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E-797 Main Street Cupertino Declaration of Covenants, Restrictions and Common Easements Areas 2 ` DOCUMENTr' ­2265:7464 Pgge's: 99: " Recording Requested By: (IIIIIIluI,IIIIIIIIIIII�IIII�IuIIIIIIIIIIIIIIIIIIIIIIII Tax . 3190 .0 AMT PAID, 319.00, After Recordation,Return To: Hanna &Van Atta REGINA ALCOMENDRAS2 RDE *(. 006 525 University lto, C Avenue, Suite 600 SANTA CLARA COUNTY RECORDER 7/2142014 Palo Alto, Ca 94301 Attn: David Van Atta Record6d at- the request of 3:04 PM Recording Service MAIN STREET CUPERTINO DECLARATION OF COVENANTS, RESTRICTIONS AND COMMON EASEMENTS AREAS IF THIS DOCUMENT CONTAINS ANY RESTRICTION BASED ON RACE, COLOR, RELIGION SEX, GENDER, GENDER IDENTITY, GENDER EXPRESSION, SEXUAL ORIENTAIrION FAMILIAL STATUS MARITAL STATUS, DISABILITY, GENETIC INFORMATIOIf, NATIONAL ORIG&, SOURCE OF INCOME AS DEFINED IN SUBDIVISION (P) OF SECTION 12955 OF THE GOVERNMENT CODE, OR ANCESTRY THAT RESTRIC17ON VIOLATES STATE AND FEDERAL FAIR HOUSING LAWS AND IS VOID, AND MAY BE REMOVED PURSUANT TO SECTION 12956.2 OF THE GOVERNMENT CODE. LAWFUL RESTRICTIONS UNDER STATE AND FEDERAL LAW ON THE AGE OF OCCUPANTS IN SENIOR HOUSING OR HOUSING FOR OLDER PERSONS SHALL NOT BE CONSTRUED AS RESTRICTIONS BASED ON FAMILIAL STATUS. DISCLOSURE: THE REAL PROPERTY THAT IS THE SUB]ECT OF THIS DECLARATION AS MAIN TY PHA NS PLANNED K ELOPH HE ZITTPROPERURCS RS AND OCCUPANTS HOULDCHECWITT CY O DETERMINE THE SPECIFIC RESTRICTIONS UNDER THE PLANNED DEVELOPMENT ZONE AND RELATED PERMITS. NOTICE REGARDING MAIN STREET CUPERTINO TOWN SQUARE: THE MAIN STREET TOWN SQUARE WILL BE A VIBRANT AND ACTIVE COMMERCIAL AREA THAT WILL HAVE VARIOUS DAY TIME AND NIGHT TIME USES AND ACTIVITIES, INCLUDING SOME SPONSORED BY OR THROUGH THE CITY, THAT LIKELY WILL GENERATE NOISE AUDIBLE FROM NEIGHBORING PROPERTIES. 414/2014 4:00 PM Law OAWM Of IAame&Vm Aft sss umveesnv Avcm,e,em m 600 PAWALT%CA 94101 (ESOD3R1.87a0 04.01.14 TAWPWIN60VR0isMWAW STRUT CUPER INO•SMDH1LLCCRY Mein Short City 04.01.14Awa MAIN STREET CUPERTINO DECLARATION OF COVENANTS, RESTRICTIONS AND COMMON EASEMENTS AREAS TABLE OF CONTENTS ARTICLE PAGE ARTICLE1. DEFINITIONS ...................................................................................................2 ARTICLE 2. DESCRIPTION OF CENTER, DIVISION OF PROPERTY, AND CREATION OF PROPERTYRIGHTS.....................................................................................10 ARTICLE 3. CENTER ASSOCIATION - MEMBERSHIP, VOTING AND ADMINISTRATION............17 ARTICLE 4. CENTER ASSESSMENTS...................................................................................19 ARTICLE S. DUTIES AND POWERS OF THE CENTER ASSOCIATION ......................................26 ARTICLE 6. PARKING AND ROADS....................... .......................................................30 ARTICLE 7. BUILDING MAINTENANCE AND OPERATION......................................................36 ARTICLES. INSURANCE....................................................................................................37 ARTICLE 9. CONSTRUCTION WORK...................................................................................42 ARTICLE 1D. USE RESTRICTIONS......................................................................................47 ARTICLE 11. DAMAGE OR DESTRUCTION...........................................................................51 ARTICLE 12. CONDEMNATION...........................................................................................53 ARTICLE 13. GENERAL PROVISIONS..................................................................................53 -ri- 04.01.14 T:IWPW1N60TR0JWMWAW 9MMCUPERnNO-SANDHiLL=M M11,SMt Clb 04,01.14.4= MAIN STREET CUPERTINO DECLARATION OF COVENANTS, RESTRICTIONS AND COMMON EASEMENT AREAS THIS MAIN STREET CUPERTINO DECLARATION OF COVENANTS, RESTRICTIONS AN COMMON EASEMENTS AREAS ("Declaration') is made effective as of 1 2014, by Main Street Cupertino Agg ator, LLC, a Delaware limit id liability company, th e" larant'l, 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 as follows: Parcels 1, 2 3, 4 and 5 and Common Area Parcel A as shown on the Flnal Map of Main Street Cupertino �4ie "Nap"), recorded In the Official Records of OM of the Recorder Santa Clara County, Ca ifomia on Swty Zi 2014 In Bookof Maps at Pages to L2 , as Document No. an as epicted on the Project Site Plan attadiereto as Exhibit"A"(the Project Site . S. Declarant has been and will be in the future developing the Project Site as a mixed-use retail/office/hotel and apartment project known as the Main Street Cupertino Center. C. Center Land Use Approvals. The Project Site is subject to the approvals and land use regulations from the City of Cupertino — Including those listed on Exhibit "C" - Incorporated by this reference (the"Land Use Approvals'l. D. The Project Site is comprised of(1)the Parcel 1 -as the"Retail Parcel", (11 Parcel 2 and Parcel 3 - as the "Office Parcels", (Iii) Parcel 4 - as the "Hotel Parcel" (iv Parcel 5 - as the "Loft Apartments Parcel", and (v) Common Area Parcel A - as the "Center Parking Garage Parcel"as designated and shown on the Site Plan as Exhibit E. The Retail Parcel is subject to r) the Public Use Vehicular Access Easement (ii) the Public Use Pedestrian Access Easement, �if1) the Private Use Vehicular Access Easement; and (Iv) the Private Use Pedestrian Access Easements; and the Reciprocal Access Agreement to Rose bowl and Metropolitan. The Retail Parcel is also suWect to the City Park Easement for the City Park and the Town Center Square Easement for the Town Center Square. F. Declarant desires to establish a system for 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. G. The Declarant desired and Intends for itself and for its successors and assigns, to establish and Impose certain easements, covenants rights, duties, obligations and responsibilities upon each Owner and Occupant of the Frgject Site under a general plan of development and operation, with respect to the development, conduct, operation and maintenance of an integrated development 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, and for residential apartment uses. NOW, THEREFORE, the Declarant hereby declares that all and every portion of the Project Site and all interests therein, shall be held, sold, leased, morkgaged, encumbered, rented, used, occupied, improved and conveyed subject to the fol owing declarations, limitationsf 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 assi ns, and on all parties having or acquiring any right, title or interest in or to the described Pro,act Site or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof. -I- 04.01.34 rAWPWIN60@R07ECI3NIAIN STREEpCUPSRTINO•SANDIUIMMs Moin Sv City 04.01.14.dm ARTICLE 1. QEFIN=NS 1.1. "Affiliate of the Declarant' shall mean a Person which Is owned or controlled by or under common control with Declarant. 1.2. "Alterations"shall mean"Alterations"as defined in Section 9.2(B.) 1.3. "Articles" shall mean the Articles of Incorporation of the Center Association, as amended from time to time. 1.4. "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)Special Assessments, (c) Cost Center Assessments and (d) Reimbursement Assessments. 1.5. "Assessment Uen"shall mean the lien in favor of the Association for collection of delinquent Assessments as set forth in Section 4.13 of this Declaration. 1.6. `Base Assessments" 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. 1.7. `Base Budget' shall mean the budget to be prepared annually by the Board under Section 4.3.(A). 1.8. "Base Budget Common Operational Costs"are defined in Sermon 4.3.(B). 1.9. "Board"shall mean the board of directors of the Center Association. Parcel 1.10. "Building" shall_mean the building or buildings located on or within a Building 1.11. "Building Area"shall mean: (A) In the case of a Buliding Parcel upon which a Building has been completed the Buliding Area of such Building shall be the gross sgcare footage of the Building on the Buildingg Parcel as defined by the Citys Building Code, or If not so defined, as building are a of a bulldI gas defined in the eurrenty appliabI 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 Building Area of such Building shall be the gross square footage of the Building planned for that Undeveloped Building Parcel pursuant to the Land Use Approvals and memorialized herein in Section 2.3 of this Declaration and on jXhIhjS " attached, or upon the completion of the construction of sbvcturejs) that constitute a Building on such Parcel, the Building Area of such Building shall be as defiflned by the City's Building Code, or if not so defined, as building area of a building Is defined in the currently applicable edition of the International Building Code, at the time the building permit was Issued for such Bullding. 1.12. `Building Association" shall mean any association formed for a Building Parcel pursuant to a Building Declaration. 1.13. "Building Components" shall mean portions of Building Parcels that are established divided or designated as one or more Office Facilities or Retail Facilities or Portions as providers in a map or plan or otherwise designated or established by the Center Association under Construction Work Review pursuant to Section. -2- 04A1.14 T\WPWIN60TK0JECfSV4AR4 S RECr CUPERnNO-SANDRILLICCRY Mein Stem City 04.01.144mm 1.14. "Building Condominium Plan" shall mean the condominium plan of a Building Parcel 5 flied for record In the Official Records that divides the Building Parcel Into no more than two separate ownership components with one ownership component consisting of a single undivided apartment building and another ownership component consisting of the Retail Component portion of Parcel 5, which shall be owned by the Retail Owner. 1.15. "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 Parcel; (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 or landscaping located within the Building arcel; 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. 1.16. "Building Improvement" shall mean the Improvements for a Building located on a Building Parcel. 1.17. "Building Parcel" shall mean each of the separate parcels shown and described on the Map as Parcels 1, 2, 3, 4 and 5 and which are more particularly described on the Project Site Plan. 1.18. "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 ongina] construction of a Building within the Building Parcel, Building Component or other portion of the Building Parcel. 1.19. "Building Parcel Map"shall mean the subdivision map of Buildingg Parcel 5 filed for record in the Official Records that authorizes the division of Building Parcel 5 Into separate Building Com nents or other portions or Interest for separate ownership, whether filed prior to or after the datte of the making of this Declaration. to time.1.20. "Bylaws"shall mean the Bylaws of the Center Association, as amended from time 1.21. "Center" shall mean the Main Street Cupertino Center, the mixed use project developed or to be developed on the Project Site. 1.22. "Center Association" shall mean the Main Street Cupertino Center Association, a California nonprofit mutual benefit corporation. 1.23. "Center Association Manager" shall mean the professional manager or management company hired by the Board to manage and operate the Center Association and the Center's Common Easement Areas and the Center Parking Garage. 1.24. "Center Governance Documents" shall mean this Declaration, as amended from time to lime, the exhibits, if any attached thereto to ether with the other basic documents used to create and govern the Venter, including tfie Map, the Articles, the Bylaws, and the Rules. 1.25. "Center Operational Standards" shall mean the standards established by the Declarant for the operation and maintenance of the improvements and facilities within the Center, including but not limited to the Common Easement Areas and the Buildings. 1.26. "Center Parking Facilities"shall mean collectively the Center Parking Garage and the exterior surface parking areas located within the Common Easement Areas of the Retail Parcel. The term Center Parking Facilities does not Include any surface parking or parking garages within the Loft Apartments Parcel. _3_ 04.01.14 T:IWPWEi6"R0IECTSWASV STREET CUPERTINO•SANMW-L%CCRR Main Sari City 04.01.14,doex 1.27. "Center Parking Garage"shall mean and refer to the parking garage situated on Common Area Parcel A including, without limitation, all garages, ramps, drive aisles and entranceways. 1.28. "Center Parking Garage Cost Center Assessment" shall mean the portion of the Assessments for operational costs of the Center Parking Facilities to be levied by the Association to the Retail Parcel, the Hotel Parcel and the Office Parcels as stated In Section 4.6.(8)(1). 1.29. "Center Parking Garage Plan" shall mean and refer to plan for allocation of parking space usage attached to this Declaration as-91diibit ", 1.30. "Center Parking Garage Parcel" shall mean and refer to Common Area Parcel A which Is the Common Area Parcel upon which the Center Parking Garage has been or will be constructed and operated under the Land Use Approvals and this Declaration. 1.31. Center Roadways" shall mean the roadways located in the Public Vehicular Access Easements and the Private Use Vehicular Access Easements existing In the Project Site. 1.32. "City"shall mean the City of Cupertino, California,a municipal corporation. 1.33. "City Park"shall mean and refer to the park located in the City Park Easement. 1.34. "Cl ty Park Easement" shall mean and refer to that portion of Parcel 1 that Is designated on the Map as the City Park. 1.35. "City Park Easement Agreement"shall mean the Easement Agreement for Public Park Pu oses - Main Street Park Easement between Declarant and the City dated r c 2 201lY and recorded in the Official Records of the County on �c+r 014 as Document No. 7 2�,'L Z p 6 o 1.36. "Common Area Parcel"shall mean Common Area Parcel A as shown on the Map. 1.37. "Common Easement Areas"shall mean: (A) Those portions of the Project Site described and defined In this Declaration as Common Easement Areas, including (1) the Public Vehicular Access Easement 2PVAE'J• (11) the Public Pedestrian Access Easement ("PPAE'), (111) the Private Use Vehicular cess basement ("PVIVAE') and (IV) the Private Use Pedestrian Access Easements ("PVTPAE'l. (B) Common Easement Areas shall include the Center Roadway as defined In this Declaration which shall include the private roads and driveways within the Public Vehicular Access Easements and the Private Use 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. (C) Common Easement Areas shall Include the Town Center Square. (D) Common Easement Areas shall Include the City Park. (E) Common Easement Areas shall Include the Common Utility Facilities. For the purpose of this Declaration, Common Easement Area shall not include any parking on Loft Apartments Parcel -4- 04.01.14 T:%WPWRJ601PROJEMW ARl STRMrr CUPERT040•SANDRILUCCR4 Mein SbcdChy 04.01.14A= 1.38. "Common Operational Costs"shall mean the costs and expenses incurred by the Center Association 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 following costs and expenses: (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 cha es for insurance required to be maintained by the Center Association pursuant to this Declaration; (c) maintenance, repair and replacement of landscaping of Common Easement Areas; (d) W replacement and improvements of or to the Common Easement Areas, Including, without limitation, the Center Parking Facilities and Center Roadways; (e) reasonable amour, 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 R the Center Parking Facilities pursuant to Article 6; (g) machinery and equipment; (h) all license and permit fees and any and all parking surcharges;7i employing the Center Association Manager and other personnel Including the salaries, bane is and insurance costs of the Center Association Manager and otter personnel; all costs of utility services Including anitary sewers provided to the Common Easement as and the Common Area Parcel; (k) operating, maintaining, repairing and replacing the common Utility Facilities to the extent such common UtII y Facilities are located within the Common Easement Areas or are located In Utility Facility Easements; (1)costs of traffic regulation and control signs and devices within the Common Easement Areas; (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 the Center Association Manager, accountants, attorneys and employees, and (o) all costs and expenses paid to third parties Including the Declarant by the Center Association for providing any of the foregoing services. The Common Operational Costs of the Center Parking Garage shall be allocated and assessed as a Cost Center Allocation ("Center Parking Garage Cost Centar Assessment`s to the Owners of Parcel 1, Parcel 2, Parcel 3 and Parcel 4 as provided In Section 4.6.(8)(1)) hereof. Common Operational Costs" shall include costs incurred by the Center Association for undertaking upkeep, maintenance and repair of "off-site" landscaping and facilities as required or may be required under the"Conditions of Approval". 1.39. "Common Utility Facilities" shall mean any common utility lines and other common Utility Facilities that serve more than one Parcel located within the Project Site. 1.40. "Conditions of Approval"shall mean the"Conditions of Approval"imposed by the City as part of the Land Use Approvals for the Center. 1.41. "Construction Work" shall mean any construction installation, alteration, modification or reconstruction of any Building, structure, fence, wail, obstruction, outside or exterior whin g, 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. 1.42. "Construction Work Review" shall mean the review by the Construction Work Review Body described in Section 9.2 of this Declaration. 1.43. "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 Sery iees pro vided byy 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 Parcel, Component, user or type of user in order to more spedRcally 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 whleh the costs are incurred. Additional separate Cosk Centers may be veabed on as needed basis with the goal of isolating those costs more directly to the beneficiaries of same 04.01.14 TAWPWRd601VRDJWMWA1N STREErCUPERTINO.RANDHIM CCRy Main Eben City K 01.14dm upon the approval of the Board and the approval by the Declarant as long as Declarant holds Declarants Reserved Rights. 1.44. "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 made 6y the Center Association for such Cost Center Services. 1.45. "Cost Center Budget' shall mean the budgets for Cost Center Services to be prepared annually by the Board under Section 4.8(A). 1.46. "Cost Center Services" shall mean those services and activities of 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 Building Parcels, or Building Components, or portions thereof, including those Cost Center Services stated in Section 4.8. 1.47. "County" shall mean the County of Santa Clara, California, a municipal corporation. 1.48. "Declarant' shall mean and refer to Main Street Cupertino Aggregator, LLC, a Delaware 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 assign. 1.49. "Declarants Reserved Rights"shall mean and refer to the rights reserved to the Declarant or Building Parcel Developers under this Declaration pursuant to Section 13.24. 1.50. "Dedaration"shall mean this Declaration as the same may be further amended or supplemented from time to time. 1.51. "Emerrggency Vehicle Access Way"shall mean the emergency vehicle access ways designated as "E.V.A.W on the Map as part of the Public Vehicular Access Easement ("P.V.A.E and the Private Use Vehicular Access Easements ("PT.V.A.E shown on the Map. 1.52. "First-Class Project" shall mean a mixed-use commercial/retail/office/residential protect constructed, operated, maintained, restored and replaced substantially in accordance wt uallty standards of other mixed use projects in the San Francisco/San Jose Day Area constiiluting or belonging to the first, hlghes� or best in the group of such projects, with the foremost excellence or highest quality. 1.53. "Holiday" shall mean New Year's Day, Memorial Day, Independence Day Labor Day, Thanksgiving Day and Christmas Day or when applicable those dates as designW6e In the Cupertino Municipal Code. 1.54. "Hotel Parcel"shall mean and refer to Parcel 4 which is the hotel parcel and the =improvements built or to be built thereon that is established and operated for hotel and or retail the the Land Use Approvals and this Declaration. 1.55. "Improvements" means all Buildings!, Center Parking Facilities, and Common Easement Area improvements within the Project bite, including, but not limited, to, all buildings, structures, parking or loading areas, driveways, roadways, pathways, walkways, display or storage areas, arcades, stairs, decks, Utility Facilities (as defined below), fences, walls, screening watts, retaining walls, barriers, poles signs, canopies supports, loading docks, truck ramps and other outward extensions of a t�uilding� Parking Garages, and all other structures, installations, systems and landscaping of any kind {whether above or below the ground), and fountains and seulptures within the Project Site, including the Buildings and any replacements, additions, repairs or alterations therein of any kind whatsoever, and anything erected, built;, placed,installed or constructed on, over or under the Project Site. 6. 0"144 'PAWPWINSWROPEMNA1N STRPErCHPERTWO-SAHDHI111CCR`e Mein Street City 04.01.14Awx 1.56. "Invitees" shall mean the tenants, customers, guests, Occupants, employees, agents and other Invitees of Owners In the Center. 1.57. "Joint Use Agreement" shall mean the Agreement for Joint Use and Maintenance Between City of Cupertino and Main Street Cupertino Aggregator, LLC for Main Street Park and Main Street Town Square. 1.58. "Land Use Approvals" shall mean the Land Use Approvals described in Introductory Paragraph C and listed on Exhibit"C"of this Declaration. 1.59. "Loft Apartments Parcel"shall mean Parcel 5 which is the Building Parcel that is established and to be operated for loft apartment residential and retail uses under the Land Use Approvals and this Declaration. 1.60. "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. 1.61. "Map" shall have the meaning set forth In Introductory Paragraph A on page 1 of this Declaration. 1.62. "Member"shall mean and refer to the members in the Center Association which shall be the Owner of each Building Parcel. 1.63. "Mortgage" shall mean a mortgage, deed of trust, assignment of rents, Issues and profits or other proper instruments (Including, without 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. 1.64. "Mortgagee"shall mean the holder of a Mortgage, Including, without limitation,a beneficiary under a deed of trust as well as a mortgagee. 1.65. "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 portion thereof, whether pursuant to ownership, lease, sublease or otherw se by aer occupancy agreement. 1.66. "Ofi9dal Records"shall mean the official records of the Office of the Recorder of the County. 1.67. "Office Facilities" shall mean the Office Parcels and all Improvements thereon, including the Office Parking Garage. 1.68. "Office Owner"shall mean the Owner from time to time of an Office Parcel. 1.69. "Office Parcel° shall mean Parcel 2 and Parcel 3, which are the Building Parcels that Is established and operated for office use and limited ground floor retail use as an Office Facility under the Land Use Approvals and this Declaration. 1.70. "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 (1) those Persons having 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 Component. -7- 04.01.14 T.%WPWR4601pR0)ECTS%WN STREET CUPERT7140•SAHHHIL CMt Main Street City 04.01.14A= I 1.71. "Parking Management Plan" shall mean the Parking Management Plan attached as Exhibit E to this Declaration which governs the parking operations within the Center, Including any rights of the Association to erect or place barriers, establish loading/unloading zones, fencing, gates or dividers within the Center Parking Garage on a temporary or permanent basis, and manage the distribution of spaces used by the retail, hotel, loft apartment and office uses In the Center and based on the Tenanting Plan. The Parking Management Plan applies to parking utilized within the Center Parking Garage and the parking garage within Parcel 5 for the Loft Apartments, surface parking and bicycle parking facilities Included as part of the Land Use Approvals for the Center and at tfre Project Site. 1.72. "Permittees" 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. 1.73. "Person" means natural persons, 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. 1.74. "Prime Rate" shall mean the Bank of America prime or reference 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 California having the greatest dollar volume of deposits. 1.75. "Private Use Vehicular Access Easement"shall mean and refer to the easements shown on the Map as"PT.V.A.E"that are private non-exclusive easements over and across the Retail Parcel for vehicular ingress and egress as set forth in Section 2.7 hereof. 1.76. "Private Use Pedestrian Access Easements"shall mean and refer to those areas of the Center that are exterior of the Buildings that are established by the Declarant as private non-exclusive easements over and across the Retail Parcel and the Office Parcels for pedestrian Ingress and egress as set forth in Section 2.8 hereof. 1.77. "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 EXhihtt"A"attached hereto. 1.78. "Public Art"shall mean the art provided by the Declarant or Building Owners for the Center as required by the City under the Conditions of Approval. 1.79. "Public Pedestrian Access Easement' shall mean and refer to the easements shown on the Map as "P.P.A.E." 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. 1.80. "Public Vehicular Access Easement' shall mean and refer to the easements shown on the Map as "P.V.A.E"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. 1.81. "Reciprocal Access Agreement to Rosebowl and Metropolitan" shall mean and refer to the reciprocal access agreement made by Declarant granting access rights over portions of the Project to adjoining properties which reciprocal access agreement may be recorded at a future date memorializing this access. 1.82. "Reimbursement 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, including, but, not limited to, landscaping, 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 8- 04.01.14 TAWPWIN60TROJECPSUAIN STRMTCUPJJRTINO-SANDJRU)CMI,Main S" City 00.OI.14r04.10.141.&;x Parcel, or Building Component into compliance with the provisions of the Center Governance Documents. 1.83. "Retail Component" shall mean: (a) a Building Parcel that is a Retail Parcel or CCoondominiuBuilding a rrain a Buildindg�Declarraation and asac Retail Component Co ponent or Retail pFaciliy Building 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 Buildingg Parcel designated in this Declaration or a Supplemental Declaration exclusively for Retail Fatllitles. 1.84. "Retail Facilities" shall mean the Retail Parcels and Retail Components and all Improvements thereon. 1.85. "Retail Owner" shall mean the Owner from time to time of a Retail Component. 1.86. "Retail Parcel" shall mean Parcel 1, which is the Building Parcel that is established and operated for retail uses under the Land Use Approvals and this Declaration. 1.87. "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 distinguished 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 exclusively for use by the Occupant of the Retail Space. 1.88. "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. 1.89. "Sheriff's Substation" shall mean the Sherifrs Substation provided within the Center pursuant to the Land Use Approvals. 1.90. "Speclal 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. 1.91. "Supplemental Declaration" shall mean any supplemental declaration executed and recorded in the Official Records in accordance with Section 2.20. 1.92. "Tenanting Plan" shall mean the Tenanting Plan attached to this Declaration as Exhibit " " or added to this Declaration in the future by a Supplemental Declaration that is approved-by the City. 1.93. "Trash Management Plan" shall mean the Trash Management Plan attached, in concept, and as later amended to this Declaration as " " 1.94. 'Town Center Square" shall mean that portion of Parcel 1 (the Retail Parcel) that is designated on the Map as"Town Center Square". 1.95. "Use Permit" shall mean any use planned development, site development or similar permits, including Conditions of Approval ttrerein stated, regardin the use of the Center or portion thereof, including any Building Parcel or Building Component, as may be approved and issued by the City from time to time, Including, but not limited to, City Council Resolution No. 12.098. 1.96. "Utility Facilities"shall mean sanitary sewer, drainage, water, electric, gas, radio, television receiving, telephone, data and telecommunications facilities, pipes, equipment, cables and lines within the Common Easement Areas and/or Utility Facility Easement Areas. 9 04.01.14 TAWPWIN601PROJW13 fA1N STREEPCUPERTINO.SANORNdM.CBy Main St City 04.01.14Ad j 1.97. "Utility Facility Easement Area"shall an area designated on the Map as an area in which Utility Facilities are located or to be located, including but not limited to sanitary sewer drainage, water, electric, gas, radio, television receiving, telephone, data ant; telecommunications facilities, pipes, equipment, cables and lines. 1.98. "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. ARTICLE 2. QKERIPTION QF CENTER. PWIJWN CREATION QF PROPE 7 Y 2.1. on of Center . The Center is a mixed use development consisting of the five (5) Building Parcels, the Common Area Parcel and the Common Easement Areas located over and across the Retail Parcel. (A)) The Common Easement Areas include (1) the Public Vehicular Access Easements; ii) the Public Pedestrian Access Easements, (iii) the Private Use Vehicular Access Easements; �iv) the Private Use Pedestrian Access Easements (v) the-Town Center Square and (vi) the City Park. (B) The Center Parking Garage Parcel (Common Area Parcel A) contains the Center Parking La ra a that is to be owned and operated by the Association for the use and benefit of the Hotel Parcel and the Retail Parcel and the Office Parcels as provided in Section 6.2 (A), (B) and (C) and Section 6.4(C) of this Declaration, with the costs and expenses of such operations to be charged as Cost Center Assessments to the Hotel Parcel, the Office Parcels, and the Retail Parcel as set forth in Section 4.6(8) of this Declaration. 2.2. uil in Par 1 . The Center consists of the five (5) Building Parcels, The Building Areas of eac Building Parcel or Building Component as of the date of recordation of this Declaration are stated on ". The Building Parcels have been and may in the future be improved with one or more Bui ings and related Improvements. As long as Declarant holds Declarant's Reserved Rights hereunder, Declarant me modify from time to time as Declarant determines necessary to cause ° " to consistent with the approved design and layout of the Center as approve a City. Sueh modifications shall be effectuated by Declarant making and recording a Suppemental Declaration which has been reviewed and approved by the City. No Building Parcel may be subdivided, with the exception of Parcel 5, which may only be d(vided into two condominium airspace parcels with one such condominium airspace parcel being designated as the Residential Apartment Parcel and the other such condominium airspace parcel being designated as a Retail Airspace Parcel. The subdivision of Parcel 5 may be accomplished by a Building Parcel Map for Condominium Purposes, which Building Parcel Map has been reviewed and approved by the City, and a Bui di din Plan. The Residential Apartment Parcel may not be further subdivided into individual for-sale units. A Building Declaration shall be made and recorded in the Official Records for Parcel 5 upon its being so subdivided into the two separate ownerships for the Residential Apartment Parcel and the Retail Airspace Parcel. The Building Declaration and any amendments thereto shall be subject to review and approval of the Ci and by the Declarant, as long as Declarant holds Declarants Reserved Rights under this Decaration, or IF Declarant does not hold suc h Declarant's Reserved Rights under this Declaration, by the Center Association with the approval of the City. 2.3. Rights of gners. No Owner, Occupant, or Its Invitees, shall take any action within the Center that would materially Interfere with the rights granted to other Owners, 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. -10- 04.01.14 r.%wrwaa60TROJWMNAmr smear cuemnnao-s wowu acne wan saancer o4.m.14.d= 2.4. Common Easement Areas. The Common Easement Areas have been or may be improved in the future with Center Roadways, Center Parkingg FadlFties, landscaping, sidewalks walkways courtyards, parks, road improvements, signage, Utility Facilities, monumentation and other facilities and im rovements for the common use and benefit of the Owners, Occupants and their Invitees, sub�ect to the rights and ItmiWtions stated In this Declaration. 2.5. Exclusive Use of Common Easemen�tt Areas. The Declarant, as long as Declarant holds Declarants Resery ed Rights under is De�caration, or if Declarant does not hold such Declarant's Reserved Rights under this Declaration, the Center Association's Board, In its sole discretion, shall have the right to permit the Retail Owner or the Occupants of Retail Facilities the exclusive use of designated portions of the Common Easement Areas adjacent to a particular Retail Facility used as restaurant for exterior use ancillary to the restaurant use, subject to such criteria for such use as are established by the Declarant, or the Center Association. Notwithstanding the foregoing once an area is established for the use of a particular Retail Facility used as restaurant for exterlor use ancillary for the restaurant use, the use of such area cannot be altered or terminated by the Declarant or the Center Association without the consent of the Retail Owner or Occupants of the Retail Facilities to which use was granted without cause r notice and a hearing is provided to the Retail Owner or Occupant of the Retail Facllq, exterior areas adjjacent to restaurant uses within a Retail Parcel, Retail Component or Retail Facility may only be restricted to individual restaurant use with the prior written approval of the Director of Community Development or in compliance with requirements established by the Director of Community Development. 2.6. Common Ease en nd Use Ri hts. The Common Easement Areas are here®y reserve and esta Itshed�r a use and benefit of the Center Association, the Owners, Occupants and their Invitees, and may be Improved by the Declarant and the Center Association with Center Parkingg Facilities) landscaping, sidewalks, walkways courtyards, parks, road improvements, signage, Utility Facilities, monumentation and other Facilities 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 buildin 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) 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 Common Easement Areas, and (3) shall be subject 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, exce as permitted by the Board, or that would adversely affect the structural integrity or safety of any Building or improvements within the Center. (0) Those portions of the Common Easement Areas designated as (t) the Public Vehicular Access Easement; (11) the Public Pedestrian Access Easement, (iii) the City Park and (iv) the Town Center Square are subject to public use and access pursuant to the provisions of this Declaration and the Joint Use Agreement. (C) 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, and the Owner or Owners of the Building Parcel in which any such Common Easement Area Is focated. 2.7. Center Roadway. The Center Roadways, including but not limited to the PVAE, shall constitute access for emergency vehicles, as emergency vehicle access easements, providing access, ingress and egress over and across the Center Roadways to the public streets q on the periphery of the Center for providers of police, fire and emergency vehicle services, and -11- 04.03.14 11AWPWM60\PR01E.( 5WAM STREET LWERMNO-SANDIRM=R4 Maio Sheet City 06.01.14.4= by representatives and agents of the City. Further, each Owner shall have as appurtenant to its interests in a Building arcel or portion thereof, a limited, non-exclusive right and easement over and across the Center Roadways, 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 Roadways 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 Roadways and shall be subject to the Rules. No Owner,Occupant or its Ynvitees shall take any action within the Center Roadways that would materially interfere with the use of Center Roadways by other Owners or invitees, except as permitted by the Board, or that would adversely affect the structural Intte�grity or safety of any Building or Improvements within the Center. The use of the Center Roadways shall be subject to the Rules and other limitations established from time to time by the Declarant, as long as Declarant holds Dedarants Reserved Rights under this Declaration. After such time as Declarant no longer holds Declarants Reserved RI hts under this Declaration, or after such earlier time Declarant relinquishes its rigghts hereunder in a recorded written document, the Center Association Board may establish the rules and regulations re garding the conduct of activities wlthl n the Center Roadways. To the extent that emergency vehicle access Is affected by Rules and other regulations established by the Declarant or the Center Association these Rules and other regulations shall be subject to prior written approval by the Director of Community Development, In conjunction with the appropriate public safety agency. 2.8. Private Use _Vehicular Access Easements. The Private Use Vehicular Access Easements are hereby established by the Declarant over and across those portions of the Retail Parcel as shown on the Map by the designation PVTVAE for the use and benefit the Owners and Occupants within the Center, The use of the Private 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 Declarants Reserved Rights under this Declaration. After such time as Declarant no longer holds Declarants Reserved Rights under this Declaration, or after Declarant relinquishes its rights under this Section in a recorded written document, the Center Association Board may establish the rules and regulations regarding the conduct of activities within the Private Vehicular Access Easements. 2.9. ats Use Pad cress Fasem The Private Use Pedestrian Access Easements are ere y eska is y e Declarant over and across those portions of the Recoil Parcel and the Office Panels exterior of the Buildings as shown on Exhibit"G"attached to this Declaration by the designation "PVTPAE"for the use and benefit of the Owners and Occupants within the Center. The use of the Private Use Pedestrian Aoxss Easements shall be subject to the Rules and other limitations established from time m time by the i�tlarant, as long as Declarant holds Declarants Reserved Rights under this Declaration. After such time as Declarant no longer holds Dedarants Reserved Right under this Declaration, or after such earlier time Declarant relinquishes its rights hereunder in a rewrded written document, the Center Association Board may establish the rules and regulations regarding the conduct of activities within the Private Use Pedestrian Access Easements, 2.10. Public Pedestrian Access Easement. The Public Pedesbran Access Easements are hereby estabTishe over an across ose portions of the Retell Parcel as shown on the Map by the designation"PPAE"for the use and benefit of the public and the Owners and Occupants within the Center, subject to the terms and provisions of this Declaration.The use of the Public Pedestrian Access Easements shall be sub]'ect to the Rules and other limitations established from time to time by the City and the Declarant, as long as Dedarant holds Declarants Reserved Rights under this liadaration. After such time as Declarant no longer holds Declarants Reserved Rights under this Declaration, or after such earlier time Decarant relinquishes its rights hereunder In a recorded written document, the City and the Center A�ociation Board may establish the rules and regulations regarding the conduct of activities within the Public Pedestrian Access Easements. Any Rules and other regulations established by the Declarant or the Center Association regarding the conduct of activities within the Public Pedestrian Access Easements shall be subject to prior written approval by the Director of Public Works and the Director of Community Development. -12- 04A1.14 TA PWIN60TROJWMNAN STREETCUPERnNO-$AMMUCCR'c Mein StMdCRy0k01.Ad= 2.11. Public Vehicular Access Easement. The Public Vehicular Access Easements are If established over and across those portions of the Retail Parcel as shown on the Map by the designation "PVAE0 for the use and benefit of the public and the Owners and Occupants within the Center, subject to the terms and provisions of this Declaration. The use of the Public Vehicular Access Easements shall be subject to the Rules and other limitations established from time to time by the City and the Declarant, as long as Declarant as long as Declarant holds Declarants Reserved Rights under this Declaration. After such time as Declarant no longer holds Declarants Reserved Rights under this Declaration, or after such earlier time Decarant relinquishes its rights hereunder in a recorded written document, the City and the Center Association Board may establish the Rules regarding the conduct of activities within the Public Vehicular Access Easements, which Rules do not contradict the written terms of the Public Vehicular Access Easements. The Public Vehicular Access Easements shall include the right of the public to park within designated areas of the Public Vehicular Access Easements as agreed upon by the City and the Declarant and the Center Association. No overnight parking shall be permitted within the Public Vehicular Access Easements. 2.12. Cm ter Parki Gara r cities. Parcels shall have as appurtenant�ie respective a Reta arcs, the Hotel Parcel and the Office Parcel, the Hotel Parcel r Office Parcels, ownership interest in and to the Retail y portion thereof, for use by such Owner and its Permittees a limited non-exclusive right and easement over and across the Center Parking Garage and tie other Benter Parking Facilities in such areas as are permitted and established under this Declaration in such locations as provided In this Declaration and for a term and duration as Is coextensive with the Owner's title or Interest in such Retail Parcel, Hotel Parcel or Office Parcels, or portion thereof, for Ingress and egress and the parking of motor vehicles of that Owner and the Permittees R that Owner as described and proscribed in Section 6.3. Such rlghts 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 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 use of the Center Parking Facilities by any Owner of the Retail Parcel, the Hotel Parcel, or the Office Parcels or their respective Permittees, except as permitted by the Board, or that would adverselyy agect the structural integrity or safety of the Parking Garages within any Center Parking Fad flies, any Building or other Tmprovements within the Center. 2.13. Town Center Squar e Fasgmen . The Town Center Square Easement is hereby established over and across that portion of Parcel 1 designated on the Map as the Town Center Square for the use and benefit of the public and the Owners and Occupants within the Center in accordance with the provisions of this Declaration. 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 the provisions of the Land Use Approvals, and the right of the Retail Owner holding title to the Parcel on which the Town Center Square is located with the consent of Declarant, as long as Declarant holds Declarant's Reserved Rights under this Declaration 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 Town Center Square Easement shall be subject to the use rights and limitations and the operational requirements set forth In the Joint Use Agreement between Declarant and the City which shall be binding upon the Association and each of the Owners. 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 consistent with the Joint Use Agreement, as lone as Declarant Declarant's Reserved Rights under this Declaration, and the Cty. After such time as Declarant no longer holds Declarants Reserved Rights under this Declaration, or after Declarant relinquishes Its rights hereunder in a recorded written document, the Center Association Board, and the City may establish the rules and rreeggulations regarding the conduct of activities within the Town Center Square Easements, consistent with the Joint Use Agreement. -13- 04.01.14 T:IWPWR7601PRO)WrSWAIN STRWCUPF[tTMO•SANDMLL%MR§Main Sneq City 04,01.14AM i 2.14. CJ.'ty Park Easement. The City Park Easement is hereby established over and across that portion of Parcel 1 designated on the Map as the City Park for the use and benefit of the public and the Owners and Occupants within the Center in accordance with the provisions of this Declaration. The City Park Easement shall be subject to the use rights and limitations and the operational requirements set forth In the Joint Use 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 consistent with the Joint Use Agreement established from time to time by the Declarant, as long as Declarant holds Declarants Reserved Rights under this Declaration and by the City in accordance with the Joint Use Agreement. After such time as Declarant no longer holds Declarants Reserved Rights under ihis Declaration, or after Declarant relinquishes its rights hereunder In a recorded written document, the Center Association Board and the City may establish the Rules and regulations regarding the conduct of activities within the City Park Easement as such Rules and regulations may be approved by the City pursuant to the terms of the Joint Use Agreement in a manner that Is consistent with the Joint Use Agreement. 2.15. Encroachment Easements. Each Owner shall have, as appurtenant to Its ownership interest in and to a Burg Parcel or any portion thereof for the benefit of its ownership interests in such Building 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 Areas and the Common Area Parcel, as the servient tenements, for the purpose of accommodating 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 orb trial design, plans and specifications of Declarant, or due to e !n ee errors, errors or adjustments in anginal construction, settlement or shifting of a Building or similar causes. There shall be valid easements that permit such encroachmenffi to remain for as long as they shall exist, and the rights and obligations of Owners, shall 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 Owner, other than adjustments by Declarant or Declarants 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 accordance with its original design and location, the encroachments over the Common Easement Areas and the Common Area Parcel shall be permitted to continue and there shall be valid easements that permit such encroachments to remain for so long as 4hey shall exist. 2.16. Maintenance and Construction Easemenffi. (A) Declarant hereby reserves for and on behalf of the Center Association non-exclusive easements and rights of access over the Common Easement Areas, Common Area Parcel and Center Roadways, each Building Parcel, Building Component (exterior or Retail Spaces) for the purpose of performing 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, rerlring re lacing, installing, reconstructing, or restoring Utility Facilities lying or otherwise located within the Common Easement Areas or Common Area Parcel. (6) Non-exclusive easements are hereby reserved by Declarant, for a term and duration coextensive with Declarants title or Interest In any portion of a Building Parcel, for access to, and ingress and egress over, above and across, the Common Easement Areas and Center Roadways as reasonable and necessary to undertake and complete the development and construction of the Buildings, the Common Easement Areas, and the other improvements and facilities of the Center. (C) Subject 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 Areas and Center Roadways are hereby established, reserved and granted to each Owner for thulnf allowing e to undertake arcibsuch ene d construction of e purposes emnntss within Build i g and owned y Ow and rP -14 04.01.14 T.WPWIN60WRO)DMMAD7STREErCUPFA7INO-SANDNRJ.ICCR4M410Stl Liry04.01.14.d= replace or restore the Building Improvements situated within the Building Parcel owned by such Owner. Any scaffolding and similar structures for undertaking any such maintenance, repair, replacement or restoration of impro; T ir a�ements that intrudes Into the Common Easement Areas and Center Roadways shall be subjeto pproval of the Boats not to be unreasonably thheld or delayed or inequitably alied shabe perm(tted to remain only far as long as reasonably necessary under the mumnces to accomplish such maintenance, repair, replacement or restoration. 2.17. Drainage Easements. There is hereby established, reserved and granted for the benefit of each Owner non-exclusive 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 therein, 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 Association'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 interfere 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 Areas 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 Parcel, including the Building Components therein for the How of surface and subsurface water from each of the Building Parcels, the Common Easement Areas and the Center Roadways. 2.18. Utility Facilities a Declarant hereby reserves on behalf of the Declarant and the Center Assoc atioon on-exclusive easements and rights of access over the Common Easement Areas and the Common Area Parcel for the purpose of performing such installation, maintenance, re air, replacement, construction, reconstruction or restoration as the Association may do in accordance with the provisions of this Declaration, and for the purpose of maintaining, repairing, replacing, installing, reconstructing, or restoring Utility Facilities within the Common Easement Areas and the Common Area Parcel. the Center Ass(Ai) her their a ehe hereby reserved are sl nsd including Declarant for the benefit of the Declarant, 9 g parties to operating agreements with the Center Association or the Declarant for operation of the Utility Facilities, and utility companies or districts (including the Cupertino Sanitary District), non-exclusive easements and rights of access over and across the Common Area Parcel Common Roads Common Easement Areas for the p�ipes, lines and other Utillty Facilities whin serve or provide service to or from the Utility FadRies which easements shall be located in the locations where such pipes, lines, and other Utility Facilities are constructed or installed, and shall Include the right to Install, o rate, maintain, repair and replace such pipes, Imes and other Utiil Fad ty lit les bo the Center.e Center Association shall have the right W rovide the services of Utility Facilities within e Center and may enter into operating and other agreements wth Declarant or any other party to operate, repair, replace and maintain such utility Facilities and to provide the util'Ity services from such Utility Fadliities. or permanent encroachment into or permits upon from the City shall be required for any temporary Access Easements and the Public Vehicpular AccesssbEase easement including the Public Pedestrian (C) All Utility Facilities installed constructed or otherwise placed within the entire Center exterior of Buildings shall be locatW undergroun3 or screened from public view to the satisfaction of City's Director of Community Development and Director of Public Works. 2.19, i imitations and Conditions on Owner's Easements. The grant of the non- exclusive easements in an to the Common Easement Areas and Center Roadways to Owners, described in Sections 2.4 through 2.18 above, and elsewhere herein, shall be subject to the following: -Ig- 04.01.14 'P%WP R4601PRQ1ECFSWA1N S9REErCUPERM0-SANDHR.LTM Main Sbod City 04.01.I4A= (A) The right of the Center Association and the Declarant to adopt Rules and to enforce the provisions of this Declaration, the Bylaws and the Rules in accordance with the provisions of this Declaration and as stated in the Bylaws and Rules. improvements(8real he Center Association's access rights to maintain, repair or replace Rodways as provided in this nalla pro"located in the Common Easement Areas and Center (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 Building 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 this Declaration; and (E) The rights of the Center Association and Declarant to install, repair or replace Utility Facilities and communications systems within the Common Easement Areas and Center Roadways as provided in this Declaration. (F) Declarants Reserved Rights hereunder. 2.20. Dedarant's Reserved Rights in Common Easement Areas. Subject to the Land Use Approvals, as long as Dedarant holds Declaranrs Reserved Rights under this Declaration Declarant reserves the right to use portions of the Common Easement Areas for promotiona5 activities for the commercal and retail uses in the Center and to charge for the use of such promotional activities subject to the terms and provisions of the Joint use Agreement as are then applicable to the Town Center Square and City Park. After such time as Declarant no longer holds Declarant's Reserved Rigghts under this Declaration, the rights under this Section 2.20 shall become the rights of the Center Association to use portions of the Common Easement Areas 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, subject to the Land Use Approvals, 2.21. m�r V h' A W There are established on the Map included as part of the Pub it a Ye icu ar Access Easement °P.V.A.E.'� and the Private Use Vehicular Access Easement (-PT.V.A.E. Emergency Vehicle Acoess Ways, which are designated as "E.V.A.W" on the Map, over whl the emergency vehicles of the City and of other authorities operating emergency vehicles shall have access as needed and required for emergency purposes. 2.22. Other Eaggments. Each Building Parcel, Building Component, Common Easement Areas 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 Site as shown on the Flap. 2.23. Bight of Entry and Use. The Building Parcels Building Components, Common Easement Areas and Center Roadways shall be subject to the?ollowing rights of entry and use. (A) Subject to Section 5.2(E),the access rights of the Center Association to maintain, repair, operate or replace improvements or real or personal property located in the Common Easement Areas 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 Areas and Center Roadways to perform maintenance on any facility for which such Owner or its agent Is responsible, subject to the Rules and such additional requirements as the Board may impose to protect the Common Easement Areas and Center Roadways; and (D) The rights of Declarant, Building Parcel Developers and their respective contractors and subcontractors to do 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 Areas. -16- 04.01.14 T;IWPWIN6DWROJEMU7AIN STRR61'CUPERTNO-SANDHIt=R4 Main SVmtClty 04.D1.14.dxn 2.24. Ease Ants t e in Building P is B din Comm ones The easements an rights of use, enjoyment an access established, resery and grantees by and pursuant to this Artlde 2 that 6eneflt 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 Bulidin 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 Building 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 Dedaration. 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, inductinngg a Building Component, and as covenants tanning with the land and equitable servitudes wn'th reaped to each Building Parcel, or portion thereof, Induding a Building Component, and ail ownership Interests therein. The rights appurtenant to each Building Parcel, or portion thereof, including a Building Component, as so described, shall be enforceable as appurtenant easements, covenants running with the land, equitable servitudes, or as any of the foregoing. 2.25. atlo Any Owner may delegate, In accordance with the Bylaws, Its right of use an enjoyment o the Common Easement Areas 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 including a Building Component provided that such delegation shall be subject to the terms o this Declaration and that no suer delegation shall relieve such Owner of responsibility therefor. 2.24. F elopmen of th eject Site. As long as Declarant has the Declarant's Reserved Rights esta s un err this Declaration, the Dedarant reserves the right to obtain new Use Permits permitting development on any Building Parcel or Building Component owned by the Dedarant and to develop the Center in accordance with the Land Use Approvals, Including the right, subbed to the Land Use Approvals and subject tin the review and approval of the City to file additional subdivision maps lot Ilne adjustments, Building Parcel a , Buildingg Condominium Plans, and Supplemental Declarations to provide for additional Building Parcels, Common Easement Areas In the Project Site. D�larant shall be entitled to delegate each and all of the foregoing rights to one or more Building Parcel Developers. 2.27. Sheriffs Substati n. A Sheriff's Substation is and shall be provided within the Center In accordance with a Land Use Approvals. The Sheriffs Substation shall not be charged any Assessments, fees or dues for the operation and maintenance or other Common Operational Casts of the Center. ARTICLE 3. CENTER ASSOCIATION- MEMBERSHIP VOTING AND ADMINLTMATIoN 3.1. Center on. The Center Association has been formed for the operation and administration o e Center for the benefit of all Owners, Including 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 1000 square feet of the Building Area as established for such Building Parcel pursuant to this Declaration. that Building Parcel The votes allocated to each Buildingg Parcel shall be cast by the Owner of g , provided however that for any Bullding Parcel that has been divided into -17- GUMA TAWPWIN6"ROJECTSU4AR4 S7RP8r CUPERTRiO•SANDMLL=R%Main SbwlCily D4.DI.14.d= one or more Building Portions with a Building Association, the membership and voting rights for such Building Parcel 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 Memb hip. Membership rights and interests In the Center Association shall not a trans me encumbered, pledged, or alienated in any 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 Center Governance Documents. 3.4. Board. Except as otherwise set forth in this Declaration the activities and affairs of the Center Association 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 o?recordation of this Declaration in the Official Records. After the date 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 Section 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 . 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 Membership Termination Date. The rights of Declarant to exercise the rights as a Class C Member shall terminate on the earnest to occur of the following events 4such 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 this Declaration the�cial Recortds of the twenty-fifth ut (250) anniversary of the recordation of (C) After such Class C Membership Determination Date,the rights to exercise the Class C Men ershi , and to appoint Directors pursuant to such Class C Membership rights, shall be exercised by the Owners of the Retail Components. Any such determinations shall be made based upon a majority of the votes of such Owners of the Retail Component determined by one vote for each square foot of the Building Area (as defined in Section 1.11 hereof) of the Retail Components owned by each of such Owners of the Retail Components. 3.6. Declarants 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. Any change In the general, overall architectural style and design of �e Common Easement Areas, and the landscaping design of the Common EasemenE Areas in the Center. (B) Changes in Use. Any change in the permitted or prohibited uses in the Common Easement Areas, the Center Roadways, and the Center Parking Facilities or under the Planned Development Zoning or the Master Planned Development Permit. Standards. (C) Center Operational Standards. Any change to the Center Operational -ls- 04.01.14 TAWPWIN60TR04ECISWAU4 STASEI'CUPERTMO-SAHOH1WCCRL Main Shut C1b04.UI.14.dm (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 Section 13.24. ARTICLE 4. CENTER ASSESSMENTS 4.1. Creation of Assessments. The Center Association shall establish, levy and collect the Assessments. 4.2. Covenant to Pay ks essmen__til Each Owner of a Building Parcel, or any portion =Including a Owner o a Building Component, and including the Declarant for all of the Interests in Building Parcels or Building Components owned by the Declarant, hereby covenants and agrees as follows:to p levied to and assessed against Center wner'slaBuiilding Parcel or Buildining Component ain accordance with this Declaration, and hereunder for enforcement of the a Center Association to enforce any rights established means authorized in this Declaration or by law a moments to the Center Association by any 4.3. B 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 Cods for each fiscal year, including such reserves as the Board deems necessary. (B) The Base Bud et Common Operational Costs shall mean the following Common Operational Costs Incurred by the Center Association 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 following 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 as Center Parking Garage Costs under Section 4.6.8(1): operating, equipping, maintaining repairing, replacing, lighting, cleaning, striping, and removing gapprbage, trash and debris from ail Common Easement Areas; be maintained by the Center Associations purl aunt to and other this Declarations for insurance required to (3) landscaping of Common Easement Areas, including but not limited to landscaping along Vallco Parkway; 141 all replacement and improvements of or to the Common Easement Areas, including, Center Roadways but expressly excluding the Center Parking Facilities that are Center Parking Garage Costs under Section 4.6.8(1). (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 Areas; 7 all license and permit fees; 8 employing the Center Association Manager and other personnel, including the salaries, benefits and insurance costs of the Center Association Manager and other personnel Parking expressly Facilities;ecluding those that are personnel that are solely for operation of the (9) all costs of utility services provided to the Common Easement Areas; (10) operatingg, maintaining, repairing and replacing the Utility Facilities to the extent such Utility Facllltles serve the Common Easement Areas; -19- 04.01.14 TAWPWIN WROJEMNA@7 SWWrCUPERT1N0-SANDNILLWM%Main Sftd City 04_03.14A%u I (11) costs of traffic regulation and control signs and devices within the Common Easement AArreas; (12) 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 preparingg 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; (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 the Center Association Manager, accountants, attorneys, and employees,and (14) All costs and expenses Incurred by the Center Association for security patrols and moniitoring for the Common Easement Areas. (15) All costs and expenses Incurred by the Center Association for maintenance, repair, replacement of improvements in the Town Center Square and for any security patrols and monitoring for the Town Center Square. (16) All costs and expenses Incurred by the Center Association for maintenance, repa%replacement of improvements in the City Park and for any security patrols and monitoring ffor a CCiity Park. (17) All costs and expenses paid to third parties (including the Declarant) by the Center Association for providing any of the foregoing services. Management Plan. (18) All costs and expenses incurred for administration of the Parking (C) The Base Assessments computed and levied by the Board shall be in an amount necessary to ay 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 file Center Association, the Board shall determine the amount of the se 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 Parcels by dividing. the Bullding Area of the Buildings within each Building Parcel by the total of th the aggregate Building Area en established for all of the Building Parcels within the Project Site. e Base Budget Assessment Allocation for each Building Parcel is set forth on Exhi attached to this Declaration. 4A. Date of Commencement of Use Assessments. Assessments shall commence as to all IBuuIldin agrees Parcels on the earlier date that Is thirty g rty (30) days after the date of recordation of this Declaration in the Official Records of the County. (B) For the fiscal year or remainder thereof of the year during which this Declaration 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 advance of the beginning of each calendar year, provided that failure to comply with the foregoingg 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 with a Building Association, the foregoing notice shall be sent to the Building Association for that Building Parcel. CC) Unless otherwise determined by the Board, Base Assessments shall be payabPayable by each Building Parcel in monthly installments however, the Board may determine to le such Base Assessments in quarterly installments W written notice to each Owner of an Interest In a Building Parcel. -20- 04.01.14 TNWPW1N6GTR0JWFSWAIN STRM CUPP.RMNO•SANDMLUCCRY Main SW*tCity64.81.14.dm (D) B i ne s 1 For any Bui ing Parce that has been divided into two or more Building Components Nkh a Building Association formed for such Building Parcel, the Building Association shall be responsible for allocating, levying collecting and paying to the Center 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 Association 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 for 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 rights 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 amount 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 allowed by law. The manager for a 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 manager 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 all Building Parcels in the same manner as Base Assessments, as set forth In Section 4.3.(D), 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 4.6. B) ent. Special Assessments, Including Special Assessments of the itdescribed n Section 4.6, may be due and payable in one (1� payment or periodically as e Board shall direct at the time that the Special Assessment is Iev ed• rovided however that no Installment of a Special Assessment shat be due sooner than thirty 30 days after notice of the Special Assessment has been delivered to the Owner or Owners o the Building Parcel by the Board. For any Building Parcel that has been divided Into more than one Building Component with a Building Association having been formed for that Building Parcel, the foregoing notice shall be sent to the Building Association for that Building Parcel (C) Notice. The Center Association shall provide notice to the Owners by first-class mail of any S cal Assessments not less than thirty(30) nor more than sixty (60) days prior to the Special Assessment becoming due. _2I_ U"L14 T:1RRR'N60%PROD MVAAIN STRWTCUPERTINO-"NDHII,LICCR4 Main SUMCRy 04.01.14.dm 4.6. Cost Center Assessments. A) ssmente and ts. The Board shall establish the Center Assessments r Cost enter Services ba upon Cost Center Budgets for Common Operational Costs for each fiscal year for each of the desl naCeer Center Services, including such reserves as the Board deems necessary. The Assessments computed and levied by the Board shall be in an amount necessary to ayy for Common Operational Costs, including, without limitation, reserve contributions, In each fiscal year as reflected in e Cost Center Budget for each of the Cost Center Services. (B) Co There shall be the following Cost Centers for the Cost Center Services described for such Cost Center. (1) Center Parking Cost Center: All Common Operational Costs for Center Parking Garage operations (Including utilities costs, garbage and bash removal, and security costs allocable to Center Parking Facilities), maintenance, repair and replacement of Center Parking Garage ("Center Parking Garage Costs'), insurance costs for garage operations shall be assessed to the Hotel Parcel, the Retail Parcel and the Office Parcels that have use R the Center Parking Garage in accordance with this subsection 4.6. B)(1) as Center Parking Garage Cost Center Assessments. Center Parking Garage Costs shall be allocated by the Board of the Center Association to each the Hotel Parcel, the Retail Parcel and the Office Parcels as set forth on Exhibit"D"attached to this Declaration. (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 Dedarant holds Declarants Reserved Rights under this Declaration by the Declarant making and recording a Supplemental Declaration that provides fur such additional Cost Center or Cost Centers.After such time as Declarant no longer holds Dedarant's Reserved Rights under this Declaration, additional Costs Centers may be established by the Center Association by the Board making and recording a Supplemental Declaration that provides for such additional Cost Center or Cost Centers. ((C) All ca ' Ce a Notwithstandingg the provisions of Section 4.3, tf 9fie ai acation me for a Cost Center SeMce is not expressly specified in this 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. Unless the allocatlon and assessment of a Cost Center Assessment is based upon metering or ether objective measurement, the allocation and assessment of a Cost Center Service shall be in accordance with the projection and estimation by the Center Assodation of the amount of use made and the benefit received by each Building Parcel or Buiiding 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 Building Association regarding the allocation of Cost Center Assessments, such dispute shall be submitted to arbitration pursuant to Section 13.25. 1) Allocations of Cost Center Assessments made to a Building Parcel shall be allocated tween the Building Components In that Building Parcel as provided to the Building Declaration for that Building Parcel. -22- 04.01.14 TAWPWINGOTROIECTSWAiN STREET CUPERTINO-SANDNILUCCR's Main Str CiV D4.61.14.&= (D) Cost Center Assessments shall be due and payable In advance on the first day of each montfe 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 Building 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 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 Any Cost Center Assessment levied by the Board. Each Owner which is required to a Cost Center Assessment shall continue to y 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) Within slimy(60) days after the end of each fiscal year, or as soon thereafter as is reason 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 for which a Building Association has been formed, such statement shall be sent to the applicable Building Association. 9 such statement shows that the payments 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 difference toward the next payment(s) of Cost Center Assessment payable b 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 Assessmen. (A) General Provisions. The Board may levy a Reimbursement Assessment against any Owner or 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 over 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. (0) Notice. Before the Center Association undertakes an action that will result 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 Assessment and shall provide the opportunity of a hearing for such party before the Board In accordance with the Bylaws. (C) meat. Reimbursement Assessments shall be due and payable when levied by written notice(C) Pay—men theapplicable Owner, and shall be delinquent if not paid within thirty (30) days after levied. 4.13. Verification of Assessments. The Center Association shall, Within twenty(20) days after request by any Owner, any Mortgagee or potential purchaser of a Building Parcef, 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 Buildin Component, have been paid and Identifying the amount of any unpaid Assessments levI:Y 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. -23- 0441.14 T:IWPWR460WRO1EMWA1N STREETCHPERTINO-SANDHILDOMs Mein SbMC ly 04.01.14AOx 4.9. Personal Obligation For Assessment. (A) The amount of each Assessment assessed to a Bullding Parcel, together with interest, llate charges, collection costs, and reasonable attorneys' fees, shall be the personal obligation of the Owner of the Building Parcel or of the Buildin Assodation for such Building Parcel that has been divided into Building Components if a Building Association has been fanned for the Building Parcel at the time when the Assessment fell due. !B) The personal obligation for delinquent Assessments shall pass to the successors in title to the Building Parcel that has not been divided Into Bullding 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 Buildin Parcel that has been divided into Building Components, the personal obliggation for such delinquent Assessments shall be as provided in the Building Declaration for thatEuilding Parcel. that are levied(against) NotOwner s all Ceelxempt from liability for payment of the Assessments g 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 Owner's interest. 40 0 E f N Any Assessment not paid within fifteen (15) days after the sae date shall be in uent, shall bear Interest at the rate of twelve percent (12"/0) per annum commenting thirty30) days after the due date until paid In full, and shall incur a late payment fee in an amount o ten per cent(10%) of the delinquent amount or ten dollars ($l0), whichever is greater; provided that in no event shall tine interest or late charges payabble hhereunder exceed the maximum permitted by applicable law. 4.11. Transfer of Building Component. (A) The sale transfer or demise of any Buildingg Parcel or portion of a Building Parcel, Including a Building Component, or other interest therein, s6II 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 foreclosure 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 Bullding Parcel or Building Component is transferred, the transferor shall remain Ilabble to the Center Association for all unpaid Assessments against such Building Parcel or Building 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 4.6, such transferee shall not be subject to personal obligation 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 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 R medles. 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 right 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. -24- 04.01.14 T.IWPWIN60%PR07ECI51MAR4 STREErCUPER77NO•SANONILMCM Main StM101y04.01.14.dwz (B) Suit to recover a money judgment for unpaid Assessments, including all interest, late chharges, attorneys' fees and other costs of collection, shall be maintainable without foreclosing or waiving tide Assessment Lien in favor of the Center Association securing repayment of such amounts. (C) Levy an Assessment Lien as set forth in Section 4.13. 4.13. e m n At any time not earlier than ten (10) days, and not later than sixty (60) days, a er 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 fn a lien against the wldmg Parcel or the Building Component of the Owner for the amount of the delinquency, plus costs and attorneys' fees. If 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 Buildingg Parcel or the Building Component of such delinquent Owner. The claim of lien shall state (1)the name of the delinquent Owner or reputed Owner, (2) a descripption 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), f4) that the claim of lien is asserted pursuant to this laration (referring to the record ng data in the Official Records of the County of Santa Clara), and ) that a lien Is claimed against the Building Parcel or the Building Component of the delinquents Owner in the amount of the stated delinquency pncluding interest, costs and attome s fees). Any such claim of lien shall be signed and acknowledged by any officer of the Assod%lon. Upon recordation of a duly executed original of such claim of lien by the Recorder of the County of Santa 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 Ilan may be foreclosed by appropriate action in court or in the manner provided by law for the foreclosure of a mortgage with power of safe 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 pursuant to suc sale. If foreclosure is by action in court, reasonable attorneys' fees shall be allowed to the extent permitted by law. If foreclosure 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 certificate 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 shall be executed In like manner. The Assessment Lien hereby established shall be subject to the provisions of Section 13.6 hereof. -25 01.01.34 11.%WPWIN001PR0lHC[SWAIN S7RWT CUPM17NO-SANDN LL=R,Main Shut City 04.01.14.4= ARTICLE S. DUTIES AND POWERS OF THE CENTER ASSOCIATION 5.3. Duties. In addition to the duties enumerated in the Articles Bylaws and elsewhere in this Declaration, and without limiting the generality thereof, y. Center Association, acting through the Board and Its officers in accordance with the Bylaws, shall perform the following dudes: (A) Main nonce and Ooerati�or. The Center Association shall operate, maintain, repair and replace aII Improvements within the Common Easement Areas and Center Roadways, Public Art, landscapmg within the Common Easement Areas, and all Utlllty Facilities within the Common Easement Areas and Center Roadways that are not maintained by the Qty, another public entity, utility company, or Improvement district in accordance with the provisions of this Declaration. In addition the Center Association shall maintain, repair and replace "off- site'°landscaping and facilities as required or may be required under the Conditions of Approval. (1) Surh operations, management, maintenance and repair by the Center Association of the Common F�asement Areas and Center Roadways shall be in a condition and state of repair commensurate w* a First-Class Project undertaken (2) The Center Association shall be responsible for operational and indemnity obligations to the Cupertino Sanitary District under by the agreement between the District and Declarant arding sanitary sewer operations within the Center. (37) 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 been granted or assigned exclusive use of that portion of the Common Easement Area by the Center Association, wfiether on a permanent or temporary basis, or to an Owner of a Building Parcel or bo a Building Association that elects bD undertake with the Center Association's consent such responsibility for and costs of cleaning, maintaining or repairing a portion of the Common Easement Areas. {4) Further, If any maintenance, repairs ar replacements to any Common Easement Areas and Center Roadways or the Improvements therein, or the Utility Facilities become necessary as a result of the wilful or negligent acts or omissions of an Owner or its %nvitees, the Center Association shall perform such maintenance, repair and/or replacement and the costs and expenses thereof 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 whicl'i 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 tie 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 to the responsible Owner as a Reimbursement Assessment. (5) 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 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) Storm Water Management P�oa�rn. Declarant and the Association shall administer a Storm Water Management Program w ih ch shall be submitted to the City for review and approval. The Storm Water Management Program shall include the City's mandatory Best Management Practices (BMPs), which include good housekeeping practices, prohibition of rinse and cleaning water into the storm drain system, keeping outside parking and loading areas clean, maintaining onsite spill prevention and cleanup materials, and keeping landscaping materials and debris away from storm drain system. To ensure optimum performance of the Center's storm water treatment system, the Center's storm water treatment system shall be Inspected by the Association according to the manufacturer's specifications at minimum to ensure that the system is operating according to Qty Best Management Practices (BMP) standards and requirements. A written record of the maintenance of the Center's storm water treatment system shall be provided by the Association to the City's Department of Public Works -26- 04.01.14 T.%WPWJN601PR0JWMNAW STRMTCUFRRT1N0-5ANDRIJL10CRt Main Sven Ciry04.01.14.d"x pursuant to the Maintenance Agreement of Structural or Treatment Control Best Management Practices (BMPs). insurance required under won 8.1.a Center Association shall obtain and maintain the (D) Electrical Service. The Center Association shall obtain electrical utility service for the7 Common Easement Areas and Center Roadways from a public utility, other provider, or other generation sources. ((E) arkln c. Except as provided otherwise In this Declaration, the Center Assoclation sha 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 6. The Center Association shall operate or cause to be operated those parking facilities that are defined and described and comprise the Center Parking Facilities in good order condition and repair, consistent with a First Class Project and consistent with the Parking Management Plan. (F) Rules The Center Association shall adopt and be entitled to enforce Rules that are not Inconsistent with the provisions of this Declaration to (1) 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 basement Areas (iii) to provide standards for the maintenance and repair of the Common Easement Areas and of the Buildings and to provide for rules and gguidelines for Construction Work Review pursuant to Article 9 th 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 limitingg 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. (G) Mharge of[Jens. The Center Association shall discharge by payment, if necessary, any lien against a Common Easement Areas, 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. (H) Assessments. The Center Association shall determine, levy, collect and enforce Assessments as set forth in Article 4. (I) Payment of Expenses. The Center Association shall pay all expenses and obligations incurred by e 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. PoKe rs. 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 Senn The Center Association shall have the right and power to contract for the provision of utilities and other services necessarryy for the operation of the Common Easement Areas and Center Roadways (collectively, "Services'l, including,without limitation, the following• (1) water service; (fi)garbage removal, recycling and waste disposal services; (Ili)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 television, that the Center Association determines to be reasonable and prudent for operation of the Common Easement Areas and Center Roadways. (8) Common asement onito . The Center Association shall have the power (but not the Obligation) to provi e r sta , equipment 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 _27_ 04.01.14 '.. T:\WPW N60\PItOrWMN4A1N STRFPf CUPFRMO-SANDH111=R1 Main Stcd City 06.01.14.dm 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 internal 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 warranty 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)) U htin , The Center Association shall have the power to provide for and operate lighting throughout e Common Easement Areas and the Center Roadways, including the Center Parking Facilities. Dedarant shall adopt a°Lighting Plan". The Lightin Plan shall mean a plan for lighting within the Center, including the parking garage and other site improvements lighting, including photometrks, that was Included as part of the Land Use Approvals for the Center and Project site. 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 Buildings that the Center Association deems necessary and appropriate consistent with the Lighting Plan. 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 Building Parcels, the Building Components, and external portions of Buildings to install, operate, maintain, repair and replace lightingg 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 the Base Assessments; provided however that any such lighting provided to any Center Parking Facilities shall be charged to that Center Parking Fadlities Cost Center. Such lighting shall conform to the Lighting Plan and other ligghting requirements of the City which aFply to the Center. Any future changes to the Center lighting shall be subject to the Lighting Pan for the Center that has been approved by the City, as may be revised or supplemented from time to time Any material changes to the Lighting Plan shall require prior review and approval by the Sherlfrs Department and the Director of Community Development. (m) Center Association Manager and Employees. The Center Association shall employ a professional manager or professional management company as the Center Association Managger th perform all or any part of the duties and responsibilities of the Center Association as may be delegated In writing to the Center Association Manager, including, but not limited to managing and operating the Center Association and the Center's Common Easement Areas and the Center Parking Garage, except as may be otherwise prohibited by this Declaration. The Center Association may employ other profess[ona! consultants, staff and employees as the Board determines to be reasonable or appropriate for performingg all or any part of the duties and responsibilities of the Center Association. The Center Association Manager shall be responsible for the enforcement of this Declaration. The Centhr Association Manager shall cause the Center th be operated, maintained, and repaired in a fashion consistent with the Cupertino Municipal Code and all City Conditions of Approval for the Center and this Declaration. (E) �_cre�ss. For the purpose of performing construction, maintenance or repair for the benefit of Common Easement Areas 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 emergencies, where no such notice shall be require dd, to enter any Building Parcel or Building Component exterior of Retail Spaces within the confines of those areas reasonably necessary to gain access to the Common Easement Areas, Center Roadways or other required areas necessary for the Center Association to perform such construction, 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. -28- oe oi.14 TAWMIN601PRDIECTSIMAE4 STREETCIIPERTIND-SANDHILUCCRS Main SUW Chy04.01.1444 (F) Enforcement The Center Association shall have the power to enforce this Declaration. (G) Wquisition Alteration and Disposition of Properly. The Center Association shall have the power to acquire (by gift, purchase rc— a�i se or o�ierwlse), own, hold, Improve build upon, operate, maintain, convey, self, lease, transfer, or otherwise dispose of persona( properly 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 writteen consent of: (1)the Declarant, as long as Declarant holds Dedarant's Reserved Rights under this Declaration; and (ii)) if the value of the Interest to be disposed of exceeds One Hundred Thousand Dollars ($100 b00), which amount shall be increased annually, on a cumulative basis, by three percent (3%5 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 money on a reasonable an pru�basts to fund operations of the Center Association that cannot be readily funded from Assessments on a timely basis. Notwithstanding the foregoin the Center Association may not borrow an amount greater than five per Bent (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 the prior written consent of a majority V of the oting Power of the Members. (I) Dedlotton or Grant of Easements. The Center Association shall have the power to dedicate, convey or transfer easements over any part of the Common Easement Areas or Center Roadways to any public agency, authority 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 maybe agreed.to by the Board. The dedication conveyance or transfer of any such easement shall be subject to the prior written consent d the Declarant, as long as Declarant holds Declarants Reserved Rights under this Declaration, and in the event any such easement Is to be located on a portion of property 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. (1) Contra . Center Association shall have the power to contract for goods and/or services r the ommon 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. (IQ Delegation of Authorily and Pow r, 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 Center Association Manager employed by the Center Association. 5.3. Co ent of Center Dec Powers. The duties, rights and powers of the Center Assatia on as escribed in is aration a commence from and after the date of recordation of this Declaration in the Official Records. -29- 04.01.14 T:IWPWM66WR0lRCMWAIN STREET'CUPERTINO•SANDNUJ.=-s Mato Saw Chyo4.o1.14.d= ARTICLE 6. PARING AND ROADS 6.1. Center Parking Facilities. The Center Association shall operate, manage, maintain, repair and replace the Center Parking Facilities as set forth in this Article 6. The Center Association shall operate or cause those Center Parking Facilities defined and described and compprising the Center Parking Facilities in good order condition and repair, consistent with a First Class Project. The Center Parking Garage shall be and remain a Common Area Parcel owned and operated by the Center Association and shall not be sold or conveyed as a separate parcel without the express prior approval and written consent of the City. (1) The Association shall o erate pparking and traffic within the Center pursuant to the Parking Management Plan. The Parking Management Plan shall apply to parking utilized in the shared Parking Garage, surface parking, and bicycle parking facilities as included as part of the Land Use A provals far the Center and at the Project Site. Any changes to the Parking Management Plan shall be required to be consistent with the Tenanting Plan and require review and approval by the Director of Community Development. (2) The Association shall review the Parking Management Plan from time to time to appropriately manage parking and traffic in the Center and may change the Parking Management Plan as the Association deems reasonable and appropriate, subj9ect to review and approval of any such changes by the City's Director of Community Development. 6.2. Cen Parki Parking within the Center, including, but not limited to the Parking Garage, s all a used and operated by the Association for parking for the shared 'oint use and benefit of the Center as set forth in this Declaration. The Center parking all be operated In a manner consistent with the Parking Management Plan as approved by the City including Condltlon(s) 4, 18, 27, and 30 of City Resolution 12-098(M) that are appended to the Parking Management Plan. (A) Specific parking areas and parking spaces of the Center, including, but not limited to rtions of the Parking Garage, are hereby allocated exclusive use as set forth in this Section G. and on the attached conceptual Parking Management Plan herein referred to as Ighlbit-E° Exhibit"E"shall be replaced by a final version, subject to the review and approval by the Community Development Director, prior to issuance of a certificate of occuoancv of anv component of the Center. Exhibit "E" of this Declaration cannot be modified or otherwise changed without the prior written approval of the Director of Community Development of the City. (B) The Center Association shall have the right to designate certain spaces or areas in the Center Parking Garage for certain Owners, Parcels, or uses, and the right of the Association to erect or place barriers, establish loading/unloading zones, fencing, gates, or dividers within the Center Parking Garage to separate use of the Center Parking Garage, on a temporary or permanent basis in a manner that conforms to the Parking Management Plan. �C) There shall be no change in use of the Center Parting Garage from its use as a parking garage without prior wrlMen approval of the City. (D) Except for charges for panting by the Hotel Parcel to customers of the Hotel Parcel, or as provided in Section 6.9 for other approved valet services, there shall not be any charge to customers or other visitors using enter Parking Garage. However, the Association shall be entitled to assess the Owners of the Hotel Parcel, the Office Parcels and the Retail Parcel for their respective allocated shares of the cost of operation, administration maintenance and repair of the Center Parking Garage, to be allocated and assessed as part of the Common Operational Costs as Center Parking Garage Cost Center Assessments as provided In Section 4.6(8)(1). -30- 94.®1.a4 T:\WPW01W1PR0IRCTSWAIN SMXr CUPSRM0-SAWDRILL=Rt Moln St COy04.01.14.dm 6.3. Maintenance and Operations of 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 Center Parking Garage which Improvements within the Center Parking Facilities may Include Public Art or other art fixtures. (A) The costs and expenses incurred by the Center Association to operate maintain, Repair and replace the Center Parking Facilities,including, without limitation, any real estate tax assessments levied against the Center Parking Facilities shall be assessed to the Owners of the Retail Parcel, the Hotel Parcel and the Office Parcels as part of the Common operational Costs as Center Parking Garage Cost Center Assessments pursuant to Section 4.6(8)(1)of this Declaration. (B) The Center Association shall be authorized to enter Into operating agreements with third parties Including the Declarant, for the opperation management, maintenance and repair of the tenter Parking Facilities, the costs of which shall be included in the Common Operational Costs. 6.4. Rights to Use Center Parking Facilities. (A) Geneml Use of Center Parking Facilities. The Center Parking Facilities, consisting of the Center Parking Garage and the exterior surface parking areas located within Me Common Easement Areas of the Retail Parcel, except for the limited public use of certain exterior surface parking as set forth in Section 6.4(8), below, shall be available for use by the Owner or Owners of the Retail Parcel and the Occupants thereof, and their Permittees, the Owner of the Hotel Parcel and the Occupants thereof and Its Permittees, and by the Owners of the Office Parcels and the Occupants thereof, and tAeir Permittees as provided and limited in this Section 6.4. The exterior surface parking lots, other than those designated as"Public Use or "Public Parking" as set forth in Section 6.4(8), below, shall be reserved solely for parkingg for use by the Owner or Owners of the Retail Parcel and the Occupants thereof, and their Permittees pursuant to the Parking Management Plan and may not be used by Owners, Occupants, or Permittees of the Office Parcels, the Hotel Parcel or the Loft A artments Parcel or for parking by the genera, public as users of the Town uare and City Park or other uses not Involving use of the retail establishments within the Retail rcel, (B) Public Use Qf Portions of Cen r P Facilities. Those parking spaces located In the exterior surface parking areas of the Center Parking Facilities located adjacent to the City Park that are designated as"Public Use"or"Public Parking"shall be available for use by the public who make use of the Public Use Vehicular Access Easement; the Public Use Pedestrian Access Easement, the Town Center Square and the City Park. Such public use of the designated Public Parking areas shall be subject to criteria established by the Declarant and the City for such public use, Including but not limited to, time limitations on such Parking, the types of vehicles that can use the Public Parking Areas, prohibitions on such public parking in such areas at certain times, such as after certain hours or overnight. (C) Center Parking Garage. There shall be no public parking in the Center Parking Garage; a use of the Center Parking Garage shall be limited tin the (1) the Retail owner, the Occupants of the Retail Parcel and their Permittees, (2) the Hotel Owner, the Occupants of the Hotel Parcel and their Pennittees and (3)the Office Owners, the Occupants of the ce Parcels and their Perrnittees as provided In the Parking Management Plan as stated in Section 6.2.(A) and shown on the Center Parking Garagge Plan, undesignated pnMons of the Center Parking Garage shall be available for fire use by (1 the Retail Owner, the Occupants of the Retail Parcel and their Permittees and (2) the Office Owners, the Occupants of the Office Parcels and their Permittees. As rovided in Section 6.2.A, certain designated portions of the Center Parking Garage maybe utilized for the exclusive use of the Hotel Owner, the occupants of the Hotel parcel and their Permittees. The Center Parking Garage is Intended for use only by the Owners of the Retail Parcel, the Hotel Parcel and the Office Parcels and is not intended for use by the Owner or Occupants of the Loft Apartments Parcel. The Retail Owner, and the Occupants of the Retail Parcel and their respective tenants and other Invitees, the Hotel Owner, and the Occupants of the Hotel Parcel and their respective tenants and other Invitees, and the -31- 04.01.14 1'.\WPA7N60"WECM%fAQi S7AEErWER77NO•SANDFRLULCR'a Main Sor"Cily04.01.I4.d= i Office Owners, and the Occupants of the Office Parcels and their respective tenants and other Invitees, shall have rights of ingress and egress over and across the ramps, stairs elevators, drive aisles and other common use areas of the Center Parking Garage for veAlcular and pedestrian access to and from the designated portions of the Center Parking Garage to use they have been provide and allocated exclusive use appurtenant to Its Parcel as a non-exciusive right and easement over and across the Center Parking Garage for a term and duration coextensive with the Owner's title or Interest in the respective Parcel, for ingress and egress, use and enjoyment of the Center Parldng Garage as described and set forth In this AMde S. Such permitted uses of the designated areas of the Center Parking Garage shall be subject to crlberla established by the Declarant and the Association for parking use, including, but not limited to time limitations on such parking, the types of vehicles that can use the Center Parking Garage, prohibitions on such parkingg n such areas at certain times, such as after certain hours or overnight. No overnight parWng shall be permitted in the Center with the exception of the area of ire Center Parking Garage allocated to parking for the Hotel Parcel. (D) Center Parldna Facilities— r rki Except for the limited public use of certain exterior surface pa ng9 as set in Section 6AB) the exterlor surface parking spaces of the Center Parking Fadlities, expressly other than the Granter Parking Garage, shall be available for use by (1)the Retail Owner,for the use of such Retail Owner and the Occupants of a Retail Component or Retail Facilites, their respective tenants and other Invitees, and other Permittees and, (2) in certain designated areas, the rights of use by visiting Invitees and guests of the Office Parcel Owners in accordance with Rules adopted by the Deelararrt and ire Association for such visitor paridng. The exterior surface parking areas of the Center Parking Fadlities are not intended for use by the Owners or tike Occupants or Invitees of the Owners or Oaupants of Building Parcels other than the Retail Parcel or, in certain designated areas the Office Parcels, and are not intended for use by the Owner or Occupants of the Loft Apartments Parcel or by the Owner or Occupants of the Hotel Parcel, or their Invitees or visitors. (E) Ease a is for to Pa — R I O : the Retell Owner, and the Occupants off a Retail Parcel, eir respective tenants and other Perrnittees in conjunction with the rights of Owner of the Hotel Parcel and the Office Parcel Owners as therein set forth N I have, appurtenant to the Retail Parcel, anon-exclusive fight and easement m those specltIc and particular portions of the Center Parkng Fadlites described in this Article 6 established for use by the Retail Parcel for a term and duration coextensive with the Owner's titre or interest in the Retail Parcel, for in re5s and egress, use and enjoyment Of the Center Parking Facilities as described, set forth and limited in this Article 6. (F) Easements for Acce°ss to Parkin — Hotel Owner The Hotel Owner, and the Occupants off a Hotel Parce th reed respective tenants and o er Permittees in conjunction with the rights of Owner 43f the Retail Parcel and the Office Parcel Owners as �rerein set forth shall have, appurtenant to the Hothl Parcel, anon-exclusive right and easement to these specific and particular portions of the Center Parkng Garage described in this Article 6 established for use by the Hotel Parcel for a term and duraton coextensive with the Owner's tite or interest In the Hotel Parcel for Ingr e�s and egre�, use and enjoyment of the Center Parking Facilities as described, set t'orth and limited In this Article 6. Ti) nts for Access Parkin — The Office Parcel Owner[s], and a Occupants of an Office Parcel, their respective tenants and other Permittees, In conjunction with the rights of Owner of the Retail Parcel and the Hotel Parcel Owners as herein set forth shall have, appurtenant to the Office Parcels, a non-exclusive right and easement to those specific and particular portions of the Center Parking Facilities described In this Article 6 established for use by the Office Parcels for a term and duration coextensive with the Owner's title or Interest In the Office Parcel, for ingress and egress, use and enjoyment of the Center Parking Fadlities as described, set forth and limited in this Article 6. -32- ".01.14 7'%WMM6DTR0JOCMMAM 8TXWCtWWUW0-SAMIM1=R19 Mew Sdeef City 04.01.I4AM (H) 1S Aoarbnents Parcel P : The Owners and Occupants of the loft Apartments Parcell and tTieir respective tenants and Invitees, and other Permittees, shall only park in parking areas within the Loft Apartments Parcel, and shall not park in the Center Parking Faclitles, including the Center Parking Garage or the exterior parking spaces and areas within a Center Parking Facilities. There shall be a ratio of no less than 1.8 parking ssppaaces per residentlal unit for a total of 216 parking spaces for the loft apartment use for parking within the garage located within the Loft Apartments Parcel. (I U Mcdons. The easements and licenses granted to Owners or other Occupants or Invtees of Owners pursuant to Sections 6.4(A) (B), (C) (D), (E) (F)and (G shall be subject to the rights and limitations established under this Declaration that are reserve or granted te the Center Assoclation and to the Declarant regardingg their use operation, managgement 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 more Owners, and to the limitations set forth in the Rules pursuant to and as described and set forth in this Article 6. 6.5. Regulation of Center Parking Facilities. (A) Subject to Project's Land Use Approvals, and the provisions set forth in Sections 6.1, . , 6.3 and 6.4, as long as the Declarant holds Dedaranrs Reserved Rights under this Declaration, the Declarant shall have the power among other things, to: (a) regMate the use of the Center Parking Facilities, and the use R 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 or non- exclusive use of parking spaces within the Center Parting Facilities; and (c) reserve certain spaces for parking by handicapped persons or for car/van pool parking to meet the requirements of government agencies. (B) Subject to Project's Land Use Approvals and the provisions set forth in Sections 6.1, 6.216.3 and 6.4, and in this Section 6.5, after such time as Declarant no longer holds Dedarant's Reserved Rights under this Declaration, or Declarant has relinquished in writing the fore ggoing powers, the Board shall have the powers to (a) regulate the use of the Center Parking Facilities, and the use of any Owner or Occupant, andd their respective Invitees of parking spaces and other areas within the Center Parking Facilities; (b) allocate to Owners, on a reasonable basis consistent with the Parking Management Plan as determined by the Association, the exclusive or non-exclusive use of parking spaces within the Center Parking ladtities; and (c) reserve certain spaces for parking by handicapped persons or for car/van pool parking to meet the requirements of govemment agendas. Notwittrstanding the forereggoing, the Board may not revoke or change any allocations of the use of Center Parking FadlfEtes made under this Declaration or by Declarant to the Owner of the Retail Parcel or the Owner of the Hotel Parcel or the Owners of an Office Parcel with out th e consent of the Owner and the Declarant as long as Declarant holds Dedamnts Reserved Rights. No change or or of parking shall be approved without the prior written consent of the Director of Community Development of the City. (C) The Rules adopted by the Declarant or the Board shall establish criteria and requirements regarding the rights of use of the Center Parking Facilities, sub''ect to the terms of the Projects Land Use Approvals. Notwithstandin the foregoing, no such Rules for Center Parking Fadlities shall deprive or materially Inte ere 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. 6.6. Alteration of Center Parking Facilities. During the development of any portion of the Center, subject to the Land Use Approve s, the Declarant, as long as Declarant holds Deciarant'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. -33- 04.01.14 TAWPWIN601PR0JWMN9AR4 STRFU C11MTDIO-SANDH"=Rb Msm Street Cily04.01.Kd= the Buiidin Components)oneTh thDeclarant ar wn ay.pprovide revocable licenses to Owners of some or all of g p owned b the Dedarant for parking on the surface of Building Parcels that have not been improved with Buildings, subject to such limitations as the Declarant deems apppropriate. Notwithstanding 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 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. The Declarant shall be entitled to terminate any license for such interim parking facilities or move such interim parking 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 parkingg facilities by the Center Association will 6 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 being appropriate. (0) After the Center has been developed, and after such time as no Declarant holds Declarant's Reserved Rights under this Dedaratlon, the Center Association shall have the right to revise, modify and alter the parking facilities in the Center 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 Parkingg Facilities shall deprive or materially Interfere with the right of any Owner, Oaxapant or other Permittees from the use of a parlvng 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 6.6 be deemed, construed or interpreted to diminish or alter the rights provided as to the rkin for the Retail Parcel or Hotel Parcel or Office Parcels as set forth in Sections 6. C6.4�D) 6.4(E) 6.4 and 6.4(6)). The provisions of this foregoing sentence cannot be amended, revised, modified or deleted without the written rxinsent of the Retail Owner, the Hotel Parcel Owner or the Office Parcel Owners. No changes shall be made to any parking within the Center which changes are inconsistent with the Land Use Approvals without the prior written consent of the Director of Community Development. No change shall be made to any parking allocation or designation without the prior written consent of the Director of Community Development. 6.7. y�,j Subject to the Land Use Approvals, as long as the Declarant holds Declarants Reserve Rights under this Declaration the Declarant shall have the power to establish by the Rules the nature and types of vehicles&t may be operated and parked within the Center. No vehicle of anyy 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 and 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 ana van pool parking and other ppaarkin regulations and measures required by the City or other government agencies or consideredgnecessary by the Declarant. After such time as Declarant no longer holds Declarants 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 by Rules the nature and types of vehicles that may be operated and parked within the Center and enforce such 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 been provided the dedicated rights to park vehicles as set forth in this Article 6. G.B. Removal of Vehlrles. 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 ;f the California Vehicle Code or any other applicable laws. The Center _3¢ aa.os.aa 7PAWMIN601PR01CCTSMAIN ffrk rCDP®R=G-SANDHHd.1CCR4 Main Stlu1 City 04.01.14A= Association shall not be liable for any damages Incurred by the vehicle owner because of the removal in compliance with this Section 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 As;;Gation or any person causing the removal of or removing the vehicle. 6.9. Oeclarant's Reserved Rots for Valet Servi es. Subject to the Land Use Approvals and me provisions of the PaHdng management Plan, 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 services for parking by hotel customers, retail customers or office occupants within the Common Easement Areas for the benefit of some or all of the Owners and to charge the Owners or a designated group of Owners for the costs of such valet services. Declarant shall have the right to designate a reasonable number of areas within the Common basement Areas for vehicle dro p off locations for such valet services and shall have the right to a park reasonable number of motor vehicles In the Parking Garages and other Parking Areas of the Center in conjunction with such valet services. After such time as Declarant no longer holds Declarants Reserved RI hts under this Declaration, or after the Declarant relinquishes in writing the powers hereunder, subject to the Land Use Approvals and the pprovisions of the Parking Management Plan the Center Association shall have the power to establish and operate such valet services. ljnless approved b the Director of Community Development of the City, or otherwise provided in the approved Parking Management Plan the Center Paridng Garage shall not have dedicated valet parking stalls with the exception o{ the area of the Center Parking Garage established for parking for the Hotel Parcel, which may have dedicated valet parking stalls or areas. 6.10. Cen Subject to the Land Use Approvals, the Center Association shall manage and operabe�ie Center Roadways, including the Installation of traffic signs and signals and developingg and administering a traffic circulation program for the Center. The Rules may specify any traffic regulations and measures required by any 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 close off portions of the Center Roadways and 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, signge and Improvements 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. 6.11. T rta emand Mama ement Plan. The Association shall adopt, manage and operate a Transportation Demand Management Plan which conforms to the Land Use Approvals of the City that specifies requirements and measures to be undertaken for compliance by the Association, Owners, Occupants and employees of the Center with the transportation demand mitigations and monitoring measures established for the Center by the City. The content of the Transportation Demand Management Plan shall be reviewed and approved by the City's Public Works Department. The Transportation Demand Management Plan shall be prepared and implemented with the Intent to meet vehicle occupancy goals established b the C1 in the Land Use Approvals, including but not limited to: participation in car sharing ( Zip Car")Vrograms, provisions for charging electric vehicles, provisions for electric bicycles, provisions o secure, covered bicycle parking; provisions for transit access; coordination of ride-sharing with an established provider; membership in available transportation organizations; provisions for transit pasees and information provisions for preferential parking for carpoolers; and provisions of employee showers aria lunch areas in buildings with more than 5 people. The Transportation Demand Management Plan shall be monitored monthl� by the Association or another a envy acce ble to the City with annual reports being prov ded to the City following occupant of the first Building in the Center. -35- 04.01.14 T"%WPW'N6S1PRO'0CrS%'AW ST M CUPHRMMO-SANDI111JL=W6 Mein Street CiW OC o1.14.do ARTICLE 7. (BUILDING MAINTENANCE AND OPERATION 7.1. Buildina Parcel MainSenance. All Improvements, Public Art and any landscaping within Building Parcels, other than Common Easement 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 Center 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 Center Association shall adopts maintain and enforce the following: a Trash Management Plan, a Truck Delivery Plan, a Security Plan and a Master Sign Program, in compliance with the Conditions of Approval, subject to the prior written approval of the Director of Community Development. Any changes to any of these plans or programs shall be subject to the prior written consent of the Director of Community Development. (C) Trash management, o rations, and associated activities shall be conducted, as set forth In this Section 7.1 and on the attached conceptual Trash Management Plan herein referred to as Exhibit "H" shall be replaced by a final version, subject to the review and approve y e Community Development Director prior to issuance of the Certificate of Occupancv for anv component of the Center. Exhibit"Hff of this Declaration cannot be modified or otherwise changed without the prior written approval of the Director of Community Development. The Center Association shall provide the necessary access from one Parcel to another it necessary, to permit the maintenance, access, storage, and pickup of trash in the locations to be determined as part of the Trash Management Plan. contained in any Architectural Center Ste Appro ai by the ensure that all conditions of approval City ("ASA'7 and any Construcion Work Review pursuant toi the provisions of this Article 9-shall be enforced. This shall apply to future ASA's and Construction Work Review that Is provided for new or subsequent construction. The Center Association shall ensure that all decorative or structural items required by the ASA or by Construction Work Review are maintained in the same manner as a First Class Project. (E) The Declarant, as long as Decarant holds Declarant's Reserved Rights shall be entitled o 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 Declarant holds Declarant's Reserved Rights, and the City Director of Community Development. After such time as Declarant no longer holds Declaranrs 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 tm ratification by a Majority Vote of the Owners If within thirty (3D days after any such adoption, 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 and effective subject to the prior written approal of any such adoption, modification or amendment by the City Director of Community Development. 7.2. curl The Owner of a Building Parcel pr the Building Association for such Building Parce that as been divided into Building Components shall be responsible, at its option, for pro viding security for such Building Parcel. The foregoing is not Intended to and shall not be construed as rreeqquiring any Owner of a Budding Parcel or Building Component to provide security for such BulldIng Parcel or Building Component. -36- 04.01.14 TAWPWIN601PROJECr MAIN STREEPCUPERMNO•SANDNILU0M%Mein Shall City 04.01.14.dxx 7.3. Responsibility for Building Maintenance. (A) Unless the Building Declaration provides otherwise, whenever a Building Parcel contains more than one Building Component, the management, maintenance, repair and replacement of the improvements facilities and structure within the Bullding and the Building Parcel, which Improvements, facilities and structure are shared and commonly used by the Owners of the Bullding Components in the Bullding, shall be undertaken by either the Building Association for suds Building Parcel, or if there is no such Bullding Association by the Owner of the Retail Component within the Bullding Parcel, and the costs thereof shall be shared among the owners In the Building Parcel as described in the Building Declaration. (B) All operation, management, maintenance, repair and re lacement of the improvements, facilities and structure hereunder shall be consistent with the Projec Site being a First-Class Project. 7.4. Le al o Enforce. If a Building Association or the owner of any Building Parcel or Buil ing mponent ils to maintain or repair any portion of its Building Parcel, Building Component as provided in this Declaration the Center Association may, after notice and a hearing to the extent required by the Bylaws, f 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 Association. 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 maintenance or repair, as a Reimbursement Assessment. ARTICLE B. INSURANCE 8.1. Insurance-Center Association. The Center Association shall obtain and maintain the following Insurance coverages: ((A) a mmo Easem Area . All-risk form property insurance provTdiny reasonable coverage on a Replacement Cost as defined below) basics for the costs of repairing rebuilding and replacing all improvements owned and/or operated by the Center Association AG the Common Easement Areas, including the Center Parking Facilities, Utility Facilities and all personal property and fixtures owned by the Center Assodatlon. (1) Such 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, vandalism and malicious mischief and sprinkler leakage. (2) The amount of coverage for such property insurance shall be in the full amount of the full replacement cost(without deduction for 6%reclation) ("Replacement Cost") of the improvements and other covered props (excluding foundation and excavation costs and costs of underground flues, pi 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 ornance 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 (1) earthquake insurance- (Ii) pollution liability Insurance; and (ill)flood insurance. M 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. deductibles or self-insured retentions pprro ved prop"the Boairrdsurance may contain reasonable -37- 0a.01.14 TIWPWffiWR0)WTS1MA1N PREUrCUPEATTNO•SANDMLUCCRS Mein Stred0ty 04.01.14.dm (7) Such properly insurance to be obtained by the Center Association shall not cover any improvements wi ith n the Building Parcels, except for those improvements within the Center Parking Facilities and Common Easement Areas, and shall not cover any Retail Spaces, nor any trade fixtures, inventory, or other personal property of Owners or Occupants. (t3) Whenever any improvements or alterations that are owned or operated by the Center Association are in the course of construdion, the property insurance required under this subsection for suds improvements or alterations shall be carried by the Center Association on the broadest commercially reasonably available builders 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-i insurance requirements or penalties. The Center Association and its contractors, subcontradnrs and sub-subcontractors of any der, 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 Sectlon B.1(A)(1). The p o l i c y shall cover materiaSs located an delayed on-site, off-s and in transit. The policy shall providde business Income, extra expense d opening/delayed start-up coverar�es, without any co insurance requirements or penalties. These time element coverages shall include a waitlng 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 ppoolity must be endorsed to include ordinance or law coverage no less broad that that required by Section 8.1(A)(3). (B) Llabili(y Coverag —Center Assodation. A pollCy or policies of commercial ggeneral liability Insurance In an amount of not than Three Million Dollars $3,000,000 bodily injury and property damage per occurrence limit, Three Million Dollars 1$3,DD0,0Q 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 coverage, including without limitation, premises-operations and products-completed operations insurance against liability for bodily Injury, death, personal injury, advertising injury, ana Cement damage occurring or arising from an occurrence in, on or about the Common Easement Areas or incident to the ownership, maintenance or use of the Common Easement Areas or any other Center Association owned or maintained real or personal property. The Center Association shall be the first named insured on the commercial general Iiability 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 liability 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 obligations 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 commercially 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 (statutory limits} for employees of a 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 6njury byy oxidant (each accident), One Million Dollars($1,OOD,00)) bodily injury by disease (policy Ilmit) and One Million Dollars($1000,000) 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 Liabil ty. Business automobile liability insurance, insuring again I(ablllty arising m e ma ntenance 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 with a combined single limit for each occurrence of not less than Three Million Dollars ($3,000,000.00) without any annual aggregate. -38- oaoLla TAWPW1N601PR0)ECMWA/N STRMrrCUPRRTINO•SANDHILDCCR4 Mein Semi dry 06,01.1Um (E) Pideli r e nds or Insu a Fldelihr bonds or insurance covering officers, directors, and employees o e Center Psociation that have access to any Center Association funds. Directors a _ II Directors and officers liability Insurance covedn) all pfast, present an re (rectors an officers of the Center Association. The limits of Ilabi o the directors and officers insurance shall be not less than Two Million Dollars($2,000,000 per claim/annual aggregate. (G) G 0 e ti Insurance. Such insurance for the operations of the Center Parking Garage, Inc u ing garage Ile lllty coverage with a broadened coverage -garages endorsement and garage keepers coverage, including comprehensive coverage and coverage for collision or overturn, insuring the Center Association, or any properly owned or controlled by the Center Association, as the Board in its discretion, oonslrrers necessarryy or advisable. Such garage operation insurance shall be (levied to the Owners that have use of the Center Parking Garage as Center Parking Garage Cost Center Assessments pursuant to Section 4.5(8)(1) of this Declaration. (H) Mer InsuCan . 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. Assess emits r Insurance. The cost of insurance coverage required to be maintained by the Center elation 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 accurately reflect the benefits allsin 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. 8.3. Insurance Administration. (A) Each Owner.and any Building Association will be deemed to have appointed the Center Association or any Insurance trustee designated by the Center Association to act an 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. (8) 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 available, 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 Center Association Manager, shall have 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 (ls 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 tie 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 accordingly. (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 -39- 0"1.14 TAWPWD46ffR0IECr81MA1N STREETCUMMNO•SANDNEJ.1CCRb Meth Sftd CEy 04.01.10.pom. Insurance carried by the Center Association In a manner that will result in any 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 poll or policies to enable Owners or any Building Association to insure their Building Parcel or Building Component without duplicating insurance carried by the Center Association, including, withouE limitation, to avoid inadverbentiy triggering any co insurance clause in the Center Association's policy or polities. Tf any Owner or Building Association violates this pro vision, any dlinlnution In insurance pro ceeds 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 a ding els a ildlna CompoAonents. The Owner of each Building Parcel or Building Component shall campy with the insurance requirements and standards stated in this Declaration and the Insurance requirements and standards stated in the Building Declaration for such Building Parcel or Budding Component. Each Building Declaration for a Building Parcel that has been divided shall state minimum insurance standards and requirements for the Building Parcel or Building Component consistent with the requirements of this Declaration, the provisions of which shall be subject th review by tlroe Declarant as long as Dedarant holds DedaranYs Reserved Rights, To the extent that the, provisions of this Dedaration require greater coverage or more extensive coverage, or otherwise conflict with the provisions regarding Insurance in any Building Dedaration, the provisions of this Declaration shall prevail, excepting provisions in Building Declarations that require polities of insurance with staff do s s pedarun, lesser deductibles or otherwise broader insurance coverage than are (A P ns ra ce -- Bui d a The Improvements within each Building Parcel III be nsured by the Owners o e Building Components or any Building Association under a Building Declaration with property insurance coverages that are no less than commercially reasonable standards for such property insurance as established from time to time by the Board. The property Insurance for the Improvements within a Building Parcel shall comply with the following requirements and standards: (� 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, rebwlding and replacing all Improvements of the Building, excluding non-structural impprovements installed within Retail Spaces or within the interior areas of Buildings complying wifh the requirements of Sections 8.1(A)(1), (2)and (3). Building Components es additi®uch policy or policies shall name the Owners of the each of the (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) Whenever 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 builders risk policy form complying with the requirements of Section 8.114(8). (B) Liabili Insurance - Buildin Pq arcels. The Owner of each Building Parcel or Building Component or any Building Association, as applicable, shall obtain and maintain a policy or policies of commerual general liability insurance, Insuring against Ilabdity for personal Ilnjury, advertising injury, bodily injury, death and pro perty damage occurring or arising from an occurrence in, on or about the Building Parcel or Building Com r rent, except for claims arising fr om incidents that occur inside the Retail Spaces. lJpon wrn notice from the Board, ffie amount and scope of such liability insurance coverage shall be reasedover time m reflect the amount and types of coverage generally maintained by prudecommercial 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 -40- 0401.14 'NWPWIN60\PR0IEMVMAM S7RMCUPERTWO-SANDHILL=R%Main SftdCig04.Dr.l4Aea are purchased by a substantial majority of owners In similar developments in the County) with limits of liability not less than Three Million Dollars ($3,000,000) 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 OOO,OOOS 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 fnsurance, broad form property damage ((including completed operations) liquor legal liability, independent contractors and cross-Itabllity coverage (separation of Insureds),. The operator of any Parkin g� Garage or other parking area or parking facility within the Center shall obtain and maintain Ifablllty Insurance coverage and other types of Insurance 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 deemed to limit the parties' respective indemnity, defense and lipid harmless obligations or such other obligations of the parties under this Declaration. C and essura Vessel. If such insurance is generally obtained by bu I Ing owners or the type of P ub ildina owned and operated In the Center the Owners of each Building Parcel or the Building Assoclation for a Buildingy Parcel shall obtain broad form boiler, machinery and pressure vessel insurance (without excluslon for explosion) shall be obtained in a reasonable and appropriate amount as recommended by an experienced insurance consultant or advisor covering direct properly loss and loss of Income and providing coverage for all steam, mechanical and electrical equipment, including, without limitation, all boilers, unfired pressure vessels, 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) Businegg Incorn e. Business income insurance shall be provided for any Retail Component an for operations of the Loft Apartments 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 insurance 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 shall be in an amount sufficient to avoid co-insurance penalty and provide roceedt which will cover actual loss sustained (1) during a period of not less than twelve (12) months from the date of casualty or loss; or n until that date on which the improvements 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 one hundred eighty (180) days. The coverages required by this Section ?.5(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 8.1(A)(3). (E) Business Automobil - Uability. Business automobile liability insurance, Insuring against Irabtlity arising from the maintenance and use of all owned, non-owned, hired, leased and rented trucks, automobiles and other vehicles for bodily in'ury, 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. 8.5. In an Ionals C ntra and All design Professionals, contractors vendors perrorming 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. 41- 0"1.14 TAVA WW60TRWEMWAIN STRELf CUPERTMO-SANDMLLTMIsmain sum ciry 04.01.ItdE i I 8.6. General Reouire I -A m. All insurance policies required to be obtained under this Article 8 shall be issued by responsible companies licensed and qualified 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:M or an equivalent rating from a similarly qualified rating firm if Best's ceases to exist or provide a rating. Deductibles shall not be greater than deductibles generally acceptable for the type of Insurance obtained by prudent property owners in the Santa Clara County. 8.7. Revision of Insurance Reauireme ts. The Declarant, as long as Declarant has Declarants Reserved Rights hereunder, may moddity the minimum and maximum of amounts of Insurance required under this Article 8 to the extent that Dedarant deems it necessary and appropriate 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 modify 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. B.B. City Additional Insu The City shall be listed as additional insured under all Association maintained liability policies. The additional insured endorsement shall be provided to City for its review and approval. ARTICLE 9. CONSTRUCTION WORK 9.1. Proceedino 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 buildingg permits and other permits in compliance with City requirements and the provisions of this Article 9. Promptly after obtaining the necessary governmental permits the Owner shall commence and diligently proceed with the construction and completion of tfhe Construction Work 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 Owner or Building Parcel Developer shall re wire the completion of a Construction Work Review by the Dedarant, as long as Dedarant holds Declarants Reserved Rights under this Declaration. After such time as Declarant no longer holds Declarant's Reserved Rights, or after such lime 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 (collectively the "Construction Work Review 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 made 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 Areas. 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 Construction 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 or the Building Parcel Developer for such Construction Work after the Owner or the 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 -42- 04,03.14 TAVA WDIMPR0)ECrS1MA1N STREET CUPERTINO-SANDNII-L=X'.Mein St ml City 04.01.14.6m shall be applied fairl y and equitably by the Construction Work Review Body to the Owners and Building Parcel(Developers. for Alterations by the Constrruuction W Work Body shall pertain�torthe new Construction Work or the Building Area, parking)requiirre Center Buiildng Componentt Documentation: and uses within a Buiilding Parcel or Component, and any other Information 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 meetingg the requirements set forth in Section 9.4 of this Declaration. protect the Center Association and Declarant of any insurance or agreements necessary to (4) Construction Documentation: Review of requirements for delivery of future construction documentation, such as permits certificates of occupancy, warranties for work related to the Common Easement Areas and/or infrastructure, as well as as-built drawings upon completion. (5) Infrastructure Requirements: Review of capacity of and extension to utilities, roadways, Senrices 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 material impacts to neighboring buildings, Including sound, vibration, fire hazards, code related, or operational hardships that will result worker parking, (7) Constructabliity Issues: Review of timing, duration, staging, pa g, pedest an safety, barrier erection and design, traffic flows of the work, and entering into an agreement to restore any damage to Common Easement Areas or neighboring properties. [8) Operational Issues: Review of any matters Impacting the operation of other buildings in the Center, Including but not limited to rubbish storage (i.e. refrigerated for a restaurant) rubbish removal and deliveries, parking location, proposed queuing, valet service and traffic flows), signga and public area lighting .e. circuit of shop signs consistent with the rest of the project so all store signs go on at once, and landscaping to be maintained by the Center Association on an ongoing basis. (9 Confirmation of issuance of all required City permits for the Construction Work or for Iterations, Including, but not limited to, building perm ts. 9.3, o approvals and D nl I i w Bod , All approvals and denials by the Construction Work Review Bo y s a be in writing. Any denial of a proposal shall state the reasons for the decision made with respect to sald denial. The Construction Work Review Body may Impose reasonable written conditions and requirements With respect to any approval that the Construction Work Review Body determines to rant. All records of the Construction Work Review Body shall be kept in the Center Association Manager's office and be available for review by Owners during the management office's office hours. It shall be the responsibility of any applicant whose project has undergone the review of the Construction Work Review Body to submit evidence of the Construction Work Review Body's approval to City in conjunction with an application for a building permit or similar application to the City. -43- a4.oi.14 rAWPWIN60V4UM. MMAR4 S7RWF CUPWIVO-SANDHHLlCCR 4 Mein SbeACity 04.01.14AM pp pp 9.4. Bass for Approve of Im rovements. The Construction Review Body shall not Ia rrove as nless or It any t construction Vor c e construction of any new Improvements or (A} The general architectural considerations, Including the character scale and quality of the design 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 lighting, 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 Rules 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 site considerations, including site layout, open space and topography, orientation and location of buildings, vehicular access, circulation and parking settbbaacks, hheights 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; color, texture and coverage landscape mco considerations, Including the location, types, size, p , 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 their Invitees, and enhancement of the property values in the Community in general; and fF) Electrical transformers, telephone vaults, and similar above ground equipment enc�fo, res are located in areas designated for such uses by the Land Use Approvals and any Community Design Guidelines or if not so designated, screened with Fencing and landscaping acceptable to the Construction Review Body, or if uired by the Construction Review Body located underground so that such equipment shall not be visible from the Buildings. (G) All Utility Facilities within the entire Center located exterior of Buildings and the Garage shall be located underground or screened from public view to the satisfaction of City's Director of Community Development and Director of Public Works. If the Construction Review Body makes a negative finding on one or more of the items set forth in this Sectlon, It shall disapprove such a matter or condition Its approval so as to allow such findings to be made. 9.5. Fxciuslons From Review. Notwithstanding the foregoing, no Construction Review Body approval shall be required for: (B) repainting a Building n accordance with the color scheme that has been most recently approved by the Construction Review Body for the portion of the Improvements in the Community that are being repainted, or is currently, as of the repatnting, 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 Declarants Improvements or as initial Construction Work or by the Consbvction Review Body for the particular portion of fire Building or other part of the Community that is being repaired, rebwBt or restored; (iii)for construction or alteration of store fronts of retail or commercial establishments located Bn commercial spaces. Yn addition, no Construction Review Body approval shall be required for eonstuction of walls or partitions or other improvements to create units in the interior of a Building that does not entail any structural alterations of the Building o 1 s l iste modification of the Common Areas. All work performed under this Sectin 9.S ha l be consnt with the Land Use Approval s. 44- 04.01.14 TAWPWR4601PR01P.0 \MAQ4 STREETCUPERTINO•SANDHILLICCR%Mein StanCiry04.01.14Am 9.6. Cpnst n Review Bodv Review Procedures, The following procedures shall govern the actions o the Construction Review Body as to submittal to and review by the Construction Review Body of Construction Work or Ateratlons: (A) tta s. Any Owner seeking review and approval of Construction Work or Alterations by a Construction Review Body shall submit to the Construction Review Body an application for approval of such Construction Work or Alterations, together with such pcans, specifications and other documentation as may be required pursuant to any Rules or Community Design guidelines to enable the Construction Review Body tD make a determination with res to such proposed Construction Work or Alterations ("Construction Review Submttta"). Any Owner seeking approval of a Change in Use by the Construction Review Body shall submit to the Construction Review �dy 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 th enable the Construction Review Body to make a determination with respect to such proposed Change In Use ("Proposed Use Documents"). The Construction Review o3odY shall define what constiUutes 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 appproval of Coms�truction Work, Alterations or a Change in Use or the Construction Review Submittal or Proposed Use Documents does not wmply with this Declaration, any Community Design Guidelines or are otherwise inadequate to perm) the Construction Review Body to make a final determination on the application, the Construction Reenew Body shall notify the Owner in writing of such deficiency wi m twenty (20) days after such submittal is made by the Owner. An Owner shall be entitled to submit a remedial package to eorrect the deficiency identified by the Construction Review Body and the Construction Review Bodyy aggain shall notify the Owner in writing of such deficiency within ten (10) days after such submittafincluding therein reasonable detail describin any continuing deficiency. If the Construction Review Body fails to notify an Owner of a deficiency within any such ten (10) day period, the Information submitted to the Construction Review Body shall be deemed complete. (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, Alteratlons or a Change in Use has been approved or disappproved. If the application has been disapproved, the Construction Review Body shall specify in reasonable detail the reasons for such disapproval. 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 6moletion of ConstrugUop Work. All Construction Work shall be commenced within a reasons le time a er construction Work Review by the Construction Work Review Body if Construction Work Review is required for such Construction Work, and the issuance of buiiddng permits for such Construction Work, and shall thereafter 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. All Alterations and Construction Work shall be undertaken only after the Owner, or an yy Person such as a tenant or other Occupant, has obtained all necessary and required permit, Inciur3ing, but not limited to, building permits, if required, from the City. None of the Owners shall make any Alterations or undertake any Construction Work that would violate in any material res act 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 other permits for any -45- 04.01.14 T.IWPWRi605PROJP.CTSWAIN STREU CUPRRTINO-SANDMILI M Mein Smd City 04.01.14.d= 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 (with 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 1/Y rk 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. CoLnRlIanome with d v . 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 pedonning any Construction Work in the Center shall include in any construction contract a provision ppursuant th which the contractor recognizes the separate ownership of the Building Parcel or Building Component of the Owner and agrees that an yy lien rights of the contractor or subcontractors under the mechanics lien laws of the S1�te of California shall only be enforceable against the Building Parcel ar Building Component of the contracting Owner which is the subject of the cor�huction contract. 9.12. liarr to Common Easement Areas. If any Construction Work by an Owner or Its agents or contractors, inclu n any repairs, replacement or restoration of damaged or destroyed Improvement on a �uilding Parcel, causes any Injury, damage or harm to the Improvements within the Common Easement Areas, 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. A roA of Decl�r�nt. No applications or requests for Changes in Use affecting any portion of eth Center shy I��be made by any Owner to the City without the prior written approval of the Declarant, as long as the Declarant holds Declarants Reserved Rights under this Declaration. 9.14. Liability for R. ie . 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 Work 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 proposed 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 wner whose proposed Construction Work or a Change in Use is approved shall indemnify, defend (with counsel reasonably acceptable t he indemnified ptk om an,ty) and hold the Declarant and the Construction Work Review Body or its members harml and all claims, demands, damages, losses, expenses, costs, judgments and liaies, inclung but not limited to attorneys° fees, arising out of such approval. Approval of ans, drawings ospeclfic atians of any propoConstruction Work or a Change n Use or er matter requiring approval under this Article 9 shall not be deemed to constitute 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. -46- 0401,14 TAWPWR760TROJECI' NAiNS7REUrCUPER77NO•SANDMLLWMIs Mam Stcdciwo{.U1.14A= 9.15. Subdivision of Parcels. A Building Parcel or Building Component may be ' subdivided or resu ivided by a Owner only if the following conditions are met: (A) The Owner complies with all City requirements; (B) As long as the Declarant holds Declarants Reserved Rights under this Declaration, Declarant's prior written consent is obtained, which Declarant shall exercise in Its sole and complete discretion; and (Q The Owner provides a supplement and amendment to this Declaration that allocates al obligations and rights of this Declaration to the Owners of the parcels or Building Components created and established by any such subdivision and resubdivislon. Such supplement and amendment to this Declaration shall be subject to the review and approval by the Board, which approval shall be in writ(ng and shall not be unreasonably withheld. Any such supplement or amendment shall be subject to the review and approval of the Deearant as long as the Declarant holds Declarants Reserved Rights under this Declaration. If so approved such supplement and amendment shall be executed by an authorized officer of the tenter Association on behalf of all of the owners. There shall be no subdivision of any parcel beyond that already approved in the original Land Use Approvals without the prior approval of the Director of Community Development and the City Council of the qty. ARTICLE 10. lDSE RESTRICTIONS 10.1. F,��er. The Center, the Common Easement Areas, and each Building Parcel shall be used an operated in accordance with and subject to the provisions of the Land Use Approvals for the Center, the Tenanting Plan, and the Rules. (A) As provided in the Land Use Approvals the Retail Parcels, Retail Spaces and Retail Components shall be used for retail and other commercial uses allowed by the City In retail use areas; the Hotel Parcel shall be used for hotel use and ancillary uses allowed by the City in retail and/or hotel use areas; the Office Parcels shall be used for office uses and related and ancillary uses allowed by the City for office uses in the City; the Loft Apartments Parcel shall be used and operated for loft apartment residential and retail uses under the land Use AAppprrovals.and this Declaration including ground floor retail use as provided in the Land Use TB) Every Person that acquires an ownership Interest of any portion of the Center, or is a nant in any Retail Component shall be provided with a copy of the Conditions of App o al provided within the Land Use Approvals, the Tenanting Plan and a copy of this 10.2. Modification of Land Use Approvals or Use Permits: The Land Use Approvals and other Use Permits for the Center may be modified 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 Declarants Reserved Rigghts 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 the 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 if sucheOwner has first obtained the priiorowritten approval new Use f the Permit for asil long as the Declarant holds Declarant's Reserved Rights under this Deeclaration. g -47- 04.01.14 TAWPWD1601PRODECISMAP1 STREETCUPERTMO-SANDHML1CCR'a Main SkmCgy 04.01.14.d= 10.5. Co lance with _Law. Each Owner, and the tenants and other Occupants of such Owners uil ng Pa— rcel or Building Component shall comply with all laws, odes, 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 authority or agency now or hereafter havingg 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 Owners rights to occupy or utilize benefiaally 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. Ins no eouirements. The Owners shall comply with all rates, regulations, and requirements of any insurance rating bureaus having jurisdiction over the Center, Common Easement Areas, Bullying Parcel, Building Component, or any portion thereof, and the provisions of the Insurance 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 th e 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, or any Owners right to collect Insurance proceeds, or cause any insurance policy to be cancelled, or cause a refusal to renew the same. 1025. Ills a Ac"viti r Isar. No Illegal activties shall be conducted within the Center, oar steal an ing a 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, Bullding Component, or which will Impair the structural inte�rity of any Building or other Improvement in the Center, or which will endanger lives or heath of Occ�rpants 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 have the authority and res onsibil'' to oversee and control all outdoor activities within the Common Easement Areas. There shall be no display, sale or offering for sale of merchandise, and no promotional or business activities within the Common Easement Areas, including, but not limited to, disbibution of handbills flyers and similar materials, except for organized special promotions or other commercR activities consistent with the Rules, or approved in advance by the Declarant, as long as Declarant holds Declarant's Reserved Rights under this Declaration, and, thereafter, by the Board. In accordance with and subject to the provisions of the Land Use Approvals for the Center outdoor dining shall be permitted for restaurants in the Center as permitted under City regulations and the Rules. 10.7. Town Center Sguare Plaza. The Town Center Square plaza area shall be used in accordance with the provisions of the Land Use Approvals and the Joint Use Agreement In a manner consistent with a First Class Project. As long as Declarant holds Declarant's Reserved Rights under this Declaration, Declarant may establish rules and regulations regarding the conduct of activities within the Town Center Square Plaza in accordance with the provisions of the Land Use Approvals and the Joint Use Agreement. 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 document, the Center Association Board may establish the rules and regulations regarding the conduct of activities within the Town Center Square Plaza in accordance with the rovisions of the Land Use Approvals and the Joint Use Agreement.Temporary closure otpany portion of the Center Roadway within the Public vehicular Access Easement Areas, Including methods used to temporarily dose such portion of the Center Roadway street(s), will require approval from the Director of Public Works. Public restrooms located within or serving Town Center Square Plaza shall be made available to the public during all open hours. 10.8. Cft Par . The City Park shall be used and operated in accordance with the Land Use Approvals and the Joint Use Agreement in a manner consistent with a First Class Project. -48- 04.01.14 74WMIN601PAO/P.CPSWAIN MEET CUPS R7N0•SANDNU.L=R%Main Smt CJW04.01.14.d= 10.9. Discharge o- or Hazardous S rbstances. 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 matter into the atmosphere or any creek, canal, flood control channel, ground water, or other body of water, which may adversely affect ([)the health or safety of persons or Qi)the use or enjoymant of the Center or any part thereof, or {ill)vegetation within 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 furisdldion. No highly flammable explosive, corrosive toxic or othgrwnse hazardous materials shall be man, or sofa within the Center. Storage and use of any such hazardous materials shall be allowed only If in compliance with all applicable laws. 10.10. Garbage and Refuse Disposal. All rubbish, trash, garbage and recycling shall be regularly re moved from the Common Easement Areas, Building Parcels and Building Components, deposited in the rubbish, trash, garbage and recycling repositories operated in accordance with the Rules, and the provisions of the Land Use Approvals, and shall not be allowed to accumulate. All trash, garbage, recycling and other waste shall only be kept in dean 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 Areas and neighboring Buildin Parcels to the extent reasonably feasible. No toxic or hazardous materials shall be disposed g of within the Center by dumping in the garbage containers or down the drains, or otherwise, except in accordance with applicable law. The Center recycling rm Building)Parcels, Build) and and to establish g CrossttaCenters fors such collection.10.11. i Wall e i i All project signage, monument signage, building signage, ("signage conform to the Center Signage Program. (A) Center Signage Program, The Center Signage pro ram shall be submitted by Declarant to the CI for review and approval. Any changes or modifications to the Center Signage Program shall be reviewed and approved by the City. All signage in the Center shall conform to the Center Signage Program, and shall be reviewed and approved by the Arch Committee and by the City. (B) Approval by Architectural Committee. `All signage displayed to the public view from any Building or any porton of the Center must be reviewed and approved by the Declarant or the Architectural Committee pursuant to the provisions of Article 9; and shall conform to the Center Signage Program criteria. (C) Signs in General. Subject to Civil Code §§ 712 and 713, and this Section 8.19, no signs shall be displayed to the public view on any Parcel or Condominium Unit or on any other portion of the Center except signs that comply with the Center Signage Program which are part of the Center Design Guidelines and the Rules. lDj All other than signs, billboards, posters, or advertising materials within the Center shall conform to standards established by Declarant and the applicable laws and regulations of the City, including those located within the storefront windows of commercial spaces. (E) For Sale or For Rent or For Exchange Signage. "For Sale" or "For Rent" or "For Exchange" signs shall be allowed to be displayed within areas of the Center that are designated in the Center Signage Program regarding such signs, and that conform to the requirements of State law, and applicable local ordinances, provided the design, dimensions and locations are reasonable. 10.12. Radio and Te evision Antennas. Except to the extent required to comply with the requirements o applicable State an federal laws and regulations, no Owner shall censtruct, 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 -49- 04.OL14 7hWPWIN60TR07F. MMA@7 SMMrCUMRTR40•SANDUULTCR4 Main Sbw City04.0r.14.d= i accordance with the Rules and in accordance with, and subject to, the provisions of the Land Use Approvals for the Center and, as long as Declarant holds Declarants Reserved Rights under this Declaration, the written approval from Declarant. 10.13. Building Parcel Restrictions. Any Building Parcel may be subjected to a Building Declaration that provides a Itional 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 Declarants Reserved Rights under this Declaration, the form and content of each Building Declaration, and any amendment modification or termination thereof, shall be a proved In writing by the Declarant before tyre 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 Declarants Reserved flights under this Declaration, the form and content of the Building Declaration and any amendment, modrfiption or termination th ereof, shall be approved in writing by ti'ie Board before the Butlding Declaration or the amendment, modification or termination is recorded or becomes effective. 10.14. it velopel Building Parcel Restrictions and S adards. The Center Association shall establish standards' procedures and rotocols for a use and operations of the Undeveloped Building Parcels poor 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 concerns. 10.15. tel ons: The hotel located on the Hotel Parcel shall be rmitted to operate as a 24-hour ate night business operation and shall provide a minimum 6,500 square foot restaurant and meeting space area on the ground floor of the hotel along the Town Square. An additional or revised uses for this hotel will be subject to review by the Citj at the time specific business operation information is provided about these uses to the City to determine if they are permitted and will require a separate Use Permit application with the City. The hotel shall maintain forced-air mechanical ventilation and implement and maintain special building techniques/ windows/doors to be installed and maintained to achieve a 45 dBA DNL indoor standard. 10.16. ao m n Of Hotel : Hotel stays In the hotel located on the Hotel Parcel shall be lim to a maxmum or 30 days per reservation. 10.17. j1axJmu n e g u : The maximum square footage of food service uses i within e R II Spaces of the Retail Parcel of the Center shall not be more than 40% of the total retail square footage of 130,500 square feet (or a maximum of 52,600 square feet of restaurant uses) based upon the approved deveio ant plan dated August 15, 2012 in a000rdanoe with the Main Str> t Cupertino - Revised ProProject Analysis report as Appendix A in the Second Addendum te the Fn' Certified 2009 EIR prepared by Fehr and Pees. Any future reflnemerds to the restaurant percerrtage may be approved by the Director of Community Development of the City, if a subsequent parkng and traffic analy�s indicates that there is adequate parking for the various niortur of uses and there are no additional and/or new significant traffic impacts compared to thresholds studied in the original 2009 Environmental Empact Report and 2012 Addendum ibr the Project Site. 10.18. ork Re I Loft artm R ui mew: The livelwork rental loft apartment complex located on arcel 5, the o artments arcel, shall not be converted to condominium units and shall adhere to the loft-style studio and one-bedroom units per the site and floor plans approved by the City. The provisions of this Section 10.18 shall not be modified without the express written approval of the City. 10.19. Retail Condominium Ownershlq Reaulremerits(Parcel 5) No more than one retail condominium may be constructed and operated on Parcel 5 adjacent to the rental market rate loft apartments.The retail condominium located on Parcel 5 shell be owned by the same ownership as owns Parcel 1,the Retail Parcel,and not be sold separately. -50- 04.01.14 T:IWPWIN6MOJECI %"STREET CUPERTDW•SANDHIW\CCRIa Maim Street City D4.01.14.d= residences 20. Fireo aces No wood burning fireplaces or woodstoves shall be permitted in the 10.21. 1&g. Unnecessary idling of internal combustion engines and/or use of bud air compressors is prohibited and shall be conducted consistent with the Cupertino Municipal Code. 10.22. Derive Hours. Commercial deliveries or pickups shall be prohibited between the hours of 8:00 P a 8:00 weekdays(Monday through Friday)and 8:00 PM and 9:00 AM on weekends (Saturday and Sunday) and Holidays and shall be conducted consistent with the Cupertino Municipal Code. ARTICLE 11. DAMAGE OR DESTRUMQN 11.1 Common Easement Areas, If any Improvements within the Common Easement Areas, 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 alterations as may 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 id from: [t)proceeds of insurance required to be maintained by the Center Association 'Insurance Proceeds'9; (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). 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(8). (B)Additional S2ectal Assessment. If costs of Restoration Work exceed the Insurance PProceeds and the maximum amount of the Restoration Special Assessment (such excess being hereinafter referred to as the "Excess Amoun , the Board, through the Center Association Manager, shall call a meeting of all Owners of uilding Parcels within thirty (30 days after the Excess Amount is determined, but In no event 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 Amount. 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 shall be levied against each Building Parcel In the some 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: (1)first, to make the Common Easement Areas safe and free from hazards; (11)second, to remove all debris and make damaged areas reasonably attractive; and (i1I)third, to make the Common Easement Areas as useable as reasonably possible under the circumstances. Notwithstanding the foregthoing, if the damage that requires Restoration Work involves the Center Parking Garage, e Special Assessment for such Restoration Work for the Center Parking Garage shall be calculated separately from any other Restoration Work to the extent feasible and shall be levied only to the Hotel Parcel, the Retail Parcel and the Office Parcels in the percentage share of such Restoration Work Costs as Center Parking Cast Center Assessments are allocated under this Declaration. -51- 04.01.14 TAWPWM60TROIECrSWAIN STREETCUPERTINO•SANDHD.UCCRY Metaii a City 04.01.14.d= 11.3 Qroc dures for R storatinn Work. The Board shall designate a construction consultant, a general contractor, or an 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 exppeerienced in the disbursement of construction loan funds or other third party escrow agent as selected by the Board. The Center Association shall complete the Restoration Work as promppttly as is reasonably possible under the circumstances, in a good and workmanlike manner and lien free. 11.4 Buildin Pg arcels. (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 Budding Parcel or Building Component or other improvements shall repair or reconstruct the damaged or destroyed Building Parcel or Buildin Component or other Improvements In accordance with this Declaration and the Building Dec aration 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 Parcel 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 more 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 where necessary over and across their respective Building Parcels. The Board of the Center Association shall coordinate repair or reconstruction work within the Common Easement Areas with the Owners and provide such access over and across the Common Easement Areas as reasonably necessary for the Owners to effectuate such repair or reconstruction. 11.5 Co letlon of Work Any repair or reconstruction of improvements within a Building Parcel s a commenced and completed within a reasonable time frame to be determined by the Board of the Center Association as appropriate, given the nature and exkent of the repair or reconstruction to be accomplished. The Owners and the Center Association shall take all appropriate steps before repair or reconstruction is commenced 0 r 0 to erect necessary structures to prelude unauthorized acce� tm areas being subjected to the repair and/or reconstruction and otherwise mitigate hazardous conditions within the Center. 11.6 Reasonableness of Provisions. Dedarant and each Owner hereby acknowledges that (A} the Center Is a complex mixed use development requiring several years to design, develop and consbvd; (B)this Declaration specifical y addresses the rtgtits and obligations of the Center Association and each Owner with regard to the repair and reconstruction of the improvemeng in the Common Easement Areas and the Building Parcels; and (C} considering the foregoing, the pprovisions of this Dedaration with regard to the repair and reconstruction of the improvements in the Common Easement Areas and the Building Parcels are reasonable, fair and appropriate. -52- 04.01.14 TAWPWINeMOJEMNAM sneeercuveereNO•SAMMU.{CU)s MaM 8u t ciryo4.01.14.dm AR7ICLE 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 shad be used to restore or replace the portion of the Common Easement Areas affected by condemnation, if and to the extent such restoration or replacement is possible. Any funds remainingg, after payment of any and all fees and expenses incurred by the Center Association relating to such condemnation, restoration, or replacement, 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. Tire 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 * log P Is. If all or any part of a Building Parcel is taken by eminent domain the award shall be Cisbursed to the Owner(s) of the Building Parcel and the Owners of the Buirlding Components within such Buildin Parcel and/or the Mortgagees of such Owners as set forth in the Building Declaration for that Buildin Parcel. Any award for taking of Common Easement Areas (including Center Parking Facilitiesy within a Building Parcel shall be disbursed to the Center Association and all Building Declarations shall provide for such disbursement. If more than one Building Portion in a Bull ding 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 Building 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 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 PRO—WHONS 13.1. Ea2mw Dgd 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. Notwithstanding the foregoing, any Owner of a Building Parcel Retail Component 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 healing rreeggarding the subject of the petition, after providing notice to all Members of no less than thirty (3 0) days. After such hearing has been conducted, the Board shall determine, In its discretion, exercising its reasonable business iudgment, 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. The City shall have the right, but not the obligation, to enforce the provislons of this Community Declaration as a third party beneficiary of this Community Declaration. The Cupertino Sanitary District shall have the right, but not the obligation, as a third party beneficiary, to enforce those provisions of this Community Declaration that pertain to sanitary sewer facilities or discharge of waste or hazardous materials. The Board, the Declarant, City or District which 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, the Declarant, City or District to enforce any covenant or restriction herein contained shall In no event be deemed a waiver of the right to do so thereafter. 13.2. Binding: Run With Lano. The covenants and restrictions of this Declaration shall run with and Dina e Project 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 Declaration. Owners shall require their tenants, and other Occupants and Invitees, to observe all applicable -53- 04.OL14 TAW VIRMWROIECTSWAIN STREET CUPERTINO.SANONIWCCRW Mein SeeetChy 04.01.14.dma i Provisions of this Declaration and shall incorporate this Declaration into the provisions of all eases of Building Parcels or Building Components, 13.3. nvalidi of y sio . Should any provision or portion hereof 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. Terrr . 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(50) 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 not 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. 13.5. Amendments. (A) AuthgrlW to Amend. This Declaration may be amended only by the written consent and approval of no less than two-thirds(2/3)of the Voting Power of the Center Association• provided, however that for so long as the Declarant holds Declarants Reserved Rights under this Declaration, no such amendment shall be valid until and unless such amendment Is consented to and 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. 4B) CI and District Review d A r I. The City shall have the right and authority to rev ew and veto any proposed amendment to this Community Declaration. Prior to any proposed amendment to this Community Declaration being effective, a copy of the proposed amendment shall be delivered to the City Attorney and City Mana er of the City. Such proposed amendment shall not be effective until the passage of sixty ?60) days after the proposed amended has been submitted to the City Manager and City Attorney. Yf the City Manager and City Attorney have not provided written notice vetoing the proposed amendment within sixty (60)days after its submittal to fire Crty Manager and City Attorney, the change shall automatically become effective. Th e Cupertino nitary DIsMct shall have the right to review and veto any pro posed amendment to this Community Dederadon that pertain to sanitary sewer facilities or discharge of waste or hazardous materials. (C) Neither the Articles nor Bylaws shall be amended so as tD 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 provisions of this Declaration. (D) mitati n n A end is as to S fi P o to Nohvithstanding the foregoing, no provision of this Declaration that provides specs c rig is of use of Center Parking Facilities or other portions of the Center th 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 die 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 Voting Power of such category or groap of Owners. E) 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 this Section 13.5 have been obtained. -54 04.01.14 T;NWPWM60TROJEMNAN ETREUCUPERTiNO-SANDRD mms Mai.St=1CRy04.01.14.dM (F) Recordation. Any amendment of this Declaration shall be recorded in the Official Records. 13.6. Mortgagee Rights and Protections, JA) Subordination. No breach of any covenant and/or restriction nor the enforcement o any lien provision contained in this Declaration, shall render Invalid tie 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 &;er whose title Is derived through foreclosure, trustee sale, deed in lieu thereof, or otherwise. (B) hRic�t t2 Pa ure. Mortgagees may jointly or singly pay any Assessment which Is in default and crake any action reasonably necessary to cure any other default under this Declaration of the Owner who Is subject to the Mortgage with the same effect as such cure by the Owner itself. (G� A n � o oi�nc Rio ts. Any Owner may assign all, but not less than all, of Its vo -ng nghis_ under t e nter Documents to a Mortgagee holding a Mortgage lien on suds Owner's Building 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 of such Mortgagee's right to exercise the voting rights appurtenant to any Building Parcel or Building Component, the Center Association she 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 Building 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 instructions from the Owner of such Building Parcel or Building Component. (D) Restriction C er a ance D e e In o i . Notwithstan ing anyy provision to the contrary contained in this Dec aration, without or written consent 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 a Center Associationn), 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 omission to abandon,aban Declaration,sudide encumberrwsell orrttransferrthe Common�f Easement Areas, or allow partition of the Common Easement Areas; (2) change the provisions applicable to Insurance so as to reduce the required coverage, or change the interest of any Owner In the 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 oonfers rights on Mortgagees, including this Section 13.6. Miscellaneous Rights of Mort-aaees. Each Mortgagee whose name and address has been furnished to the enter A`ssociaUon whether by an Owner. or by such Mortgagee, shall have the right to: (2) receive written notice of all meetings of the Owners and of the Board upon written request to the Center Association; _55- 04.01.14 T:lWPWW60N101ECMWA N SMEEr CUPEETWO-SAN01EL1.=Ft',Main Strut CRy 04.01.14.d= (3) 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; (4) furnish information to the Board concerning the status of any Mortgage affecting any Building Parcel or Building Component, (5 receive copies of any or all of the financial statements concerning the Center sent to the t�ners at the same time and in the same manner as the Owners, upon written request therefor to the Center Association; and (6) receive upon written request therefor to the Center Association notice of negotiations regarding the value and extent of any Boss 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 lnddent to any condemnation affecting such Building Parcel or Building Component. (F) Consent of a MoEWaagee. Whenever the consent of a Mortgagee is required by this Decaration, any action taken without such consent shall not bind such Mortgagee or its successor. 9G) Title b Foreclosure Except to the extent otherwise expressly provided herein, all of a provsionsi contained in this Declaration shall be binding on and effective against any Owner whose title to any Building Parcel, Buildin Component, or any portion thereof, Is acquired by foreclosure,trustee's sale, deed in lieu of%recosure, or otherwise. (H) C 40fenter Governance Documents, The Center Association shall make available to Owners and ortgagees, and to holders, Insurers or guarantors of any Mortgage, who request such items in writing, current copies of the Center Governance Documents, including this Declaration, the Bylaws, Articles or other rules concernin the Center and the books, records and financial statements of the Center Association and operational 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 time foregoing which may not exceed the reasonable cost to prepare and reproduce the requested documents. (I) otice I n. Upon written request to the Center Association, Identifying the name an a Tess of the Moagee and time number or address of the applicable Building Parcel or Building Componen , such Mortgagee will be entitled tD timely written notice of: (1 any condemnation loss or any casualty loss which affects a material portion of the nter or the Building Parcel or Building Component on which there is a Mortgage held, insured or guaranteed by such Mo ages; (r2) any default by the wrier of the Building Parcel or Building Component on which such Mortgagee holds a Mortgage in performance of such Owner's obligations under the Center Governance Documents or delinquency in the payment of Assessments or charges owed by such 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 resp to monetary defaults; and (b)thirty(30) days after the expiration of any cure period given to the defaulting Owner with respect fo non-monetary defaults- provided however, with respect to any default that a Mor�tgagee cannot under the terns of its loan document without obtaining possesslon of the Ownerss Building Parcel or Building Component, and provided further that the Mortgages has promptly commenced and diligently pursues to completion pro d dings to acquire such Owners interest in its Building Parcel or Building Component sueh Mortgagee's cure period shall be extended by the amount of time reasonably necessary for such Mortgagee to acquire possession up to an additional six (6)months; and ( ) any lapse, cancellatlon or material modification of any insurance policy cur fidelity bond maintained by time Center Association. _56- 04.01.14 T:\WPWM60RWWMNAM grnUCUPEW MD•SANOMLL=Rt Maio Stm"Ciiy04.01.14.dm M The Center Association shall discharge its obligation to notify Mortgagees by sending written notices required herein to such parties at the address given on the current request for notice, In the manner prescribed by Section ir3.10. 13.7. t After such time as Declarant conveys all of Its rights, title and interest in an tote Site and all Building Parcels or Building Components by recorded inslrument(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 duties 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 awfully made by th e Centeriation in aaordance 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. 13.8. 9 a Each Owner tenant or Occupant shall comply with the Kvislons of flits Dec aratlon an to the extent They are not in conflict with this Declaration) Articles and Bylaws, an e 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 or resolutions shall be rounds for an action (1)to recover sums due, (11)for lamages, (iii)for Injunctive relief, (Iv) for costs and attorney's fees, or (v) any combination of the foregoing. 13.10. hLQ= Any notice permitted or required by this Declaration, the Articles or ylaws B may be delivered personally, or by repaid overnight courier, or by mail. If delivery is by mail, it shall be deemed to have been dellvered seventy-two (72) hours after a copy of the same has been deposited in the United States mail first class, cerritfffled or registered, postage prepaid, addressed to the person to be notified at the current address given by sueh 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 Center r Association. Delivery y 0 emight 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 Pybllc Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of re Center to the general public, for the general public or for any public use or purpose whatsoever it belny the intention and understanding of the Owners and the Center Association that this beelarabon shall be strictly limited to and for the purposes herein expressed for the development, 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 as 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 person, for any purpose inimical to the operation of the Center as a first class private development as contemplated by this Declaration. The Center Association, by appropriate rules and regulations shall have the right to re ulate muse of the Center by any person and prohibit such use for any purpose which is inimical to such operation as contemplated by this Declaration. Notwithstanding this provision, the Declarant is providing access rights to the public through the Public Vehicular Access Easements, the Public Pedestrian Access Easements, and the Joint Use Agreement and the City Park Easement Agreement. 13.12. . 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 Association, 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 Center, a certi sate of the Center Association or such Owner stating: (1)that this Declaration 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), (11)to the best of such party's knowledge, whether or not there are then existing any defenses against the -57- 04.01.14 T:IWPWIN600'ROJEMN1AR1 STRE61'CUPERTWO-SANDIRMCCR1 Main 9ftd CiW 04 01.14A= enforcement of any of the obligations of such party under this Declaration (and If so, specifying same), (Ili)to the best of such party's knowledge, whether or not there are glen existing any defau is by the Owner or the Center Association in the performance of Its obligations under this Declaration and ff so, specifying same), (iv)the dates, if any, to which Assessments and other charges under t�ls Declaration have been paid by such party and the amounts of the most recently charged Assessments, and (v) any other information that may reasonably be required by any of such persons. It rs 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. y min . This Declaration shall be governed by, construed under, and enforced In accordance laws of the State of California. All Owners hereunder consent to the Jurisdiction of the courts of the State of California and the United States of America, and agree at venue properly Ices in the Superior Court of Santa Clara County and the United S tes District Court for the Northern District of California, as appropriate. 13.14. j ino tan verai Liability. When the Owner of a Building Parcel or Building Component is compos ofof m one Person, each such Person shall be gointiyy and severally liable for payment of Assessments, and performance of all obligations (including without limitation, indemnification obligations arising under any provision of the Center Governance Documents with respect to such wilding Parcel or Building Component, or the ownership thereof. 13.15. Coo ration. In fulfilling obligations and exercising rights under this Declaration, each Owner shall cooperate with each other and the Center Association to promote the effluent 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 disclosure by court order, each Owner shall share Information with the other Owners relating to matters which are the subject of this Declaration. 13.16. ileasonab�le Consents. All consents and ap�rovals of any of the Owners and of anyy holders of ortg—ages shall not be unreasonably withhe d or delayed. An disapproval of or falrure, of consent to any matter hereunder shall be In writing and shall state in reasonable detail the reason or reasons therefore. 13.17. AMgnevs' Few. If there is any legal action or proceeding (other than arbitration proceedings which shall be governed by Section 13.25)to enforce any provision of this Declaration 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 atbprneys'fees and costs) incurred by such prevailin party In such action or roceeding. In addition, the unsuccessful party shall pay any coals and expenses (includingg, without "mitation, reasonable attorneys' fees and cam) Incurred by the prevailing pa in enforcing or appealingg anyy judgment rendered rn any such legal action or proceeding, which eos� and expenses shall be recoverable separately from and in addition to any other amount included in such iudgment This Se<tion 13.17 is intended to be severable from the other provisions of this ec oration, and shall survive and noY be merged Into any such judgment. 13.16. Covenants and AgMgments Run With All of the easements, covenants rights, aggreements, reservations, restrictions and conditions herein contained touch ana concern the Project Site and the Center, and each portion thereof and all interests 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 Parcel contained therein, and all interests In the Project Site, Including the 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 representatives, 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. _gg_ 04.01.14 TARRWIN6WROJECrENJAJN STREErCUPERTINO.$ANnxILL\CCR%Main Str44I CRY 04M.14A= 13.19. ctl n The provisions of this Declaration shall be interpreted and construed to the emend t>I at the Center and each Building Parcel or Building Component, shall remain a first class mixed use development for the uses permitted under this Declaration. 13.20. os�sslve U This Declaration sometimes refers to a Building Parcel, or Building Com�onent as ing a ullding Parcel or Building Component"oY any errtlty or as an entity's parce. 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 Buliding Component other th an the Interest or relationship specifically contemplated or provided in this Declaration. 13.21. The exhibits attached to this Declaration are incorporated herein by this re e� rence.�egal descriptions of the Center, Property, Building Parcels, Building Portions or other portions or increments thereof as set forth In this 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 Portions shall continue to refer to the Center, Property, Building Parcels, Building Portions or other portions or increments thereof as set forth in thls Declaration as any one or more of them are reconfigured or revised to conform the exhibits to the chamd legal descriptions of the affected Property, Building Parcels, Building Portions or other portions or increments thereof. 13.22. Cap ' s and References. The captions In this Declaration are for convenience and reference ohly, an , except for Arldde 1, Definitions In no way define, Ilmlt, or otherwise affect the scope, meaning or effect of any provision o� 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. Ns,1 V . r P -g2 " . I Nothing contained in this Declaration shall be construed to create a relations ip etween any party subject to this Declaration, Including, but not limited to, the Dedarant, or the mortgagees thereof, as being partners,joint venturers, or as principals and agents, or any other,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. 13.24. Declarant's Reserved Rlg t station of Restdcd on Declare ". Declarant is undertaking the work of conMMon of a Center, including a Common Easement Areas, 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 pproject as rapidly as possible, Declarant shall have the following rights within the Center and includin the Common Easement Areas, Center Roadways, Center Parking Facilities, Buildings, Office Parcels Ofiice Facilities, Retail Components Retail Facilities, Retail Spaces, Utility Faclltties and tnc�dental Improvements upon and within t(ie Center nothing in this Declaration shall be understood or construed to interfere or prevent Declarant from exercising such Declarants Reserved Rights: (A) Declarant and its contractors or subcontractors shall have the right to undertake and complete its construction work within the Common Easement Areas 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, (0) A Building Parcel Developer or its contractors or subcontractors shall have the rights to undertake and complete Its construction work within the Common Easement Areas 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, _g9_ o4.oa.14 TAWPW0V401PRWFJMWAMS7RMCCPe nN0•SANORML%CCR4Ate®Ste dCity04.01.14.dd i (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 pportion 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 combined 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, shall have the(D)hts tDeclarant,t nd my B Cen erPorc l Developer or their representatives g y 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 g is to maintain or display such signs, pennants, banners, and flags within the Center, or any portion thereof as may bpe 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 prope&t 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. Any such subdivision or resubdivision shall be approved by the City and be consistent with the Land Use Approvals. (G) The Declarants Reserved Rights herein provided shall endure and Declarant shall be entitled to exercise such Declarants Reserved Rights as long as Declarant holds title to a majority of the Retail Components, Retail Facilities and Retail Spaces in the Center 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. Declarant shall be entitled to assign Declarants Reserved Rights to a Person, including a Mortgagee, who acquires Declarants interests In the Center, or a portion thereof. Any Mortgagee who acquires an Interest of Declarant in the Center shall be entitled to exercise Declarants Reserved Rights, upon foreclosure or deed in lieu of foreclosure, and assign such Declarants Reserved Rights to a Person who acquires an interest in the Center from such Mortgagee. (H) Subject to the provisions of subparagraph (G) above, the Declarants Reserved Rights herein provided to a Building Parcel Developer shall endure and such Building Parcel Developer shall be entitled to exercise such Declarants Reserved Rights as to a particular Building Parcel as long as such Building Parcel Developer holds title to such Building Parcel. 13.25. MEDIATION A 17RATION OF DISPUTES. IN ANY CASE WHERE THIS DECLARATION PROVIDES FOR DISPUTE TO BE DECIDED BY ARBTTRATION, 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 E GRIEVANCE IN WRITING. WHEN A PARTY RECEIVES SUCH A NOTICE SUCH PARTY SHALL PROMPTLY INVESTIGATE INSPECT MEET, DISCUSS, OR TAKE SUCA OTHER ACTION AS IS REASONABLY AP911OPRIAW UNDER THE CIRCUMSTANCES. APPROPRIATE ACTION SHALL INCLUDE WITHOUT LIMITATION PROMPT COMMUNICATION WITH THE AGGRIEVED PARTY OR PA RS, AND A PROPOSED COURSE OF ACTION TO RESOLVE THE PROBLEM OR DISPUTE. WITHIN A REASONAB IF THE LE PERIOD T(NOT TUNABLE XCEED TEN�(10) BUSINESS DAYS AFTER THE FIRST NOTICE OF CLAIM, CONTROVERSY OR DISPUTE) THE MATTER SHALL BE SUBMITTED TO MEDIATION WITH JUDICIAL ARBITRATION AND REDIATION SERVICES INC. ("JAMS") _6p_ 04.01.14 TAYRYJM6M046MWAIN nREErCUPERTMD•SANDNiA UCCRS Mth SbW City 04.01.14.&. 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"). (C) IF THE PARTIES ARE UNABLE TO RESOLVE 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 ARBITRATION PROVIDED THAT IF THE CLAIM, CONTROVERSY OR DISPUTE INVOLVES A SUM NOT IN EXCM 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 ARBITRATION. SHALL BE SETTLED BY ANY ARBITRATICONTROVERSY N IN THE CITY OF SAN JO , CALIFORNIA. ARBITRATION EXCEPT AS OTHERWISE PROVIDED HEREIN WITH RESPECT TO THE SELECTION AI(E)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 OR ANY SUCCESSOR OR AMENDED STATUTE OR LAW CONTAINING SIMILAR PROAILSION . IF JAMS IS UNABLE OR UNWILLING TO SERVE AS THE ARBITRATION PROVIDE THEN SUCH ARBITRATION SHALL BE UNDERTAKEN BY THE AMERICAN ARBITRA ON((AS))SOCIATION ("AAA") UNDER THE AAA RULES OF COMMERCIAL ARBITRATION. TO HEAR THEFF7ATTER THE INA CCORDANCE AGREE WITH THE RULESEOF®JAMS ONE WITHIN TENNA 10) BUSINESS DAYS AFTER DELIVERY OF THE NOTICE OF INTENTION TO ARBITRATE TO 111E 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 CENTER GOVERNANCE DOCUMENTS, AND THEIR JURISDICTION IS))LIMITED ACCORDINGLY. DAYS AFTER SUBMITTAL OF TTHIE MATTER TO ARBITRATION UNLESS ALL AGREE TO A LONGER TIME PERIOD, AND SHALL ISSUE ITS OPINION VGITHIN THIRTY (30) DAYS AFTER THE HEARING. ((Y)) THE 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. filk THE FOLLOWING MATTERS SHALL NOT BE SUBJECT TO the ARBITRATION REQUIREMENTS OF THIS SECTION 13.25: (1) CONDEMNATION OR EMINENT DOMAIN ISSUES; (2) BODILY INJURY OR WRONGFUL DEATH ISSUES; IMPROVEMENTS; AND(3) LATENT OR PATENT DEFECTS IN ANY PROPERTY -61- 04.01.14 TAWPWIN60TROIEC1SWAIN 57RUrCUPRATINO-SANDMLLICCR'I Male S"at City 04.01.14.dm Lt RECORDATION OF NOTICE OF PENDING ACTION, OR ORDER OF ATTACHMENTS, RECEIVERSHIP INJUNCTION OR OTHER PROVISIONAL REMEDY THAT MAY PROVIDE WTERIM PROTECTION DURING THE PENDENCY OF AN ARBITRATION PROCEEDING; (5) The City shall not be subject to these arbitration provisions. 13.26. 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 without the Rdor 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 Declarants Reserved 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. 13.27. Number: Gender. The singular and plural number and the masculine, feminine and neuter gender shall each include the other where the context requires. 13.28. Statute and Law_R_efereen s. All references m statutory sections In this Declaration are to Ca Ifomla to as and stet ices unless clearly stated otherwise. All references made In the Center Governance Documents to statutes are to those statutes as currend in effect or to subsequently enacted amendments to or replacements of such referenced statutes. in the event that any code section or statute referenced In the Center Governance Documents Is In the future amended or renumbered, the reference to the code section or statute referred to or cited In the Center Governance Documents shall automatically be deemed to mean and refer to the same statute as so amended or re-numbered. IN WITNESS WHEREOF, the undersigned, b�eeing the Declarant herein, has executed this Declaration effective as of r L 201l�. Main Street Cupertino gregator, LLC, a Delaware limited liability comp By: SHP al t C, a Califor a U li bil' company, Its Manager By: P au, i e -62- oa.ol.sa I'.Awewnr6M0JecrEWA1N sTREUMERrRao•SANDHILLTMIS Main Earn City 04,01.14A= State of California ) County of 5AMI f �t�Qy j� y personaflv�aooeare zl 01 bme, wsf—o'prnv to mn�(e'�sl's satisfactory evidence to e e person s ose names) Bs/ subscribed to the within Instrument and acknowledged bo me that}�e/ /t�Ey execul the same do his/ authorized capaclbj(les) and that by his/hef/ r signatures) on the Instrument the rson s), or the entity upon 1 half of which the pe on(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. W1 y and ofitr9al seal. [Seal] •6ommiscion sslon nt q 1914559 k u. Notary Public-California z San Mateo County M Comm.Mires Dec 5.2014 y -63- 891.01.14 T:1WPW146aWR0)ECfS%"STREbr CUPERMO-SANDFIILL�=iihbimSbWCity 04.01.14.4 c I Exhibit A "PROJECT SITE" The real property located In the City of Cupertino, County of Santa Clara, State of California described as follows: Parcels 1, 2, 3, 4 and 5 and Common Area Parcel A as shown on the Final Map of Main Sheet Cuperdno, recorded In the Official Records of Office of the Recorder Santa Clara County California on YkbL XL 201, In Book 0 of Maps at Pages g to 10 as Documeni No. -64- 04.01.14 T.IW P WIN60TROJECTMI AIN STREET CUPERTINO-S ANDIIII.L=Rh Mein Sneet City 04.01.14104.IILI4j.dWx PR03ECT SITE PLAN -65- 04.01.14 MAWPW1N66WRO)ECT MAIN STREEPCUPERTiNO•SANDNILLOMs Mein SbmCiry W.61.14"Io.14].da dll GG�IIGCGI0�IG11 is r � 1 r l / i l f7 L �' i�l ate: �••ni �' .� n� MEN9CLY rii ICI n d .i '•�l�F "i- r E li l�F V11 wil VA ' 4s 9 �Y Nr l dlI A73� a"� �'i0draa ir.l �� 9 pop as V B"' 1 �Q Y III 1 I I i I 11 u m VW i<��� �ABY—I M4.�N ire �� b filly letI i ; ErMh in All aurm g� I � OF9�� i, 9 all it pp 19 ' �®'' � �paplE o�I I o ;! d emxinaaxo- oxi90 SOS I� „ AY xY it I o"_do 50xr1 r i - i a it t of-a-oet I II tWi 5o I MIS 'ON 13WE '1 101 (I { I II 4 I I ( I Pro ect S to [See Section 2.2] -Building arcs Building Area office"" Parcel an arse , ReEll Parcel 130,500 Hotel Parcel , Housing Parcel 5 , BASE ASSESSMENT ALLOCATION (SUMMARY) [See Section 4.3] The table below illustrates the anticipated average share for each product e among common area expense categories. However, each individual line Item expense will gyp be allocated among the beneficiaries of that expense (grease trap service, landscaping, security services, etc.) and the allocation for that line item may differ from the estimated averages set forth below. This table Is included here for illustration purposes only. office"', Retail Hotel Housing Total Utilities 11 0 Contract Services Repair & Maintenance Common Area a a o Insurance mmon Area 1 25% o 111% 110% 1100% Administration The above allocations do not include the Center Parking Garage. That Information is shown on Exhibit"D" The Building Areas of each Building Parcel or Building Component as of the date of recordation of this Declaration are stated on this 'e Re'. 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 Dedarant's Reserved Rights hereunder, Declarant may modify Exhibit B" from time to time as Declarant determines necessary to cause Exblbft " " to be consistent with the appproved design and layout of the Center as approved byte Cih,. Such modifications shall be effechiated by Declarant making and recording a Supplemental aration which has been reviewed and approved by the City. **Offfce Uses are situated In two separate Office parcels. If such Office parcels are under separate distinct ownerships, then, in such event, the allocations allocated to Office Uses shall be allocated 50°x6 to each such Office Parcel. -66- 04.OL14 "WPW1XWROIWMWA7N STRWCUP0RTINa-SANDRU=kY Mein S06KOY04.01.U d= Land Use Approvals. The Project Site is subiect to the approvals and land use regulations from the City of Cupertino listed on this Exhibit"8'(the"Land Use Approvals"): 1) The City of Cupertino General Plan 2000-2020("General Plan") adopted by the City of adopted by the November 15, 2015 (as may be amended from time to time by resolubons M The Heart of the City Specific Plan adopted by the City of Cupertino on January 17,2012(as may be amended from time to time by resolutions adopted by the City). (re)olutions adopted CIttyb the Cupertino Municipal Code (as may be amended from time to time by P Y City). (4) The "Use Permit" which shall mean any use, planned development, site development or similar permits, including Conditions of Appproval therein stated, regarding the use of the Center, or portion thereof, including any 8ulldfng Parcel or 8ullding Component, as have been approved and by the City, Including, but not limited to, City Council Resolution No. 12-098(M). -67- 00.01.14 TAWPWRV601PROJECr MAW STRERr CUPERMO-SANDHU=R'e Mcm St t01YO4.01.14A= Exhibit CenterFarkling Facilities Costs Centers The table below illustrates the anticipated allocation of parking facility costs for each product locatedon the astreet and allocation rrfaa lots.IaThis�table Is eludestructure or illustration purposes allocated for stalls p rposes only. PARKING MANAGEMENT-SPACE ALLOCATION Count spaces By Use...., Office** I Hotel Retail TOTALGARAGESTALLS 1,410 862 180 368 Street 42 42 Surface Lots 319 s0 269 TOTAL 1,771 912 180 679 %OF GARAGE 5rAll5 100% 61% 13% 26% %OF TOTAL STALLS 100% 51% 10% 38% As long as Declarant holds Declarants Reserved Rights hereunder, Declarant may modify Exhibit°D"from time to time as Declarant determines necessary to cause 16xbibit!W 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 Supplemental Declaration which has been reviewed and approved by the City. **Offlce Uses are situated In two separate Office Parcels.If such Office parcels are under separate distinct ownerships, then, In such event, the allocations allocated to Office Uses for use and cost allocations shall be allocated 50%to each such Office Parcel. -68- 04.01.14 TAWPWIN60TROIEMNAiN STRERTCUPERTINO-SANOHILL=R4 Main Sbut City 04.01.14.d= Center Parking Management Plan Conceptual Parking Management Plan Main Street Cupertino The following is a Conceptual Paridn Management Plan for Main Street Cupertino which Is n serve in the development of the Final Parking Management Plan.The Fnal Parking Management Plan shall be subject to review and approval by the Director of Community Development and Director of Public Works prior to Issuance of a certifio of occupancy of any component of the Project. The Final Parking Management Plan shall be operated In a manner consistent with, but not limited to, Conditions 2, 4, 18, 27, and 30 of Resolution 12-098(M) attached hereto and the Parking Management Plan as approved by the City. Furthermore, the Final Parking Management Plan shall include, but not be limited to, addressing the following outstanding items: • The final parking management plan shall include considerations for Retail Owner or Association blocking off portions of the Interior street (i.e., around the town square to Public guidance and identify the appropriate review and approval process through)the Public Works Department; • The final parking management plan shall include provisions regarding review by the Director of Community Development of suggestions made by lice Retail Owner or the Association for adjustments as may be appropriate per future parking studies within the ppaarameters of the EIR and Conditions of Approval; • llte final parking management plan shall provide a separate exhibit indicating two parrkii gg spaces near the Sheriff Substation as`reserved"for the sole use of the Sheriff's • The final arkingg management plan shall develop a detailed plan for loading/unloading vehicles within the Project site. This shall include, but not be limited to, truck deliveries and move In activities for the Loft Apartments. • The final parking management plan shall incorporate the actions prescribed in the pro ject Mitigation Monitoring and Reportingg program as options In the event of a parking problem for the Center, Including, but not limited to valet parking. • The final parking management plan shall clearly identify the type of parking, location, and use restrictions; • The final parking management plan shall include parameters for the making of future changes to the methods of Implementation of the parking management program. The main parkin garage at Main Street Cupertino located on Parcel A shall be operated by the Association to facilitate parking of vehicles for users of the Retail Component, the Office Component and the Hotel Component on the following basis, in a cooperative use and management program. 1. The Basement Levels (Basement Level 1, Basement Level 2 and Basement Level 3) of the garage are to be restricted to parking for the occupants and Invitees of the ownerships of the Office Components, being Parcel 2 and Parcel 3 of Main Street Cupertino. 2. The Ground Floor and Level 1 (Mezzanine) and Level 2 are restricted to parking by the occupants and invitees of Parcel 1,the Retail Parcel [for retail guests, visitors and customers]. 3. Parking on Level 2, Level 3 Level 4, and Level 5 is to be shared use among the occupants and invitees of the owners and tenants of the Retail Component, the Office Component and the Hotel Component (Parcel 4); provided however, that the Hotel Component's shared use shall be restricted and limited to Level 5 of&garage as shown In the table below. -69- 04A1.14 T.IWPWR.bOU'ROIECIS1MAiN STREET'CUPERTRr0-SANVM L=RY Main Sftd City 04.01.14.6m Parldrig Management Plan Main Street Cupertino Floors Count Spaces per Use Per Floor Office Hotel - Retail Level S 200 Level 176 Level 176 Level 2 174 37 Level l 169 169 (Mezzanine) Ground Level 162 162 floor Basement 1 174 174 Basement 2 1791 1791 1 Subtotal 14101 8621 180 368 Street 42 42 Surface Lots 319 So 269 Residential Parking 216 TOTAL 1987 912 180 679 SHARED SPACES BY OFFICE AND RETAIL AVAILABLE PARKING CAN BE SHARED BY OFFICE AND RETAIL, BUT HOTEL CANNOT PARK ON LOWER FLOORS 4. Except for designated Office Parking in the areas In front of the Office Components within Parcel 2 and Parcel 3, that are designated and reserved for parking by the Occupants and Invitees of the Owners of the Office Component surface parking within Main Street Cupertino shall be limited to parking by the Invitees using& Retail Component, Includingg the restaurants located In the Retail Component. In addition, surface parking will be for use by the public for the Town Square and Main Street Park in areas to be established by an exh bit to the final parking plan. There shall be no use of the surface parking areas of Main Street Cupertino by users of the Office Component, Loft Apartment or Hotel Component. Up to fifty (50) surface may be spaces s ated and of reserved as parking Office Parking for parking by Occcuue Office ndd Invitees of the Owners of the Office Component. g p g y S.Time limits on parking: (a) Parking for the parking spaces designated "Retail" shall be limited to three (3)hour parking; (b The Association shall have the right to designate time limited parking in other areas of the Garage In increments. 6.The Association shall establish the following: (a) Designate three (3)spaces for leasing center and new residents moving in. -70- 04.01.14 1'.\WPWW601PROJECMMAMSTREGrC1 1PZ47DW-SANDMLLX tMein Str Chy 04.01.14A= (b) Identify loading areas for the residential uses, retail, restaurant, office, and hotel uses. (c) Create dual use(loading and parking)stalls as needed. (d) Temporarily change circulation and parking through the center and around Town Square. (e) Designate construction, loading, and staging areas during construction and renovation. (f) Temporarily dose sections and areas within the center for maintenance and repair. gg Electric vehicle charging stations with exclusive parking for electric vehicles. fi Designate short term parking stalls (possibly 15, 20 or 30 minute) throughout the Flain Street Cupertino center, including the parking areas located around the Main Street Park and the Town Square. 7. Retail customers and on-site employees shall not be charged for parking.. Parking revenue cannot be collected for dally, monthly or validations. Hotel guests can be charged for parking use through the hotel folio system. 8. Parking Management Program Implementation: In the event of a parking problem, the Association shall undertake the following remedial steps for parking management within Main Street Cupertino: a. Street and Surface Lots are to: I. Promote short term parking. U. Signs shall be posted throughout all surface parking areas clearly identifying time limit. ill. Reserved, special use or dedicated parking stalls are to be clearly designated and marked. Iv. Perform frequent lot checks (record violations). v. Tow repeat offenders. b. Main Garage: I. Install parking access and control equipment as appropriate to monitor ingress and egress to the garage, including as appropriated, in ress and egress lanes, AVI readers (Automatic vehicle Identification and/or parking barrier gates. ii. Accommodabng Employee Parking: parkin gg bbyy employees of Office Components, Hotel Component and the Retail Component shall be regulated by the following types of systems or mechanisms as appropriate and at the disc on of the Association: 1. Provide and distribute accesscontrol readers or devises, such as AVI tags (similar to Fastrak ) to all employees working at the Pro ect. 2. Dedicate and control the lower two basement levels for employee parking by installing additional such as access control devises and parking barter gates in and out of the dedicated employee parking area ("Nested Area") 3. Create and manage a system report used to identify, by company, those employees who did not adhere to parking In the required Nested Areas. 4. Each company will be charged for each occurrence where their employees did not properly perform or violate the required "nested"parking procedure. 5. Employee vehicles that are not properly parked in appropriate areas will be subject to being towed. iii. Accommodating Retail/Short Term Parking 1. Provide for appropriate systems or devices to monitor Parking Garage use by retail customers, guests and visitors when need arises. 2. Designated short term / retail parking will be provided on Level 1 and 2 of the garage. -71- 04.01.14 TAWPWIN60@ROJF MXMAINSTREETCOPERTDNO-SANDNILM.ICMRrMein StreetC".01.1". a. Signs throughout all retail/short term parking areas dearly Identifying time limit. b. Frequent visual Inspections will be performed. iv. Accommodating Hotel Overnight Self-Park Guests 1. Hotel guests will be Issued a parking pass upon checking in. Customers will be directed, by signs,to park on the 50 floor of the garage. a. v. Accommodating Hotel Valet Guests 1. Should the hotel cshpoose to provide valet parking for guests, a 3- staging valet ticket the hotel/frontldrive Iled at or around the valet 2. To issue a valet ticket, the employee will be required to present a proximity identification badge to the valet ticket dispenser. A proximdv reader within the dispenser will verify that the employee s a valet 3. The dispenser will issue a 3 part ticket. The valet will provide the guest with a claim ticket and keep one portion of the ticket with the vehicle keys. The final portion will be placed on the dashboard of the vehicle. 4. The valet will use his/her proximity card to enter and exit the aragqe. 5. chides will be stored on the 5 floor of the garage. 6. A system report will be generated to allow the hotel billing department to add overnight parking to the guest's room folio. c. Retail Valet Parking: The Retail Owner shall be permitted to provide for third party valet parking as a service for customers of retail tenants or retail occupants and other invitees or may allow such retail tenants or occupants to provide for such valet parking for their customers or other Invitees the costs which may be charged to the persons who use such valet parking service for their convenience; provided however that the parking of such valet parked vehicles shall be located in areas that are approved in advance by the City. d. Loft Apartment Parking Garage 1. There will be a separate residential component (216 spaces) for parking by occupants of the Residential Component of Main Street Cupertino (Parcel 5). U. No residential parking to be allowed or provided in the Main Street Garage and surrounding surface lot or street parking areas. ill. Residents or guests of residents parked in the Main Garage will be towed. Enforcement of Parking: The Association or its designated parking manager will install, operate and maintain access control and monitoring equipment as Is reasonably required and needed for managing the use of parking in Main Street Cupertino. The Association and/or its engaged parking manager shall enforce the parking requirements and limitations that are rovided In tlhis Parking Management Plan. The Association shall post signage as required by law for notices as to parking enforcement and towing. p The Association may establish a schedule of fines and/or penalties that can be levied by the Association to enforce the parking requirements of this Parking Management Plan. If a vehicle Is parked in the incorrect location or is parked for a time period greater than permitted for an area, the Association may levy fines or penalties under a schedule of fines and penalties adopted by the Association. Revisions to this Parking Plan may be effectuated by the Association with the prior written consent of the Gty of Cupertino Director of Community Development. Condition(s)4, 18, 27,and 30 of City Resolution 12-098(M) _72_ 04.01.14 I'AWWW WRD1ECrSWAIN SIREETCUPPRITNG-SANDHILLIDMIs MaInSbwtC%FO4.01.14.0w Exhibit Tenantft The Tenanting Plan Is to be added to this Declaration in the future by a Supplemental Declaration that is approved by the City. -73- 04.01.14 T.%WPWIN60WO1P.CPSUdAIN S77URTCUPERITNO•SANDNILUCCRY Main Shell Lary 04.01.i4.dmn Exhibit°G' Private Use Pedestrian Easement Areas _74_ oa®s.s4 7:lWPWJN6G1PRO)BMAMAM S RMCUPERMNO-SANONILL=Ww Mein SCWaly04,01.14Aeea ; ...,. ` 1 - �-� = •� - . �.:i ,:. / /flat,: - PRIVATE PEDESTRIAN .3 ACCESSAREAS SUNUfYV13lC 430SU:ALL! f7•q'tLNVI9 rr� r C jl i %I 'r Sf • ' A PARCELA GMAGE 5j ® PRIVATE PEDESTRIAN SUIJNYSL�I C ROsIVWtL OPHGgAII> LEGEND PRIVATE PEDESTRIAN ACCESS AREA LOT LINE THE PRIVATE PEDESTRIAN ACCESS AREAS 4 PURSUANTDO TETHE PROVISIONS OF THE DECLARATION GRAPHIC SCALE OF COVENANTS AND RESTRICTIONS, INCLUDING 20 a so 80100 SECTION 10.6, THAT PERMIT CREATION OF PATIO OUTDOOR SPACE FOR RESTAURANTS IN THE CENTER IN ACCORDANCE PATH AND SUBJECT TO THE sm PROVISIONS OF THE LAND USE APPROVALS FOR THE 1 inch = 100 ft. CENTER AND AS PERMITTED UNDER CITY REGULATIONS AND THE RULES. I I VALLCO PARKWAY A 11 R� PARCEL 3 • q OFFICE 1 I � ° I ° OFFICE 2 ZZ L ••• ° 00aaa W PARCEL 2 � a MOPS a STEVENS CREEK BOULEVARD 3 0 9 saS S AND I S PRIVATE PEDESTRIAN +y •�: ouwetr: ass ACCESS AREAS 3 B!G°eroMlWdpw�fGObSI11b0�lEIAN®EE000�°sE:aw M6QFD ko adMGM: CUPERTINO CA i 21209) OF 3 'E I.. Exhibit"H"Trash Management Plan Conceptual Trash Management Plan The following is a Conceptual Trash Management Plan for Main Street Cupertino (the "Center") which Is to serve for the purpose of the development of the Final Trash Management Plan. The Final Trash Management Plan shall be subject to review and approval by the Director of Community Development and Director of Public Works prior to issuance of a certificate of occupancy of any component of the Center. The Final Trash Management plan shall be operated In a manner consistent with, but not limited to, the Conditions of Approval of Resolution 12.098(M) pertaining to trash management, and the Final Trash Management Plan as approved by the City. Furthermore, the Final Trash Management Plan shall include, but not be limited to, addressing the following outstanding Items: 1.The Final Trash Management Plan shall address the management of the disposal of all trash associated with the operations for the Center. 2. The Final Trash Management Plan shall address the design and access requirements of Recology and/or the City designated trash service provider. 3.The Final Trash Management Plan shall address trash pickup, circulation, storage, and associated trash, garbage and recycling activities within the Center. Reoology, and/or the City's designated trash service provider, shall be provided access on to the site to conduct trash pickup at the designated locations. Trash pickup/loading activities shall not occur on public streets. 4.The Center.Association shall have the rights to provide necessary access between and among parcels in the Center over and across the private roadways, driveways, parking lots and pathways as necessary to permit access for storage and pickup of trash in the locations to be determined as part of the Final Trash Management Plan. Revisions to this Trash Management Plan may be effectuated by the Association with the prior written consent of the City of Cupertino Director of Community Development. -75- 04.01.14 T.1WPWIN60TROJWMXMAD4 STREETCUPPRMO-SANDWLL=Ris Main ShmdQY04.01.I4.da 1me Polic.0 Street. 890 Emeryville,CA 94608 (800)48 9-7274 Tell Free USA/Canada (415)292-5400 Mlleli0efs (415)292-5410 Fax MmLw s mumgy.amn Main Street Cupertino Project Cupertino, CA Trash Management Plan Problem: Design a waste and recycling system for this mixed office,restaurant,hotel and retail project that minimizes costs,staffing requirements and environmental impacts,Mille providing convenient nosh disposal for the project's residents. Waste and RecycRog: The City of Cupertino has granted an exclusive fienchise for waste and recycling removal for any property located within the city limits to Recology. Recology provides waste,commingled recycling and compost collection. Waste rates were increased November 1,2011.Waste and Recycling charges me regulated by the city far all commercial properties. Two important facts are trash disposal in Cupertino are: W recveting in free. This includes paper products,glass end plastic. Only food waste recycling (-composted')04 done a fee basis. Compacted disposal is less ax wait than image- disco 1,The implicit S per lb.for a roll-off compactor is 39%less diao standard Iron load service. Me" smite Ib,per CY COMPratla Mo I"M SHY, Loose I)4.CY dumpsters,2X per week 100 ib. NIA S504.18 S0,14$ ompacted I)10-CY Self Contained 400 lb. 4:1 5246.64 50.089 ompactor.IX every 47 days Speclfle Development CharecttAstcs: Main Street Cupertino will consist of two large office buildings,a single hotel and a projected 30 food retailers.Both the hotel and the restaurants arc potentially large weale gerwators. Its addition,waste generation"hot points"will be widely spread,thus necessitatipg a high number of bosh enclosures for tenant convenience. Recommendsd Waste Dlsposnl Systems To allow Main Street Cupertino to reduce off-site truck traffic thereby lowering the project's environmental impact and to receive the benefits of more efficient roll offcompactor service. all waste and recycling materials will be disposed by the tenants into strategically located 3-cubic yard waste and mixed recycling trash trailers,towed using an electric utility vehicle to a central bob enclosure,and dumped into either a waste or a mixed recycling roll-off compactor, We recommend$enclosures each approximately 8'x8'.The enclosure behind SHOPS 7 I 20'x 40*to allow lower cost roll-off self contained compactor service. There will be two self-contained compactors,one for waste and the second for recyclables.The self-contained compactors will be fined with Iiftem that can accommodate the trash trailers and/or cans. Tenants will be given the option of bringing their truth to the meth trailer locations or collecting their waste and recyclables in center-provided carts that the lemma will take to the central mash enclosure,where the roll-off compactors are located. Tenants will transport materials using plastic trash carts, Enclosures. The enclosures hold two(2)3-cubic yard tmvable(rush trailers,each 6'long by 3.5'wide(see line dewing on Page 9)• The trailers have retractable tongues and trailer jacks,which can be raised and seemed when the trailers are in the enclosure,leaving sufficient mom for tenants to access the trailers when disposing of wastes and recyclable& Trailers are designed to marry with the integrated lifters on the self- contained compactors;they cannot be replaced by any other towable bin or dumpster unless that equipment Is correctly sized to fit the lifter system. 0 American Trash Management,Inc.2013 v8 Page t of 17 Monday,September 23,2013 1900 PowTn street.Suite ago Ema Emeryr411e.CA 94608 (800)4864274 Toll Free USAComda- (415)292.5400 PI1 (415)292.5410 Pax ZgU Tenant Carts.It is recommended that each tenant has two 60-gallan Amen-kart Polyrims with lids for moving waste and recyciables to the enclosures(see cut sheet an Page 10). PolyKarts am low profit and more manewemble then standard universal trash caps.In addition,their semi-pneumatic rr heets and Pon. marking casters will not damage or scar pedestrian walkways.Empty cans will be stated in the tenant's Rpm, (lee) Trash Enclosure Plana TE-1 and TE-3 through TE-tmsh areas will be modified to fit(2)3 cubic yard trash trailers. • TE-2 will be expanded to a 20x40'enclosure to store the roll-off compacts and trash related equipment. Trask Li&tiaa ETFLASH mravilum a (1�) eastoratesm Eneloom 6e_reaatnea E-I 'art of Shop 7 hSee Path of Travel Plan 2)3V towable trailers low-2 - etween Future Major See Path of Travel Plan 2)Trash compactors t and Sh 6 N low owit 3 emem Shops 5 end 6 hSec Path of Travel Plan 2)3-CY towable trailers low -4 tween Shops 2 and 3 hops 1,2,3; See Path of Travel Plan 2)3-CY towable trailers ad 3 low E-5 onhcast comer of Office 1 liffice 1&2 See Path of Travel Plan 2)3-CY towable trailers I TE-6 outheast comer of Flex 2 71ax I &2 See Path of Travel Plan 2)3-CY toevable trailers low 7 orth aide of Hotel adjaceril iolel See Path of 7tavel Plan 2)-3-CY towable hailers Vallco Per kwa low Note•_Seedr w_inaa an nexLrwe_neaex for reference 1 0 American Trash Management,Inc.2013 v8 Page 2 of 17 Monday,September 23,2013 1900 Foaro11 Street,Suite 890 Fmerycille,CA 94608 (900)488-7274 Tall Frec USA/Canada (413)292-5400 (413)292.5410 Fax mmmuhnnnnill core Proposed Tenants'Paths of Trevcl to Trash Enclosures: (10 g)Where possible,trash enclosures have been located in areas adjacent to various clusters of tenantslbuildinga to allow easy access to waste and recycling disposal. The paths of travel from tenant spaces to trash enclosures are detailed below. C.Isrw4nndhsia,.'n.m tyro bt.tave renenu»v.r�+o—sr ' jj ..\ s r.u�,.Tr—r••,Dat • .. '� r� ...'�� n.sy.nra,a tie a�R�M9oaeceaulnxa 0 American Trash Management.Inc.2013 vg Page 3 of 17 Monday,September 23,2013 .1: 1 � p►•le pp ilk m It Ail' i lie 0 1 1 - s 9 A - ,t .it 1900 Pouell Street.Suite 890 Emery4(Ila CA 94608 At (800)488.7271 Tau Free IISATamdr (415)292.5400 tM1O (415)292-5410 Fax Projected Operational Procedures: The 3-CY trash trailers will be towed on an as-need basis(projected 5x per week for the office and 7x per week for the reta0)by custodial staff to the trash compactors for emptying into the compactors.Towing will be scheduled to take place between 6:30 AM—9:00 AM(10 e)(and should require between 2 to 3 hours to complete(NOTE:this is a common procedure at many large retail operations throughout the Son Francisco Bay Area). Some locations may require towing 2 times per day if they tenants using these locations are high-volume restaurants. The high volume-locations should be towed first thing in the morning around 7 am to empty the previous night trash so the bins are empty for the morning trash disposal. Towing will be done using a ihylor Dunn electric utility vehicle or equivalent. The utility vehicle can be used for other center business when not being used for towing the trash trailers. Towing Route Plan:Trailer towing will begin at the eastern Trash Trios Recycling Units. The towing vehicle will travel west on Stevens Creek Boulevard to perform the next tow at the western Trash Trios Recycling Units. It will then travel north onto the property and tow from Trash Enclosure TE-3. Continuing nosh,the vehicle will turn cost upon encountering Pad 2,and then turn north and travel along the west side of Shops 7. The vehicle will tow from Trash Enclosure TE-I,and then travel northeast between Shops 6&7 and Pads 1&2 until it reaches the entrance to Vallco Parkway: The vehicle will tom right onto Vence, Parkway and travel southeast until it reaches Trash Enclosure TE-7. After this pick up,the vehicle will continue southeast on Vance,Parkway,then turn right and travel south to reenter the property between the Garage and Office 1. It will turn left and travel east until it reaches OtNce 2,and will turn left again to travel north between Offices 1 and 2 in order to tow from Trash Enclosure TE-5. Finally,the vehicle will return to the road that travels east/west along the property,travel east,and stop at tho southeast comer of Flex 2 to low (tom TE-6. The vehicle will continue east a short distance and then turn left and travel south between Shops 2 and 3 to tow from Trash Enclosure TE4. The vehicle will travel north to return to the east1wesi roadway and travel east until it reaches Shop 6. The vehicle will turn left between Shop 6 and the Future Major Tenant structure to access Main Treat Enclosure 7'E-2,at which time all waste and mcyclables will be emptied into their respective compactors, During this the tow process,custodians will empty convenience waste containers on no o"ta ded basis. Splitting the Route. To avoid elongated trash trailers Wmins",the route may be split into hvo or thme'Yrips." Each trip could collect trailers from one or two enclosures,move them to the compactors,tip the trailers and then return them before continuing to the next group of enclosures. It is projected dim most tenants will use the 6 standard enclosures to dispose of waste and recyclables in the trash [milers, A few tenants may elect to use their Akro-karts to move materials directly to the compactors.The carts will he left in the main trash enclosure,where they will be emptied into the compactor by trained staff. The food service tenants who generate waste cooking oil will be required to store this material within their space and arrange for a service vendor to remove this material at their own expense. A communal cooking oil bin could be placed the central location but we recommend against this option unless the tenant only transport used cooking oil in a center-approved method, There is no dedicated service yard for trash equipment. The towing tug will be stored in the main trash enclosure with the compactors. (10d) The Main Trash Enclosure(T62)will be equipped with a standard I IOV electrical service to allow the vehicle to be charged overnight. Although a single charge should be sufficient for one week of normal usage,staff will be encouraged to recharge the vehicle every night. O American Trash Management.Inc,2013 v8 Page 5 of 17 Monday,September 23,2013 i 1 Powell A94 08 890 Emeryville.CA 94608 (8oi))488.7274 Toll Free USAVCanada (415)292.5400 41 (415)2925410 Fax Practical Considerations In the Design of Main Strcct Cupertino's Trash System; (10 b)Because trash systems,by definition,require disposal,material handling and transportation,there is no single"end user."Rather (here are three end users:l)tenants(who generate and then dispose of materials);2)property operators(who handle and stage materials)and 3)waste haulers(who access the site and transport the materials away). Any evaluation of system"practicality"must address the practical needs of all three end-users. Tenant Qmzidg= Generating wastes and reeyetabies is a necessary result of commercial processes. For wash generators,the primary p 'r l ssue is disposing of materials.Main Street Cupertino was allowed a limited in the number of trash enclosures.By siting these near different clusters of shops,all tenants face only a very short walk to their particular enclosure(see Paths of Travel above). Property Operators eta and eagK ctrl anatln * Having the waste hooter frequently(daily)empty dumpstere in individual enclosures,creates traffic,noise,wear-and-tear,air pollution,greenhouse gases, safety concems,quality of life issues and customer problems(not to mention it is very expensive). All these problems are mitigated by establishing a central disposal location where materials can be compacted,which is part of the Mein Street basic system.However,that does create one major practical problem for the property operator:trampotting materials and loading the compactor safety and easily. Main Street Cupertino's trash system addresses these practical issues two trays.First,all materials are collected in trash trailers.Rather then dumpsters with casters,these containers are actual trailers with pneumatic tires for any lowing,maximum maneuverability and low maintenance. Second,the compactor has a integrated litter to make loading materials Into the machines safe and fast. Hauler 80(e and elmniv access: By aggregating all wastes and recyclables Into individual compactors, access problems associated with multiple locations is minimized. This is the most practical,convenient method of collecting materiels because the amount of time of the property is greedy reduced,thus mitigating road hazard issues,traffic tie-ups and the various safety issues than frequent mash service may entstl. Operational Logistical Issues: (10 b)Specific operational logistical issues are detailed below: StaDUrg%cbedullng: Towing and damping of trash trailers and operation of the compactor will be the responsibility of onsiu maintenance staff. It is projected that two(2)staff members will be sufficient to handle all towing and compactor operations.Towing and compactor operation is scheduled for 6:30 AM— 9:00AM daily. StaflingffYalydng:Staff w711 be provided full compactor and towing tug training(see attached Sample Training Sheet).Only trained staff will be authorized to drive the towing vehicle. Signage:Compactors and the towing tugs will be provided with all appropriate signed required by the manufacturer to ensure complimrce with ail safety and OSHA rules. (See attached Sample Sipage.) Trash trailers will labeled RUBBISH and RECYCLING in both English and Spanish. Maintecu nee/Emargency Servicef®ackup Procedures. Property management will be encouraged to establish routine annual Preventive Maintenance visits for both compactors. if necessary,emergency repair service can be provided within 24 hours of a problem being refmned. Almost all compactor repair problems arc solved within a single visit. The primary exception are cylinder problems,which require ordering a replacement cylinndar,However,the compactors recommended here are dual cylinder units.In event of a cylinder problem,the machine can operate in the short nor on a single cylinder. Finally,if a compactor is Incapacitated for longer than one day,on an emergency basis,all materials can be put through the second machine. The hauler will be notified when this is the case. 0 American Trash Management,Inc.2013 vg Page 6 of 17 Monday,September 23,2013 1900 me Pmve.l Suite 890 Emeryville.CA A 94 94 606 (800)48 8-7274 Toll Fres USArCauds (415)292.5400 ABn (415)292-5410 Fax feeneeat Addressing Odor Issues:An All-natural Solution Self-contained truth compactors ate designed to fully containerized wastes in order to mltigme odors. In addition. the projected pickup frequency should result in minimum waste-related odors.However,in the event odors are Present.a Pi)an Mini-Vaporizer+Piian Odor Neutralizer provides the most effective,safe.environmentally-friendly entirely natural solution to odor issues. Its specifications are below.A cut sheet is provided on Page 17. 1.1 GENERAL DESCRIPTION OF ODOR CONTROL SYSTEM A. System to operate with minimum dripping and not to came wetting or other moisture related problems. B. System to produce a uniform"VAPOR"of S Micron(mean)sized fluid droplets. C. System to be industrial quality construction suitable for constant operation. D. System to dispense Piian all natural odor neutralizer solution only. E. Odor neutralizer solution to have independent laboratory test date which confirms odor reduction,safety and toxicity properties. F. Odor neutralizer solution to be non-hazardous,non-flammable,non-toxic.non corrosive and water soluble. 1.2 PHAN MINI VAPORIZER SPRAY UNIT A. Utnumnic vaporizing nozzle and tube B. 115 VAC I PH 60 Hz 15 HP air compressor motor. C.- One year between scheduled refills. D. NEMA 4X electrical enclosure with clear Lexan lockout cover. E. Custom designed electronic circuit control band with easy to use programming and operation buttons. F. Automatic shut down upon ftcezing conditions. G. Digital display tinter htdepeadenl set buttons for time off sal time on. IL Low tank sigh and tank empty alarm 1. 304L stainless steel chassis and cabinet construction with wall mount flanges. J. 5 gallon container capacity lower cabinet. K Lockable cabinet door, 1.3 PHAN ODOR NEUTRALIZER A. All natural components and formulation. B. Completely derived from essential oils and plant extracts. C. All contents GRAS by FDA(generally recognized as safe). D. Product is to destroy common odorous gases and compounds by absorbing and biodegrading action. E. Product to have no added fmgratee or masking properties. F. Provide independent laboratory test data conforming destructive properties relating to common odorous gases and compounds. 0. independent laboratory test data confirmation of safety and toxicity properties. H. Product to be non-hazardous,na-toxic,non-flammable and non-volatile. 1. Product to be water soluble. J. Must not require special handling •V American Trash Moagemem,Inc.2013 vg Page 7 of 17 Monday,September 23,2013 1900 Poxell 9, Suite 890 _ Fmeyvlue,ca A 9460e (800)488.7274 Toll Free USAManada (413)292-5400 AasaOP164B1 (415)292-5410 In d iafaf2las 4 naItaea m CURRENT MAIN TRASH ENCLOSURE PLAN B,e,BgwwNb.BawmaBBU Bwq.•BS>.iw nam.v i..Baib i10..,OtIRa+ v..,F.. GNbm.Y.wgsB.xa.bYm4+b+q+wa.w.Bgiu w.arbr OMLlmabm0tllPmi�PWa®wYCYeb M((tltlbbvMYmeM'r PdbuvOY b'pY WYinbP MO.Ydugga6MY Wtlf+b+W bMBgb N'we�,nelbMNSgbbY6MBY iasYm}te,anMgBaBp MbYYa pbehmaVm YV Yda,vgn¢MOS}NNMId baW WlM b➢bP16tliNt YoTli ins B a<Cuo-s+ P.roB(Bb sBr � •H1 i•Iip i cq l.Y _ b 0m.m t' u^.:s 0 American Tzas6 Management,Inc.2013 v8 Page 8 of 17 Monday,September 23.2013 1900 ilte. A94 9 890 Eeoeryville,CA 94608 (800)48&7274 Toll Free USAICana" (415)292-5400 7 (415)292.5410 Fax 3 CY TOWABLE TRAILER WITH RECL%VjLWjJ= MAIERIALHANDI MO CARTSA TOWING VFHILI IF e 7 e _ ar w ( {6" r `V 0 American Trash Management,Inc.2013 va Page 9 of 17 Monday,September 23,2013 1900 Powell$heel.Soils 890 , Emcrytilk.CA 99606 (8001468.7274 Toll Free USAICanede (415)292.5400 /1NllBlrl@M (41$)292-5410 Fax ib� .naw�.hma,wn.nem info Qam!hma enaemm IndusuW Nlatefal Handling Cub Medium and Heavy Duty PadyKatts OnT i w:iilaw'sodie --•. e_._ M •nn ®mm Alm m a UMMO n re MEBLUgIL s a t �) mammraamxasca �a�rurmaxa m,ammoenn+mee mhnw 0 American Trash Management,Inc.2013 vB Page 10 of 17 Monday,September 23,2013 1900 pmte A 890 E meryville..CA 94 608 09 94 (800)489.7274 Toll Free IISA/Cxnade (415)292-5400 TftWh (41S)292-5410 Fax A�nAgarssatlf TOWARLETR_AILER OI4 COMPA TOR FO ec RRA V FOR 11F1' a 6 Y f i 'r i'/•f f I CSJJ :a► L D American Trash Management,Inc.2013 v8 Page I I of 17 Monday,September 23,2013 1 Pell A94 Suite 890 Fmme egnillille,CA 94608 AL (800)488.7274 Toll Free USA/Camda (435)292.5400 Af88M{mAp (415)292-5410 Fax 7IMS11 i Ann1331s of Compacted versus Loose: (Rates reflect the rote increase effective January 1,2012) Below is comparative analysis of the disposal costs for loose vs.compacted service.Please note that the projections below are estimates derived from actual audits of comparable office projects and industry standard metrics for retail waste generntion.They are not guaranteed. They are to be used for planning purposes only and may be higher or lower than projected. - %VASTEAND RECYCLING SYSTEM ANALYSIS RETAIL Projectedtons/square foot/year forresteuranis" 0.010810m; Restaurant square footage(40% of Center SF' 5S,304square feet Pmjectedmaterials—restaurants 597tons %recycled-restaurants 50.0%recycling rate Its.per loose cubic yard I001b.per CY Loose cubic yards per week, restaurants WASTE 115loose CY per week,waste Loose cubic yards per week restaurants RECYCLING 115lowe CY per week,recycling Cubic yards per enclosure/ WASTE 19loose CY per week enclosure Cubic yards per anclasurd RECYCLING 1910090 CY per weak enclosure Compacted lb.per cubic yard 4001b.per CY Compacted cubic yards per enclrourdWASTE 5compacted cubic yards,waste Compacted cubic yards per enclosure/RECYCLING 5 compacted cubic yards,recycle •Source:CalReycle(Star=of California) WASTE AND RECYCLING OFFICE SYSTEM ANALYSIS BUILDINGS Projected tons/square foot/year for office complexes"O.00050D tone Office Square Footage259,796 square feet Projected materials—offccl30 tons %recycled —otfices60.0% recycling rate Its.per loose cubic yard100 lb.per CY Loose cubic yards per week, office buildings WASTE 20loos:CY per week,waste Loose cubic yards per week, office buildings RECYCLING 301oose CY per week,recycling Compacted lb.per cubic yard 3501b.per CY Compacted cubic yards per enclosureJWASTB 6compacted cubic yards,,waste Compacted cubic yards per enclOSareJRECYCLING 9 compacted cubic yards,recycle ®American Trash Management,Inc.2013 v8 Page 12 of 17 Monday,September 23,2013 1900 Powell Suite 990 Emeryville.CA A 94 94 606 (800)488.7274 Toll Free USA/Canada (415)292.5400 taerioaar (413)293-3410 Fm .*Same:American Trash Management.Inc.Historical Data SERVICE PROJECTIONS PROJECTED PROJECTED SERVICE ALL LOOSE COMPACTED-Waste BIN TYPE BINS COMPACTED-Recycling Lease Waste Volume-TOTAL 135 N/A Compacted Waste Volume N/A 34.4 Loose Recycling Volume 145 N/A Compacted Recycling Volume N/A 42.8 Time required to manage the loose dumpstem/enclosure (minutes) 10 Daily time required to manage all the dumpsters(hours) 1 Trash Trailer Loose waste service/ enclosure(Retail) (2)3-CY N/A Trash Trailer Trips(RcWl)/day II Trash Trailer Loose waste service/ enclosure(Office) (2)3-CY MIA Trash Trailer Trips(Ofriceyday 3 5 days/week Time required to taw/tip an individual trailer(minutes) 20 Daily time requirement for lowittopping trailers(hows) 5 S/hour labor costs S17.50 Monthly labor costs/LOOSE DUMPSTERS S530.43 Monthly LaborCo&WTOWING N/A 52,162,61 SAVLNGSANALYSIS Per month loose waste costs/ enclosure(Restawltat/Retell) 51,260.42 N/A Per month loose waste cossitosl (Restaumnl/Releil) 57,562.52 N/A Per month lacer wage eosl/tutal (Office) S1,260.42 N/A Per mouth recycling costsAotal (Restmm®t/Reteil/OtFce) 50.00 S0.00 Per month loose dumpsler costly Labor 5530.43 TOTAL per month loose dumpster toss(disposal&labor) 59353.37 Per month compacted waste coaW total(AGGREGATED) NA $4,624,44 Per month compacted labor costs (towing) N/A S2,162.61 TOTAL per month compactor costs(disposal&labor) S6,787.05 Monthly savings with compaction: S2,56631 Pa54mck on compactor Investment(months): 51 's'•American Trash Management,Inc,2013 v8 Page 13 of 17 Monday,September 23,2013 1900pille. A94 suite 890 Fmcryvillc.CA 94608 AL (600)488.7274 Toll Free USAICanada (415)292.5400 Amft (415)292.5410 Fax lNSeatspettneref " RATES•City: City of Cupertino Franchisee: Recology Loosc Front Load Monthly Rates: Waste Waste Waste Frequency: 3 Cubic Yards 4 Cubic Yards 6 Cubic Yards 3 x Week 5604.97 5756.23 51,058.73 4x Week $806.67 $1,008,32 SI,411.64 5 x Week SI,008.32 $1,260.42 51,76456 Compacted cubic yard charge:S35A RECOMMENDED SYSTEM EQUIPMENT Budget:$132,132 (1)—20CY•Waste Compactor with Lifter and(I).34CY Recycling Compactor with Lifter (12)•3CY Trash Trailers(waste&recycling) (Y to be determined)-60 gallon Akro Carts. These arc NOT Included in the above budget number. -NOW Sire orumte Computer 6n bem limited to avidnxigbi irwua due to ftamiripotW large oowmar of"t%axe Rout food operemiom. ®American Trash Management,Inc.2013 v8 Page 14 of 17 Monday,September 23,2013 1900 Mlle. A 94 $11(10191 Einelg�dile,CA 94608 (100)488.7274 Toll Free USA!Canedn (415)292-5400 'IY11tt81 (415)292.5410 Fax - HMO NN— SAMPLE MRSIGNAGF 16NA WAMMO B SWEIY DECALS oaaonnaoaoa nnaomlo®c 1 { yws Outdoor Use Ow4b„ t aauo 1 r,le 0 American Trash Management,Inc.2013 v8 Page 15 of 17 Monday,September 23,2013 Ppxe 9 6 Sane 890 Emeryville.CA A 94606 AL (800)488.7274 Toll Free USA/Canada (415)292-5400 AfnUr1®sfl (415)292-5410 Fox infn/dnveAmvemv�5,a+m SAMPLE CMdPA TOR TRAINING SHEET AvxaitmTnto Sinopp IATUO ,%OMxL1W..raEAOEOr I1�lxO07EM9aTn5 sw c a4TAtt'80 a0I1.Ol f C OMAC M OriAAuma alreiTMM"COLtASISS yonarna camN E iepv:==ipogWresaL cta, Lwa*n_ Trdndbf irddgdM- LnlIde99ma4q O ! rg.9u�.00eLba 0 hpbet E¢a'�q[Ybe .hrLtlaar+e LO:i+aalaufx's6K6abW M.w r a-�^+,-LgraadaeaPniwceie oatelLrmra4arrcv'deS[a d-�[a peael owe i nsaa9 4lq'ntr e® adantalxaceGOu Ib[leYaspaYNlodin3LOW3Wn nRCW [ + _,%!m(pad WkhOpblS tlPCtmwkrab .Aiff.,yrgaLULea[aorrcrrm[nmia 4vx m3a0uQn AMUngaN.SdrOnrndaan Cte�bm.d�+ {WVr ! EdNYCAeabMV[aat�tv`[dem.'Lu ��rn¢�rbrvaae ao'e endinuTNlWbbObE f C®gantoraatiw [:COtffitf¢W1[Oa�E[I il�AifE70YSOi08L®nA Imld:Wp Yawnal'L`TRpWwanb.v COa'eodmt �lOCnal BE 49B.A9FDnm403) .aaaLac�favaaunn�'+avmvaaai�m . nlmalrurwrm id�dmr .tP.adnsa snwxn.} q a.oftWO r.mu .aadu.osdroa+an .tlaedE�peactmle�lbmbkgaa'aA .taE9 ClOtxnTY atlo®rsftm I-:rawCe .�ne[kvGaPdM'bn •RtloaMM tbwnatydamaatlL6}faarmaextaQmL � OL$redev: .She9nMeEaldtaerdaorLam.lEHn[[d4r .5wr®bab1higie Of10aiAR REtAIM`xL EA1E1fOCIBE'CnNS .xamga.dhdadpB ...EE\'EanZFiLnCBArl6iCaA101FE _ .v.LeaxTlnaBTOMlrsF[rHAtsPQlralrt Ufl[I601 fOnrOxA6rWvnaAlli iOrt.iAFEIlT�arEBr!!b f[R'nlulN[GEtYRiIOtC LbSeE�tBJ1dA �="E tiA%DALfFE9niA%tEA4ASIEWIffit�A:fd 3YL4roD VdiI4Y,OE n:s<'YET 78r eA[Ift I n.wn e.Mr.�r ,• ru• [u�YwSiMap�ly wIL2,1 0 American Trash Management.Inc.2013 vS Page 16 of 17 Monday,September 23,2013