within the Project Site, including, but not limited to, all buildings, structures, parking or loading areas, driveways, roadways, pathways, walkways, display or storage areas, arcades, stairs, decks, Utility F acilities (as defined below), fences, walls, screening walls, retaining walls, barriers, poles, signs, canopies supports, loading docks, truck ramps and other outward extensions of a Building, Parking Garages, and all other structures, installations, syste ms and landscaping of any kind (whether above or below the ground), and fountains and sculptures, within the Project Site, including the Buildings and any replacements, additions, repairs or alterations thereto of any kind whatsoever, and anything erected, built, placed, installed or constructed on, over or under the Project Site. 1.46. "Invitees" shall mean the tenants, customers, guests, Occupants, employees, agents and other invitees of Owners in the Center. 1.47. “Land Use Approvals” shall mean the Land Use A pprovals described in Introductory Paragraph D and listed on Exhibit “C” of this Declaration. 1.48. “Majority of the Voting Power” shall mean the vote of the Members that represent at least one vote greater than the votes represented by fifty percent (50%) of the Voting Power of the Members of the Center Association who are eligible to vote under the Bylaws. 1.49. "Manager" shall mean the professional manager or management company hired by the Board to manage and operate the Center Association and/or the Center. 1.50. "Map" shall have the meaning set forth in Introductory Paragraph A on page 1 of this Declaration. 1.51. “Member” shall mean and refer to the members in the Center Association which shall be the Owner of each Building Parcel, or, in the alternative, for any Bu ilding Parcel that has been divided into separate Building Components, the Building Association for that Building Parcel. 1.52. “Mortgage” shall mean a mortgage, deed of trust, assignment of rents, issues and profits or other proper instruments (including, wit hout limitation, those instruments and estates created by sublease or assignment), given as security for the repayment of loan(s) or financing(s) which encumbers an Owner’s interest in the Project Site, made in good faith and for value. 1.53. “Mortgagee” shall mean the holder of a Mortgage, including, without limitation, a beneficiary under a deed of trust as well as a mortgagee. 1.54. “Occupant” shall mean a Person that is entitled to use and occupy from time to time all or a portion of a Building Parcel, or any por tion thereof, whether pursuant to ownership, lease, sublease or otherwise by other occupancy agreement. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -8 - 1.55. “Official Records” shall mean the official records of the Office of the Recorder of the County. 1.56. “Office Facilities" shall mean the Office Parcels and all Improvements thereon, including the Office Parking Garage. 1.57. "Office Owner" shall mean the Owner from time to time of an Office Parcel. 1.58. “Office Parcel” shall mean Lot 6 and Lot 7, which are the Building Parcels that is established and operated for o ffice use as an Office Facility under the Land Use Approvals and this Declaration. 1.59. “Office Parking Garage” shall the parking garage that is part of the Office Facilities on Lot 6 for parking uses for the Office Parcels including, without limitation, all garages, ramps, drive aisles and entranceways. 1.60. “Owner” shall mean the record owner from time to time, whether one (1) or more Persons, of fee simple title to any Building Parcel or Building Component. The term Owner shall exclude (i) those Persons havi ng merely a security interest in a Building Parcel or any Building Component for the performance of an obligation, until and unless such Person takes fee title thereto, and (ii) parties who have leasehold interests in a Building Parcel or a Building Compon ent. 1.61. “Parcel 1 – Retail/Residential/Athletic Club Parcel” shall mean Lot 1, which is the Building Parcel that is established and to be operated for athletic club use, retail use or residential uses under the Land Use Approvals and this Declaration. 1.62. “Pe rmittees" shall mean, as to each Owner, its respective Occupants, officers, directors, employees, agents, patrons, guests, customers, Invitees, contractors, visitors, licensees, vendors, suppliers, tenants and concessionaires. 1.63. “Person” means natural pers ons, corporations, partnerships, limited liability companies, firms, associations, trusts, trustees, or any other form of governmental or business entity and the singular shall include the plural. 1.64. “Prime Rate" shall mean the Ban of America prime or refer ence rate as announced from time to time, or, if the Bank of America prime or reference rate ceases to exist the Prime Rate shall be the prime rate, reference rate or equivalent announced from time to time by the lending institution in the State of Califor nia having the greatest dollar volume of deposits. 1.65. “Private Vehicular Access Easement” shall mean and refer to the easements shown on the Map as “PVAE” that are private non -exclusive easements over and across the Retail Parcel for vehicular ingress and eg ress as set forth in Section 2.7 hereof. 1.66. “Private Pedestrian Access Easements” shall mean and refer to the easements shown on the Map as “PPAC” that are private non -exclusive easements over and across the Retail Parcel for pedestrian ingress and egress as set forth in Section 2.8 hereof. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -9 - 1.67. “Project Site” shall mean and refer collectively to the real property described and defined as the “Project Site” as referred to in Introductory Paragraph A and as described Exhibit “D” attached hereto. 1.68. “Public Use Pedestrian Access Easement” shall mean and refer to the easements shown on the Map as “PUPAE” that are public non -exclusive easements over and across the Retail Parcel for pedestrian ingress and egress as set forth in Section 2.9 hereof. 1.69. “Public Us e Vehicular Access Easement” shall mean and refer to the easements shown on the Map as “PUVAE” that are public non -exclusive easements over and across the Retail Parcel for vehicular ingress and egress as set forth in Section 2.10 hereof. 1.70. “Reimbursemen t Assessment” shall mean the assessments levied and assessed by the Center Association in accordance with Section 4.8 to reimburse the Center Association for costs and expenses incurred to: (a) repair damage to those portions of the Center as to which the Center Association has responsibility for maintenance and repair but for which damage an Owner or its Invitees were responsible; (b) enforce this Declaration; or (c) bring an Owner and/or the Owner’s interest in a Building Parcel, or Building Component int o compliance with the provisions of the Documents. 1.71. "Retail Component" shall mean: (a) a Building Parcel that is a Retail Parcel or portion of a Building Parcel that is designated and described on a Building Parcel Map, Building Condominium Plan or in a B uilding Declaration as a Retail Component or Retail Facility or otherwise designated or established by the Center Association as a Retail Component under Construction Work Review pursuant to Section 9.2 and (b) a Building Parcel or portion of a Building P arcel designated in this Declaration or a Supplemental Declaration exclusively for Retail Facilities. 1.72. “Retail Facilities" shall mean the Retail Parcels and Retail Components and all Improvements thereon. 1.73. "Retail Owner" shall mean the Owner from time to time of a Retail Portion. 1.74. “Retail Parcel” shall mean Lot 4, which is the Building Parcel that is established and operated for retail uses under the Land Use Approvals and this Declaration. 1.75. “Retail Project” shall mean a commercial condominium projec t that may be established for the improvements within Lot 4, the Retail Parcel. 1.76. “Retail Space” shall mean those areas within a Retail Component that are used exclusively by a Retail Owner or its tenant, or other Occupant as such Retail Space is distinguis hed from common areas of the Building used by other Owners or Occupants of the Building in which the Retail Space is located. The term Retail Space shall include applicable storefronts and any loading dock or exterior seating or dining areas designated ex clusively for use by the Occupant of the Retail Space. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -10 - 1.77. “Rules” shall mean rules and regulations adopted from time to time by the Center Association regarding the use of the Common Easement Areas, and other portions of the Center. 1.78. “Senior Residences” sha ll mean the senior residences project built or to be built on the Senior Residences Parcel. 1.79. “Senior Residence Parcel” shall mean Lot 2, which is the Building Parcel that is established and operated for Senior Residences use under the Land Use Approvals and this Declaration. 1.80. “Special Assessments” shall mean the assessments levied and assessed by the Center Association in accordance with Sections 4.4 and 4.5 for unexpected operating or other costs, insufficient operating or reserve funds, or such other purposes as the Board, in its discretion, considers appropriate. 1.81. "Supplemental Declaration" shall mean any supplemental declaration executed and recorded in the Official Records in accordance with Section 2.20 . 1.82. "Town Center Square" shall mean that portio n of Lot 4 (the Retail Parcel) that is designated on the Map as “Town Center Square”. 1.83. “Use Permit” shall mean any use, planned development, site development or similar permits regarding the use of the Center, or portion thereof, including any Building Pa rcel or Building Component, as may be approved and issued by the City from time to time, including the Master Planned Development Permit. 1.84. “Utility Facilities” shall mean sanitary sewer, drainage, water, electric, gas, radio, television receiving, t elephone, data and telecommunications facilities, pipes, equipment, cables and lines within the Common Easement Areas. 1.85. “Voting Power” shall mean and refer to the votes attributable to all of the Members of the Center Association who are Owners of Building Parcels as set forth in Section 3.3 on the basis of the votes allocated to each Building Parcel as set forth in this Declaration and are eligible to vote. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -11 - ARTICLE 2. DESCRIPTION OF CENTER, DIVISION OF PROPERTY, AND CREATION OF PROPERTY RIGHTS 2.1. Description of Center . The Center is a mixe d use development consisting of the [seven (7) Building Parcels and the Common Easement Areas located over and across the Retail Parcel. (A) The Common Easement Areas include (i) the Public Use Vehicular Access Easements; (ii) the Public Use Pedestrian Access Easements, (iii) the Private Vehicular Access Easements; (iv) the Private Pedestrian Access Easements (v) the Town Center Square and (vi) the City Park. (B) The Hotel -Retail Parking Garage Parcel contains the Hotel -Retail Parking Garage that is to be ope rated by the Association for the use and benefit of the Hotel Parcel and the Retail Parcel as provided in Section 6.3(C) and Section 6.3(D) of this Declaration, with the costs and expenses of such operations to be charged as Cost Center Assessments to the Hotel Parcel and the Retail Parcel as set forth in Section 4.6(B) of this Declaration. 2.2. Building Parcels . The Center consists of the seven (7) Building Parcels. The Building Areas of each Building Parcel or Building Component as of the date of recordat ion of this Declaration are stated on Exhibit “D”. The Building Parcels have been and may in the future be improved with one or more Buildings and related Improvements. As long as Declarant holds Declarant’s Reserved Rights hereunder, Declarant may modify Exhibit “D” from time to time as Declarant determines necessary to cause Exhibit “D” to be consistent with the approved design and layout of the Center as approved by the City. Such modifications shall be effectuated by Declarant making and recording a Su pplemental Declaration. A Bu ilding Parcel may be subdivided by a Building Parcel Map or a Building Condominium Plan into separate uses and separate ownership. A Building Declaration shall be made and recorded in the Official Records for each Building Parcel that is divided into more separate uses and separate ownerships. The Building Declaration and any amendments thereto shall be subject to review and approval of the Declarant, as long as Declarant holds Declarant’s Reserved Rights under this Declaration, or if Declarant does not ho ld such Declarant’s Reserved Rights under this Declaration, by the Center Association. 2.3. Rights of Owners . No Owner, Occupant, or its Invitees, shall take any action within the Center that would materially interfere with the rights granted to other Owner s, Occupants, or their Invitees pursuant to this Declaration, except as permitted by the Board, or adversely affect the structural integrity or safety of any Building or improvements within the Center. 2.4. Common Easement Areas . The Common Easement Areas have been or may be improved in the future with Center Roadwa ys, Center Parking Facilities, landscaping, sidewalks, walkways, courtyards, parks, road improvements, signage, monumentation and other facilities and improvements for the common use and benefit of the Owners, Occupants and their Invitees, subject to the r ights and limitations stated in this Declaration. The Board, in its sole discretion, shall have the right to permit Retail Owners or the Occupants of Retail Facilities and their Invitees use of designated portions of the Common Easement Areas in reasonable proximity of the Retail Facilities for exterior use of restaurants or other commercial -retail uses. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -12 - 2.5. Common Easement Area Easements and Use Rights . The Common Easement Areas are hereby reserved and established for the use and benefit of the Center Assoc iation, the Owners, Occupants and their Invitees, and may be improved by the Declarant and the Center Association with Center Parking Facilities, landscaping, sidewalks, walkways, courtyards, parks, road improvements, signage, monumentation and other facil ities and improvements for the common use and benefit of the Owners, the Occupants and their Invitees. Each Owner shall have as appurtenant to its ownership interest in a Building Parcel or portion thereof, a limited, non -exclusive right and easement over and across the Common Easement Areas, for a term and duration coextensive with the Owner’s Unit Owner’s title or interest in such Building Parcel, for ingress and egress, use and enjoyment for that Owner, the Occupants in such Building Parcel Project, and the Invitees of such Owner as herein described. (A) Such rights (1) shall include the non -exclusive rights to use the Common Easement Areas, including, without limitation, the sidewalks, walkways and other improvements and facilities located therein, (2) s hall be subject to the rights established under this Declaration that are reserved or granted to the Center Association and the Declarant regarding the use, operation, management, maintenance and repair of the Common Easement Areas, and (3) shall be subjec t to the Rules. No Owner, Occupant or its Invitees shall take any action within the Common Easement Areas that would materially interfere with the use of Common Easement Areas by other Owners, Occupants or Invitees, except as permitted by the Board, or th at would adversely affect the structural integrity or safety of any Building or improvements within the Center. (B) The location and use of the Common Easement Areas shall be subject to modifications and changes to Buildings and the Common Easement Areas as are approved by the City, an d the Owner or Owners of the Building Parcel in which any such Common Easement Area is located. 2.6. Center Roadways . The Center Roadway s shall constitute access for emergency vehicles, as emergency vehicle access easements, providing access, ingress and egress over and across the Center Roadway s to the public streets on the periphery of the Center for providers of police, fire and emergency vehicle services, and by representatives and agents of the City. Further, each Owner shall have as appurtenant to its int erests in a Building Parcel or portion thereof, a limited, non -exclusive right and easement over and across the Center Roadway s, for a term and duration coextensive with the Owner’s title or interest in such Building Parcel, for ingress and egress, use and enjoyment of the Center Roadway s for that Owner, the Occupants in such Building Parcel, and the Invitees of such Owner, as herein described. Such rights shall be subject to the rights established under this Declaration that are reserved or granted to the Center Association and the Declarant regarding the use, operation, management, maintenance and repair of the Center Roadway s and shall be subject to the Rules. No Owner, Occupant or its Invitees shall take any action within the Center Roadway s that would materially interfere with the use of Center Roadway s by other Owners or Invitees, except as permitted by the Board, or that would adversely affect the structural integrity or safety of any Building or improvements within the Center. The use of the Center Roadway s shall be subject to the Rules and other limitations established from time to time by the Declarant, as long as Declarant as long as Declarant holds Declarant’s Reserved Rights under this Declaration. After such time as Declarant no longer [holds Declarant’s Reserved Rights under this Declaration], or after Declarant relinquishes its rights hereunder in a recorded written [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -13 - document, the [Retail Owner][Center Association Board] may establish the rules and regulations regarding the conduct of activiti es within the Center Roadway s. 2.7. Private Vehicular Access Easements . The Private Vehicular Access Easements are hereby established over and across those portions of the [Building Parcels] [Retail Parcel] as shown on the Map by the designation PVAE for [th e use and benefit the Owners and Occupants within the Center] The use of the Private Vehicular Access Easements shall be subject to the Rules and other limitations established from time to time by the Declarant, as long as Declarant as long as Declarant ho lds Declarant’s Reserved Rights under this Declaration. After such time as Declarant no longer [holds Declarant’s Reserved Rights under this Declaration], or after Declarant relinquishes its rights under this Section in a recorded written document, the [R etail Owner][Center Association Board] may establish the rules and regulations regarding the conduct of activities within the Private Vehicular Access Easements . 2.8. Private Pedestrian Access Easements . The Private Pedestrian Access Easements are hereby est ablished over and across those portions of the [Building Parcels] [Retail Parcel] as shown on the Map by the designation PPAE for [the use and benefit of the Owners and Occupants within the Center]. The use of the Private Pedestrian Access Easements shall be subject to the Rules and other limitations established from time to time by the Declarant, as long as Declarant as long as Declarant holds Declarant’s Reserved Rights under this Declaration. After such time as Declarant no longer [holds Declarant’s Re served Rights under this Declaration], or after Declarant relinquishes its rights hereunder in a recorded written document, the [Retail Owner][Center Association Board] may establish the rules and regulations regarding the conduct of activities within the Private Pedestrian Access Easements . 2.9. Public Use Pedestrian Access Easement. The Public Use Pedestrian Access Easements are hereby established over and across those portions of the [Building Parcels] [Retail Parcel] as shown on the Map by the designati on PUPAE for the use and benefit of the public and the Owners and Occupants within the Center. The use of the Public Use Pedestrian Access Easements shall be subject to the Rules and other limitations established from time to time by the Declarant, as long as Declarant as long as Declarant holds Declarant’s Reserved Rights under this Declaration. After such time as Declarant no longer [holds Declarant’s Reserved Rights under this Declaration], or after Declarant relinquishes its rights hereunder in a recor ded written document, the [Retail Owner][Center Association Board] may establish the rules and regulations regarding the conduct of activities within the Public Use Pedestrian Access Easements . 2.10. Public Use Vehicular Access Easement . The Public Use Vehicu lar Access Easements are hereby established over and across those portions of the [Building Parcels] [Retail Parcel] as shown on the Map by the designation PUVAE for [the use and benefit of the public and the Owners and Occupants within the Center. The use of the Public Use Vehicular Access Easements shall be subject to the Rules and other limitations established from time to time by the Declarant, as long as Declarant as long as Declarant holds Declarant’s Reserved Rights under this Declaration. After suc h time as Declarant no longer [holds Declarant’s Reserved Rights under this Declaration], or after Declarant relinquishes its rights hereunder in a recorded written document, the [Retail Owner][Center Association Board] may establish the rules and regulati ons regarding the conduct of activities within the Public Use Vehicular Access Easements . [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -14 - 2.11. Hotel -Retail Parking Garage and Center Parking Facilities . (A) The Owner or Owners of the Retail Parcel and of the Hotel Parcel shall have, as appurtenant to its ow nership interests in and to Retail Parcel and of the Hotel Parcel or any portion thereof for use by such Owner and its Permittees, a limited, non -exclusive right and easement over and across the Hotel -Retail Parking Garage and the other Center Parking Faci lities for a term and duration coextensive with the Owner’s title or interest in such Retail Parcel and of the Hotel Parcel or portion thereof, for ingress and egress and the parking of motor vehicles of that Owner and the Permittees of that Owner as descr ibed and proscribed in Section 6.3 . Such rights shall be subject to the rights established under this Declaration that are reserved or granted to the Center Association and the Declarant regarding the use, operation, management, maintenance and repair of t he Center Parking Facilities and shall be subject to the Rules. (B) No Owner of a Building Parcel or Building Component, or their respective Permittees shall take any action within the Center Parking Facilities as that would materially interfere with the u se of the Center Parking Facilities by any Owner of Retail Parcel and of the Hotel Parcel or their respective Permittees, except as permitted by the Board, or that would adversely affect the structural integrity or safety of the Parking Garages within any Center Parking Facilities, any Building or other improvements within the Center. 2.12. Town Center Square Easement . Each Owner and its Invitees shall have rights over and across the Town Center Square for the benefit of Owners and their Invitees, subject to t he provisions of the Land Use Approvals, and the right of the Retail Owner holding title to the Parcel[s] on which the Town Center Square is located with the consent of Declarant, as long as Declarant holds Declarant’s Reserved Rights under this Declaratio n to designate portions of such Building Parcel on which the Town Center Square is located for exclusive use of its Permittees for areas or structures to be located within portions of such Building Parcels for commercial or retail uses. The use of the Town Center Square Easements shall be subject to the Rules and other limitations established from time to time by the Declarant, as long as Declarant as long as Declarant holds Declarant’s Reserved Rights under this Declaration. After such time as Declarant n o longer [holds Declarant’s Reserved Rights under this Declaration], or after Declarant relinquishes its rights hereunder in a recorded written document, the [Retail Owner][Center Association Board] may establish the rules and regulations regarding the con duct of activities within the Town Center Square Easements . 2.13. City Park Easement . The City Park Easement is hereby established over and across that portion of Lot 4 designated on the Map as the City Park [for the use and benefit of the public and the Owne rs and Occupants within the Center]. The City Park Easement shall be subject to the operational requirements set forth in the City Park Easement Agreement between Declarant and the City which shall be binding upon the Association and each of the Owners. The use of the City Park Easement shall be subject to the Rules and other limitations established from time to time by the Declarant, as long as Declarant as long as Declarant holds Declarant’s Reserved Rights under this Declaration. After such time as De clarant no longer [holds Declarant’s Reserved Rights under this Declaration], or after Declarant relinquishes its rights hereunder in a recorded written document, the [Retail Owner][Center Association Board] may establish the rules and regulations regardin g the conduct of activities within the City Park Easement . [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -15 - 2.14. Encroachment Ease ments . Each Owner shall have, as appurtenant to its ownership interest in and to a Building Parcel or any portion thereof, for the benefit of its ownership interests in such Buil ding Parcel as the dominant tenement, for a term and duration coextensive with the Owner’s, title or interest in such Building Parcel, a continuing right and easement over the Common Easement Area s, as the servient tenement, for the purpose of accommodatin g any encroachment due to foundations, exterior walls, windows, roof overhangs, balconies and fences, walls or other similar items which are built in accordance with the original design, plans and specifications of Declarant, or due to engineering errors, errors or adjustments in original construction, settlement or shifting of a Building, or similar causes. There shall be valid easements that permit such encroachments to remain for as long as they shall exist, and the rights and obligations of Owners, sha ll not be altered in any way by said encroachment, settlement or shifting; provided, however, that in no event shall a valid easement for encroachment be created in favor of an Owner, if said encroachment occurred due to the intentional conduct of said Own er, other than adjustments by Declarant or Declarant’s successors in the original construction of the improvements. If a structure is partially or totally destroyed which had such permitted encroachments, and such structure is repaired or rebuilt in accor dance with its original design and location, the encroachments over the Common Easement Area s shall be permitted to continue, and there shall be valid easements that permit such encroachments to remain for so long as they shall exist. 2.15. Maintenance and Co nstruction Easements . (A) Declara nt hereby reserves for and on behalf of the Center Association non -exclusive easements and rights of access over the Common Easement Area s and Center Roadway s, each Building Parcel, Building Component (exterior or Retail Spaces) for the purpose of performi ng such maintenance, repair, replacement, construction, reconstruction or restoration as the Center Association may do in accordance with the provisions of this Declaration, and for the purpose of maintaining, repairing, replacing, installing, reconstructi ng, or restoring Utility Facilities lying or otherwise located within the Common Easement Area s. (B) Non -exclusive easements are hereby reserved by Declarant , for a term and duration coextensive with Declarant’s title or interest in any portion of a Building Parcel, for access to, and i ngress and egress over, above and across, the Common Easement Area s and Center Roadways as reasonable and necessary to undertake and complete the development and construction of the Buildings, the Common Easement Area s, and the other improvements and facil ities of the Center. (C) Subje ct to the terms of this Declaration and the Rules, limited non -exclusive easements for access to, and ingress and egress over and across, Common Easement Area s and Center Roadways are hereby established, reserved and granted to each Owner for purposes of a llowing such Owner to undertake and complete development and construction of the Building Improvements within a Building Parcel owned by such Owner, and to repair, replace or restore the Building Improvements situated within the Building Parcel owned by su ch Owner. Any scaffolding and similar structures for undertaking any such maintenance, repair, replacement or restoration of improvements that intrudes into the Common Easement Area s and Center Roadways shall be subject to the prior approval of the Board n ot to be unreasonably withheld or delayed or inequitably applied, and shall be permitted to remain only for as long as reasonably necessary under the circumstances to accomplish such maintenance, repair, replacement or restoration. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -16 - 2.16. Drainage Easements . T here is hereby established, reserved and granted for the benefit of each Owner easements over and under the Center Roadways and the Common Easement Areas in favor of each the ownership interests in each Building Parcel, including Building Components therei n, for a term and duration coextensive with the Owner’s title or interest in such Building Parcel for the purposes of permitting drainage of storm waters from the Building Parcels including the Building Components therein, and allowing the Center Associati on’s agents to enter the common areas of a Building Parcel as necessary to maintain the storm drainage system that is located thereon and keep the system free of debris and other obstacles. No Owner, Occupant or Invitee shall commit any act that would int erfere with the operation of any drainage system (including surface drainage and drainage swales) installed on any Building Parcel or elsewhere in the Center. Reciprocal appurtenant easements between and among each Building Parcel and the Common Easement A reas and the Center Roadways over and across the Common Easement Areas, the Center Roadways and adjoining Building Parcels are hereby established, reserved and granted for the benefit of the Center Association and each Owner of an interest in a Building Pa rcel, including the Building Components therein, for the flow of surface and subsurface water from each of the Building Parcels, the Common Easement Areas and the Center Roadways. 2.17. Limitations and Conditions on Owner's Easements . The grant of the non -ex clusive easements in and to the Common Easement Area s and Center Roadways to Owners, described in Sections 2.7 through 2.13 above, and elsewhere herein, shall be subject to the following: (A) The right of the Center Association and the Declarant to adopt Rules and to enforce the provisi ons of this Declaration, the Bylaws and the Rules in accordance with the provisions of this Declaration and as stated in the Bylaws and Rules. (B) The Center Association ’s access rights to maintain, repair or replace improvements or real or personal property located in the Common Easement Area s and Center Roadways as provided in this Declaration. (C) The easement rights of Declarant, for said Declarant or for Building Parcel Developers and Owners for work necessary to complete development and construction of the improvements and infrastructure within the Center, the Build ing Parcels, or Building Components therein, as provided herein. (D) The easement rights of Declarant, the Center Association , and the Owners for work necessary to repair, replace or restore the Improvements situated within Building Parcels or Building Components therein as provided in th is Declaration; and (E) The right s of the Center Association and Declarant to install, repair or replace Utility Facilities and communications systems within the Common Easement Area s and Center Roadways as provided in this Declaration. (F) Declarant’s Reserved Rights hereunder. 2.18. Declarant ’s Reserved Rights in Common Easement Areas . Subject to the Land Use Approvals, as long as Declarant holds Declarant’s Reserved Rights under this Declaration, Declarant reserves the right to use portions of the Common Easement Area s for promotional activi ties for the commercial and retail uses in the Center and to charge for the use of such promotional activities. After such time as Declarant no longer holds Declarant’s Reserved Rights under this Declaration, the rights under this Section 2.18 shall becom e the rights of the [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -17 - Center Association to use portions of the Common Easement Area s for promotional activities for the commercial and retail uses in the Center as determined by the Board, and to charge for the use of such promotional activities, s ubject to the Land Use Approvals. 2.19. Other Easements . Each Building Parcel, Building Component, Common Easement Area s and Center Roadways are subject to all easements, dedications, and rights of way, if any, granted or reserved in, on, over and under the Project S ite as shown on the Map. 2.20. Right of Entry and Use . The Building Parcels, Building Components, Common Easement Area s and Center Roadways shall be subject to the following rights of entry and use: (A) Subject to Section 5.2(E), the access rights of the Center Association to maintain, re pair, operate or replace improvements or real or personal property located in the Common Easement Area s and Center Roadways; (B) The easements described in this Article 2 ; (C) The right of any Owner or its agents to enter the Common Easement Area s and Center Roadways to perform maintenance on any facility for which suc h Owner or its agent is responsible, subject to the Rules and such additional requirements as the Board may impose to protect the Common Easement Area s and Center Roadways; and (D) The rights of Declarant, Building Parcel Developer s and their respective contractors and subcontractors to d o upon or above any Building Parcel that which is reasonably necessary or advisable in connection with the construction of the Center and the Buildings within the Center, provided that Declarant shall make reasonable efforts to minimize disturbing the use and enjoyment of any Building Parcel, the Common Easement Area s. 2.21. Easements to Accompany Conveyance of Interest in Building Parcels, Building Components . The easements and rights of use, enjoyment and access established, reserved and granted by and pursu ant to this Article 2 that benefit or burden a Building Parcel, or any portion thereof, including a Building Component, shall be appurtenant to that Building Parcel, or portion thereof, including a Building Component and shall automatically accompany the transfer, conveyance or demise of the Building Parcel or portion thereof, including a Building Component, even though the description in the instrument of transfer may refer only to the interests in the Building Parcel, or portion thereof, including a Buil ding Component, as transferred, conveyed or demised. Said easements and rights of use, enjoyment and access are intended to be, and shall be deemed to be, established, reserved and granted upon the recordation of this Declaration. The easements and rights of use, enjoyment and access so established in this Declaration shall continue, remain and endure as easements appurtenant to the Building Parcels or portion thereof, including a Building Component, and as covenants running with the land and equitable ser vitudes with respect to each Building Parcel, or portion thereof, including a Building Component, and all ownership interests therein. The rights appurtenant to each Building Parcel, or portion thereof, including a Building Component, as so described, shal l be enforceable as appurtenant easements, covenants running with the land, equitable servitudes, or as any of the foregoing. 2.22. Delegation of Use . Any Owner may delegate, in accordance with the Bylaws, its right of use and enjoyment of the Common Easemen t Area s and Center Roadways and the facilities located thereon, and the duties with respect thereto to tenants, or installment contract purchasers, and to any Occupant of the Owner’s Building Parcel, or any portion thereof, [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -18 - including a Building Component, provided that such delegation shall be subject to the terms of this Declaration and that no such delegation shall relieve such Owner of responsibility therefor. 2.23. Further Development of the Project Site . As long as Declarant has the Declarant’s Reserved R ights established under this Declaration, t he Declarant reserves the right to obtain new Use Permits permitting development on any Building Parcel or Building Component owned by the Declarant and to develop the Center in accordance with the Land Use Approv als, including the right to file additional subdivision maps, lot line adjustments, tract maps, Building Parcel Maps, Building Condominium Plans, and Supplemental Declarations to provide for additional Building Parcels, Common Easement Area s within the Pro ject Site . Declarant shall be entitled to delegate each and all of the foregoing rights to one or more Building Parcel Developers . ARTICLE 3. CENTER ASSOCIATION - MEMBERSHIP, VOTING AND ADMINISTRATION 3.1. Center Association . The Center Association has been formed for the operation and administration of the Center for the benefit of all Owners, in cluding the levying of assessments, and for the operation, administration, maintenance, repair and replacement of all of the improvements within the Common Easement Areas and Center Roadways, as provided in this Declaration. 3.2. Voting . The voting rights in the Center Association shall be established and allocated as follows: (A) Building Parcels: Every Building Parcel, including but not limited to Undeveloped Building Parcels, shall have one (1) vote for each 1,000 square feet of the Building Area as established for such Building Parcel pursuant to this Declaration. (B) The votes allocated to each Building Parcel shall be cast by the Owner of that Building Parcel, provided however that for any Building Parcel that has been divided into one or more Building Portions, the membership and voting rights for such Building Par cel shall be held, and the votes attributed to that Building Parcel shall be cast, by the President of the Building Association for that Building Parcel as directed by the board of directors of the Building Association. 3.3. Transferred Membership . Membership rights and interests in the Center Association shall not be transferred, encumbered, pledged, or alienated in any way separately from the transfer, encumbrance, pledge, or alienation of the Owner’s interest in its Building Parcel. Any attempt to make a prohibited transfer is void. No Owner nor any Building Parcel Association nor can avoid its obligations or duties under this Declaration by resigning, waiving or failing to exercise its membership or other rights in the Center Association under the Documents. 3.4. Board . Except as otherwise set forth in this Declaration the activities and affairs of the Center Associat ion shall be administered and overseen by the Board, and the powers of the Center Association shall be exercised under the direction of the Board. The Board shall initially consist of three (3) directors appointed by Declarant to serve until the date that is three (3) years after the date of recordation of this Declaration in the Official Records. After the date [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -19 - that is three (3) years after the date of recordation of this Declaration in the Official Records, the directors serving on the Board, subject to S ection 3.5 , below, shall be elected pursuant to the Bylaws. After the date that is three (3) years after the date of recordation of this Declaration, the Board may be expanded to more than three (3) directors pursuant to the Bylaws. 3.5. Class C . The Class C Member of the Center Association shall be the Declarant . The Class C membership shall not be considered part of the Voting Power of the Center Association. The Class C member shall be entitled to select a majority of the directors serving on the Board of Directors of the Center Association until the Class C M embership Termination Date. The rights of Declarant to exercise the rights as a Class C Member shall terminate on the earliest to occur of the following events (such earliest date being hereinafter referred to as the “Class C Membership Determination Date ”): (A) The date upon which Declarant no longer owns a Building Parcel, or portion of a Building Parcel, including a Building Component within a Building Parcel; or (B) The date that is the twenty -fifth (25 th ) anniversary of the recordation of this Center Decla ration in the Official Records of the County. (C) After such Class C Membership Determination Date, the rights to exercise the Class C Membership, and to appoint Directors pursuant to such Class C Membership rights, shall be exercised by the then Owners of t he Retail Components. Any such determinations shall be made based upon a majority of the votes of such then Owners of the Retail Component determined by one vote for each square foot of the Building Area (as defined in Section 1.12 hereof) of the Retail Co mponents owned by each of then Owners of the Retail Components. 3.6. Declarant’s Veto Right . As long as Declarant holds Declarant’s Reserved Rights, Declarant shall have the right to veto the following actions, whether they were taken by the Board or the Members of the Center Association: (A) Design Changes. An y change in the general, overall architectural style and design of the Common Easement Areas, and the landscaping design of the Common Easement Areas in the Center. (B) Changes in Use. Any change in the permitted or prohibited uses in the Common Easemen t Area s, the Center Roadways, and the Center Parking Facilities or under the Planned Development Zoning or the Master Planned Development Permit. (C) Center Operational Standards. Any change to the Center Operational Standards. (D) Changes or Reductions in Services to Center. Any material changes or reductions in the services of the Center Association as set forth in this Declaration. The foregoing veto rights shall terminate when Declarant no longer holds Declarant’s Reserved Right as set forth in Sec tion 13.26 . [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -20 - ARTICLE 4. CENTER AS SESSMENTS 4.1. Creation of Assessments . The Center Associatio n shall establish, levy and collect the Assessments. 4.2. Cove nant to Pay Assessments . Each Owner of a Building Parcel, or any portion thereof, including the Owner of a Building Component, and including the Declarant for all of the interests in Building Parcels or Building Components owned by the Declarant, hereby c ovenants and agrees as follows: (A ) to pay to the Center Association each and all of the Assessments that are levied to and assessed against the Owner’s Building Parcel or Building Component in accordance with this Declaration, and (B ) to allow the Center Association to enforce any rights established hereunder for enforcement of the payment of the Assessments to the Center Association by any means authorized in this Declaration or by law. 4.3. Base Assessments . Base Assessments shall be calculated, allocated and levied as follows: (A) Base Budget . The Board shall establish the Base Budget for Base Budget Common Operational Costs for each fiscal year, including such reserves as the Board deems necessary. (B) The Base Budget Common Operational Costs shall mean the following Common Operational Costs incurred by the Center Associ ation in connection with the operation, maintenance, equipping and repair of the Common Easement Areas, the fulfillment by the Center Association of its duties, obligations and powers set forth in this Declaration, including, but not limited to the followi ng costs and expenses other than those for the Center Parking Facilities that can be identified as being expressly for and pertaining to the Center Parking Facilities: (1) operating, equipping, maintaining, repairing, replacing, lighting, cleaning, striping, a nd removing garbage, trash and debris from all Common Easement Areas; (2) all premiums, fees and other charges for insurance required to be maintained by the Center Association pursuant to this Declaration; (3) landscaping of Common Easement Areas ; (4) all replace ment and improvements of or to the Common Easement Area s, including, Center Roadways but expressly excluding the Center Parking Facilities ; (5) reasonable amounts for capital replacements and reserves for the Common Easement Areas but expressly excluding the Center Parking Facilities ; (6) machinery and equipment for the Common Easement Area s; (7) all license and permit fees; (8) employing the Manager and other personnel, including the salaries, benefits and insurance costs of the Manager and other personnel but expressly excluding those that are personnel that are solely for operation of the Center Parking Facilities ; [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -21 - (9) all costs of utility services provided to the Common Easement Area s; (10) operating, maintaining, and repairing the Utility Facilities to the extent such Utility Facilities serve the Common Easement Area s; (11) costs of traffic regulation and control signs and devices within the Common Easement Area s ; (12) legal, accounting and other fees and expenses incurred by the Center Association in maintaining its status and qualif ication as an entity in good standing and entitled to do business under the laws of the State of California and preparing any financial statements, tax returns, audits and other financial statements and documentation required to be prepared by the Center A ssociation pursuant to this Declaration or otherwise; (13) the costs and expenses incurred by the Center Association for the administration, management and operation of the Center Association including, but not limited to, compensation for managers, accountants , attorneys, and employees, and (14) All costs and expenses incurred by the Center Association for security patrols and monitoring for the Common Easement Areas. (15) All costs and expenses incurred by the Center Association for maintenance, repair, replacement of improvements in the Town Square and for any security patrols and monitoring for the Town Square. (16) All costs and expenses incurred by the Center Association for maintenance, repair, replacement of improvements in the City Park and for any security patrols a nd monitoring for the City Park. (17) All costs and expenses paid to third parties (including the Declarant) by the Center Association for providing any of the foregoing services. (C) The Base Assessments computed and levied by the Board shall be in an amount nec essary to pay for Base Budget Common Operational Costs, including, without limitation, reserve contributions, in each fiscal year as reflected in the Base Budget. (D) Each fiscal year of the Center Association, the Board shall determine the amount of the Bas e Assessments based upon the Base Budget for Base Budget Common Operational Costs for each fiscal year, which Base Assessments shall be assessed against and levied to each Building Parcel based upon the relative Building Area of each of the Building Parcel s by dividing the Building Area of the Buildings within each Building Parcel by the total of the aggregate Building Area then established for all of the Building Parcels within the Project Site. 4.4. Date of Commencement of Base Assessments . (A) Unless the Declarant agrees to an earlier date of commencement, Assessm ents shall commence as to all Building Parcels on the date that is thirty (30) days after the date of recordation of this Center Declaration in the Official Records of the County. (B) For the fiscal year or remainder thereof of the year during which this De claration is recorded in the Official Records, the Center Association shall send written notice of the Base Assessment for each Building Parcel, at least thirty (30) days prior to the date that such Base Assessment is due and payable. For each fiscal year of the Center Association after the initial fiscal year of the Center Association’s operations, the Board shall use its best efforts to send written notice thereof to the Owner of each Building Parcel at least ninety (90) days in [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -2 2 - advance of the beginning of each calendar year, provided that failure to comply with the foregoing shall not affect the validity of any Assessment levied by the Board. For any Building Parcel that has been divided into more than one Building Component, the foregoing notice shall be sent to the Building Association for that Building Parcel. (C) Unless otherwise determined by the Board, Base Assessments shall be payable by each Building Parcel in monthly installments; however, the Board may determine to levy such Base Assessments in q uarterly installments by written notice to each Owner of an interest in a Building Parcel. (D) Building Component Assessments . (1) For any Building Parcel that has been divided into two of more Building Components, the Building Association shall be responsible for allocating, levying, collecting and paying to the Cent er Association the Base Assessments levied against the Building Parcel among and assessed to all of the Building Components that are situated within the Building Parcel pursuant to the Building Declaration for that Building Parcel. (2) If the Building Associ ation fails to collect and pay to the Center Association the Assessment allocated to a Building Component, the Center Association may bring an action against the Owner of the Building Component, for the amount of the unpaid Assessment owed by such Owner fo r the amount of the unpaid Assessment allocated to such Building Component. (3) If a Building Association fails to collect and pay to the Center Association the Assessment allocated to a Building Component over which the Building Association has assessment r ights and/or lien rights, the Center Association may bring an action directly against the Building Association for the amount of the unpaid Assessment or may elect to enforce any lien rights of the Building Association on a Building Component for the amoun t of the unpaid Assessment allocated to such Building Component. Each Building Association is hereby deemed to have assigned to the Center Association the rights to so enforce the Building Association’s assessment and lien rights to the fullest extent allo wed by law. The manager for each Building Association shall at all times provide and maintain a fidelity bond covering funds collected by the manager for and on behalf of the Building Association and the Center Association. All funds collected by the man ager of a Building Association for and on behalf of the Center Association shall be kept in a segregated account apart from other funds of the Building Association. 4.5. Special Assessments . The Board, at any time, may levy a Special Assessment. (A) Allocation of Special Assessments . Special Assessments shall be allocated between and among al l Building Parcels in the same manner as Base Assessments, as set forth in Section 4.3 , except in the case of a Special Assessment for a Cost Center Service, which shall be allocated in the same manner as a Cost Center Assessment pursuant to Section 4.7 . (B) Payment . Special Assessments, including Special Assessments of the type described in Section 4.6 , may be due and payable in one (1) payment or periodically as the Board shall direct at the time that the Special Assessment is levied; provided, however, t hat no installment of a Special Assessment shall be due sooner than thirty (30) days after notice of the Special Assessment has been delivered to the Owner or Owners of the Building Parcel by [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -23 - the Board. For any Building Parcel that has been divided into m ore than one Building Component, the foregoing notice shall be sent to the Building Association for that Building Parcel. (A ) Notice . The Center Association shall provide notice to the Owners by first -class mail of any Special Assessments not less than thirty (30) nor m ore than sixty (60) days prior to the Special Assessment becoming due. 4.6. Cost Center Assessments . (A) Cost Center Assessments Budgets and Assessments . The Board shall establish the Cost Center Assessments for Cost Center Services based upon Cost Center Budgets for Common Operational Costs for each fiscal year for each of the designated Cost C enter Services, including such reserves as the Board deems necessary. The Cost Center Assessments computed and levied by the Board shall be in an amount necessary to pay for Common Operational Costs, including, without limitation, reserve contributions, in each fiscal year as reflected in the Cost Center Budget for each of the Cost Center Services. (B) Cost Centers. There shall be the following Cost Centers for the Cost Center Services described for such Cost Center. (1) Hotel -Retail Parking Garage Cost Cente r: All Common Operational Costs for operations (including utilities costs and security costs allocable to Center Parking Facilities), maintenance, repair and replacement of Hotel -Retail Parking Garage (“Hotel -Retail Parking Garage Costs”) shall be assesse d to the Hotel Parcel and the Retail Parcel that have use of the Hotel -Retail Parking Garage in accordance with this subsection 4.6.(B)(1). Hotel -Retail Parking Garage Costs shall first be allocated by the Board of the Center Association to each of the Ho tel Parcel and the Retail Parcel based upon the relative number of parking spaces allocated for the use of each the Hotel Parcel and the Retail Parcel. (a) Dedicated Hotel Parking: The Center Parking Facilities Costs with respect to any Dedicated Hotel Par king Areas in the Hotel -Retail Parking Garage or other Parking Facility shall be allocated such that the Hotel Parcel that has been allocated or assigned any such Dedicated Hotel Parking Areas shall pay its allocable share of the "Dedicated Hotel Parking Areas Costs" based upon the number of parking stalls so dedicated to that Hotel Parcel in the Hotel -Retail Parking Garage or other Parking Facility as compared to the total number of parking stalls in the Hotel -Retail Parking Garage or other Parking Facili ty. The "Dedicated Hotel Parking Areas Costs" shall be those costs incurred by the Center Association with respect to its maintenance, operation, management and repair of the Dedicated Hotel Parking Areas, including, but not limited to, costs of liability insurance, property insurance and Taxes. Dedicated Hotel Parking Areas Costs shall be reasonably determined by the Center Association by multiplying all costs incurred by the Center Association with respect to (or reasonably allocable to) the Parking Facil ity in which the Dedicated Hotel Parking Areas are located by a fraction, the numerator of which is the number of parking spaces in the Dedicated Hotel Parking Areas, and the denominator of which is the number of parking spaces in the Parking Facility in w hich the Dedicated Hotel Parking Areas are located. Such Dedicated Hotel Parking Areas Costs shall be assessed to the Hotel Parcel as a Cost Center Assessment (the “Dedicated Hotel Parking Areas Cost Center Assessments”). The provisions set forth in this subsection (d) as to establishing, calculating and allocating "Dedicated Hotel Parking Areas [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -24 - Costs" shall not be amended, revised, modified or deleted without the prior written approval and consent of the Owners of the Hotel Parcel. If there is no dedicat ion of parking spaces to the Hotel Parcel within the Hotel -Retail Parking Garage, then the use of the Hotel -Retail Parking Garage by the Retail Owner and the Hotel Parcel Owner and the costs therefor shall be allocated and assessed between the Retail Owner and the Hotel Owner as set forth in Section 6.3(D). (2) Town Center Square Services Cost Center: All Common Operational Costs for operations of the Town Center Square and for any promotional activities for the Retail Components for the Common Easement Areas that the Center Association determines to undertake shall be assessed to the Retail Owner. [Notwithstanding the foregoing, the Retail Owner shall be entitled to make arrangements with other Building Parcel Owners [or Building Component Owners] for limited use of portions of the Town Center Square for designated times and uses as the Retail Owner should approve and agree upon, in which event, the Retail Owner shall be entitled to charge the Building Parcel Owner or Building Component Owner for the costs and expenses of such limited use.] (3) Additional Costs Centers may be established by the Declarant as long as Declarant holds Declarant’s Reserved Rights under this Declaration, by the Declarant making and recording a Supplemental Declaration that provides fo r such additional Cost Center or Cost Centers. After such time as Declarant no longer holds Declarant’s Reserved Rights under this Declaration, additional Costs Centers may be established by the Center Association by the Board making and recording a Supple mental Declaration that provides for such additional Cost Center or Cost Centers. (C) Allocation of Cost Center Assessments. Notwithstanding the provisions of Section 4.3 , if the allocation method for a Cost Center Service is not expressly specified in thi s Declaration, the Center Association may assess to each Building Parcel or Building Component a Cost Center Assessment on the basis of the projected use and benefit of such Cost Center Services to the applicable Building Parcel or Building Component. Unle ss the allocation and assessment of a Cost Center Assessment is based upon metering or other objective measurement, the allocation and assessment of a Cost Center Service shall be in accordance with the projection and estimation by the Center Association o f the amount of use made and the benefit received by each Building Parcel or Building Component that is serviced by or has the use and benefit of the Cost Center Services. If there is any disagreement between the Center Association and any Owner or any Bu ilding Association regarding the allocation of Cost Center Assessments, such dispute shall be submitted to arbitration pursuant to Section 13.27 . (1) Allocations of Cost Center Assessments made to a Building Parcel shall be allocated between the Building Co mponents in that Building Parcel as provided in the Building Declaration for that Building Parcel. (D) Payment . Cost Center Assessments shall be due and payable in advance on the first day of each month in equal monthly installments determined on the basis of an estimate, provided by the Board from time to time, of the annual Cost Center Assessment allocated to each Building Parcel or Building Component that is serviced by or has the use and benefit of the Cost Center Services. The Board shall endeavor to provide to each Owner of a Bu ilding Parcel or Building Component that is serviced by or has the use and benefit of the Cost Center Services which has a Cost Center Assessment, an estimate of the Cost Center [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -25 - Assessment to be paid by such Owner for the next fiscal year at least ninety (90) days prior to the beginning of each fiscal year; provided, however, failure to comply with the foregoing timing shall not affect the validity of any Cost Center Assessment levied by the Board. Each Owner which is required to pay a Cost Center Assessme nt shall continue to pay such Assessment on the basis of the last estimate provided by the Board until such time as the Board provides a new estimate for such Cost Center Assessment. (E) Reconciliation . Within sixty (60) days after the end of each fiscal year, or as soon thereafter as is reasonably possible, the Board shall prepare and send to each Owner of a Building Parcel or Building Component that is subject to a Cost Center Assessment, a statement setting forth the amount of the Cost Center Assessment to be paid by such Owner for the prior fiscal year and the amount of the estimates paid by such Owner therefor during the prior fiscal year. With respect to any Building Parcel, such statement shall be sent to the applicable Building Association. If such statement shows that the payme nts made by an Owner for estimated Cost Center Assessments were less than the actual costs allocable to such Owner for the Cost Center Assessment, then such Owner shall pay the difference as a Reimbursement Assessment to the Center Association within ten (10) days after receipt of such statement. If such statement shows that the estimated payments made by an Owner for the Cost Center Assessment were greater than the actual Cost Center Assessment to be paid by such Owner, the Board shall credit the differen ce toward the next payment(s) of Cost Center Assessment payable by such Owner until the full amount of such credit has been utilized. The Board may provide for interim reconciliations of Cost Center Assessments but not more frequently than quarterly. 4.7. Reimbursement Assessments . (A) General Provisions . The Board may levy a Reimbursement As sessment against any Owner of an interest in a Building Parcel or Building Component. All costs and expenses incurred by the Center Association which are part of a Reimbursement Assessment shall bear interest at the rate of three percent (3%) per annum ov er the Prime Rate (but not to exceed the maximum interest rate permitted by law) from the date the costs or expenses were incurred by the Center Association until the date the cost is paid in full by the Owner. (B) Notice . Before the Center Association undertakes an action that will re sult in a Reimbursement Assessment being levied against an Owner, the Board shall provide a written notice to the Owner against whom the Board intends to assess a Reimbursement Assessment stating in reasonable detail the reason for any such Reimbursement A ssessment and shall provide the opportunity of a hearing for such party before the Board in accordance with the Bylaws. (C) Payment . Reimbursement Assessments shall be due and payable when levied by written notice to the applicable Owner, and shall be delinquent if not paid within thi rty (30) days after levied. 4.8. Verification of Assessments . The Center Association shall, within twenty (20) days after request by any Owner, any Mortgagee or potential purchaser of a Building Parcel, or a portion thereof, or of a Building Component, and for a reasonable charge, furnish a certificate signed by an officer of the Center Association setting forth whether the Assessments on a specified Building Parcel, or a portion thereof, or a Building Component, have been paid and [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -26 - identifying the amount of any unpaid Assessments levied against such Building Parcel, or portion thereof, or Building Component. Such a certificate shall be conclusive evidence of the accuracy of the statements made therein. 4.9. Personal Obligation For Assessments . (A) The amount of each Assessment assessed to a Building Parcel, together with interest, late charges, collection costs, and reasonable attorneys' fees, shall be the p ersonal obligation of the Owner of the Building Parcel or of the Building Association for such Building Parcel that has been divided into Building Components of the Building Parcel at the time when the Assessment fell due. (B) The personal obligation f or delinquent Assessments shall pass to the successors in title to the Building Parcel that has not been divided into Building Components, whether or not expressly assumed by them; provided however that the prior Owner shall not be relieved of its personal obligation hereunder until such obligation is paid in full. For a Building Parcel that has been divided into Building Components, the personal obligation for such delinquent Assessments shall be as provided in the Building Declaration for that Building P arcel. (C) No Owner shall be exe mpt from liability for payment of the Assessments that are levied against its Building Parcel by waiver of the use or enjoyment of any of the Common Easement Areas, the Center Roadways, or any other portions of the Center, or by the abandonment of such Own er's interest. 4.10. Effect of Nonpayment of Assessments . Any Assessment not paid within fifteen (15) days after the due date shall be delinquent, shall bear interest at the rate of twelve percent (12%) per annum commencing thirty (30) days after the due date until paid in full, and shall incur a late payment fee in an amount of ten per cent (10%) of the delinquent amount or ten dollars ($10), whichever is greater; provided that in no event shall the interest or late charges payable hereunder exceed the maximum permitted by applicable law. 4.11. Transfer of Building Component . (A) The sale, transfer or demise of any Building Parcel, or portion of a Building P arcel, including a Building Component, or other interest therein, shall not affect the obligations for Assessments as to such Building Parcel, including a Building Component. The sale or transfer of any Building Parcel or Building Component pursuant to fo reclosure of a Mortgage shall not extinguish the Assessment obligation (including fees, late charges, fines or interest levied in connection therewith) as to such Building Parcel or Building Component so transferred. No sale or transfer shall relieve such Building Parcel or Building Component from liability for any Assessments thereafter becoming due. (B) If a Building Parcel or Building Component is transferred, the transferor shall remain liable to the Center Association for all unpaid Assessments against such Building Parcel or Bui lding Component through and including the date that written notification of the transfer is delivered to the Center Association. If a transferee receives a statement of the type described in Section 4.8 , such transferee shall not be subject to personal ob ligation, and the applicable Building Parcel or Building Component shall not be subject to an Assessment Lien, for unpaid Assessments in excess of the amounts identified in such statement. Notwithstanding [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -27 - the foregoing, the transferee shall be liable for any additional Assessments that become due after the date of the written notification of the transfer. 4.12. Enforcement and Remedies . If any Assessment is delinquent, the Center Association shall be entitled to the following separate and cumulative rights and remedies, which the Center Association shall have the ri ght to select and use in any order as it determines reasonable and prudent, in the discretion of the Board, without exclusion, waiver or prejudice: (A) The Center Association shall have the continuing right to bring legal action for collection of such delinquent Assessment against any current or prior Owner of a Building Parcel, or portion of a Building Parcel, including a Building Component who is delinquent in payment of such Assessment as a debt and obligation of such Owner. (B) Suit to recover a money judgment for unpaid Assessments, including all interest, late charges, attorneys’ fees and other costs of collection, shall be maintainable without foreclosing or waiving the Assessment Lien in favor of the Center Association securing repayment of such amounts. (C) Assessment Lien. At any time not earlier than ten (10) days [and not later than sixty (60) days] after default by an Owner in payment of an Assessment levied by the Association, the Association may give a pre -lien notice to a defaulting Owner, which said notice shall state the date of the delinquency, the amount of the delinquency, make demand for payment thereof and state that failure to make payment shall result in a lien against the Building Parcel or the Building Component of the Owner for the amount of the delinquency, plus costs and attorneys' fees. I f the delinquency is not paid within ten (10) days after delivery of such notice, the Association may elect to file a claim of lien against the Building Parcel or the Building Component of such delinquent Owner. The claim of lien shall state (1) the name o f the delinquent Owner or reputed Owner, (2) a description of the Building Parcel or the Building Component against which claim of lien is made, (3) the amount claimed to be due and owing (with any proper offset allowed), (4) that the claim of lien is asse rted pursuant to this Declaration (referring to the recording data in the Official Records of the County of Santa Clara), and (5) that a lien is claimed against the Building Parcel or the Building Component of the delinquent Owner in the amount of the stat ed delinquency (including interest, costs and attorneys fees). Any such claim of lien shall be signed and acknowledged by any officer of the Association. Upon recordation of a duly executed original of such claim of lien by the Recorder of the County of Sa nta Clara , the lien claimed therein shall immediately attach to the Building Parcel or the Building Component and become effective, subject only to the limitations hereinafter set forth. Any such lien may be foreclosed by appropriate action in court or in the manner provided by law for the foreclosure of a mortgage with power of sale by the Association, its attorney or other Person authorized to make such sale. Such sale shall be conducted in accordance with the provisions of sections 2924 and 2924b of the California Civil Code (as amended from time to time or similar laws adopted that: supersede said sections) that apply to the exercise of powers of sale in mortgages and deeds of trust. The Association shall have the power to bid at the foreclosure sale and if successful, hold, lease, mortgage, and convey the Building Parcel or the Building Component acquired p ursuant to such sale. If foreclosure is by action in court, reasonable attorneys' fees shall be allowed to the extent permitted by law. If foreclosur e is by power of sale, any Person designated by the Association in writing shall be entitled to actual expenses and such fees (including reasonable attorneys’ fees) as may be allowed by law or as may be prevailing at the time the sale is conducted. The [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -28 - cer tificate of sale shall be executed and acknowledged by any two members of the Board or by the Person who conducted the sale. A deed upon foreclosure s hall be executed in like manner. [The Assessment Lien hereby established shall be subject to the provisio ns of Section 13.6 hereof.] ARTICLE 5. DUTIES AND POWERS OF THE CENTER ASSOCIATION 5.1. Duties . In addition to the duties enumerated in the Articles, Bylaws and elsewhere in this Declaration, and without limiting the generality thereof, the Center Association, acting through the Board and its officers in accordance with the Bylaws, shall perform t he following duties: (A) Ma intenance and Operation . The Center Association shall operate, maintain, repair and replace all Improvements within the Common Easement Areas and Center Roadways and all Utility Facilities within the Common Easement Areas and Center Roadways that are not maintained by the City, another public entity, utility company, or improvement district in accordance with the provisions of this Declaration. (1) Such operations, management, maintenance and repair by the Center Association of the Common Easement Areas and Center Roadways shall be undertaken in a condition and state of repair commensurate with a First -Class Project. (2) The Center Association may delegate the responsibility of and costs for cleaning, maintaining or repairing a portion of the Common Easement Areas to an Owner who has be en granted or assigned exclusive use of that portion of the Common Easement Area by the Center Association, whether on a permanent or temporary basis, or to an Owner of a Building Parcel or to a Building Association that elects to undertake with the Center Association's consent such responsibility for and costs of cleaning, maintaining or repairing a portion of the Common Easement Areas. (3) Further, if any maintenance, repairs or replacements to any Common Easement Areas and Center Roadways, or the improvem ents therein, or the Utility Facilities become necessary as a result of the willful or negligent acts or omissions of an Owner or its Invitees, the Center Association shall perform such maintenance, repair and/or replacement and the costs and expenses ther eof shall be reimbursed to the Center Association by the responsible Owner as a Reimbursement Assessment. Notwithstanding the foregoing, the Board shall have the right to require by written notice that such maintenance, repair or replacement be undertaken by the Owner who caused the condition to exist, in which event the Board shall have approval rights over the Person actually doing the maintenance, repairs or replacements and actual performance thereof. Notwithstanding the foregoing, in the event of an emergency, or if the responsible Owner fails to complete the maintenance, repairs and/or replacements within a reasonable time under the circumstances, as determined by the Board, the Center Association shall perform such work and charge the cost thereof t o the responsible Owner as a Reimbursement Assessment. (4) If an Owner disputes its responsibility for any such maintenance, repairs or replacement after written notice is delivered by the Center Association, the Owner shall be entitled to a hearing before the Board as provided in the Bylaws. If the Owner or its [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -29 - Invitees are determined to have caused such condition, the Owner shall not have the right to challenge the amount incurred by the Center Association to remedy such condition. (B) Insurance . The Center Association shall obtain an d maintain the insurance required under Section 8.1 . (C) Electrical Service . The Center Association shall obtain electrical utility service for the Common Easement Areas and Center Roadways from a public utility, other provider, or other generation sources. (D) Parking and Traffic . Except as provided otherwise in this Declaration, the Center Association shall manage all parking and vehicular traffic within the Common Easement Areas and Center Roadways and all Center Parking Facilities in accordance with the provisions of Article 8 . The Center Association shall oper ate or cause to be operated those parking facilities defined and described and comprising the Center Parking Facilities as such are completed in good order condition and repair, consistent with a First Class Project. (E) Rules . The Center Association shall adopt and be entitled to en force Rules that are not inconsistent with the provisions of this Declaration to (i) to regulate the use of the Common Easement Areas; (ii) to regulate the conduct of Owners and their Invitees with respect to the use of Common Easement Areas (iii) to provi de standards for the maintenance and repair of the Common Easement Areas and of the Buildings and to p rovide for rules and guidelines for Construction Work Review pursuant to Article 9 to be created by the Center Association that are equitably applied and supplements and amended from time to time . In no event shall any such Rules in any way restrict or limit, or be construed as restricting or limiting the use or operation of any Building other than with respect to the Common Easement Areas, if any, situated within the Building Parcel in which the Building is situated. As long as Declarant owns a Building Parcel, the Rules shall be approved by the Declarant. (F) Discharge of Liens . The Center Association shall discharge by payment, if necessary, any lien against the Common Easement Area s , other than Assessment Liens, and charge the cost thereof as a Reimbursement Assessment to the Owners responsible for the existence of the lien after notice and hearing as provided in the Bylaws. (G) Assessments . The Center Association shall determine, levy, collect and enforce Assessme nts as set forth in Article 4 . (H) Payment of Expenses . The Center Association shall pay all expenses and obligations incurred by the Center Association in the conduct of its business including, without limitation, all licenses, taxes or governmental charges levied or imposed against the Center Association or the property of the Center Association. 5.2. Powers . In addition to the powers enumerated in the Articles and Bylaws, or elsewhere provided for herein, and without limiting the generality thereof, the Center Association shall have the following powers: (A) Utility and Other Services . The Center Association shall have t he right and power to contract for the provision of utilities and other services necessary for the operation of the Common Easement Area s and Center Roadways (collectively, “Services”), [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -30 - including, without limitation, the following: (i) water service; (ii) garbage removal, recycling and waste disposal services; (iii) electrical utility service from a public utility, other provider, or other generation sources; and (iv) other utility services, including, but not limited to, telephone, data cabling and cable t elevision, that the Center Association determines to be reasonable and prudent for operation of the Common Easement Areas and Center Roadways . (B) Common Easement Area Security Monitoring . The Center Association shall have the power (but not the obligation) to provide for staff, equip ment and systems for the monitoring of the Common Easement Areas and Center Roadways, including the Center Parking Facilities (the “Monitoring Program”). If the Center Association elects to provide a Monitoring Program, the costs and expenses incurred by the Center Association in providing such a Monitoring Program shall be assessed as a Base Budget Common Operational Costs. In no event shall such a Monitoring Program include the providing of monitoring or security service for Retail Spaces, or other inter nal parts of Building Components. Notwithstanding the foregoing, and regardless of whether the Center Association elects to provide a Monitoring Program, neither the Center Association nor the Board shall be deemed to have made any representation or warran ty to any Owner, tenant, employee of an Owner or tenant, Occupant, Invitee, or any other person entering into the Center regarding security or safety. (C) Lighting . The Center Association shall have the power to provide for and operate lighting throughout the Common Easement Areas and the Center Roadways, including the Center Parking Facilities. The Center Association may establish requirements for maintenance of lighting installed and operated on or within the facades of any Building, and such other areas on the external portions of Bu ildings that the Center Association deems necessary and appropriate. If needed the Center Association may undertake maintenance or repair of such lighting on Buildings if the Owner fails to meet the standards established by the Center Association for such lighting. The Center Association shall have non -exclusive easements over and across the Agency Parcels, Building Parcels, the Building Components, and external portions of Buildings to install, operate, maintain, repair and replace lighting within Common Easement Areas and external portions of Buildings which are not maintained by the applicable Owner. The costs and expenses incurred by the Center Association in providing such lighting shall be assessed by the Center Association to the Owners as part of th e Base Assessments; provided however that any such lighting provided to any Center Parking Facilities shall be charged to that Center Parking Facilities Cost Center. Such lighting shall conform to the lighting requirements of the City which apply to the C enter. (D) Manager and Employe es . The Center Association shall employ a professional manager or professional management company as the Manager to perform all or any part of the duties and responsibilities of the Center Association as may be delegated in writing to the Manager, except as may be otherwise prohibited by this Declaration. The Center Association may employ other professional consultants, staff and employees as the Board determines to be reasonable or appropriate for performing all or any part of the duties and responsibili ties of the Center Association . (E) Access . For the purpose of performing construction, maintenance or repair for the benefit of the Common Easement Area s or the Center Roadways, or for taking action to remedy a failure of an Owner or Occupant to fulfill its obligations under the terms of this Declaration, the Center Association ’s agents or employees shall have the right, after reasonable notice (of not less than twenty -four (24) hours) to the Owner thereof, except in [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -31 - emergencies, where no such notice shall be required, to enter any Buil ding Parcel or Building Component exterior of Retail Spaces within the confines of those areas reasonably necessary to gain access to the Common Easement Area s, Center Roadways or other required areas necessary for the Center Association to perform such co nstruction, maintenance or repair. Such entry shall be made with as little inconvenience to the Owner or Occupant as practicable and any damage caused thereby shall be repaired by the Center Association at the expense of the Center Association . (F) Enforcement . The Center Association sh all have the power to enforce this Declaration. (G) Acquisition, Alteration and Disposition of Property . The Center Association shall have the power to acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain, convey, sell, lease, transfer, or other wise dispose of personal property in connection with the affairs of the Center Association. Any disposition of any interest in the Common Easement Areas, or other real property interests owned by the Center Association, shall require the prior written con sent of: (i) the Declarant, as long as Declarant holds Declarant’s Reserved Rights under this Declaration ; and (ii) if the value of the interest to be disposed of exceeds One Hundred Thousand Dollars ($100,000), which amount shall be increased annually, on a cumulative basis, by three percent (3%) beginning with the anniversary date of the recordation of this Declaration, the written approval of no less than a 2/3rds vote of the Voting Power in the Center Association. (H) Loans . The Center Association shall have the power to borrow m oney on a reasonable and prudent basis to fund operations of the Center Association that cannot be readily funded from Assessments on a timely basis. Notwithstanding the foregoing, the Center Association may not borrow an amount greater than five per cent (5%) of the Base Budget Common Operational Costs without obtaining the prior written approval of no less than a majority of the Voting Power of the Members. The provisions of this subsection (H) shall not be amended, revised, modified or deleted without th e prior written consent of a majority of the Voting Power of the Members. (I) Dedication or Grant of Easements . The Center Association shall have the power to dedicate, convey or transfer easements over any part of the Common Easement Area s or Center Roadways to any public agency, au thority or utility for purposes of ingress, egress, installation of utility systems or otherwise as the Board deems necessary or appropriate for the operation of the Center on such terms and conditions as may be agreed to by the Board. The dedication, con veyance or transfer of any such easement shall be subject to the prior written consent of the Declarant, as long as Declarant holds Declarant’s Reserved Rights under this Declaration, and in the event any such easement is to be located on a portion of prop erty not owned by the Center Association , the prior written consent of the Owner on whose Building Parcel or Building Component the easement is to be located and its Mortgagee, if any. (J) Contracts . The Center Association shall have the power to contract for goods and/or services for the Common Easement Areas and the facilities and interests of the Center Association, and as required for the Center Association to carry out its duties and powers, subject to limitations set forth in the Bylaws or this Declaration. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -32 - (K) Valet Parking Services . The Center Association s hall have the power to provide valet parking services for the Center Parking Facilities, and charge the costs of such valet parking as a Cost Center Assessment to the those Owners or Invitees who are specifically provided the use such valet parking service . (L) Delegation of Authority and Power . The Board, and the officers of the Center Association, shall have the power to delegate their authority and powers to committees, officers or employees of the Center Association, or to the Manager employed by the Ce nter Association. 5.3. Commencement of Center Association's Du ties and Powers . The duties, rights and powers of the Center Association as described in this Declaration shall commence from and after the date of recordation of this Declaration in the Official Records. ARTICLE 6. PARKING AND ROADS 6.1. Parking . The Center Association shall operate, ma nage, maintain, repair and replace the Center Parking Facilities as set forth in this Article 6 . (A) Parking Operations : The Center Association shall operate or cause those Center Parking Facilities defined and described and comprising the Center Parkin g Facilities in good order condition and repair, consistent with a First Class Project. (B) The costs and expenses incurred by the Center Association to operate, maintain and repair the Center Parking Facilities, including, without limitation, real estate ta x assessments levied against the Center Parking Facilities [, other than the Hotel -Retail Parking Garage,] shall be assessed to each of the Building Parcels and Building Components as part of the Common Operational Costs as Assessments pursuant to Section 4.3 of this Declaration. The Center Association shall be authorized to enter into operating agreements with third parties, including the Declarant, for the operation, management, maintenance and repair of the Center Parking Facilities, the costs of which shall be included in the Common Operational Costs. 6.2. Hotel -Retail Parking Garage and other Center Parking Facilities . Without regard to the ownership or use of any Parking Facility, the Center Association shall maintain, paint, repair and replace the structural and non -structural elements situated within the Improvements within the Center Parking Facilities, including the Hotel -Retail Parking Garage. The costs and expenses of maintenance of the Hotel -Retail Parking Garage shall be allocated and assessed to the Retail Parcel and the Hotel Parcel as the Hotel -Re tail Parking Garage Cost Center Cost Center pursuant to Section 4.6(B)(1). (A) Maintenance, repair and replacement of the structural elements of the improvements in Center Parking Facilities shall be undertaken as described in this Declaration and the Buildi ng Declaration for the Building in which such Center Parking Facilities are located. (B) Where a Building Parcel contains a Parking Facility , the costs of operation, maintenance, repair or replacement of improvements, facilities, structure, components or part s of the Building that are shared between or among the Owners of that Building shall be allocated and assessed between or among the Owners of each of the Building [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -33 - Components within the Building, including the Center Association with respect to the Parking Facility , as provided in the Building Declaration for the Building. Any such costs and expenses that are allocated to the Center Association with respect to the Parking Facility shall be a Common Operational Cost assessed to the Owners as part of the Cost Center Assessment for Parking Facility . 6.3. Rights to Use Center Parking Facilities . (A) General Use of Center Parking Facilities . The Center Parking Facilities shall be available for use by the Owners of the Retail Parcel or the Building Components within the Retail Parcel and by the Owner of the Hotel Parcel a nd the Occupants and the respective Permittees of the Owners of the Retail Parcel or the Building Components within the Retail Parcel and by the Owner of the Hotel Parcel. (B) Public Use of Center Parking Facilities . Those portions of the Center Parking F acilities that are designated as Public Use shall be available for use by the public who make use of the Public Use Vehicular Access Easement; the Public Use Pedestrian Access Easement, and the City Park. (C) Retail Owners and Invitees . The Hotel -Retail Parking Garage shall be availa ble for use by each Retail Owner, for the use of such Retail Owner and the Occupants of a Retail Component or Retail Facilities, their respective tenants and other Invitees, and other Permittees along with the rights of use by the Hotel Owner as provided i n Section 6.3(D) below. The Hotel -Retail Parking Garage is not intended for use by the Owners or the Occupants or Invitees of the Owners or Occupants of Building Parcels other than the Retail Parcel or the Hotel Parcel. The Retail Owner, and the and the O ccupants of a Retail Component or Retail Facilities, their respective tenants and other Invitees, in conjunction with the rights of Owner of the Hotel Parcel as herein set forth shall have, appurtenant to its Building Parcel or Building Component a non -exc lusive right and easement over and across the Center Parking Facilities , including the Hotel -Retail Parking Garage for a term and duration coextensive with the Owner’s title or interest in the Retail Parcel or Retail Component or Retail Facilities, for ing ress and egress, use and enjoyment of the Center Parking Facilities within the Center Parking Facilities as described and set forth in this Article 6. (D) Hotel Parcel Parking Rights . The Hotel Parcel Owner as to the Hotel Parcel shall have such rights and be subject to such limitations as to use of the Center Parking Facilities , including the Hotel -Retail Parking Garage, as are set forth in this Declaration. The Hotel Parcel Owner, and the Occupants of the Hotel Parcel, and their respective tenants and oth er Invitees, in conjunction with the rights of Owner[s] of the Retail Parcel as provided in Section 6.3(C) above, shall have, appurtenant to the Hotel Parcel a non -exclusive right and easement over and across the Center Parking Facilities , including the Ho tel -Retail Parking Garage for a term and duration coextensive with the Owner’s title or interest in the Hotel Parcel, for ingress and egress, use and enjoyment of the parking facilities within the Center Parking Facilities as described and set forth in thi s Article 6. The Hotel Parcel Owner shall have the right to park the number of motor vehicles in the Hotel -Retail Parking Garage as are required for the use of the Hotel Parcel in accordance with the Land Use Approvals applicable to the Hotel Parcel as a hotel use. Such parking rights may be furnished by valet parking, dedicated parking spaces or such other arrangements as are established by the Retail Owner, [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -34 - as long as the Hotel Owner is provided, at a minimum with the amount of parking required for the u se of the Hotel Parcel as a hotel use under the Land Use Approvals. (E) Office Parcel Owners and Invitees . The Owners and Occupants of the Office Parcels, and their respective tenants and Invitees, and other Permittees, shall only park in the Office Parking Garage area, and shall not park in the Center Parking Facilities, including the Hotel -Retail Parking Garage or the exterior parking spaces and areas within the Center Parking Facilities. (F) Parcel 1 – Retail/Residential/Athletic Club Parking : The Owners and Occupants of Parcel 1 – R etail/Residential/Athletic Club , and their respective tenants and Invitees, and other Permittees, shall only park in parking areas within the Parcel 1 – Retail/Residential/Athletic Club , and shall not park in the Center Parking Facilities, including the Ho tel -Retail Parking Garage or the exterior parking spaces and areas within the Center Parking Facilities. (G) Senior Residences Parcel Parking : The Owners and Occupants of the Senior Residences Parcel, and their respective tenants and Invitees, and other Pe rmittees, shall only park shall only park in parking areas within the Senior Residences Parcel, and shall not park in the Center Parking Facilities, including the Hotel -Retail Parking Garage or the exterior parking spaces and areas within the Center Parkin g Facilities. (H) Restrictions . The easement and license granted to Owners or other Occupants or Invitees of Owners pursuant to Sections 6.3(A), (B), (C) and (D) shall be subject to the rights and limitations established under this Declaration that are reserved or granted to the Center Association and to the Declarant regarding their use, operation, management and maintenance and repair of the Center Parking Facilities , including, without limitation, the right to set aside portions of the Parking Facilities for exclusive use by one or mo re Owners, and to the limitations set forth in the Rules pursuant to and as described and set forth in this Article 6 . 6.4. Regulation of Center Parking Facilities . (A) Subject to Project’s Land Use Approvals, as long as the Declarant holds Declarant’s Reserved Rights under this Declaration, the Declarant shall have t he power, among other things, to: (a) regulate the use of the Center Parking Facilities , and the use of any Owner or Occupant, and their respective Invitees of parking spaces and other areas within the Center Parking Facilities ; (b) allocate to Owners, on a reasonable basis as determined by the Declarant, the exclusive use of parking spaces within the Center Parking Facilities ; and (c) reserve certain spaces for parking by handicapped persons or for car/van pool parking to meet the requirements of governmen t agencies. (B) After such time as Declarant no longer holds Declarant’s Reserved Rights under this Declaration, or Declarant has relinquished in writing the foregoing powers, such powers to regulate and allocate parking shall belong to and be exercisable by the Board. Notwithstanding the foregoing, the Board may not revoke or change any allocations of the use of Center Parking Facilities made by Declarant to the Owner of the Retail Parcel or the Owner of the Hotel Parcel without the consent of the Owner an d the Declarant as long as Declarant holds Declarant’s Reserved Rights. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -35 - (C) All costs and expenses incurred by the Center Association to operate, maintain and repair the portions of the Center Parking Facilities allocated to the exclusive use of one or mo re Owners as aforesaid, including, without limitation, a proportionate share of the real estate tax assessments levied against such Center Parking Facilities , shall be assessed to the Owners having the exclusive use of such Center Parking Facilities (or po rtion thereof) as a Cost Center Assessment. The Rules adopted by the Declarant or the Board shall establish criteria and requirements regarding the rights of use of the Center Parking Facilities , subject to the terms of the Project’s Land Use Approvals. N otwithstanding the foregoing, no such Rules for Center Parking Facilities shall deprive or materially interfere with the right of any Owner, Occupant or other Permittees from the use of a parking space or parking area to which that Person has been provided the dedicated rights to park vehicles as set forth in this Article 6. 6.5. Alteration of Center Parking Facilities . During the development of any portion of the Center, subject to the Land Use Approvals, the Declarant, as long as Declarant holds Declarant’s Reserved Rights under this Declaration, shall have the right to revise and alter the parking facilities within the Center Parking Facilities including increasing or decreasing the number of spaces available in the Center Parking Facilities , and to establish interim parking facilities within the Center or outside of the Center. (A) The Declarant may provide revocable lic enses to Owners of some or all of the Building Components that are owned by the Declarant for parking on the surface of Building Parcels that have not been improved with Buildings, subject to such limitations as the Declarant deems appropriate. Notwithstan ding the foregoing, no such revision, modification and alteration of the parking spaces or other facilities in the Center Parking Facilities shall deprive or materially interfere with the right of any Owner, Occupant or other Permittees from the use of a p arking space or parking area to which that Person has been provided the dedicated rights to park vehicles as set forth in this Article 6. The Declarant shall be entitled to terminate any license for such interim parking facilities or move such interim par king facilities to any other part of the Center or areas outside of the Center. The costs and expenses of the operation, maintenance and repair of any such interim parking facilities by the Center Association will be established and budgeted by the Center Association , and shall be assessed as part of the Base Assessments, or as a Cost Center Assessment in the event such additional parking facilities or portion thereof are designated for exclusive use by one or more Owners, all as the Board determines as be ing appropriate. (B) After the Center has been developed, and after such time as no Declarant holds Declarant’s Reserved Rights under this Declaration, the Center Association shall have the right to revise, modify and alter the parking facilities in the Cen ter Parking Facilities , including increasing or decreasing, permanently or temporarily, the number of spaces available in the Center Parking Facilities, from time to time as the Board determines appropriate. Notwithstanding the foregoing, no such revision, modification or alteration of the parking spaces and facilities in the Center Parking Facilities shall deprive or materially interfere with the right of any Owner, Occupant or other Permittees from the use of a parking space or parking area to which that Person has been provided the dedicated rights to park vehicles as set forth in this Article 6.] In no event shall the provisions of this Section 6.5 be deemed, construed or interpreted to diminish or alter the rights provided as to the parking for the Reta il Parcel or Hotel Parcel as set forth in Sections 6.3(C) and 6.3(D). The provisions of this foregoing sentence cannot be amended, revised, modified or deleted without the written consent of the Retail Parcel Owners or the Hotel Parcel Owner. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -36 - 6.6. Vehicle Restrictions . Subject to the Land Use Approvals, as long a s the Declarant holds Declarant’s Reserved Rights under this Declaration, the Declarant shall have the power to establish by the Rules the nature and types of vehicles that may be operated and parked within the Center. No vehicle of any type shall be used , parked or otherwise be permitted to remain within the Center other than in a manner permitted and authorized by this Declaration and the Rules. The Rules concerning vehicles and parking within the Center may include provisions regulating the operation a nd parking of passenger cars and other passenger vehicles, trucks, buses and other large vehicles within the Center, the use of handicapped parking spaces, loading zones and other restricted, designated or reserved parking areas in the Center, car and van pool parking and other parking regulations and measures required by the City or other government agencies or considered necessary by the Declarant. After such time as Declarant no longer holds Declarant’s Reserved Rights under this Declaration, or after t he Declarant relinquishes in writing the powers hereunder, subject to the Land Use Approvals, the Center Association shall have the power to establish by Rules the nature and types of vehicles that may be operated and parked within the Center and enforce s uch Rules. Notwithstanding the foregoing, no such Rules for Center Parking Facilities shall deprive or materially interfere with the right of any Owner, Occupant or other Permittees from the use of a parking space or parking area to which that Person has b een provided the dedicated rights to park vehicles as set forth in this Article 6. 6.7. Removal of Vehicles . The Center Association may cause the removal of any unauthorized vehicle or vehicle that is wrongfully parked within the Center, including a vehicle owned by an Owner, Invitee or other Occupant. Any such removal shall be in accordance with the requirements of the California Vehicle Code or any other applicable laws. The Center Association shall not be liable for any damages incurred by the vehicle owner because of the removal in compliance with this Secti on or for any damage to the vehicle caused by the removal, unless such damage resulted from the intentionally wrongful or negligent act of the Center Association or any person causing the removal of or removing the vehicle. 6.8. Declarant’s Reserved Rights for Valet Parking . Subject to the Land Use Approvals, as long as the Declarant holds Declarant’s Reserved Rights under this Declaration, the Declarant reserves the right to establish and operate or cause to be operated valet parking services within the Common Easement Area s for the benefit of some or all of the Owne rs and to charge the Owners or a designated group of Owners for the costs of such valet parking services. Declarant shall have the right to designate a reasonable number of areas within the Common Easement Area s for vehicle drop off locations for such val et parking services and shall have the right to a park a reasonable number of motor vehicles in the Parking Garages and other Parking Areas of the Center in conjunction with such valet parking services. After such time as Declarant no longer holds Declaran t’s Reserved Rights under this Declaration, or after the Declarant relinquishes in writing the powers hereunder, subject to the Land Use Approvals, the Center Association shall have the power to establish and operate such valet parking. 6.9. Center Roadways . Subject to the Land Use Approvals, the Center Associatio n shall manage and operate the Center Roadways, including the installation of traffic signs and signals and developing and administering a traffic circulation program for the Center. The Rules may specify any traffic regulations and measures required by a ny traffic mitigation measures imposed by the City or other government agencies or considered necessary by the Board. Subject to the Land Use Approvals, the Center Association shall have the right to temporarily [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -37 - close off portions of the Center Roadways a nd portions of the Parking Areas for commercial uses and for events, activities and functions approved by the Board. Subject and pursuant to the Land Use Approvals, the Center Association shall maintain, repair and replace all landscaping, signage and imp rovements within the Center Roadways and other portions of the Common Easement Areas which indicate the principal path of motor vehicle traffic within the Center, consistent with requirements of the City. ARTICLE 7. BUILDING MAINTENANCE AND OPERATION 7.1. Building Parcel Maintenance . All improvements within Building Parcels, other than Common E asement Areas or any other areas that are required to be maintained and repaired by the Center Association pursuant to this Declaration, shall be maintained, repaired and replaced by the Owner of the Building Parcel or for any Building Parcel that has been divided into two or more Building Components, by the Building Association for that Building Parcel, in good condition and repair in accordance with the Center Operational Standards consistent with the Project Site being a First -Class Project. (A) The Cent er Association may maintain, repair and replace the lighting fixtures on the exterior of Buildings (including replacement of bulbs and ballasts) that are intended to illuminate Common Easement Areas. (B) The Declarant, as long as Declarant [holds Declarant’s Reserved Rights] [owns a Building Parcel] shall be entitled to establish adopt, modify and amend the Center Operational Standards. The Center Operational Standards may not be modified without the prior written consent of the Declaration as long as Declar ant [holds Declarant’s Reserved Rights] [owns a Building Parcel]. After such time as Declarant no longer holds Declarant’s Reserved Rights, the Center Operational Standards shall be adopted, modified and amended by the Center Association Board by written notice to all of the Owners, provided that any such Center Operational Standards adopted, modified and amended by the Center Association Board shall be subject to ratification by a Majority Vote of the Owners if within thirty (30) days after any such adopt ion, modification or amendment, the Owners call a meeting or a ballot for a vote for such ratification. If no such meeting is called or ballot circulated within such thirty (30) days, then the adoption, modification or amendment shall be deemed operative a nd effective. 7.2. Security . The Owner of a Building Parcel or the Building Association for such Building Parcel that has been divided into Building Components shall be responsible, at its option, for providing security for such Building Parcel. The foregoing is not intended to and shall not be construed as requi ring any Owner of a Building Parcel or Building Component to provide security for such Building Parcel or Building Component. 7.3. Responsibility for Building Maintenance . Unless the Building Declaration provides otherwise, whenever a Building Parcel contains more than one Building Component, the management, maint enance, repair and replacement of the improvements, facilities and structure within the Building and the Building Parcel, which improvements, facilities and structure are shared and commonly used by the Owners of the Building Components in the Building, sh all be undertaken by either the Building Association for such Building Parcel, or if there is no such Building Association, by the Owner of the Retail Component within the Building [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -38 - Parcel, and the costs thereof shall be shared among the Owners in the Build ing Parcel as described in the Building Declaration. (A) If a Retail Project is established within the Retail Parcel, the Retail Association shall maintain, repair and replace, or oversee and manage maintenance, repair and replacement of, the improvements, facilities and structure wit hin the Retail Common Areas of the Retail Project, as set forth in the Building Declaration for the Building Parcel and the Retail Declaration for the Retail Project. The Retail Association shall retain a third party professional manager to carry out its functions. Each Building Decl aration for the Retail Parcel shall specifically define and describe the areas of the improvements, facilities and structure within the Retail Parcel that are to be operated, maintained, repaired or replaced by a specific entity, such as by either the Cent er Association (to the extent the Center Association is required or elects to do such work in accordance with this Declaration), a Building Association, the Owners of a Building Component within the Retail Parcel, or a Retail Association formed for the ope ration and management of a Retail Portion within a Building Parcel, in a manner that is consistent with this Article 7 . (B) All operation, management, maintenance, repair and replacement of the improvements, facilities and structure hereunder shall be consi stent with the Project Site being a First -Class Project. 7.4. Legal Action to Enforce . If a Building Association or the Owner of any Building Parcel or Building Component fails to maintain or repair any portion of its Building Parcel, Building Component as provided in this Declaration, the Center Association may, a fter notice and a hearing to the extent required by the Bylaws, (a) undertake the maintenance or repair on behalf of the Building Association or Owner, or (b) bring legal action to compel such maintenance or repair by responsible Owner [or Building Associa tion]. The costs of undertaking any such maintenance or repair or of any such legal action shall be paid to the Center Association by the Owner of such Building Parcel, Building Component or any Building Association therefor that is responsible for such m aintenance or repair, as a Reimbursement Assessment. ARTICLE 8. INSURANCE 8.1. Insurance - Cente r Association . The Center Association shall obtain and maintain the following insurance coverages: (A) Property Insurance - Common Easement Areas . All -risk form property insurance providing reasonable coverage on a Replacement Cost (as defined below) basis for the costs of repairing, rebuilding and replacing all improvements owned and/or operated by the Center Association within the Common Easement Area s, including the Center Parking Facilities and all personal property and fixtures owned by the Center Association . (1 ) Suc h property insurance policy or policies shall be written to insure in a commercially reasonable manner losses or damage by theft, fire, windstorm, hail, explosion, damage from aircraft and vehicles, smoke damage, extended coverage, debris removal, vandali sm and malicious mischief and sprinkler leakage. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -39 - (2 ) The amount of coverage for such property insurance shall be in the full amount of the full replacement cost (without deduction for depreciation) (“Replacement Cost”) of the improvements and other c overed property (excluding foundation and excavation costs and costs of underground flues, pipes and drains). The amount of coverage must meet any co -insurance requirements of the policy or policies, or the Center Association shall obtain a waiver of any co -insurance provisions. (3 ) Such property insurance shall include coverage or endorsements for increased construction costs due to changes in building codes, regulations and similar laws and for demolition costs, including, but not limited to, an or dinance or law coverage endorsement providing coverages A, B and C and an ordinance law – increased period of restoration endorsement. (4 ) The Center Association may, but shall not be required to, carry (i) earthquake insurance; (ii) pollution liabil ity insurance; and (iii) flood insurance. (5 ) Such property policy or policies shall name the Owner of each Building Parcel [and Building Component] and the Center Association , as a loss payee, as their interests may appear. (6 ) The foregoing property insurance may contain reasonable deductibles or self -insured retentions approved by the Board. (7 ) Such property insurance to be obtained by the Center Association shall not cover any improvements within the Building Parcels, except for thos e improvements within the Center Parking Facilities and Common Easement Area s, and shall not cover any Retail Spaces, nor any trade fixtures, inventory, or other personal property of Owners or Occupants. (8 ) Whenever any improvements or alterations that are owned or operated by the Center Association are in the course of construction, the property insurance required under this subsection for such improvements or alterations shall be carried by the Center Association on the broadest commercially reaso nably available builder’s risk policy form, written on a completed value basis, insuring against loss or damage to the full extent of the Replacement Cost of that which is being covered, without any co -insurance requirements or penalties. The Center Assoc iation and its contractors, subcontractors and sub -subcontractors of any tier, as their interests may appear, shall be insureds under the builder’s risk insurance. The policy coverages shall include, without limitation, the perils referred to in Section 8 .1(A)(1). The policy shall cover materials located on -site, off -site and in transit. The policy shall provide business income, extra expense and delayed opening/delayed start -up coverages, without any co -insurance requirements or penalties. These time e lement coverages shall include a waiting period of no more than fourteen (14) days and shall provide proceeds which will cover actual loss sustained during a period of not less than twelve (12) months from the date of loss. The policy must be endorsed to include ordinance or law coverage no less broad that that required by Section 8.1(A)(3). (B) Liability Coverage – Center Association . A policy or policies of commercial general liability insurance in an amount of not less than Three Million Dollars ($3,000,000) bodily injury and proper ty damage per occurrence limit, Three Million Dollars ($3,000,000) general aggregate limit, Three Million Dollars ($3,000,000) personal and advertising injury limit, and Three Million Dollars ($3,000,000) products -completed operations limit and providing c overage, including without limitation, premises -operations and products -completed operations, insurance against liability for bodily injury, death, personal injury, advertising injury, and property damage occurring or arising from an occurrence in, on or a bout the Common Easement Area s or incident to the ownership, maintenance or use of the Common Easement Area s or any other Center Association owned or maintained real or personal property. The [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -40 - Center Association shall be the first named insured on the comm ercial general liability insurance policy. Such commercial general liability insurance shall name the Center Association ’s agents and representatives, the Board, and the Owners, as additional insureds. The amount and scope of such commercial general liabi lity insurance coverage shall be increased by the Center Association over time to reflect the amount and types of coverage generally maintained by prudent commercial building owners in the County. No such liability insurance shall be deemed to limit the parties’ respective indemnity o bligations or such other obligations of the parties under this Declaration. Such insurance shall be written on an occurrence policy form and not a “claims made” or “modified occurrence” form, except to the extent that occurrence form policies are not comm ercially reasonably available to the Center Association and claims made or “modified occurrence” policy forms are purchased by a substantial majority of associations for similar developments in the County. (C) Workers’ Compensation Insurance . Workers’ compensation insurance (statutor y limits) for employees of the Center Association to the extent required by law and employer’s liability insurance with limits of not less than One Million Dollars ($1,000,000) bodily injury by accident (each accident), One Million Dollars ($1,000,000) bod ily injury by disease (policy limit) and One Million Dollars ($1,000,000) bodily injury by disease (each employee). Such policy or policies shall include a waiver of subrogation in favor of the Center Association and the Declarant. (D) Business Automobile Liability. Business automobil e liability insurance, insuring against liability arising from the maintenance and use of all owned, non -owned, hired, leased and rented trucks, automobiles and other vehicles for bodily injury, death or property damage. Such coverage shall be obtained wi th a combined single limit for each occurrence of not less than Three Million Dollars ($3,000,000.00) without any annual aggregate. (E) Fidelity Bonds or Insurance . Fidelity bonds or insurance covering officers, directors, and employees of the Center Association that have access to any Center Association funds. (F) Directors and Officers Liability Insurance . Directors and officers liability insurance covering all past, present and future directors and officers of the Center Association . The limits of liability of the directors and officers insurance shall be not l ess than Two Million Dollars ($2,000,000) per claim/annual aggregate. (G) Other Insurance . Such other insurance insuring the Center Association , or any property owned or controlled by the Center Association , as the Board, in its discretion, considers necessary or advisable. 8.2. Assessments for Insurance . The cost of insurance coverage required to be maintained by the Center Association shall constitute a Common Operational Cost and be included as part of the Base Assessments. Notwithstanding the foregoing, the Board may allocate the cost of insurance as a Cost Center Assessment to more accurate ly reflect the benefits arising from such insurance coverage due to the specific use or uses within a Building Parcel or Building Component or Cost Center as reasonably determined from time to time by the Board and the insurer(s) of the policies described herein. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -41 - 8.3. Insurance Administration . (A ) Each O wner [and Building Association] will be deemed to have appointed the Center Association or any insurance trustee designated by the Center Association to act on behalf of the Owners in connection with all insurance matters arising from any insurance policy maintained by the Center Association , including without limitation, representing the Owners, [or Building Association] in any proceeding, negotiation, settlement or agreement. (B ) Any insurance maintained by the Center Association shall contain a “waiver of subrogation” as to the Center Association and its officers, directors and members, the Owners, any Building Association, and Occupants of the Building Components (including the Declarant), and all Mortgagees, and, if commercially reasonably a vailable, a cross -liability or severability of interest (separation of insureds) endorsement or provision insuring each insured against liability to each other insured. (C ) The Center Association , its directors, officers, and Manager, shall ha ve no liability to any Owner, Building Association or Mortgagee if, after a good faith effort, it is unable to obtain or maintain the insurance required hereunder, because the insurance is no longer available at commercially reasonable rates or terms, or, if available, cannot be obtained or maintained because the Owners have failed to fund the insurance premiums. In such event, the Board immediately shall notify each Owner and any Mortgagee entitled to notice from the Center Association that the insurance will not be obtained or renewed. (D ) The Center Association shall annually review all insurance policies maintained by the Center Association to determine the adequacy of the coverage and to adjust the scope, types and limits of the policies ac cordingly. (E ) No Owner [or Building Association] shall separately insure the improvements within a Building Parcel against loss by fire or other peril covered by any insurance carried by the Center Association in a manner that will result in a ny diminution in insurance proceeds otherwise payable under the Center Association ’s policies. The Center Association shall make available to all Owners a copy of the Center Association ’s property policy or policies to enable Owners [or any Building Assoc iation] to insure their Building Parcel or Building Component without duplicating insurance carried by the Center Association , including, without limitation, to avoid inadvertently triggering any co -insurance clause in the Center Association ’s policy or po licies. If any Owner [or Building Association] violates this provision, any diminution in insurance proceeds otherwise payable under the Center Association ’s policy or policies that results from the existence of such other insurance will be chargeable to the Owner [or Building Association], as applicable, who acquired other insurance. 8.4. Insurance of Building Parcels and Building Components . The Owner of each Building Parcel or Building Component shall comply with the insurance requirements and standards stated in this Declaration and the insurance requirements an d standards stated in the Building Declaration for such Building Parcel or Building Component. [Each Building Declaration shall state minimum insurance standards and requirements for the Building Parcel or Building Component consistent with the requiremen ts of this Declaration, the provisions of which shall be subject to review by the Declarant as long as Declarant holds Declarant’s Reserved Rights.] To the extent that the provisions of this Declaration require greater coverage or more extensive coverage, or otherwise conflict with the provisions regarding insurance in any Building [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -42 - Declaration, the provisions of this Declaration shall prevail, excepting provisions in Building Declarations that require policies of insurance with greater insured amounts, less er deductibles or otherwise broader insurance coverage than are stated in this Declaration. 8.5. (A ) Property Insurance -- Building Parcels . The improvements within each Building Parcel shall be insured by the Owners of the Building Components or any Building Association under a Building Declaration with coverages that are no less than commercially reasonable standards for such property insurance as established from time to time by the Board. Initially, the property insurance for the improvements within a Building Parcel shal l comply with the following requirements and standards: (1 ) The property insurance shall be written on an all -risk (special causes of loss) form on a Replacement Cost basis, in an amount equal to the full cost of repairing, rebuilding and replaci ng all improvements of the Building, excluding non -structural improvements installed within Retail Spaces or within the interior areas of Buildings complying with the requirements of Sections 8.1(A)(1), (2) and (3). (2 ) Such policy or policies shall name the Owners of the each of the Building Components as additional insureds. (3 ) The foregoing insurance may contain reasonable deductibles or self -insured retentions approved by the Board or established by the Board in the Rules. (4 ) Wheneve r any improvements or alterations are in the course of construction, the insurance required under this subsection, to the extent appropriate, shall be carried on a builder’s risk policy form complying with the requirements of Section 8.1(A)(8). (B ) Liability Insurance - Building Parcels . The Owner of each Building Parcel [or Building Component][or any Building Association], as applicable, shall obtain and maintain a policy or policies of commercial general liability insurance, insuring against liability for personal injury, advertising injury, bodily injury, death and property damage occurring or arising from an occurrence in, on or about the Building Parcel or Building Component [except for claims arising from incidents that occur inside the Re tail Spaces]. Upon written notice from the Board, the amount and scope of such liability insurance coverage shall be increased over time to reflect the amount and types of coverage generally maintained by prudent commercial building owners in the County. (1) Such commercial general liability insurance shall be obtained as follows: such insurance shall be written on an occurrence policy form (claims made or “modified occurrence” forms are not acceptable, except to the extent that occurrence form policies are not commercially reasonably available and claims made or “modified occurrence” policy forms are purchased by a substantial majority of owners in similar developments in the County) with limits of liability not less than Three Million Dollars ($3,000,0 00) bodily injury and property damage per occurrence limit, Three Million Dollars ($3,000,000) general aggregate limit, Three Million Dollars ($3,000,000) personal and advertising limit, and Three Million Dollars ($3,000,000) products -completed operations limit. Such liability insurance for any commercial or retail uses shall provide, without limitation, coverage for premises -operations, explosion, collapse, and underground hazards, products -completed operations, blanket contractual liability insurance, br oad form property damage (including completed operations), liquor legal liability, independent contractors and cross -liability coverage (separation of insureds). The operator of any Parking Garage or other parking area or parking facility within the Cente r shall obtain and maintain liability insurance coverage and other types of insurance [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -43 - coverages that are normally and customarily obtained and maintained by the operators of parking garages and facilities in the City. (2) No such insurance shall be deem ed to limit the parties’ respective indemnity, defense and hold harmless obligations or such other obligations of the parties under this Declaration. (C ) Boiler, Machinery and Pressure Vessel . If such insurance is generally obtained by buildin g owners for the type of building owned and operated in the Center, the Building Association shall obtain broad form boiler, machinery and pressure vessel insurance (without exclusion for explosion) shall be obtained in a reasonable and appropriate amount as recommended by an experienced insurance consultant or advisor covering direct property loss and loss of income and providing coverage for all steam, mechanical and electrical equipment, including, without limitation, all boilers, unfired pressure vessel s, piping and wiring owned or maintained by the Owners of each Building Parcel and Building Component or by a Building Association under a Building Declaration. The coverage shall include, without limitation, system breakdown coverage and insurance against loss of occupancy or loss of use arising from any breakdown and shall include, without limitation, the Replacement Cost of the improvements housing the boiler, machinery and/or pressure vessels. (D ) Business Income . Business income insuranc e shall be provided for any Retail Component, [and for operations of the Senior Residences Parcel] covering loss of profits, extra expense, loss of rents and necessary continuing expenses for interruptions caused by any occurrence or peril covered by the i nsurance required hereunder, extending the business interruption and extra expense coverage to include loss caused by action of a civil authority that prohibits access to the improvements due to any covered cause of loss. These time element coverages shal l be in an amount sufficient to avoid co -insurance penalty and provide proceeds which will cover actual loss sustained (i) during a period of not less than twelve (12) months from the date of casualty or loss; or (ii) until that date on which the improveme nts are fully reconstructed or repaired and generating the amount of income/rents which would have been realized but for the casualty or loss, whichever is later. The insurance obtained shall include an endorsement for an extended period of indemnity of o ne hundred eighty (180) days. The coverages required by this Section 7.4(D) shall include a waiting period of not more than fourteen (14) days and must be endorsed to provide ordinance or law coverage no less broad than that required by Section 7.1(A)(3). (E ) Business Automobile Liability . Business automobile liability insurance, insuring against liability arising from the maintenance and use of all owned, non -owned, hired, leased and rented trucks, automobiles and other vehicles for bodily injury, death or property damage, shall be obtained with a limit for each occurrence of not less than Three Million Dollars ($3,000,000) with no annual aggregate. 8.6. Insurance for Design Professionals, Contractors and Vendors. All design professionals, contractors and vendors performing services or work for or on behalf of the Center Association or any Owner shall comply with such insurance requirements as are established from time to time by the Board in its discretion. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -44 - 8.7. General Requirements . All insurance policies required to be obtained under this Article 7 shall be issued by responsible companies licensed and quali fied to do business in the State of California. All such companies shall maintain a rating from A.M. Best & Co. of not less than A:VII or an equivalent rating from a similarly qualified rating firm if Best’s ceases to exist or provide a rating. 8.8. Revision of Insurance Requirements . The Declarant, as long as Declarant has Declarant’s Reserved Rights hereunder, may modify the minimum and maximum of amounts of insurance required under this Article 8 to the extent that Declarant deems it necessary and appropr iate to protect the Declarant, the Center Association and the Owners and other Occupants as commercially reasonable and appropriate. After such time as Declarant no longer has such Declarant’s Reserved Rights, the Board of the Community Association may mod ify the minimum and maximum of amounts of insurance required under this Article 8 to the extent that the Board deems it necessary and appropriate to protect the Declarant, the Center Association and the Owners and other Occupants as commercially reasonable and appropriate. ARTICLE 9. CONSTRUCTION WORK 9.1. Proceeding with Work . All Construction Work shall be undertaken and performed by the Owner of the Building Parcel or Building Component in full compliance in all material respects with the Land Use Approvals and all necessary building permits and other permits in compliance with City requirements. Promptly after obtaining the necessary governmental permits, the Owner shall commence and diligently proceed with the construction and completion of the Construction Wo rk as approved by the City. Any such Construction Work must be commenced and completed diligently, subject to Force Majeure. 9.2. Construction Work Review . (A) All Construction Work which is new construction on a Building Parcel or Building Component by an O wner or Building Parcel Developer shall require the completion of a Construction Work Review by the [Declarant, as long as Declarant owns a Building Parcel in the Center. After such time as Declarant no longer owns a Building Parcel, or after such time as Declarant relinquishes such right of review in a written document that is recorded in the Official Records of the County, such Construction Work Review shall be undertaken by Center Association Board (the “Construction Work Review Body”). The Construction Work Review Body shall adopt rules and procedures for Construction Work Review. (B) Alterations and modification to any Improvements of a Building or on a Building Parcel (“Alterations”) shall be subject to Construction Work Review if such Alterations are m ade to the exterior of any Building or are made to the areas of a Building Parcel exterior of a Building, such as landscaping, hardscape or other such areas of the Building Parcel that are visible from another Building Parcel or from the Common Easement Ar eas. (C) Prior to commencement of any such new Construction Work on a Building Parcel or Building Component, or prior to commencement of Alterations, the Owner of the Building Parcel or Building or the Building Parcel Developer, shall submit the proposed C onstruction Work to the Construction Work Review Body for Construction Work Review pursuant to this Section 9.2. Construction Work Review submittals shall be made by an Owner [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -45 - or the Building Parcel Developer for such Construction Work after the Owner or th e Building Parcel Developer has obtained entitlement and design review for the proposed new Building or Building Component, or Alterations, but prior to the Owner’s or the Building Parcel Developer’s submittal for building permits for the Construction Work . The Construction Work Review process shall be applied fairly and equitably by the Construction Work Review Body to the Owners and Building Parcel Developer s. (D) The scope of the Construction Work Review for new Construction Work or for Alterations by the Construction Work Review Body shall pertain to the following: (1) Center Association Documentation: Review and memorializing the Building Area, parking requirements, Building Component areas and uses within a Building Parcel or Component, and any other i nformation necessary for the effective ongoing management of the Center by the Center Association. (2) Design Review: Review of the design of the Improvements or the Alterations as meeting the requirements set forth in Section 9.4 of this Declaration. (3) Insur ance: Review of any insurance or agreements necessary to protect the Center Association and Declarant. (4) Construction Documentation: Review of requirements for delivery of future construction documentation, such as permits, certificates of occupancy, warran ties for work related to the Common Easement Area s and/or infrastructure, as well as as -built drawings upon completion. (5) Infrastructure Requirements: Review of capacity of and extension to utilities, roadways, services and Center Association infrastructure , including transformer and meter location, circuiting, method of connecting, and timing and expected duration of work. (6) Construction parameters: General review of technical (not design) aspects of the construction drawings to determine if there are any ma terial impacts to neighboring buildings, including sound, vibration, fire hazards, code related, or operational hardships that will result. (7) Constructability Issues: Review of timing, duration, staging, worker parking, pedestrian safety, barrier erection a nd design, traffic flows of the work, and entering into an agreement to restore any damage to Common Easement Area s or neighboring properties. (8) Operational Issues: Review of any matters impacting the operation of other buildings in the Center, including bu t not limited to rubbish storage (i.e refrigerated for a restaurant), rubbish removal and deliveries, valet (location, proposed queuing, and traffic flows), signage and public area lighting (i.e. circuit of shop signs consistent with the rest of the projec t so all store signs go on at once), and landscaping to be maintained by the Center Association on an ongoing basis. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -46 - 9.3. Forms of Approvals and Denials by Construction Work Review Body . All approvals and denials by the Construction Work Review Body shall be in writing. Any denial of a proposal shall state the reasons for the decision made with respect to said denial. The Construction Work Review Body may impose reasonable written conditions and requirements with respect to any approval that the Construct ion Work Review Body determines to grant. All records of the Construction Work Review Body shall be kept in the Manager’s office and be available for review by Owners during the management office’s office hours. 9.4. Basis for Approval of Improvements . T he Construction Review Body shall not approve as part of any Construction Work the construction of any new Improvements or Alterations unless it finds that: (A) The general architectural considerations, including the character, scale and quality of the desig n of such Improvements meet the standards established by the Construction Review Body; (B) The architectural relationships of such Improvements with the site and other Buildings, building materials, colors, screening of exterior appurtenances, exterior lightin g, and other similar elements have been incorporated in order to ensure the compatibility of the proposed Improvements and its design concept with the character of adjacent Buildings and the general character of the Community and the compliance with the R ules and any Community Design Guidelines and the related terms and conditions of the Land Use Approvals; (C) The architectural design, layout and setbacks of the proposed Improvements are compatible with the existing Buildings and Common Areas; (D) The general sit e considerations, including site layout, open space and topography, orientation and location of buildings, vehicular access, circulation and parking setbacks, heights, walls, fences and similar elements have been designed to provide a desirable environment , and are otherwise in compliance with the Land Use Approvals and any Community Design Guidelines; (E) General landscape considerations, including the location, types, size, color, texture and coverage of plant materials, provisions for irrigation, maintenance and protection of landscaped areas and similar elements, have been considered to ensure visual relief, to complement buildings and structures within the Community, and to provide an attractive environment for the enjoyment of the Owners in general, and th eir Invitees, and enhancement of the property values in the Community in general; and (F) Electrical transformers, telephone vaults, and similar above ground equipment enclosures are located in areas designated for such uses by the Land Use Approvals and any C ommunity Design Guidelines or if not so designated, screened with fencing and landscaping acceptable to the Construction Review Body, or if required by the Construction Review Body located underground so that such equipment shall not be visible from the Bu ildings. If the Construction Review Body makes a negative finding on one or more of the items set forth in this Section, it shall disapprove such a matter or condition its approval so as to allow such findings to be made. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -47 - 9.5. Exclusions From Rev iew . Notwiths tanding the foregoing, no Construction Review Body approval shall be required for: (i) repainting a Building in accordance with the color scheme that has been most recently approved by the Construction Review Body for the portion of the Improvements in th e Community that are being repainted, or is currently, as of the repainting, set forth in the Rules; (ii) repairing, rebuilding or restoring a portion of a Building or other part of the Community in accordance with the plans and specifications previously approved by the Declarant as Declarant’s Improvements or as initial Construction Work or by the Construction Review Body for the particular portion of the Building or other part of the Community that is being repaired, rebuilt or restored; (iii) for constr uction or alteration of store fronts of retail or commercial establishments located in commercial spaces. In addition, no Construction Review Body approval shall be required for construction of walls or partitions or other improvements to create units in t he interior of a Building that does not entail any structural alterations of the Building or modification of the Common Areas. All work performed under this Section 9.5 shall be consistent with the Land Use Approvals. 9.6. Construction Review Body Review P rocedures . The following procedures shall govern the actions of the Construction Review Body as to submittal to and review by the Construction Review Body of Construction Work or Alterations: ] (A) Submittals . Any Owner seeking review and approval of Const ruction Work or Alterations by the Construction Review Body shall submit to the Construction Review Body an application for approval of such Construction Work or Alterations, together with such plans, specifications, and other documentation as may be requi red pursuant to any Rules or Community Design Guidelines to enable the Construction Review Body to make a determination with respect to such proposed Construction Work or Alterations ("Construction Review Submittal"). Any Owner seeking approval of a Chang e in Use by the Construction Review Body shall submit to the Construction Review Body an application for approval of such Change in Use, together with such other information and documentation as may be required pursuant to the Rules or any Community Design Guidelines to enable the Construction Review Body to make a determination with respect to such proposed Change in Use ("Proposed Use Documents"). The Construction Review Body shall define what constitutes a full set of a Construction Review Submittal or Proposed Use Documents for Construction Work or Alterations. (B) If the Construction Review Body determines that the application for approval of Construction Work, Alterations or a Change in Use or the Construction Review Submittal or Proposed Use Documents does not comply with this Declaration, any Community Design Guidelines or are otherwise inadequate to permit the Construction Review Body to make a final determination on the application, the Construction Review Body shall notify the Owner in writing of s uch deficiency within twenty (20 ) days after such submittal is made by the Owner. An Owner shall be entitled to submit a remedial package to correct the deficiency identified by the Construction Review Body and the Construction Review Body again shall not ify the Owner in writing of such deficiency within ten (10) days after such submittal including therein reasonable detail describing any continuing deficiency. If the Construction Review Body fails to notify an Owner of a deficiency within any such ten (1 0) day period, the information submitted to the Construction Review Body shall be deemed complete. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -48 - (C) Within sixty (60) days after a complete submittal package has been delivered to the Construction Review Body, the Construction Review Body shall notify the Owner whether the application for the Construction Work, Alterations or a Change in Use has been approved or disapproved. If the application has been disapproved, the Construction Review Body shall specify in reasonable detail the reasons for such disappr oval. If the Construction Review Body fails to approve or disapprove an application within such sixty (60) day period, the application will be deemed to have been disapproved. 9.7. Commencement and Completion of Construction Work . All Construction Work shall be commenced within a reasonable time after Construction Work Review by the Construction Work Review Body , if Construction Work Review is required for such Construction Work, and the issuance of building permits for such Construction Work, and shall there after be prosecuted continuously to completion in a manner that is consistent in all material respects with any required Construction Work Review and the building permits, and all other applicable Project Approvals, without significant interruption. 9.8. Quality of Construction . All Construction Work shall be done in a first class and workmanlike manner in accordance with good construction practices that are in compliance with all applicable laws and regulations and this Declaration. First class shall mean a quality, condition, nature or operation that is consistent with the initial construction of the improvements in the Center by the Declarant. 9.9. Compliance with Laws . None of the Owners shall make any alterations or undertake any Construction Work th at would violate in any material respect any Use Permit, or other laws, ordinances or regulations affecting the Center. If joinder by the Center Association, a Building Association or any other Owner is required for applications for building permits or ot her permits for any Construction Work undertaken by an Owner, the Center Association, Building Association, and such other Owner shall cooperate in such regard; provided however, that the Owner undertaking such Construction Work shall indemnify, defend (w ith counsel reasonably acceptable to the indemnified party) and hold harmless the Center Association, the Building Association and the other Owners from any and all claims for injuries, damages, losses, liabilities, judgments, costs or expenses that arise out of such Construction Work or arising from the execution of any such application by the Construction Work Review Body, the Center Association, the Building Association or other Owners for Construction Work not undertaken by them. 9.10. Compliance with Operati on and Maintenance Agreement and Plan . No Construction Work shall be undertaken by an Owner or any other Person within the Center that does not comply with the requirements of the Land Use Approvals for the Center. 9.11. Lien Protection . An Owner performing any Construction Work in the Center shall include in any construction contract a provision pursuant to which the contractor recognizes the separate ownership of the Building Parcel or Building Component of the Owner and agrees that any lien rights of the cont ractor or subcontractors under the mechanics lien laws of the State of California shall only be enforceable against the Building Parcel or Building Component of the contracting Owner which is the subject of the construction contract. 9.12. Harm to Common Easemen t Areas . If any Construction Work by an Owner or its agents or contractors, including any repairs, replacement or restoration of damaged or [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -49 - destroyed improvement on a Building Parcel, causes any injury, damage or harm to the improvements within the Common Easement Area s, the Owner who has undertaken such Construction Work shall repair any such injury, damage or harm within a reasonable time, in a first class and workmanlike manner, at no cost or expense to the Center Association or the other Owners. 9.13. Approv al of Declarant . No applications or requests for Changes in Use affecting any portion of the Center shall be made by any Owner without the prior written approval of the Declarant, as long as the Declarant holds Declarant’s Reserved Rights under this Decla ration. 9.14. Liability for Review . Review or approval of Construction Work Review or Proposed Use Documents by the Declarant or the Construction Work Review Body for Construction Work or a Change in Use shall in no way make the Declarant, the Construction Wo rk Review Body or its members responsible or liable for the design or implementation of the proposed Construction Work or a Change in Use or be interpreted that the Declarant, the Construction Work Review Body or its members represent or warrant that the p roposed Construction Work or a Change in Use is adequate in its design, of any particular quality, sufficient for its intended purpose or free from defects. The Proposing Owner whose proposed Construction Work or a Change in Use is approved shall indemnif y, defend (with counsel reasonably acceptable to the indemnified party), and hold the Declarant and the Construction Work Review Body or its members harmless from any and all claims, demands, damages, losses, expenses, costs, judgments and liabilities, inc luding but not limited to attorneys’ fees, arising out of such approval. Approval of plans, drawings or specifications of any proposed Construction Work or a Change in Use or other matter requiring approval under this Article 9 shall not be deemed to cons titute a waiver of the Declarant or the Construction Work Review Body’s right to deny approval of any similar plan, drawing, specification or other matter subsequently submitted for approval. 9.15. Subdivision of Parcels . A Building Parcel or Building Comp onent may be subdivided or resubdivided by the Owner only if the following conditions are met: (A) The Owner complies with all City requirements; (B) As long as the Declarant holds Declarant’s Reserved Rights under this Declaration, Declarant's prior written consent is obtained, which Declarant shall exercise in its sole and complete discretion; and (C) The Owner provides a supplement and amendment to this Declaration that allocates all obligations and rights of this Declaration to the Owners of the parcels or Building Components created and established by any such subdivision and resubd ivision. Such supplement and amendment to this Declaration shall be subject to the review and approval by the Board, which approval shall be in writing and shall not be unreasonably withheld. Any such supplement or amendment shall be subject to the revie w and approval of the Declarant as long as the Declarant holds Declarant’s Reserved Rights under this Declaration. If so approved, such supplement and amendment shall be executed by an authorized officer of the Center Association on behalf of all of the Ow ners. The foregoing requirements of Section 9.10 (A) through (C) inclusive shall not apply to a Building Parcel or Building Component owned by Declarant. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -50 - ARTICLE 10. USE RESTRICTIONS 10.1. Use of Center . The Center, the Common Easement Area s, and each Building Parcel sh all be used and operated in accordance with and subject to the provisions of the Land Use Approvals for the Center and the Rules. 10.2. Modification of Land Use Approvals or Use Permits . The Land Use Approvals and other Use Permits for the Center may be mo dified, amended, supplemented or revised by the Center Association, acting through the Board, subject to obtaining the necessary approvals, permits and authorizations from the applicable governmental authorities and, as long as the Declarant holds Declara nt’s Reserved Rights under this Declaration, the Declarant. Notwithstanding the foregoing, the Center Association shall not implement or approve any modifications, amendments, supplements or revisions of the Land Use Approvals or of other Use Permits for t he Center that would deny any Owner or Occupant legal access to that portion of the Center which it owns, leases or legally occupies, or cause any Owner or Occupant to be denied reasonable use and enjoyment of the easements, rights and privileges set forth in this Declaration. An Owner shall be entitled to modify, amend, supplement or revise the Land Use Approvals and other Use Permits for the Center and to obtain a new Use Permit for any Building Parcel only if such Owner has first obtained the prior writ ten approval of the Declarant as long as the Declarant holds Declarant’s Reserved Rights under this Declaration . 10.3. Compliance with Law . Each Owner, and the tenants and other Occupants of such Owner’s Building Parcel or Building Component shall comply wit h all laws, codes, rules, orders, ordinances, regulations and requirements now or hereafter enacted or promulgated by the United States of America, State of California, City (in its governmental capacity) or any other governmental or quasi -governmental aut hority or agency now or hereafter having jurisdiction over the Center, a Building Parcel, Building Component, or any parts thereof, if noncompliance would subject the other Owners or Mortgagees to civil or criminal liability, jeopardize any certificate of occupancy of any Building Parcel, Building Component, or any other Owner’s rights to occupy or utilize beneficially their respective portions of the Center, any Building Parcel, Building Component, or part thereof, or would result in the imposition of any lien against any part of the Center. 10.4. Insurance Requireme nts . The Owners shall comply with all rules, regulations, and requirements of any insurance rating bureaus having jurisdiction over the Center, Common Easement Areas, Building Parcel, Building Component, or any portion thereof, and the provisions of the i nsurance policies obtained by the Center Association. The Owners shall not do anything that would materially increase the premiums of any policy of insurance maintained by the Center Association, any Building Association, or any of the other Owners, would render any portion of the Center uninsurable, or create any valid defense to the Center Association’s, any Building Association’s, or any Owner’s right to collect insurance proceeds, or cause any insurance policy to be cancelled, or cause a refusal to ren ew the same. 10.5. Illegal Activities and Nuisances . No ille gal activities shall be conducted within the Center, nor shall anything be done thereon which may be or may become a nuisance to or which may in a material way interfere with the quiet enjoyment of any Owner of its respective Building Parcel, Building Comp onent, or which will impair the structural integrity of any Building [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -51 - or other improvement in the Center, or which will endanger lives or health of Occupants or Invitees. 10.6. Outdoor Activities . In accordance with and subject to the provisions of the Land Use Approvals for the Center, the Center Association shall h ave the authority and responsibility to oversee and control all outdoor activities within the Common Easement Area s. There shall be no display, sale or offering for sale of merchandise, and no promotional or business activities within the Common Easement A rea s, including, but not limited to, distribution of handbills, flyers and similar materials, except for organized special promotions or other commercial activities consistent with the Rules, or approved in advance by the Board or, as long as Declarant [ho lds Declarant’s Reserved Rights under this Declaration] [owns a Building Parcel]Declarant owns a Parcel in the Center, the Declarant. In accordance with and subject to the provisions of the Land Use Approvals for the Center outdoor dining shall be permitte d for restaurants in the Center as permitted under City regulations and the Rules. 10.7. Town Center Square Plaza . The Town Center Square plaza area shall be used in accordance with the provisions of the Land Use Approvals in a manner consistent with a Firs t Class Project. As long as Declarant [holds Declarant’s Reserved Rights under this Declaration] [owns a Building Parcel], Declarant may establish rules and regulations regarding the conduct of activities within the Town Center Square Plaza. After such tim e as Declarant no longer [holds Declarant’s Reserved Rights under this Declaration] [owns a Building Parcel], or after Declarant relinquishes its rights hereunder in a recorded written document, the [Retail Owner][Center Association Board] may establish t he rules and regulations regarding the conduct of activities within the Town Center Square Plaza. 10.8. Discharge of Waste or Hazardous Substances . No use shall be permitted on any Building Parcel or in any Building Component that discharges contaminated liquid or solid wastes or other toxic, noxious or harmful mat ter into the atmosphere or any creek, canal, flood control channel, ground water, or other body of water, which may adversely affect (i) the health or safety of persons or (ii) the use or enjoyment of the Center or any part thereof, or (iii) vegetation wit hin the Center. No discharge of waste or any substance or materials of any kind shall be made into any public or private sewer serving the Center or any part thereof in violation of any regulations of any public body having jurisdiction. No highly flammable, explosive, corrosive, to xic or otherwise hazardous materials shall be manufactured or sold within the Center. Storage and use of any such hazardous materials shall be allowed only if in compliance with all applicable laws. 10.9. Garbage and Refuse Disposal . All rubbish, trash, garbage and recycling shall be regularly removed from the Com mon Easement Area s, Building Parcels and Building Components, deposited in the rubbish, trash, garbage and recycling repositories operated in accordance with the Rules, and shall not be allowed to accumulate. All trash, garbage, recycling and other waste shall only be kept in clean and sanitary containers. All containers and equipment for the storage or disposal of such trash, garbage, recycling and other waste materials shall be screened from view from Common Easement Area s and neighboring Building Parce ls to the extent reasonably feasible. No toxic or hazardous materials shall be disposed of within the Center by dumping in the garbage containers or down the drains, or otherwise, except in accordance with applicable law. The Center Association shall have the right and option of collecting rubbish, trash, garbage and recycling from Building Parcels, Building Components and to establish Cost Centers for such collection. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -52 - 10.10. Radio and Television Antennas . Except to the extent required to comply with the requirements of applicable State and federal laws and regulati ons, no Owner shall construct, install, use or operate external radio, or television or telecommunications transmitting or receiving antennas or other electronic antennas or dishes within the Center except in accordance with the Rules and in accordance wit h, and subject to, the provisions of the Land Use Approvals for the Center and, as long as Declarant holds Declarant’s Reserved Rights under this Declaration, the written approval from Declarant. 10.11. Building Parcel Restrictions . Any Building Parcel may be subjected to a Building Declaration that provides additional covenants and restrictions applicable solely to that Building Parcel. No provision in a Building Declaration shall be less restrictive than the provisions of this Declaration. If there is any conflict in any provisions of a Building Declaration and this Declaration, the provisions of this Declaration shall prevail. As long the Declarant holds Declarant’s Reserved Rights under this Declaration, the form and content of each Building Declaration, and any amendment, modification or termination thereof, shal l be approved in writing by the Declarant before the Building Declaration or the amendment, modification or termination is recorded or becomes effective. If at the time of the making of a Building Declaration, or at the time of an amendment, modification or termination of a Building Declaration, the Declarant does not hold Declarant’s Reserved Rights under this Declaration, the form and content of the Building Declaration, and any amendment, modification or termination thereof, shall be approved in writing by the Board before the Building Declaration or the amendment, modification or termination is recorded or becomes effective. 10.12. Undeveloped Building Parcel Restrictions and Standards . The Center Association shall establish standards, procedures and prot ocols for the use and operations of the Undeveloped Building Parcels prior to development, including but not limited to standards for maintenance, installation and upkeep landscaping and improvements, removal of refuse and graffiti and similar issues and c oncerns. ARTICLE 11. DAMAGE OR DESTRUCTION 11.1 Common Easement Areas . If any Improvements within the Common Easement Area s, including Center Parking Facilities , are damaged or destroyed by fire or other casualty, then, subject to the provisions of Section 11.2 , the damaged or destroyed Common Easement Area Improvements shall be repaired or reconstructed by the Center Association in a manner and to a condition that provides substantially the same benefits as originally provided by such improvements, subject to such al terations as may be approved by the Board (“Restoration Work”). 11.2 Payment for Restoration Work . (A) Sources of Funds . All costs for completing the Restoration Work shall be paid from: (i) proceeds of insurance required to be maintained by the Center Associ ation (“Insurance Proceeds”); (ii) a Special Assessment in an amount which, when aggregated with the Insurance Proceeds is sufficient to pay for the Restoration Work; provided, however, in no event shall the amount of such Special Assessment exceed $10,000 ,000, as increased on a cumulative basis every five (5) years by five percent (5%) (“Restoration Special Assessment”). [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -53 - The Restoration Special Assessment is hereby deemed approved by all Owners and shall be levied against each Building Parcel in the same proportion as Base Assessments are levied; and (iii) any Special Assessment approved by the Owners pursuant to Section 11.2(B). (B) Additional Special Assessment . If costs of Restoration Work exceed the Insurance Proceeds and the maximum amount of the Rest oration Special Assessment (such excess being hereinafter referred to as the “Excess Amount”), the Board, through the Manager, shall call a meeting of all Owners of Building Parcels within thirty (30) days after the Excess Amount is determined, but in no e vent later than one hundred twenty (120) days after the occurrence of the event which caused the damage or destruction. At such meeting, the Board shall present for approval by the Owners a request for a Special Assessment in the amount of the Excess Amou nt. Such Special Assessment shall be deemed approved if approved by a vote of Owners owning at least two -thirds (2/3) of all Building Areas in the Building Parcels. If such a Special Assessment for the Excess Amount is approved, such Special Assessment sh all be levied against each Building Parcel in the same proportion as Base Assessments are levied and the Center Association shall undertake the Restoration Work pursuant to Section 11.3 of this Declaration. If a Special Assessment for the Excess Amount is not approved as aforesaid, the Center Association shall use the Insurance Proceeds and the Restoration Special Assessment as follows: (i) first, to make the Common Easement Area s safe and free from hazards; (ii) second, to remove all debris and make damag ed areas reasonably attractive; and (iii) third, to make the Common Easement Area s as useable as reasonably possible under the circumstances. 11.3 Procedures for Restoration Work . The Board shall designate a construction consultant, a general contractor, or a n architect to administer the Restoration Work. All Insurance Proceeds and all proceeds from a Restoration Special Assessment or a Special Assessment for the Excess Amount shall be deposited with a commercial lending institution experienced in the disburs ement of construction loan funds or other third party escrow agent as selected by the Board. The Center Association shall complete the Restoration Work as promptly as is reasonably possible under the circumstances, in a good and workmanlike manner and lie n free. 11.4 Building Parcels . (A) If all or any part of any Building Parcel or Building Component or other improvements on any Building Parcel are damaged or destroyed by fire or other casualty, the Owner(s) of such Building Parcel or Building Component or other improvements shall repair or reconstruct the damaged or destroyed Building Parcel or Building Component or other improvements in accordance with this Declaration and the Building Declaration for said Building Parcel, unless all of the Owners of all Building Components within that Building Parcel elect not to effect such repair or reconstruction. If such Owners elect not to rebuild as aforesaid, such Owners shall remove all debris and damaged improvements, cause the improvements within the Building P arcel to be leveled, remove all safety hazards and render the Building Parcel safe and reasonably attractive and in accordance with and subject to the provisions of the Land Use Approvals for the Center. (B) In the event of damage to Buildings on mor e than one Building Parcel, the Owners of each of the Building Parcels or Building Portions so affected shall cooperate in the repair and reconstruction of their respective Buildings by coordination of repair or reconstruction work and providing access whe re necessary over and across their respective [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -54 - Building Parcels. The Board of the Center Association shall coordinate repair or reconstruction work within the Common Easement Area s with the Owners and provide such access over and across the Common Easement Area s as reasonably necessary for the Owners to effectuate such repair or reconstruction. 11.5 Completion of Work . Any repair or reconstruction of improvements within a Building Parcel shall be commenced and completed within a reasonable time frame to be dete rmined by the Board of the Center Association as appropriate, given the nature and extent of the repair or reconstruction to be accomplished. The Owners and the Center Association shall take all appropriate steps before repair or reconstruction is commenc ed or completed to erect necessary structures to preclude unauthorized access to areas being subjected to the repair and/or reconstruction and otherwise mitigate hazardous conditions within the Center. 11.6 Reasonableness of Provisions . Declarant and each Ow ner hereby acknowledges that (A) the Center is a complex mixed use development requiring several years to design, develop and construct; (B) this Declaration specifically addresses the rights and obligations of the Center Association and each Owner with re gard to the repair and reconstruction of the improvements in the Common Easement Areas and the Building Parcels; and (C) considering the foregoing, the provisions of this Declaration with regard to the repair and reconstruction of the improvements in the C ommon Easement Areas and the Building Parcels are reasonable, fair and appropriate. ARTICLE 12. CONDEMNATION 12.1 Common Easement Areas. If all or any part of the Common Easement Areas are taken by eminent domain, the proceeds of condemnation shall be paid to the Center Association and shall be used to restore or replace the portion of the Common Ea sement Areas affected by condemnation, if and to the extent such restoration or replacement is possible. Any funds remaining, after payment of any and all fees and expenses incurred by the Center Association relating to such condemnation, restoration or r eplacement, shall be held by the Center Association on behalf of the Owners, subject to the rights of Mortgagees. If necessary, the Center Association, as an Association expense, shall cause the remaining portions of the Center to be resurveyed to reflect such taking. The Center Association shall represent all of the Owners in any condemnation proceedings or in negotiations, settlements and agreements with the condemning authority for acquisition of part or all of the Common Easement Areas. 12.2 Building Parce ls . If all or any part of a Building Parcel is taken by eminent domain, the award shall be disbursed to the Owner(s) of the Building Parcel and the Owners of the Building Components within such Building Parcel and/or the Mortgagees of such Owners as set f orth in the Building Declaration for that Building Parcel. Any award for taking of Common Easement Areas (including Center Parking Facilities) within a Building Parcel shall be disbursed to the Center Association and all Building Declarations shall provid e for such disbursement. If more than one Building Portion in a Building Parcel is the subject of a partial taking, the Owners of the Building Portions shall use the proceeds awarded to restore and operate the Building pursuant to the terms of the Buildin g Declaration, to the extent that such restoration and operation is reasonable. In the event of a complete taking of a Building Parcel, or a partial taking which results in a reduction in the square footage of the Building within such Building [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -55 - Parcel, the allocation of Assessments shall be equitably adjusted as determined by the Center Association for the Building Parcels, or portions thereof remaining. ARTICLE 13. GENERAL PROVISIONS 13.1. Enforcement . Only the Board and the Declarant, and not any individual Owner, Invitee or Occupant, shall have the right to enforce, by any proceeding at law or in equity, the restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by this Declaration. The Board or the Declarant who brings such action shall be entitled to recover reasonable attorneys’ fees, including any such fees as are ordered by the court or other adjudicating body. Failure by the Board or the Declarant to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Notwithstanding the foregoi ng, any Owner of a Retail Com ponent or of an Office Parcel or the board of directors of a Building Association may petition the Board in writing requesting enforcement by the Board of an asserted violation of any provision of this Declaration. Upon receipt of such petition, the Board shall hold a hearing regarding the subject of the petition, after providing notice to all Members of no less than thirty (30) days. After such hearing has been conducted, the Board shall determine, in its discretion, exercising its reasonable business ju dgment, whether and how to pursue the subject matter of the petition. The determination of the Board as to how to proceed with the subject matter of the petition shall be final and binding on all Owners. 13.2. Binding: Run With Land . The covenants and restrictions of this Declaration shall run with and bind the Pr oject Site and all interests therein, including, without limitation, the fee interest and any leasehold interests. All Owners, and tenants and other Occupants of the Center, or any part thereof, are subject to and bound by the provisions of this Declarati on. Owners shall require their tenants, and other Occupants and Invitees, to observe all applicable provisions of this Declaration and shall incorporate this Declaration into the provisions of all leases of Building Parcels or Building Components. 13.3. Invalidity of Any Provision . Should any provision or portion he reof be declared invalid or in conflict with any law of the jurisdictions where the Center is situated, the validity of all other provisions and portions hereof shall remain unaffected and in full force and effect. 13.4. Term . The covenants and restrictions of this Declaration shall be binding upon the Project Site , and each portion thereof, and each Owner of any portion of the Project Site subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of fifty (5 0) years from the date this Amended and Restated Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years, unless an instrument in writing terminating this Declaration signed by Owners having n ot less than seventy -five percent (75%) of the Voting Power in the Center Association , has been recorded within the year preceding the end of the initial term or any extended term of beginning of this Declaration. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -56 - 13.5. Amendments . (A) Authority to Amend . This Declaration may be amended only by the written consent and approval of no less than t wo -thirds (2/3) of the Voting Power of the Center Association ; provided, however that for so long as the Declarant holds Declarant’s Reserved Rights under this Declaration , no such amendment shall be valid until and unless such amendment is consented to an d executed by the Declarant. Any amendment must be certified in a writing executed and acknowledged by the President or Vice President of the Center Association and recorded in the Recorder's Office of the County of Santa Clara. Neither the Articles nor Bylaws shall be amended so as to be inconsistent with this Declaration. If there should be any ambiguity in any provision of the Articles and Bylaws, then such provision shall be construed, to the extent possible, so as to be consistent with the provision s of this Declaration. (B) Limitation on Amendments as to Specific Provisions . Notwithstanding the foregoing, no provision of this Declaration that provides specific rights of use of Center Parking Facilities or other portions of the Center to a specific or particular category or group of Owners shall be amended or deleted or otherwise revised or changed without the approval of at least a Majority of the Voting Power of such category or group of Owners. This Declaration shall not be amended or revised in any manner that imposes further or additional restrictions or limitations on the use of a Building Parcel, or Building Component, or any portion thereof, of upon a particular category or group of Owners, without the approval of at least a Majority of the V oting Power of such category or group of Owners. (C) Certification of Approval . Any amendment of this Declaration shall contain a certification in writing executed and acknowledged by an officer of the Center Association that the required written consents and approvals set forth in t his Section 13.5 have been obtained. (D) Recordation . Any amendment of this Declaration shall be recorded in the Official Records. 13.6. Mortgagee Rights and Protections . (A ) Subordination . No breach of any covenant and/or restriction, nor the enforcement of any lien provision contained in this Declaration, shall render invalid the lien of any Mortgage made in good faith and for value. All of the covenants, conditions and restrictions herein contained shall be binding upon and effective against any Owner whose title is derived through foreclosure, trustee sale, deed in lieu thereof , or otherwise. (B ) Right to Pay/Cure. Mortgagees may jointly or singly pay any Assessment which is in default and take any action reasonably necessary to cure any other default under this Declaration of the Owner who is subject to the Mortgag e with the same effect as such cure by the Owner itself. (C ) Assignment of Voting Rights . Any Owner may assign all, but not less than all, of its voting rights under the Documents to a Mortgagee holding a Mortgage lien on such Owner’s Buildin g Parcel or Building Component, as security for the obligations secured by such Mortgage. Prior to actual receipt by the Center Association of notice from the Mortgagee [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -57 - of such Mortgagee’s right to exercise the voting rights appurtenant to any Building Pa rcel or Building Component, the Center Association shall be entitled to rely, without further inquiry, on the oral or written statement of any Owner that such Owner is entitled to exercise the voting rights appurtenant to such Owner’s Building Parcel or Bu ilding Component. Upon receipt of notice from a Mortgagee, the Center Association shall be entitled to rely on the Mortgagee’s right to exercise the voting rights appurtenant to such Building Parcel or Building Component, notwithstanding contrary instruct ions from the Owner of such Building Parcel or Building Component. (D ) Restriction on Amendments to Documents or Change in Relationship . Notwithstanding any provision to the contrary contained in this Declaration, without the prior written co nsent of fifty -one percent (51%) of the Mortgagees (which consent shall be exercised in good faith and within thirty (30) days after delivery to the Mortgagee of a written request from the Center Association ), this Declaration, the Articles, or the Bylaws shall not be amended so as to: (1 ) change the fundamental purpose for which the Center was created, terminate or abandon the status of the Center, or, except as otherwise allowed pursuant to this Declaration, permit or allow the Owners or the Center Association by act or omission to abandon, subdivide, encumber, sell or transfer the Common Easement Area s, or allow partition of the Common Easement Area s; (2) change the provisions applicable to insurance so as to reduce the required coverage, or change the interest of any Owner in t he allocation or distribution of insurance or condemnation proceeds; (3) change the provisions applicable to reconstruction in the event of damage, or permit the use of insurance proceeds payable to or for the account of the Center Association or the Owners by reason of loss or damage to any portion of the Center to be used for other than the repair, replacement or reconstruction thereof; or (4) change any provision which, by its terms, is specifically for the benefit of Mortgagees or specifically confers rights on Mortgagees, including this Section 13.6 . (E ) Miscellaneous Rights of Mortgagees . Each Mortgagee whose name and address has been furnished to the Center Association , whether by an Owner or by such Mortgagee, shall have the right to: (1 ) receive written notice of all meetings of the Owners and of the Board upon written request to the Center Association ; (2 ) be present at any meetings of the Center Association or the Board and participate therein by calling to the attention of the Center Association and/or the Board violations of this Declaration and by referring to other matters affecting the interests of the Mortgagee; (3 ) furnish information to the Board concerning the status of any Mortgage affecting any Building Parcel or Building Component; (4 ) receive copies of any or all of the financial statements concerning the Center sent to the Owners at the same time and in the same manner as the Owners, upon written request therefor to the Center Association ; and (5 ) receive upon written request therefor to the Center Ass ociation notice of negotiations regarding the value and extent of any loss affecting a Building Parcel, or Building Component subject to such Mortgagee’s Mortgage (i) under a policy of insurance carried by the Center Association , or (ii) in any proceedings incident to any condemnation affecting such Building Parcel or Building Component. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -58 - (F ) Consent of a Mortgagee . Whenever the consent of a Mortgagee is required by this Declaration, any action taken without such consent shall not bind such Mort gagee or its successor. (G ) Title by Foreclosure . Except to the extent otherwise expressly provided herein, all of the provisions contained in this Declaration shall be binding on and effective against any Owner whose title to any Building Par cel, Building Component, or any portion thereof, is acquired by foreclosure, trustee’s sale, deed in lieu of foreclosure, or otherwise. (H ) Copies of Documents . The Center Association shall make available to Owners and Mortgagees, and to holde rs, insurers or guarantors of any Mortgage, who request such items in writing, current copies of the Declaration, Bylaws, Articles or other rules concerning the Center and the books, records and financial statements of the Center Association and operationa l records of the Center. “Available” means available for inspection and copying, upon request, during normal business hours or under other reasonable circumstances. The Board may impose a fee for providing the foregoing which may not exceed the reasonabl e cost to prepare and reproduce the requested documents. (I) Notice of Action . Upon written request to the Center Association , identifying the name and address of the Mortgagee, and the number or address of the applicable Building Parcel or Building Component, such Mortgagee will b e entitled to timely written notice of: (1 ) any condemnation loss or any casualty loss which affects a material portion of the Center or the Building Parcel or Building Component on which there is a Mortgage held, insured, or guaranteed by such Mortg agee; (2 ) any default by the Owner of the Building Parcel or Building Component on which such Mortgagee holds a Mortgage in performance of such Owner’s obligations under the Documents or delinquency in the payment of Assessments or charges owed by su ch Owner. Such notice shall be delivered to the Mortgagee concurrently with delivery of the default notice to the applicable Owner and thereafter, the Mortgagee shall have the opportunity to cure such default or delinquency until: (a) ten (10) days after the expiration of any cure period given to the defaulting Owner with respect to monetary defaults; and (b) thirty (30) days after the expiration of any cure period given to the defaulting Owner with respect to non -monetary defaults; provided, however, with respect to any default that a Mortgagee cannot under the terms of its loan document without obtaining possession of the Owner’s Building Parcel or Building Component, and provided further that the Mortgagee has promptly commenced and diligently pursues to completion proceedings to acquire such Owner’s interest in its Building Parcel or Building Component, such Mortgagee’s cure period shall be extended by the amount of time reasonably necessary for such Mortgagee to acquire possession up to an additional si x (6) months; and (3 ) any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Center Association . (J) T he Center Association shall discharge its obligation to notify Mortgagees by sending written notices required herein to suc h parties, at the address given on the current request for notice, in the manner prescribed by Section 13.10 . [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -59 - 13.7. Termination of Any Responsibility of Declarant . After such time as Declarant conveys all of its rights, title and interest in and to the Projec t Site and all Building Parcels or Building Components by recorded instrument(s) to any other Person, Declarant shall be relieved of the performance of any further duty or obligation hereunder, and such transferee shall be obligated to perform all such dut ies and obligations of Declarant for such Building Parcels, or Building Components arising after the date of such transfers. 13.8. Agreements and Determinations by the Center Association . All agreements and determinations lawfully made by the Center Associati on in accordance with the voting percentages established in this Declaration, or in the Articles or the Bylaws, shall be deemed to be binding on all Owners, their successors and assigns. 13.9. Owners’ Compliance . Each Owner, tenant or Occupant shall comply with the provisions of this Declaration, and (to the extent they are not in conflict with this Declaration) the Articles and Bylaws, and the decisions and resolutions of the Center Association or the Board, as lawfully amended from time to time. Failure to comply with any such provisions, decisions, requirements o r resolutions shall be grounds for an action (i) to recover sums due, (ii) for damages, (iii) for injunctive relief, (iv) for costs and attorneys fees, or (v) any combination of the foregoing. 13.10. Notice . Any notice permitted or required by this Declaration, the Articles or Bylaws may be delivered personally, or b y prepaid over night courier, or by mail. If delivery is by mail, it shall be deemed to have been delivered seventy -two (72) hours after a copy of the same has been deposited in the United States mail, first class, certified or registered, postage prepaid , addressed to the person to be notified at the current address given by such person to the Secretary of the Center Association or addressed to the Building Parcel or Building Component of such person if no address has been given to the Secretary of the Ce nter Association . Delivery by overnight delivery service shall be effective upon the earlier of receipt or one (1) business day after deposit with such delivery service. 13.11. Not a Public Dedication . Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Center to the general pub lic, for the general public or for any public use or purpose whatsoever, it being the intention and understanding of the Owners and the Center Association that this Declaration shall be strictly limited to and for the purposes herein expressed for the deve lopment, maintenance and operation of the Project Site that constitutes the Center on private property as a private development solely for the benefit of the Center Association and the Owners. Pursuant to the provisions of this Section 13.11 , and except a s otherwise expressly stated in this Declaration, the Center Association shall have the right to restrict public access as reasonably necessary to prevent public dedication and to prevent or prohibit the use of the Center, or any portion thereof, by any pe rson, for any purpose inimical to the operation of the Center as a first class private development as contemplated by this Declaration. T he Center Association , by appropriate rules and regulations shall have the right to regulate any use of the Center by any person and prohibit such use for any purpose which is inimical to such operation as contemplated by this Declaration. 13.12. Estoppel Certificates . The Center Association and each Owner, at any time and from time to time upon not less than ten (10) days’ prior written notice from any other Owner or the Center As sociation , shall execute, acknowledge and deliver to the requesting party and to any prospective purchaser, tenant or mortgagee of any part of or interest in the [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -60 - Center, a certificate of the Center Association or such Owner stating: (i) that this Declarati on is unmodified and in full force and effect (or, if there have been modifications, that this Declaration is in full force and effect as modified and stating the modifications), (ii) to the best of such party’s knowledge, whether or not there are then exi sting any defenses against the enforcement of any of the obligations of such party under this Declaration (and, if so, specifying same), (iii) to the best of such party’s knowledge, whether or not there are then existing any defaults by the Owner or the Ce nter Association in the performance of its obligations under this Declaration (and, if so, specifying same), (iv) the dates, if any, to which Assessments and other charges under this Declaration have been paid by such party and the amounts of the most rece ntly charged Assessments, and (v) any other information that may reasonably be required by any of such persons. It is intended that any such certificate delivered pursuant to this section may be relied upon by the Center Association , the requesting Owner , or any prospective purchaser, tenant or mortgagee of any part of the Center. 13.13. Governing Law . This Declaration shall be governed by, construed under, and enforced in accordance with the laws of the State of California. All Owners hereunder consent to the jurisdiction of the courts of the State of California an d the United States of America, and agree that venue properly lies in the Superior Court of Santa Clara County and the United States District Court for the Northern District of California, as appropriate. 13.14. Joint and Several Liability . When the Owner of a Building Parcel or Building Component is composed of more than one Person, each such Person shall be jointly and severally liable for payment of Assessments, and performance of all obligations (including without limitation, indemnification obligations) arising under any provision of the Documents with respect to such Building Parcel or Building Component, or the ownership thereof. 13.15. Cooperation . In fulfilling obligations and exercising rights under this Declaration, each Owner shall cooperate with each other and the Center Association to promote the efficient operation of the Center and harmonious relationships among the Owners and to protect the value of each of their respective interests in the Center. To that end, except for information which an Owner reasonably deems to be confidential, or which may be the subject of litigation, or which may be prohibited from discl osure by court order, each Owner shall share information with the other Owners relating to matters which are the subject of this Declaration. 13.16. Reasonable Consents . All consents and approvals of any of the Owners and of any holders of Mortgages shall not be unreasonably withheld or delayed. Any disapproval of or failure of consent to any matter hereunder shall be in writing and shall state in reasonable detail the reason or reasons therefore. 13.17. Attorneys' Fees . If there is any legal action or proceeding (other than arbitration proceedings which shall be governed by Section 13.27 ) to enforce any provision of this Declarat ion or to protect or establish any right or remedy, the unsuccessful party to such action or proceeding shall pay to the prevailing party all costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred by such prevaili ng party in such action or proceeding. In addition, the unsuccessful party shall pay any costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred by the prevailing party in enforcing or appealing any judgment rende red in any such legal action or proceeding, which costs and expenses shall be recoverable separately from and in addition to any other amount [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -61 - included in such judgment. This Section 13.17 is intended to be severable from the other provisions of this Decla ration, and shall survive and not be merged into any such judgment. 13.18. Covenants and Agreements Run With Land . All of the easements, covenants, rights, agreements, reservations, restrictions and conditions herein contained touch and concern the Project Site and the Center, and each portion thereof and all interest s therein, shall constitute covenants running with the land and equitable servitudes, shall run with the Project Site and each Building Parcel, Building Component, or other lot or parcel contained therein, and all interests in the Project Site , including t he fee interest and the leasehold interests, and inure to the benefit of and shall be binding upon the Owners, and each holder of any interest in any portion of the Center, and their grantees, Mortgagees, heirs, successors, assigns and personal representat ives, during each of their respective terms of ownership, with the same full force and effect as though set forth in full in every grant, conveyance or demise of the Center, or any part thereof. 13.19. Construction . The provisions of this Declaration shall be interpreted and construed to the end that the Center and ea ch Building Parcel or Building Component, shall remain a first class mixed use development for the uses permitted under this Declaration. 13.20. Possessive Usage . This Declaration sometimes refers to a Building Parcel, or Building Component as being a Building Parcel or Building Component “of” any entity or as an enti ty’s parcel. This usage is not intended to imply the existence of and shall not be construed to create any interest of an entity in a parcel or relationship between an entity and a Building Parcel or Building Component other than the interest or relationsh ip specifically contemplated or provided in this Declaration. 13.21. Conforming Exhibits . The exhibits attached to this Declaration are incorporated herein by this reference. The legal descriptions of the Center, Property, Building Parcels, Building Portions or other portions or increments thereof as set forth in thi s Declaration, or on exhibits to this Declaration may become obsolete as a result of conveyances, annexations, lot line adjustments, takings, or similar such occurrences. Upon such occurrences, the terms Center, Property, Building Parcels or Building Port ions shall continue to refer to the Center, Property, Building Parcels, Building Portions or other portions or increments thereof as set forth in this Declaration as any one or more of them are reconfigured or revised to conform the exhibits to the changed legal descriptions of the affected Property, Building Parcels, Building Portions or other portions or increments thereof. 13.22. Captions and References . The captions in this Declaration are for convenience and reference only, and, except for Article 1 , Definitions, in no way define, limit, or otherwise affect the sc ope, meaning or effect of any provision of this Declaration. All references to “herein” or “hereunder” refer to this Declaration as a whole unless specific references are made to specifics articles, sections, subsections or exhibits of this Declaration. 13.23. No Joint Venture or Partnership . Nothing contained in thi s Declaration shall be construed to create the relationship between any party subject to this Declaration, including, but not limited to, the Declarant, or the mortgagees thereof, as being partners, joint venturers, or as principals and agents, or any othe r such relationship or association with and among each other, or so as to render any such parties as being liable for the debts or obligations of the others. [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -62 - 13.24. Name . The names “Main Street Cupertino” and “Main Street Cupertino Center” are registered trademarks of the Declarant and may not be used by any Person wi thout the prior written consent of the Declarant. The name of the Center as Main Street Cupertino” and “Main Street Cupertino Center” may not be changed without the prior written consent of the Declarant, as long as the Declarant holds Declarant’s Reserve d Rights under this Declaration . Any Owner may use the name of the Center to reflect location only in connection with the marketing of their respective Building Parcel or Building Component; provided, however, no party or Owner other than Declarant shall use the name of the Center as part of its business name or operation or for any other use or other development or project. 13.25. Number; Gender . The singular and plural number and the masculine, feminine and neuter gender shall each include the other where the context requires. 13.26. Declarant’s Reserved Rights; Limitation of Restrictions on Declarant . Declarant is undertakin g the work of construction of the Center, including the Common Easement Area s, Center Roadways, Center Parking Facilities , Buildings, Office Parcels, Office Facilities, Retail Components, Retail Facilities, Retail Spaces, Utility Facilities and incidental improvements upon and within the Center. The completion of that work and the sale, leasing, rental, and other disposal of the Office Parcels, Office Facilities, Retail Components, Retail Facilities, or Retail Spaces, is essential to the establishment and welfare of the Center as a mixed use development project. In order that said work may be completed and the Center be established as a fully utilized and occupied mixed use development project as rapidly as possible, Declarant shall have the following right s within the Center and including the Common Easement Area s, Center Roadways, Center Parking Facilities , Buildings, Office Parcels, Office Facilities, Retail Components, Retail Facilities, Retail Spaces, Utility Facilities and incidental improvements upon and within the Center nothing in this Declaration shall be understood or construed to interfere or prevent Declarant from exercising such Declarant’s Reserved Rights : (A) Declarant and its contractors or subcontractors shall have the right to undertake and co mplete its construction work within the Common Easement Area s of the Center and any Parcels or Components owned by Declarant, or any portion thereof, as reasonably necessary or advisable in connection with the completion of said work; (B) A Building Parcel D eveloper or its contractors or subcontractors shall have the rights to undertake and complete its construction work within the Common Easement Area s of the Center and any Parcels or Components owned by said Building Parcel Developer, or any portion thereof , as reasonably necessary or advisable in connection with the completion of said work; (C) Declarant and any Building Parcel Developer , or their authorized representatives, shall have the rights to erect, construct and maintain within the Center, or any port ion thereof that is within the Common Easement Area or owned by the Declarant of such Building Parcel Developer such structures as may be reasonable and necessary for the conduct of its business of completing said work and establishing the Center as a comb ined mixed use development project and disposing of the same in parcels by sale, lease or otherwise, which may include the erection of crane towers and the need for cranes to swing over a Building Parcel or Building Component; [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -63 - (D) Declarant, and any Building Parcel Developer or their representatives shall have the rights to conduct within the Center, or any portion thereof their business of completing said work and of establishing the operation of the Center as a fully operating mixed use development project; (E) Declarant, and any Building Parcel Developer or their representatives shall have the rights to maintain or display such signs, pennants, banners, and flags within the Center, or any portion thereof as may be necessary for the sale, lease or disposition of Building Parcels, the Building Components, the Office Parcels, Office Facilities, Retail Components, Retail Facilities, Retail Spaces, or any interests therein or any other properties within the Center; (F) Declarant or its representatives shall have the rights to subdivide or resubdivide any Building Parcel or Building Component, effectuate any lot line adjustments of any Building Parcel or Building Portion or create additional Building Parcels or Building Portions for the development of the Center. (G) The Declarant’s Reserved Rights herein provided shall endure and Declarant shall be entitled to exercise such Declarant’s Reserved Rights as long as Declarant holds title to a majority of the Retail Components, Retail Facilities and Retail Spaces in the Ce nter based on the relative square footage of such Retail Components, Retail Facilities and Retail Spaces owned by Declarant as compared to the total of square footage of all of such Retail Components, Retail Facilities and Retail Spaces in the Center. (H) Sub ject to the provisions of subparagraph (G) above, the Declarant’s Reserved Rights herein provided to a Building Parcel Developer shall endure and such Building Parcel Developer shall be entitled to exercise such Declarant’s Reserved Rights as to a particul ar Building Parcel as long as such Building Parcel Developer holds title to such Building Parcel. 13.27. MEDIATION AND ARBITRATION OF DISPUTES . IN ANY CASE WHERE THIS DECLARATION PROVIDES FOR DISPUTES TO BE DECIDED BY ARBITRATION, OR WHERE ANY OWNER OR THE CENTER ASSOCIATION ELECTS TO ARBITRATE ANY DISPUTE ARISING HEREUNDER, EXCEPT AS SET FORTH HEREIN, THE PROCEDURE SHALL BE AS FOLLOWS: (A) THE AGGRIEVED PARTY OR PARTIES SHALL NOTIFY THE OTHER PARTY OR PARTIES OF THE GRIEVANCE IN WRITING. WHEN A PARTY RECEIVES SUCH A NOTICE, SUCH PARTY SHALL PROMPTLY INVESTIGATE, INSPECT, MEET, DISCUSS, OR TAK E SUCH OTHER ACTION AS IS REASONABLY APPROPRIATE UNDER THE CIRCUMSTANCES. APPROPRIATE ACTION SHALL INCLUDE, WITHOUT LIMITATION, PROMPT COMMUNICATION WITH THE AGGRIEVED PARTY OR PARTIES, AND A PROPOSED COURSE OF ACTION TO RESOLVE THE PROBLEM OR DISPUTE. (B) IF THE PARTIES ARE UNABLE TO RESOLVE THE PROBLEM OR DISPUTE WITHIN A REASONABLE PERIOD (NOT TO EXCEED TEN (10) BUSINESS DAYS AFTER THE FIRST NOTICE OF CLAIM, CONTROVERSY OR DISPUTE), THE MATTER SHALL BE SUBMITTED TO MEDIATION WITH JUDICIAL ARBITRATION AND ME DIATION SERVICES, INC. ("JAMS"), PURSUANT TO THE RULES AND REQUIREMENTS OF JAMS FOR MEDIATION OF SUCH DISPUTES. IF JAMS IS UNABLE OR UNWILLING TO SERVE AS MEDIATOR, THEN SUCH MEDIATION SHALL BE UNDERTAKEN BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -64 - (C) IF THE PARTIES ARE UNABLE TO RE SOLVE THE PROBLEM OR DISPUTE BY MEDIATION WITHIN THIRTY (30) DAYS AFTER THE MATTER HAS BEEN ACCEPTED FOR MEDIATION BY JAMS, THE MATTER SHALL BE SUBMITTED TO BINDING ARBITRATION, BY EITHER PARTY DELIVERING TO THE OTHER PARTY AND JAMS A WRITTEN DEMAND FOR AR BITRATION, PROVIDED THAT IF THE CLAIM, CONTROVERSY OR DISPUTE INVOLVES A SUM NOT IN EXCESS OF THE JURISDICTIONAL LIMIT OF THE SMALL CLAIMS COURT, THE AGGRIEVED PARTY SHALL HAVE THE OPTION OF TAKING THE MATTER TO SMALL CLAIMS COURT IN LIEU OF BINDING ARBITR ATION. (D) ANY CLAIM, CONTROVERSY OR DISPUTE SUBMITTED TO ARBITRATION SHALL BE SETTLED BY ARBITRATION IN THE CITY OF SAN JOSE , CALIFORNIA. (E) EXCEPT AS OTHERWISE PROVIDED HEREIN WITH RESPECT TO THE SELECTION AND NUMBER OF ARBITRATORS, THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF COMMERCIAL ARBITRATION OF THE JAMS OR ITS SUCCESSOR, PROVIDED THAT THE PARTIES SHALL HAVE THE RIGHTS OF DISCOVERY PROVIDED UNDER THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1282, ET SEQ., OR ANY SUCCESSOR OR AMENDED STATUTE OR LA W CONTAINING SIMILAR PROVISIONS. IF JAMS IS UNABLE OR UNWILLING TO SERVE AS THE ARBITRATION PROVIDER, THEN SUCH ARBITRATION SHALL BE UNDERTAKEN BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") UNDER THE AAA RULES OF COMMERCIAL ARBITRATION. (F) THE PARTIES SHALL AGREE TO THE SELECTION OF ONE ARBITRATOR TO HEAR THE MATTER IN ACCORDANCE WITH THE RULES OF JAMS WITHIN TEN (10) BUSINESS DAYS AFTER DELIVERY OF THE NOTICE OF INTENTION TO ARBITRATE TO THE OTHER OWNER AND JAMS THAT THE MATTER IS SUBMITTED BY ANY PARTY TO ARBITRATION. IF THE PARTIES ARE UNABLE TO AGREE TO THE APPOINTMENT OF THE ARBITRATOR, THE APPOINTMENT SHALL BE MADE IN ACCORDANCE WITH THE ARBITRATION RULES OF JAMS. (G) PROMPTLY AFTER APPOINTMENT, THE ARBITRATOR SHALL CONVENE A HEARING AND ATTEMPT TO RESOLVE THE CLAIM, CONTROVERSY OR DISPUTE SUBMITTED TO ARBITRATION HEREUNDER IN ACCORDANCE TO THE ARBITRATION PROCEDURES OF JAMS. THE ARBITRATOR SHALL HAVE NO POWER TO MODIFY ANY OF THE PROVISIONS OF THIS DECLARATION OR THE OTHER DOCUMENTS, AND THEIR JURISDICTIO N IS LIMITED ACCORDINGLY. (H) THE ARBITRATOR SHALL HEAR THE DISPUTE WITHIN THIRTY (30) DAYS AFTER SUBMITTAL OF THE MATTER TO ARBITRATION, UNLESS ALL PARTIES AGREE TO A LONGER TIME PERIOD, AND SHALL ISSUE ITS OPINION WITHIN THIRTY (30) DAYS AFTER THE HEARING. (I) T HE EXPENSES OF ARBITRATION SHALL BE BORNE EQUALLY BY THE PARTIES, PROVIDED THAT EACH PARTY SHALL BE RESPONSIBLE FOR THE FEES AND EXPENSES OF ITS OWN EXPERTS, EVIDENCE AND ATTORNEYS; PROVIDED, HOWEVER, THAT THE ARBITRATOR MAY, IN ITS DISCRETION, REQUIRE THE NON -PREVAILING PARTY TO PAY THE ATTORNEYS’ AND EXPERTS’ FEES OF THE PREVAILING PARTY. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. (J) THE FOLLOWING MATTERS SHALL NOT BE SUBJECT TO the ARBITRATIO N REQUIREMENTS OF THIS SECTION 13.27 : [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -65 - (1) CONDEMNATION OR EMINENT DOMAIN ISSUES; (2) BODILY INJURY OR WRONGFUL DEATH ISSUES; (3) LATENT OR PATENT DEFECTS IN ANY PROPERTY IMPROVEMENTS; AND (4) RECORDATION OF NOTICE OF PENDING ACTION, OR ORDER OF ATTACHMENTS, RECEIVERSHIP, INJUNCTION OR OTHER PROVISION AL REMEDY THAT MAY PROVIDE INTERIM PROTECTION DURING THE PENDENCY OF AN ARBITRATION PROCEEDING; IN WITNESS WHEREOF , the undersigned, being the Declarant herein, has executed this Declaration effective as of ______________, 201__. 500 FORBES, LLC, a Calif ornia limited liability company By: ________________________________ ____________________, as Managing Member [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -66 - CONSENT AND SUBORDINATION AGREEMENT The undersigned beneficiary under that certain Deed of Trust recorded _________________, 201__, as Instrume nt No. 201__ -_________ of the Official Records of Santa Clara County, California, consents to all of the provisions contained in the attached Declaration of Covenants and Restrictions for _______________________ and agrees that the lien of the deed of t rust shall be junior and subordinate and subject to said Declaration. Dated___________________________, 201__. LIENHOLDER: ________________________________ ________________________________ By: ___________________________ ___________________________ ___________________________ ___________________________ State of California ) ) SS County of ____________________) On _________________________201__ before me, _____________________________, perso nally appeared_______________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their aut horized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California th at the foregoing is true and correct. Witness my hand and official seal. ___________________________ [Seal] (Signature) [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -67 - State of California ) ) SS County of ____________________) On _________________________201_ before me, _____________________________, personally appeared_______________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they ex ecuted the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under th e laws of the State of California that the foregoing is true and correct. Witness my hand and official seal. ___________________________ [Seal] (Signature) State of California ) ) SS County of ____________________) On _________________________201_ before me, _____________________________, personally appeared_______________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ackno wledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct. Witness my hand and official seal. ___________________________ [Seal] (Signature) [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -68 - Exhibit A “PROJECT SITE” The real property located in the City of Cupertino, County of Santa Clara, State of California described as follows: [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -69 - Exhibit “B” Center Approvals. The Project Site is subject to the approvals and land use regulations from the City of Cupertino listed on Exhibit “B” att ached to this Declaration and incorporated by this reference (the “Land Use Approvals”): (1) The Specific Plan (“Specific Plan”) adopted by the City of Cupertino on _____________________, 20__ [as may be amended from time to time by resolutions adopted by th e City]. (2) The Downtown Specific Plan Zoning District adopted by the City by enactment of Zoning Code Chapter ___. (3) _______________________________________________ (4) Describe any other Center approvals. [REVISE PER ACTUAL CITY APPROVAL REFERENCES] [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -70 - Exhibit “D” Project Site [See Section 2.3] [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -71 - EXHIBIT F PARCEL AREA Building Block Parcel/Lot Association Use Building Area Pro -ration(%) Status . [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -72 - [PRELIMINARY DRAFT][02.29.12] G:\Planning \AkiH \Main Street, New Plans \Center Declaration -Main Street Cupertino - Draft 3 [02.29.12][f].doc -73 - Exhibit “G”. Center Parking Facilities Costs Centers EXHIBIT “G” COST CENTERS